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Law Notes Litigation 2 - Evidence Law Notes

Relevance Notes

Updated Relevance Notes

Litigation 2 - Evidence Law Notes

Litigation 2 - Evidence Law

Approximately 259 pages

These are comprehensive yet succinct notes. They set out the relevant legal principles, and material facts from a range of cases in order to demonstrate how those legal principles have been applied.

At the beginning of each document on each topic, there is a table of contents (hyperlinked so you can navigate easily through the document), and also an 'exam checklist', which you can use during revisions or exams to remind yourself of the key issues you have to address. I also use tables where p...

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The following is a more accessible plain text extract of the PDF sample above, taken from our Litigation 2 - Evidence Law Notes. Due to the challenges of extracting text from PDFs, it will have odd formatting:

Lit 2 2 Relevance

Lit 2 2 Relevance 1

Prelim considerations – how is it relevant? Ss 55, 56 papakosmas 2

Categories of evidence 3

6. ID evidence – irrelevant if IDer didn’t have any other info than jury 3

7. Motive? Neal; Conway 4

8. Credibility? See credibility notes; Papakosmas; Goldsmith v Sandilands 5

9. Res gestae evidence? Papakosmas (confusing application) 6

10. Circumstantial evidence? Festa; 7

11. Context / Relationship / background evidence? R v AN; Conway; Clark 7

12. Similar to any studied cases? 11

Consider procedural aspects if it is a document: s 57, 58? 13

Case briefs 13

Smith 13

Evans 14

Relevance checklist

  1. State issue and test – whether it could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.

  2. Note how s 55 has been interpreted.

  3. What is the evidence?

  4. What are the facts in issue?

  5. Suggest how the evidence could affect the facts in issue: eg, for a hearsay purpose, credibility purpose?

Think about categories of cases:

  1. Is it evidence that goes to identifying the accused? Smith; Evans

  2. Does it go to increasing the likelihood that the accused had motive? Neal (increased motive for seeking sexual gratification outside of marriage); Conway

  3. Is it credibility evidence? S 101A, s 55, Adam’s Case

  4. Is it res gestae evidence? Papakosmas

  5. Is it evidence about a collateral issue? Goldsmith v Sandilands

  6. Is it circumstantial evidence? Goldsmith

  7. Is it context / relationship / background evidence? Conway

  8. Is it similar to evidence in all the studied cases?

Ways to sneak it in:

  1. Could it be provisionally relevant under s 57 EA?

  2. Documents and relevance: s 58 EA

Then go on to consider all the other exclusions

Prelim considerations – how is it relevant? Ss 55, 56 papakosmas

1. State test.

Rule: Under s 56(1) EA evidence that is relevant is admissible (and evidence that is irrrelevant in proceeding is inadmissible: s 56(2)).

  • Test of ‘relevance’. X will be relevant if accepted it could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding: s 55(1) EA

What is not irrelevant evidence: In particular, evidence is not taken to be irrelevant only because it relates only to:

  • the credibility of a witness: s 55(2)(a)

  • the admissibility of other evidence: s 55(2)(b) or

  • a failure to adduce evidence: s 55(2)(c)
2. Consider how law has been applied.

  • “Could rationally effect”: ‘Could’ means ‘it is possible that the evidence may’. Wide ambit for the section: Nye.

  • ‘If accepted’ – means disregard reliability: The court assesses the relevance of the evidence on assumption that evidence is reliable: Graham; Papakosmas

    • Relevance is unconcerned with reliability: Papakosmas

    • Considerations of reliability or probative force (or legal relevance as it was called at common law) are regulated under other sections such as s 135 and 137.
3. evidence?
4. Facts in issue?

‘Facts in issue’: Whether something is a fact in issue depends upon pleadings and particulars of each party’s case.

  • Facts in issue reflect material facts that constitute the claimant’s cause of action – which may be defined as the set of facts to which the law attaches the legal consequences that the claimant asserts. The facts in issue also include those material facts that provide any justification or excuse for, or a defence to, the cause of action: Goldsmith

  • In criminal matters – elements of crime, any defence, eg whether the accused was the offender (eg in Evans)

In HML v R Heydon J stated that –

  • “Facts in issue” are two kinds – (1) primary fact in issue (those that the prosecution are obliged to prove if guilt is to be established or which D must prove in relying on a positive defence). (2) Subordinate or collateral facts in issue are those which affect the credibility of a witness or the admissibility of particular items of evidence.

Relevance of a fact to a fact in issue?

  • Sometimes relevance is expressed in terms of its relationship not to a fact in issue, but to a fact relevant to a fact in issue. A fact relevant to a fact in issue – ‘a fact is relevant to another fact when it is so related to that fact that according to the ordinary course of events, either by itself or in connection with other facts it proves or makes probable the past, present or future existence or non-existence of the other fact,: Goldsmith (McHugh)
5. Think about how to apply this to the facts.

  • Could it be relevant to any facts in issue? Relevant to any facts relevant to facts in issue? Goldsmith (McHugh J)

Consider – could it be relevant to a fact in issue or a collateral fact? Goldsmith v Sandilands

Examples from Boniface book:

  • Is the fact that a person has a book ‘100 things about cocaine’ that they admit they had ‘flipped through’ relevant to whether or not they knew that a parcel delivered to their house not addressed to them was filled with cocaine? Yes – because a person interested in cocaine was more likely to mean that he knew the parcel contained cocaine: Jeppe

  • Where accused says that someone else, B, knew that the Victim had been killed before the body had been found, is that relevant? No Blastlands – because it could be either that B saw the accused murder the victim, or another person, or he could have been told by someone or B could have murdered the victim. Without knowledge of how he acquire the information it is speculative how he came to that conclusion and provides no rational basis for jury to draw inference as to source of knowledge.

  • Condition of driver in another car logically relevant although tenuous to issue of whether the other driver was negligent: Stpehenson

Categories of evidence

6. ID evidence – irrelevant if IDer didn’t have any other info than jury

6. Is it evidence that goes to identifying the accused? Smith; Evans

What is irrelevant

  • The assertion of police witnesses that they recognized the accused in photographs, when the...

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