#8533 - Relevance - Litigation 2

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

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.
Note how s 55 has been interpreted.
What is the evidence?
What are the facts in issue?
Suggest how the evidence could affect the facts in issue: eg, for a hearsay purpose, credibility purpose?

Think about categories of cases:

Is it evidence that goes to identifying the accused? Smith; Evans
Does it go to increasing the likelihood that the accused had motive? Neal (increased motive for seeking sexual gratification outside of marriage); Conway
Is it credibility evidence? S 101A, s 55, Adam’s Case
Is it res gestae evidence? Papakosmas
Is it evidence about a collateral issue? Goldsmith v Sandilands
Is it circumstantial evidence? Goldsmith
Is it context / relationship / background evidence? Conway
Is it similar to evidence in all the studied cases?

Ways to sneak it in:

Could it be provisionally relevant under s 57 EA?
Documents and relevance: s 58 EA

Then go on to consider all the other exclusions

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

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 witness’ assertion of identity was no different from material availablet o jury from its own observations, the assertion was irrelevant: Smith. (Fact that someone else reaches the conclusion provides no logical basis for affecting jury’s decision when conclusion was based with no different material than what the jury has. Just because someone else has drawn the conclusion doesn’t affect the process of reasoning that has to be undertaken).
- (Kirby J dissented: the PW’s evidence relevant because they had advantages over jurors who had only seen Smith sitting immobile in courtroom.)
Evidence of what the accused looked like in overalls and a balaclava found at his house that looked like what was worn by the offender in photographs: Evans. Looking at the appellant wearing the balaclava and overalls (with or without sunglasses) enabled a comparison between no more than the items he put on and what was depicted in the security photographs. But that comparison could be drawn without the appellant being asked to put them on.

What could be relevant:

Police evidence may be relevant if police witnesses had knowledge beyond what jury could see for itself:
- If police had further knowledge of an identifying feature such as the accused’s clothing (Goodall) or
- a feature that would not be apparent to the jury observing the accused during the trial, such as a change of appearance between the incident and trial (Palmer )
- or a manner of walking that may not be apparent to the jury in court

Requiring the accused to walk in front of jury and speak words could bear upon jury’s decision whether he was the man witnesses/evidence described: Evans

7. Does it increase the likelihood that the accused had the motive to do the offence?

Evidence that D was in an unhappy or sexless marriage, relevant to whether D had engaged in sexual misconduct with 7 year old girl: Neal (although excluded under s 137). Held that a sexless marriage would be relevant to issue of whether party entered into sexual relationship outside of marriage, and although sexual acts with young child very different, men who do suffer an unhappy marriage will have more reason to commit sexual acts against young children than men in happy relationships.

(Direction Note that here the trial judge gave direction such that nothing else could have been usefully added: said that “plenty of men who find themselves in a situation of unhappy and sexless marriage do not molest children”, “you musn’t) jump to a conclusion”. )

8. Credibility evidence? Papakosmas, S 101A, Adam’s case

(1) Does the evidence go to the credibility of a party?

In certain circumstances no sensible divide can be drawn between evidence relevant to credibility and evidence relevant to a fact in issue: Goldsmith v Sandilands

(2) Credibility evidence can be indirectly relevant to the facts in issue: s 55(2)(a)

Note that evidence is not taken to be irrelevant only because it relates only to the credibility of a witness: s 55(2)(a)

Examples of evidence relevant for a credibility purpose:

Eg evidence that witness had previously lied on oath: Peacock
Eg in Papakosmas the complainant’s statement immediately after the alleged rape was relevant for a credibility purpose – and also hearsay purpose
In Biddle –victim admitted to burglary of the accused’s house and claimed he had committed it in the company of Biddle. Accused claimed that Biddle’s failure to be called to testify was a miscarriage of justce....

#8533 - Relevance - Litigation 2 - Evidence Law

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