#8539 - Relevance Checklist - Litigation 2

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)
Is it credibility evidence? S 101A, s 55, Adam’s Case; Goldilands; Papakosmas (note that it will be a collateral issue)
Is it res gestae evidence? Papakosmas
Is it circumstantial evidence?
Is it relationship and background evidence?
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 – how to admit documents – under s 45

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)). Issue is whether the evidence (X) is relevant. 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
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’: 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. What is the 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 A fact in issue: 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.
5. Think about how to apply this to the facts.	Could it impact any of the facts in issue? Could it be relevant 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 J) Consider – could it be relevant to a fact in issue or a collateral fact? Goldsmith v Sandilands

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 because he said that the police witness’ evidence was 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)
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) Does that make it relevant? 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 in Papakosmas the complainant’s statement immediately after the alleged rape was relevant for a credibility purpose (3) Consider credibility rules: Definition of credibility evidence in s 101A: CE, in relation to a witness or other person, is evidence relevant to the credibility of the witness or person that: (a) is relevant only because it affects the assessment of the credibility of the witness or person, or (b) is relevant: (i) because it affects the assessment of the credibility of the witness or person, and (ii) for some other purpose for which it is not admissible, or cannot be used, because of a provision of Parts 3.2 to 3.6.
9. Res gestae evidence? Papakosmas	The res gestae doctrine: makes admissible evidence that is part of the ‘res gestae’ or transaction – and thus it makes evidence of a statement/act closely contemporaneous with the subject event (ie the rape, murder or car accident) admissible as the contemporaneity is said to enhance the reliability of the statement/act: Papakosmas; Ratten Only aspect of res gestae that guides s 55 is the acceptance that occurrences close in time to an incident are more likely to have a bearing on it than ones that are distant in time. Example: The complainants statements closely contemporaneous with the events alleged b the complainant were of a kind that might ordinarily be expected if those events occurred – and so they rationally bore on the probability of the occurrence of those events and thus were admissible as evidence of the facts asserted in them: Papakosmas
10. Collateral issue evidence? 15.34	Goldsmith : Facts: Goldsmith and Sandilands, both POs, pursuit, Goldsmoith injured back by negligent driving of sandiland. In action for damages Resp raised possibility of pre-existing injury claiming that a few days befre carp usuit Goldsmith had injured his bck playing indoor credit. Alleged that Sandilands had collected him from arena and said “I’ve stuffed my back… playing cricket”. Goldsmith denied that he had sustained a cricket injury. Goldsmith mistakenly agreed in cross-examination that the cricket arena address was x when it was y. Counsel for Goldsmith sought leave to reopen case to recall Goldsmith with a view to proving location of arena and to showing differences between the different streets. Reasoning: “The name and description of the street in which indoor cricket arena was located was a collateral fact. IT was a circumstantial detail relating to evidence of the alleged admission. If there had been a dispute about whether the appellant had ever played indoor cricket, then details about location of arena if seriously in contest might have had some real bearing on credit of first respondent but still would have ben collateral.
11. Circumstantial evidence? 15.35; 15.38-15.40; 20.31-20.35;20.37-20.42; 20.48-49	Circumstantial evidence: Circumstantial evidence is evidence which if accepted tends to prove a fact from which the existence of a fact in issue may be inferred: Festa v R ; Evidence of facts subsidiary to or connected with the main fact to be established: Festa Examples of circumstantial evidence: Evidence of a witness that she saw the accused run from a bank after other evidence proved it had just been robbed: Festa. Note: Circumstantial evidence gains its relevance from its co-existence with other (sometimes circumstantial...

#8539 - Relevance Checklist - Litigation 2 - Evidence Law

About Oxbridge

More Litigation 2 Evidence Law Samples