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Law Notes Litigation 2 - Evidence Law Notes

Relevance Checklist Notes

Updated Relevance Checklist 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:

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)

  3. Is it credibility evidence? S 101A, s 55, Adam’s Case; Goldilands; Papakosmas (note that it will be a collateral issue)

  4. Is it res gestae evidence? Papakosmas

  5. Is it circumstantial evidence?

  6. Is it relationship and background evidence?

  7. 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 – 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)...

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