Relevance

The first threshold to admissibility of evidence is whether evidence is relevant. If evidence is irrelevant, then the evidence is inadmissible.

Evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding (s55 EA)

X should note that the evidence can be relevant for more than one purpose. If it can rationally affect the fact in issue in more than one way, each way has to be subsequently subject to the threshold of admissibility.

Example: A said “I hate you”.

This is relevant to prove they can speak and to prove the person was in a particular place.

This is also relevant to prove they said the words “I hate you”.

The statement therefore has two potential uses. The first use is to prove they were there and the second is to prove they said a particular order of words.

[Choose from the following]:

• The evidence that [insert evidence] is likely to pass the relevance threshold because it would rationally affect the assessment of the probability of the existence of [fact in issue].

  • [If you want to exclude it anyway]: However, under section 135 of the Evidence Act, the evidence can still be excluded if X can argue that the evidence’s probative value is substantially outweighed by the danger that the evidence might [Choose one of the following]:

    • Be unfairly prejudicial to [party]

    • Be misleading or confusing.

    • Cause or result in undue waste of time

• The evidence that [insert evidence] is unlikely to pass the relevance threshold because it would not rationally affect the assessment of the probability of the existence of [fact in issue].

EVANS V THE QUEEN

Observing how the accused walked or how he spoke certain words would be relevant to the identification of the accused as the person seen and heard by the witnesses, but dressing the accused in the clothing worn by the person seen by the witnesses gave no assistance to the jury in determining whether he was the person seen by the witnesses

Kirby in dissent argued that the issue of relevance is a broad gate, and while relevant, it is very “dangerous, unfair, humiliating and prejudicial”.

SMITH V THE QUEEN

Where evidence of identification depends on a photograph taken by a security camera, it is for the jury to determine whether the accused is shown in the photograph, and evidence by a police officer that he had made such an identification from the photograph cannot logically affect the jury’s task.

Kirby in dissent: It could also be an opinion case or an issue of the prejudicial value outweighing the probative.

R v TA

A complainant who has no recollection of an alleged sexual assault cannot be asked whether her interview video recorded shortly after the event demonstrated that she had consented

R v Robyn Kina (1994) 29 (1) Aust Lawyer 53

Facts: Kina was charged with killing her de facto partner, who had been physically and psychologically abusive to her from the start of their marriage. A large number of evidence was excluded at trial, based on the presumption that the evidence was irrelevant. Parts of evidence that were excluded included her aboriginality, poverty and her experience of long-term domestic violence. In addition her reluctance to discuss with her lawyers these things as she felt it was private had not been taken into consideration as relevant in determining whether or not she had formed the intention to kill him.

Held: The notion of could it rationally effect, does not discuss whether the evidence did have a rational effect but whether it is more probable of occurring now that evidence is obtained.

Papakosmas v The Queen (1999)

Facts: Papakosmas is accused of sexually assaulting one of his colleagues. She says he forced her to have sex with him in a little room, away form the party. He says she consented, she subsequently denies consent. The complainant and three other witnesses give evidence at his trial. The facts are, as stated by the complainant, he takes her to a little room and proceeds to sexually assault her. She says the sex was not consensual, whereas he argues that it was. She leaves that room and sees one of her...

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