#7508 - Relevance - Evidence and Criminal Procedure

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 colleagues, who sees her distressed and crying. In attempting to comfort the complainant, the colleague asks her why she looks so distressed. The complainant says words along the line of ‘P just raped me.’ She tells her to sit down at a table in which there is another colleague at the table. At that table, there is another colleague, who claims that the complainant was crying and in a distressed state. She repeats the complaint to her. A third woman comes who testifies the same thing.

There is no question that the complainant can testify at the trial. She can testify to what happened, and she can testify to what happened proceeding the events with P. She can testify that she was crying, and when she left the room, she said to her colleague ‘P raped me.’ There is a hearsay element, but she can testify to her charge. Papakosmas argues that the evidence of the three witnesses is inadmissible. Those 3 witnesses have two kinds of evidence to give. What they saw and what she said to them. The three witnesses want to testify that the C said to them words to the effect that P. just raped me. Can those three witnesses give evidence concerning what she said to them?

Held: There are two potential uses of that evidence, that is that the evidence was relevant to proving the facts asserted by the complainant (that she had not consented to sexual intercourse. Therefore the evidence is relevant as it could make a difference in deciding whether or not she consented. She may be lying, but it could make a difference) and was relevant to supporting the credibility of the complainant (Attack the credibility of the complainant is standard procedure. The evidence of those three witnesses can bolster the credibility of her complaint and support her argument. The witnesses can testify to saying that this is what she said to them.)

Whilst it is clear, that none of the three women were in the room at the time of the incident, and therefore do not know whether she consented, it does have some relevancy as she told three people afterwards of what happened.

The first use of the evidence, what she said them, which...