Relevance of evidence PDF

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2 Relevance Question 1: is evidence relevant? Question 2: what is the rule that governs this type of evidence?

The Key Provisions ● Section 55 EA (no qualitative assessment of evidence- ‘if it were accepted’): (1) The 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. (2) In particular, evidence is not taken to be irrelevant only because it relates only to: (a) the credibility of a witness; or (b) the admissibility of other evidence; or (c) a failure to adduce evidence ●

Section 56 EA: Relevant evidence to be admissible (1) Except as otherwise provided by this Act, evidence that is relevant in a proceeding is admissible in the proceeding. (2) Evidence that is not relevant in the proceeding is not admissible.

Relevant to what? ● In civil proceedings, it must be relevant to the facts in issue relating to the elements of the civil action being taken by the Plaintiff. ● In criminal proceedings, it must be relevant to facts in issue relating to the elements of the crime. ○ Mens rea and actus reus ● Irrelevant evidence is prima facie inadmissible. ● The key rationale of s 55 is that there needs to be a logical or rational connection between the evidence and the facts to be proven: McHugh J in Papkosmas .

Types of Evidence ● Direct evidence ○ What a person saw, observed, heard or otherwise perceived: “I saw a person with machete walk into a store and demand and take money” ● Circumstantial evidence ○ ‘Pieces of a jigsaw puzzle’ ○ Consider relevance of circumstantial evidence with other evidence

○ DPP v Paulino  (Sentence) [2017] VSC 794 relied on circumstantial evidence, R v Ristevski  solely reliant on post offence actions to prove guilty mind. ○ It is a mistake to attempt to determine the relevance of a piece of evidence in isolation from all other evidence (Elomar v R  [2014] NSWCCA 303 ● Credibility of evidence ○ Reliability and truthfulness ○ Prior convictions relevant to jury’s consideration and therefore relevant

R v Smith ● Facts: ○ Robbery of a bank by 4 young men. Bank security cameras had taken photos of what had happened; ○ Prosecution allege Smith was the person in the photographs keeping lookout while the co-offenders stole money; ○ Evidence given at trial by two police officers, based on their previous dealings with Smith, that they recognized Smith as the person in the photographs ● Issue ○ Is the evidence of the officers relevant? ○ Problem: trial judge told jury issue to determine was: whether police officers were right beyond reasonable standard of doubt that they recognised the person in photograph ○ High court said issue in fact: is accused the person in photograph? (jury actually had more contact with accused and were thus in a better position to recognise accused) ● Majority – Police witnesses in no better position than the jury to make a comparison between Mr Smith and the person in the photographs. Accordingly, the evidence is not relevant. ● Kirby J – evidence relevant but inadmissible as opinion evidence. ● Which judgment do you prefer? ● In contrast, the Victorian Court of Appeal in Meade v R [2015] VSCA 171 at [183] – [185] held that evidence from a professional boot manufacturer regarding the possible brand of boots depicted on CCTV was admissible, as it required specialised knowledge of the features of brands of boots

Court’s discretion to exclude Section 135: ● The Court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might: (a) Be unfairly prejudicial to a party; or (b) Be misleading or confusing; or

(c) Cause or result in undue waste of time Mandatory exclusion in criminal proceedings Section 137: ● In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the accused. Probative value: the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue ● balancing exercise requires the judge to separately assess the probative value of the evidence, followed by the danger of unfair prejudice, before weighing these two matters (Marsh v R [2015] NSWCCA 154 ● The accused bears the onus to persuade a trial judge that the danger of unfair prejudice from the evidence outweighs its probative value (R v Polkinghorne [1999] NSWSC 704 ● Jury Directions Act: s23 Direction to avoid risk of improper use of evidence

IMM v The Queen (Tendency case) ● Facts ○ ○

Grandfather sexually abusing granddaughter Prosecution wanted to adduce tendency evidence from granddaughter

● In this judgment, the High Court attempts to resolve the split between New South Wales and Victoria as to whether an assessment of probative value should include consideration of the credibility and reliability of the evidence before allowing or refusing admission. The question that is said to arise is whether the words ‘if it were accepted’ (as found in section 55 in relation to relevance) should be read into the dictionary definition of probative value.

The NSW Approach ● In the 2006 case of R v Shamouil (2006) 66 NSWLR 228, the New South Wales Court of Criminal Appeal held that a trial judge, in determining the probative value of evidence according to the definition in the NSW Evidence Act, should do so on the assumption that the jury will accept the evidence. ● It was held that a trial judge should not have regard to questions as to the credibility or reliability of the evidence. The Court of Criminal Appeal in the Northern Territory agreed with this approach in this matter.

The Victoria Approach ● In R v Dupas (No 2) (2012) 40 VR 242, the Victorian Court of Appeal declined to follow the approach in Shamouil, and instead considered that the question of reliability and credibility should be taken into account by a trial judge when determining what weight the jury could reasonably assign to the evidence.

Majority Judgment ● The High Court majority (French CJ, Kiefel, Bell and Keane JJ) agreed with the approach of the New South Wales Court of Criminal Appeal in the cases of Shamouil and XY. ● They consider this approach is supported by reading the language of the statute of the primary source and not the pre-existing common law. They also considered that policy documents and considerations (such as reports from the Australian Law Reform Commission in its report on the proposed Evidence Bill 1987 (Cth) could not be used as an interpretive aid in circumstances where the context of that report was specific.

Majority Judgment ● Ultimately, the majority consider that the words ‘if accepted by the jury’ should be read into the definition, and once this has occurred, it follows that no question as to credibility or reliability of the evidence (or the witness giving it) can arise. ● The majority does go on to say that evidence which is inherently incredible or fanciful or preposterous would not appear to meet the threshold requirement of relevance, and that if necessary, the general discretion to refuse to admit evidence which would cause or result in an undue waste of time may be utilised. ● It should be noted that no threshold test for what constitutes ‘inherently incredible or fanciful or preposterous evidence’ is not advanced, which begs the question of how a trial judge can come to a conclusion that evidence falls into this category without conducting some kind of assessment of the credibility or reliability of the evidence or witness.

In Dissent – Gaegler J ● Gaegler J delivered a judgement separate to the majority as well as the judgement of Nettle and Gordon JJ, who were in dissent. ● Gaegler J considered that the matter came down to the question of whether the court should agree with what McHugh J said in Papakosmas v The Queen, or whether the approach of Gaudron J in Adam v The Queen should be preferred. The disagreement here came down to whether the exclusion of the words ‘as accepted by the jury’ was one of significance (McHugh J’s view) or was not (preferred by Gaudron). Gaegler J

preferred McHugh J’s approach, considering that had it been Parliament’s intention to exclude an assessment of credibility and reliability, they surely could have done so as easily as they had in section 55. ● Ultimately, Gaegler J considered that even if the judge had undertaken an assessment of reliability and credibility, it could not have reached the required threshold for probative value, and the tendency evidence should therefore have not been admitted.

In Dissent – Nettle and Gordon JJ ● Their Honours Nettle and Gordon JJ approached the matter from a straightforward statutory interpretation perspective, as well as agreeing with McHugh J’s view in Papakosmas and considering common law background and the Australian Law Reform Commission’s repots preceding the enactment of the Evidence Act. ● For Their Honours, the evolution of the common law through to the Evidence Act reforms and the interpretation of the act since then led to the clear conclusion that an assessment is a logical progression and does not in any way usurp the jury’s function. ● Taking into account their reasoning, Nettle and Gordon JJ considered that there was no reason to exclude the evidence of the tendency evidence....