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This article is a topic within the subject Court Process, Evidence and Proof.


Required Reading

Primary Material, Vol 1, Chapter 4.


Evidence can only be admitted to court if they are relevant.  The test of relevance and the relevant principles are now governed by the Chapter 3 of the Uniform Evidence Act 1995, which are an approximation of the old common law principles.

Common law relevance

Under common law, relevance was divided into two parts: logical relevance and legal relevance.

  • Logical relevance refers to whether the evidence actually seems to have probative value – ie, is the evidence likely to affect the jury’s mind as to a fact in issue.
  • Legal relevance is a weighing exercise where the probative value of the evidence is measured against opposing considerations, such as potential to confuse, danger of wasting time, or potential of creating prejudices.
  •  Probative value is defined the UAE dictionary asthe extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in.

This was discussed in R v Stephenson:

  • Facts: the defendant was accused of driving negligently and killing the three people in the car he collided with. The defendant argued that the blood alcohol level of the three people from the other car was relevant.
  • Held:  the driver of the car was not known, and therefore the evidence was not relevant, not even if all of them were over the limit.
    • Irrelevant if its weight is so minimal that it does not serve to add or detract from the probability of the principle issue being established.

Statutory scheme

The statutory scheme reenacts the common law principles. The distinction between logical and legal relevance is maintained, but it is separated between relevance (logical) and discretion to exclude (legal). Key provisions include:

  • S 55 – key relevance provision: “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.
  • Only refers to logical relevance.
  • S 56 – only relevant evidence is admissible.
  • Ss 135 - 137 – discretions to exclude/limit use of evidence, mandatory exclusions of evidence.
    • This is where legal relevance comes in.

‘Fact in issue’

S 55 requires that evidence relates to a ‘fact in issue’. This is interpreted as relating to issues in the proceeding defined by substantive law and pleadings and thus would extend to facts to be proved in undefended or ex parte proceedings.

  • In a civil proceeding – factual elements of any legal cause of action or legal defence relied upon by parties.
  • In a criminal proceeding – factual elements of the charged offence and any defence.

This was discussed in Goldsmith v Sandilands:

  • ‘Fact in issue’ refers to any issues that have to be proven or are relevant if proven to a party’s case.
  • Includes material facts that provide any justification or excuse as a defence to the cause of action. 
  • Whether it is a fact in issue depends upon the pleadings.
  • Might be expressed in terms of its relationship to a fact relevant to a fact in issue… “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” – McHugh J.

‘Could rationally affect'

S 55 requires that the evidence in question "could rationally affect...".

  • 'Could' v 'Would' - this refers to a possibility as opposed to a certainty. There needs to be potential for the evidence in question to affect the juries' mind.

This was discussed in R v Smith:

  • Facts: robbery case. There was a still photograph of the robbery which depicted a man in a hat. The prosecution sought to admit evidence in the form of police officers who knew the accused and would testify that the man in the photo is him.
  • Held: the evidence could not rationally affect the mind of the juries - it doesn't tell them anything new, because they have the same ability as the officers to look at the photo, look at the accused, and make an assessment. Not relevant.
    • Evidence may have been relevant if prosecution witnesses had knowledge beyond what the jury could see for itself -eg, identifying feature such as clothing (R v Goodall, or a change of appearance between the incident and trial (R v Palmer)

And also R v Ta:

  • Facts: the accused had allegedly drugged the complainant and then sexually assaulted her while she was unconscious. The defence wanted to cross-examine the complainant about the sexual assault which occurred while she was unconscious.
  • Held: the complainant had no independent recollection of the incident because she was unconscious, so she is in no better position than the jury.

Reliability ("If it were accepted")

When the court assesses relevance, it presumes that the evidence is reliable: Graham v R.

  • Instead of addressing issues of reliability during the relevance assessment in s 55, they are addressed through discretion and exclusionary rules.
  • This means that the reliability of the evidence does not impact its relevance, but merely its probative force (ie, legal relevance not logical).
  • The chances of the jury accepting the evidence has no impact on the relevance assessment: Adams v R.

Res gestae

Res gestae is a common law principle which allows evidence which would usually be irrelevant (usually because it constitutes hearsay etc) to be admitted because it is closely contemporaneous with the subject event (and thus it is likely to be unguarded and spontaneous as opposed to premeditated).

This was illustrated in Papakosmas:

  • Facts: the accused raped the complainant in a bathroom. Immediately after, the accused approached a friend and conveyed that the accused and raped her. The prosecution sought to have the friend tender this evidence despite the fact that it constituted hearsay.
  • Held: the evidence was admissible because it was so proximate to the time of the alleged offence that it had probative value.
    • Note: courts (including this one) have been known to follow the idea that if no complaint was made about sexual assault immediately after the alleged assault occurred, the allegation is likely to be fault (ie, evidence against): Graham v R.

Res gestae is a broad inclusionary doctrine which relates to all exclusionary rules. Section 65 (2) is an approximation of res gestae. However, s 66 somewhat modifies it as it requires that a representation must be fresh in memory in order to be admissible (quality of the memory, time elapsed, age and health of the person etc are all relevant).

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Discretions to exclude

s 135 allows the court the discretion to exclude if its probative value is substantially outweighed by the danger that the evidence might:

  1. be unfairly prejudicial to a party, or
  2. be misleading or confusing, or
  3. cause or result in undue waste of time.

These terms can be broken down a follows:

  • Probative value is defined in the UAE dictionary as "the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue. "
  • unfairly prejudicial to a party - prejudicial evidence is evidence which might make the jury form prejudices about the accused. Note that a lot of evidence may be prejudicial, but that alone is not enough to exclude it - it must be unfairly prejudicial (Evans v R).

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