Evidence Act Structure In NSW, the use of evidence in both Criminal and Civil matters is governed by the Uniform Evidence Act 1995 (EA). Structure is designed to allow for a more systematic approach to assessment of admissibility. Every piece of evidence needs to be rigorously assessed to assess whether, or not, it is admissible. ● Chapter 1: Preliminary matters (application of the Act) ● Chapter 2: Adducing evidence ● Chapter 3: Admissibility ● Chapter 4: Proof.
Allows the Court to ensure that facts are proven in a methodical and consistent manner. Evidence is based on admissibility through: I. The concept of Relevance, II. The use of Exclusionary Rules III. The use of Discretionary Rules. Aim is to be more ‘inclusionary’ than ‘exclusionary’.
Under the Act, evidence may be classified as either: a) Testimonial (oral/written evidence given by a witness) b) Documents (papers, electronic recording c) Other (views, re-enactments, real evidence e.g. the weapon).
1. Relevance What does relevance actually mean? An Evidentiary Concept. Relevant for what purpose(s)? Admissibility is a 3 Stage Process: In assessing the admissibility of evidence, the Court undertakes a three- stage process where each threshold must be met before moving to the next step: 1. Relevant/Not Relevant? 2. If relevant, are there any exclusionary rule that apply? 3. If no exclusionary rule applies, should the trial judge use discretion the evidence? (If judge is happy, he/she does not need to exercise discretions contained in legislation). a. Admissible evidence
1.1 Concept of relevance - Relevance is the cornerstone of the Rules of Evidence. In terms of evidence, this concept is widely defined and can appear to be rather subjective (R v Le) → someone's view of whether or not evidence is relevant in a case may be different to someone else's view. Presents a problem → look at it in a more objective view (even though the views are different, we look at the question of relevance in an objective standpoint).
● General rule: Evidence must have some type of logical bearing on a fact in issue. If it doesn’t have a logical relationship between evidence and fact in issue, can’t be relevant. - Relevance does not equate to reliability/credibility, plays no part in testing relevance (Papakosmas). Main EA provisions that deal with relevance are s 55, 56, 57 (provisional relevance). - When looking at question of relevance, Court is not looking from reliability/credibility standpoint.
Section 55: Relevant Evidence (1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could rationally affect (directly/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: 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.
1.2 Test for Relevance (Section 55) - Key concept that underpins s 55 is that there needs to be a logical or rational connection between evidence and facts to be proven. ● Definition requires the minimal logical connection between evidence and facts in issue. - Court looks at the effect that the evidence could have, if it were accepted. ● Address evidence: This particular evidence would be admissible under s 55 as it goes to a fact in issue and could rationally affect the assessment indirectly/directly of that particular fact. Thus, in accordance with s 55 it would be admissible subject to exclusionary and discretionary rules ● Is this evidence relevant? If so, in what purpose? Does it get past the first threshold? - Whether logical or rational connection exists is an objective test grounded in human experience. What would the ordinary/reasonable person view as being relevant?
➔ Washer v Western Australia: “In order to establish relevance, it is necessary to point to a process of reasoning by which the information in question could affect the jury’s assessment of probability of the existence of the fact in issue at the trial” - Under s 55, indirect connection is sufficient (e.g. defendant expressed intention to kill victim). ● Might be enough to support inference that the defendant did have an intention to commit murder (therefore proving mens rea) ● More likely that those with such an intention have actually killed someone. - Under s 55, there is no need to make sure that the fact itself is probable. Sufficient just to demonstrate that the fact that we’re dealing is more or less probable than if we hadn’t heard that evidence. If didn’t hear, couldn’t make mind up. Cause we heard, it is more probable that the fact occurred or less probable. High probative value - very influential, shift thinking. Less probative value but more than enough to allow us to operate on the idea of shifting our mind set. ● Not a stringent or narrow test ● Minimal probative value needed to satisfy the s 55 test. - In litigation, the ‘evidence’ may be relevant in several ways. For example: ● It may be important to your case that someone said something, (i.e. was not silent), thus it will be relevant that something was said (does not matter what (as opposed to silence) ● If you want to show what was said, need to show the content of the statement is relevant.
Thus, the statement has 2 potential uses: 1. To show that something was said 2. That certain words were said
Although there may be a rule of evidence that prohibits one of these uses, evidence may still be permitted for the other use. Becomes especially important when dealing with hearsay evidence. ➢ For example, the Hearsay rule may be used to exclude the evidence that proves the truth about what was said, but it may be admissible for the purpose of assessing the credibility of W by showing that something was said.
Papakosmas v The Queen (1999) - A convicted of sexually assaulting a colleague at an office party. Complainant alleged that A forced her to have sexual intercourse in a room away from the party. The issue at trial was consent - C and 3 other witnesses gave evidence at trial of her immediate complaints. According to that evidence, when C returned to the party she saw a colleague. C was crying, when the colleague asked her what was wrong, C said that A raped her. - Colleague took C outside to a table where she repeated to complain to another woman, she was crying and holding her head in her hands, appeared distressed.
● Shortly afterwards, C repeated her complaint to a third woman who then gave evidence that C was crying uncontrollably and appeared extremely distressed. - Issue: Was the evidence given of the complaint relevant? If so, for what purpose(s)? 1. It was relevant to proving the facts asserted by the complainant (she had not consented) 2. It was relevant to supporting the credibility of the complainant - Hearsay evidence: “She told me she was raped by P” Rules in EA deal with this. Why is the evidence used? Used conversation to prove that there was no consent. Because C told someone, it was credible (told people immediately, up front, could imply she was as more credible witness).
Smith v The Queen (2001) - S indicted in relation to the robbery of two banks, appeal against conviction to NSWCCA dismissed. - Prosecution’s case against appellant was that he was person shown in photos, standing near back of automatic teller machine, apparently keeping lookout while the co-offenders took the money. - Issue: Only question for determination by the jury was ‘Is Smith the person represented in the photograph?’ The police knew Smith and identified him as the person. ● Police not eyewitnesses, just looking at photos. What made their act of looking relevant? Jurors could also look at photos and decide, by comparing man in the photo and Smith ● Crown argued that because the police already knew S, they were better placed than a juror, and that is what makes the evidence relevant ● Defence argued police were in no better position than jury in making a comparison between D and the photo. - Because witness's assertion of identity was founded on material no different from material available to jury from its own observation, witness's assertion that he recognised appellant is not evidence that could rationally affect the assessment by jury of the question we have identified. - Fact that someone else has reached a conclusion about the identity of the accused and the person in the picture does not provide any logical basis for affecting the jury's assessment of the probability of the existence of that fact ● HC held: Nothing about the police evidence that would rationally help a juror in making their own assessment of whether the person in the photograph was accused or not. The evidence given by police regarding did not satisfy s 55, therefore not relevant (s 56 kicks in) ● Kirby J (in dissent) held that the evidence given by the police was indirectly relevant as police had seen A in various guises and from various angles and were in a better position to assess if he was the person.
Evans v The Queen [2007] HCA 59
- E was on trial for armed robbery filmed on security cameras, wearing a balaclava, sunglasses and overalls and said certain words during the robbery. During his trial, under cross-examination, the prosecutor made Evans put them all on, walk around in front of jury and say words robber said. - Appealed to HC on several grounds, one of which was relevance. Was it relevant for the jury to see the defendant dressed up like that, walking around like that, and saying those words? ● Gummow and Hayne JJ: Not relevant as there was nothing to compare the demonstration with (no photographs of the robbery). Resemblance was not relevant. ● Kirby J: The relevance threshold is broad/low and should not be used to artificially exclude evidence that is, in fact problematic (and perhaps inadmissible for other reasons) ● Heydon J (Crennan J agreeing): Evidence was relevant but did not prove the whole case against Evans. Showing a resemblance would assist the jury, particularly, if E didn’t resemble the offender, it would have been relevant for excluding E as the offender. - There was some indecision/discrepancy in the way various members of the HC approached it.
1.3 Summary - The requirement of relevance is the fundamental rule of admissibility. ● Evidence that is relevant to facts in issue in proceedings is, subject to any exclusionary rules and discretions, admissible in those proceedings ● Evidence that is not relevant to the facts in issue in proceedings is inadmissible - What is the material (evidence) relevant to prove? Does it meet the test in s 55 - could it rationally affect the assessment of the probability of the existence of a fact in issue? (elements of offence, what needs to be proven by a party in order for them to win their case) ● If no, material is inadmissible (s 56) - Not a high threshold, minimal probative value needed to satisfy s 55. Relevance does not rely look at issues of reliability or credibility, these issues are dealt with by other provisions (Papakosmas) ● Probative (tending to prove) value: Evidence sufficiently useful to prove something important in a trial. Must be weighed by the trial judge against prejudicing in the minds of the jurors toward D or P. Proving or demonstrating evidence; affording proof or evidence. - Material may be relevant for more than one purpose (when assessing facts, need to assess whether or not it’s relevant and for what purpose(s)) ● Relevancy serves as the initial screen used to determine whether evidence should be heard in court. If jury were to hear the answer to the Q or see the piece of evidence, they might take that evidence and move their consideration of what did or did not happen. ● Relevancy requirement from a logical perspective is broad (almost anything can be logically relevant). If it is relevant, it is admissible.