Admissibility

Question 1

What is the first question to consider when seeking to admit evidence?

Answer 1

Relevance
(Evidence that is relevant is admissible - s 56(1)
Evidence that is not relevant is not admissible - s 56(2))

Question 2

What is the second question to consider when seeking to admit evidence?

Answer 2

Whether any exclusions to admissibility apply
(Evidence is admissible unless excluded - s 56(1))

Question 3

What are the exclusions to admissibility?

Answer 3

• Hearsay rule (Pt 3.2)
• Opinion rule (Pt 3.3)
• Admissions (Pt 3.4)
• Judgments and Convictions (Pt 3.5)
• Tendency and coincidence rules (Pt 3.6)
• Credibility rules (Pt 3.7)

Question 4

What is the third question to consider when seeking to admit evidence?

Answer 4

Whether the evidence pass the other checks on admissibility

Question 5

What are the other checks on admissibility? (not exclusions)

Answer 5

• discretion to exclude (s 135)
• discretion to limit use (s 136)
• prejudicial evidence (s 137)
• improperly obtained evidence (s 138)
• CL unfairness discretion
• unfair admissions (s 90)

Question 6

What are the rules for granting leave?

Answer 6

Under s 192, the court can give any leave, permission or direction on any terms the court things fit (s 192(1))

There are factors they must take into account:
- the extent to which giving leave would be likely to add unduly to, or to shorten, the length of the hearing;
- the extent to which to do so would be unfair to a party or a W
- the importance of the evidence in relation to which the leave, permission or direction is sought
- the nature of the proceeding
- the power (if any) of the court to adjourn the hearing or to make another order or to give a direction in relation to the evidence