Admissibility and the principles of evidence law

Question 1

Determining admissibility

Answer 1

Evidence is admissible if it can be legally received by the court. If evidence cannot be be received, it is inadmissible.

In deciding whether evidence is admissible, the courts have reference to certain principles of evidence law. These are drawn from common law and find their way into various provisions of the Evidence Act 2006:

Relevance
Reliability
Unfairness

Question 2

Relevance

Answer 2

Section 7 provides that:

Fundamental principle that relevant evidence admissible
(1) All relevant evidence is admissible in a proceeding except evidence that is-
(a) inadmissible under this Act or any other Act; or
(b) excluded under this Act or any other Act.

(2) Evidence that is not relevant is not admissible in a proceeding.

(3) Evidence is relevant in a proceeding if it has a tendency to prove or disprove anything that is of consequence to the determination of that proceeding.

….It includes direct evidence and circumstantial evidence….Evidence can be admitted on any basis for which it is relevant. This means that, whereas irrelevant facts will always be inadmissible, relevant facts are not always admissible. For facts to be received in evidence they must be be both relevant and admissible. For example, evidence that was improperly obtained may be relevant, but may not be admissible under Sec.30 of the Evidence Act 2006.

Question 3

Reliability

Answer 3

Although unreliability is not a general ground of inadmissibility, the Act contains specific exceptions to this. Therefore, relevant evidence may sometimes be excluded - or if admitted may attract a judicial warning because it is regarded as unreliable Sec.122. The Act contains some exclusionary rules that look to reliability, including rules relating to hearsay and identification evidence.

Question 4

General exclusions

Answer 4

General exclusions
Sec.8 Evidence Act 2006

(1) In any proceeding, the Judge must exclude evidence if it’s probative value is outweighed by the risk that the evidence will -
(a) have an unfairly prejudicial effect on the proceeding; or
(b) needlessly prolong the proceeding.

(2) In determining whether the probative value of evidence is outweighed by the risk that the evidence will have an unfairly prejudicial effect on a criminal proceeding, the Judge must take into account the right of the defendant to offer an effective defence.

Question 5

Admission by agreement

Answer 5

Sec.9(1) of the Evidence Act 2006 allows for admission of evidence, even if it is not otherwise admissible, where the parties agree. The Judge retains control of this process and may decline to admit the evidence even if all the parties agree to its admission, or not allow its admission in the form agreed to by the parties.

Question 6

Limited use of evidence and use for multiple purposes

Answer 6

The Evidence Act 2006 allows evidence to prove “anything that is of consequence to the determination of the proceeding.”

Admissible evidence may be used in different ways and for different purposes in a proceeding, not necessarily only for the purpose for which it has been admitted.

The Supreme Court in Hart v R has confirmed this approach, stating that “the statute proceeds on the basis that generally speaking evidence is either admissible for all purposes or it is not admissible at all.”

Limitations under the Evidence Act 2006:
Sec.27 - controls the use of pre-trial statements of defendants and co-defendants.
Sec.31 - forbids the prosecution from relying on certain evidence offered by defendants in a criminal case.
Sec.32 - forbids the fact finder from using a criminal defendant’s pre-trial silence as evidence of guilt.