Relevance

Question 1

55(1) Relevant evidence - definition

Answer 1

55(1) (definition): evidence is relevant when, if accepted, it could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue.

In other words: evidence is relevant if it could make a fact in issue more or less likely than it would have been without that evidence.

Question 2

55(2) Relevant evidence - credibility

Answer 2

55(2): evidence may be relevant if it relates only to a W’s credibility, or a failure to adduce evidence (NOTE CONNECTION TO RULE IN JONES V DUNKEL – CIVIL TRIALS)

Where a witness has testified in relation to a fact in issue, evidence about their credibility will indirectly affect the assessment of the probability of the existence of that fact in issue.

Credibility of a witness:

• means the credibility of all or any part of their evidence; and
• includes capacity to observe or remember facts and events they’re testifying about. Includes truthfulness, intelligence, bias, motive to be untruthful, factors assessing competency, prior in/consistent statements, internal inconsistences in evidence, ambiguity in testimony
• does NOT include matters of general/moral ‘discredit’ not relevant unless tends to suggest that their evidence cannot be relied upon

Question 3

Relevance - IMM

Answer 3

IMM v R: relevance assessed on assumption that jury will accept the evidence. When assessing relevance, the evidence should be taken at its highest.

‘The question as to the capability of the evidence to rationally affect the assessment of the probability of the existence of a fact in issue is to be determined by a trial judge on the assumption that the jury will accept the evidence. …. This assumption necessarily denies to the trial judge any consideration as to whether the evidence is credible. Nor will it be necessary for a trial judge to determine whether evidence is reliable, because the only question is whether it has the capability, rationally, to affect findings of fact. There may of course be a limiting case in which the evidence is so inherently incredible, fanciful or preposterous that it could not be accepted by a rational jury. In such a case its effect on the probability of the existence of a FII would be nil = not meet the criterion of relevance.’

Majority decision in IMM v R (2016) 257 CLR 300; [2016] HCA 14, [39]

Question 4

56 Relevant evidence to be admissible

Answer 4

All relevant evidence is admissible except as otherwise provided in the UEA (s56(1)). If evidence is not relevant, it is not admissible (s56(2)).

If evidence is objected to on the basis that it is not relevant, the tendering party must establish:

1. the purpose for which the evidence is tendered; and
2. how it is relevant and admissible.

Question 5

57 Provisional relevance

Answer 5

The Court may find that evidence is relevant in circumstances where its relevance depends on the court making some other finding. The court may make such finding of provisional relevance:

• if it is reasonably open to make that other finding; or
• subject to further evidence being admitted that will make it reasonably open to make that other finding.

Question 6

58 Inferences as to relevance

Answer 6

If a question arises as to the relevance of a document or thing, the court may examine it and may draw any reasonable inference from it, including as to its authenticity or identity.