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The Rules of Evidence and the Importance of Relevance

Dsicuss about the Australian Competition and Consumer Commission.

The rule of evidence shows the attempts of making certain that the trial procedure is fair for the parties. The evidence shows that a party is liable for the allegations imposed on them or not. It is basically the proof of holding a person guilty. The evidence not only includes the physical evidence but also testimony and documentary evidence[1]. Evidence basically is presented to support any assertion. This could be for establishing a person as guilty of crime, or for getting the defendant acquitted. Depending upon the evidence being strong or weak, the claims presented by the party are decided[2].

Under the law, the rules of evidence govern the kind of evidence which can be admitted in the legal proceedings. Those segments in legal case, which are not contradicted by the parties, become the facts of the case. The remaining parts, where contradictions emerge between the parties, have to be established before the court. In this context, the evidence comes into play, which helps in determining the burden of proof which is relevant to the case. Based on the degree of claims and the gravity of situation, the relevance of evidence is decided on. The evidence also gets sophisticated with sophisticated case being dealt with, where the theory or hypothesis of the parties, is established through experimental results and observations based on scientific evidence.

Another crucial aspect which revolves around the law of evidence, be it in any jurisdiction, is relevance of such evidence; and this is also the theme of this discussion. Under the Evidence Act, 1995[4], it is provided that the documents which are formed and covered in electronic or paper form can be admitted as evidence before the federal courts. This act also relaxes certain restrictions in some cases, so as to allow any particular evidence in proceedings, in order for more relevant evidence to be presented before the courts, for the purpose of fact finding. It is crucial to note here is that evidence is not something which would be accepted just like that. Only such evidence is accepted by the courts, which is relevant to the particular matter. At the first blush, relevance is not always clear. And thus, there is a need for a deeper analysis. There is also the need for more information to be allowed which can be deemed as relevant, so as to allow for proper evidence to be presented before the court.

Common Law and Statute in Australia

Relevance is deemed as the propensity of given item of evidence for proving or disproving one of the lawful elements of the matter, or for having the probative value for making an element of the case likelier or not. Through probative, the tending to prove is signified, in terms of seeking the truth. In general, the evidence which is not probative in law, i.e. which does not tend to establish the proposal for which it had been proffered is not admissible. The rules of evidence allow for it to be excluded from any proceeding or for it to be stricken from the record where the same is objected by opposing counsel. The admissibility of evidence is dependent on the relevance of it to the fact in issue under the legal proceeding[5].

In Australia, the rule of evidence is a mix of common law and the statute. There is a uniform Evidence Act in the nation, which is an act of the Commonwealth. There are also acts of each jurisdiction on this matter, which includes for New South Wales it is Evidence Act, 1995[6]; for Victoria it is Evidence Act, 2008[7]; for Tasmania it is Evidence Act, 2001[8]; for Australian Capital Territory it is Evidence Act, 2011[9]; for Northern Territory it is Evidence (National Uniform Legislation) Act, 2011[10]; and for Norfolk Island it is Evidence Act, 2004[11]. The rules of evidence work towards making certain that the criminal trials are undertaken in such a way which proves to be fair to both the parties in the legal case and where the specific focus is laid down on testing of evidence[12].

In R v Wilson, it was stated by Barwick CJ that the basic rule which governed the evidence admissibility was that it had to be relevant[13]. There was a need for the proffered evidence in every instance to be brought down ultimately to that touchstone. Under Chapter 3 of the Evidence Act of commonwealth, the admissibility of evidence is dealt with[14]. The evidence is generally admissible when it is relevant, and the vice versa situation is also true, in terms of the irrelevant evidence being inadmissible. Evidence is deemed as relevant where it is such evidence which in case is accepted, could influence the evaluation of probability of the facts in issue, in a rational manner, in the proceedings, be it in direct or indirect manner[15].

Since the relevant evidence has the capacity of affecting the evaluation or the consideration of probability of the facts in issue being in existence, it is deemed as probative[16]. Another name given to this determination is logical relevance. The logical relevance is required only in such cases where the evidence has a rational connection to the facts in issue. However, under sections 55 and 56, it is not required to prove that the evidence is probative to any specific degree, in order for it to be admissible[17]. Even when the evidence is only of some or slight probative value, it would be deemed as admissible, as is the position of this at the common law[18]. As a result of this, evidence can either be relevant or can be irrelevant. Further, where the evidence is not relevant the questions regarding its admissibility do not arise[19].

Case Law Examples


Another crucial point which has to be noted here is that the logical relevance is not enough to show the possible evidence admissibility, and there continues to be a possibility for the evidence to be deemed as inadmissible. As against logical relevance, this determination is known as legal relevance. Further, this sets out a demanding test for the discretionary exclusion, even though it is not a mandatory one, in such cases where the probative value is quite majorly overshadowed by the risk that the evidence can be biased in an unfair manner[20]. Upon the legal relevance of evidence being proved, the exceptions to such principles and exclusionary principles can be taken under consideration[21]. It is also important to note that the reliability covers the probative force of evidence in terms of its legal relevance, in place of the capability of evidence to influence the possibility of existence of fact in issue, in terms of logical relevance[22].

The relevance of evidence is provided in detail under section 55 of the commonwealth act[23]. In deciding if the evidence is relevant or not, the trial judges are neither permitted nor required to make the assessment regarding whether or not the jury would accept the presented evidence, and has to proceed on the very assumption that it would be accepted as was seen in R v Shamouil[24] and Adam v The Queen[25]. It is also suggested that there is a need to make the very same assumptions when the judge also plays the role of tribunal of fact. The relevance test which could result in the evidence being rationally affected in direct or indirect manner requires assessing the presence of facts in issue in the proceeding. In this regard, there is a need to focus on the capability in place of the weight of evidence for performing this task. However, the issues of reliability or credibility could be so that in a specific matter, it is possible for the judges to give the ruling, that the jury would not be allowed to conclude if the specific evidence would perform the desired task, as was seen in DSJ v R[26].

The key test in this context is whether there is a logical connection in between the facts in issue and the evidence. In Washer v Western Australia[27], it was provided that there is reflection of definition of relevance covered under section 55 of the commonwealth act and the one under the common law. There is a significant requirement regarding the capability of evidence to reasonably influence the evidence assessment and it is crucial for it to point to the reasoning process for the evidence to do so, as was seen in Evans v The Queen[28]. In such a case where the consequence of the evidence was unclear or vague, so that it could not influence the evaluation of fact in issue in a rational manner, Lithgow City Council v Jackson[29] dictates that such evidence would be deemed as irrelevant.

Conclusion

In BBH v The Queen[30], the majority of the High Court allowed the proposal that the evidence is relevant and is deemed as admissible, only when it has the probative value. This situation is notwithstanding the fact that it can eventually be put in the category by tribunal of fact as having or carrying no weight, as had been stated by Heydon J, Bell J, Crennan JJ and Kiefel JJ. Apart from this, the tribunal of fact has the entitlement of assessing the specific piece of evidence by having regard to the entire evidence in context of the issues presented at the trial. In such cases where there is an issue in context of the document authenticity, it can be still deemed as admissible where it is relevant or can be argued to be relevant. This situation is present till such time as there is material from where the legitimacy can be inferred in a reasonable manner. This particular material would cover what can be inferred reasonably from the document in itself, as was seen in Australian Competition and Consumer Commission v Air New Zealand Ltd (No 1)[31].  

However, in majority of decisions, the general propositions which were given by French CJ regarding the equivocal evidence not being relevant and requiring its rejection, was not supported. In one of the criminal cases of Smith v The Queen, section 55 direction the attention towards the elements of offence charged, to the details of such elements and to all such situations which had a bearing on the assessment of probability. In this case it was seen that the facts in issue were not limited to the final issues and also included the facts which were relevant to such issues. There is a possibility of the prosecution setting out to institute that the accused had the motive of committing the offence charged. Further, the motivation could influence the evaluation of probability of presence of one or more of the elements of the offence in a rational manner. Apart from this, the evidence which attempts to establish the motive could affect such assessment in a rational manner as per Gleeson CJ in HML v The Queen[32].

The evidence has to affect the probability of presence of fact which is attempted to be established. In such a matter where it has been contended that the accused had acted in self-defence, the evidence regarding the victim having carried a firearm earlier did not go to the possibility of the individual carrying a firearm on the occasion which was in question as per Elias v R[33]. However, it could have been pertinent to the matter of the tendency of the individual to carry such a weapon as was doubted in R v Cakovski[34]. Observing the manner in which the accused walk or the manner in which they spoke some words, it would be pertinent to recognition of accused as the individual who saw or heard the witness, but by dressing the accused in such clothing as had been worn by the individual which the witness had seen would provide no help to the jury, in the determination of whether such person was the one which the witness had seen[35].


Where the evidence regarding the identification is dependent on a picture which is taken by the security camera, it is on the jury to determine if the accused has been shown in the picture, and the evidence provided by the law enforcement officer regarding him having made this identification from the picture cannot affect the task of the jury in a logical manner[36]. Such a complaining party which has no reminiscence on the alleged sexual assault cannot be asked about their interview video which had been recorded just after the incident established that she had given her consent, as was seen in R v TA[37]. The intention of the Law Reform Commission is that only the minimum logical connection in between the fact in issue and the evidence was required, and it was enough to make the fact in issue as more or less probable in comparison to the manner in which it would have been in absence of the evidence. This was deemed as the accepted interpretation of section 55 of the Evidence Act of commonwealth and as had been seen in R v Clark[38].

In the Dictionary to the evidence act of commonwealth, the reliability of a witness and the probative value of the evidence have been defined. In itself, section 55(2)[39] of the commonwealth act does not make the witness’ reliability relevant to the fact in issue in the proceedings till it is of such nature that it tends to weaken the confidence in a logical or rational manner in the genuineness of witness as was held in R v Slack[40]. When it comes to the probative effect of telling any lie, it is logically the same in both the civil cases and the criminal cases, as per Barrett Property Group Pty Ltd v Carlisle Homes Pty Ltd[41].

As has been stated earlier, the evidence which is not relevant is not admitted. Section 56[42] of the commonwealth evidence act brings forth the vexed question regarding whether a miscarriage of justice could have taken place where no objection is taken to the irrelevant evidence. In this context, the better view is that not admissible has to mean not admissible over the objection. However, in the criminal trial, the judges have the overriding duty of making sure that there is a fair trial and of preventing the justice from being miscarried as per Perish v R[43]. When it comes to the evidence related to the case against one of the defendants, it is relevant to the proceedings in context of meaning of section 55. Further, the use of it against the other defendants can be limited only by the terms covered under section 136[44] of this legislation; within the meaning of section 136 it can be limited where the evidence does not unfairly prejudice against the other defendant as it is not relevant to case against that particular defendant, even when it can be deemed as so detrimental where the case is tried with a jury, as was seen in Johnstone v State of NSW[45].

Section 57[46] of the evidence act is similar to the practice which was in prevalence before this act came in force in context of admitting the evidence subjected to relevance as per Nodnara Pty Ltd v Deputy Commissioner of Taxation[47]. In such cases where the relevance of any specific evidence is not clear initially, it continues to be appropriate under the act for the evidence to be admitted in the non jury case to relevance and even for the ruling to be made to its effects at the end of case, as per the matter of Merrylands Bowling, Sporting and Recreation Club Ltd v P & H Property Services Pty Ltd[48].

The issue regarding whether section 57 allows the issuance of authenticity of a document to be postponed till the time the relevance of it is determined, has not been shown satisfactorily as of yet. The case of National Australia Bank Ltd v Rusu[49] saw Justice Bryson stating that the relevance was dependent on the authenticity of evidence and it had to be proved before the determination of relevance. There have also been arguments that section 57(1) only requires that it is reasonable open to make findings of authenticity which makes the ruling given in National Australia Bank Ltd v Rusu wrong. Justice Einstein in Idoport Pty Ltd v National Australia Bank Ltd[50] relied on this section in part in context of sanctioning a widening of situations where the evidence could be admitted subject to the relevance; though, he refrained from elaborating the basis of this view.

In Daw v Toyworld[51], inconclusive reference was made by Court of Appeal to the case of National Australia Bank Ltd v Rusu; though, this was done with an apparent approval in the case of Trimcoll Pty Ltd v Deputy Commissioner of Taxation[52]. In this matter, it was held by the Court of Appeal that the relance of document in a specific case could be dependent on the identification of its author where the same had been created and when it was extracted; as against this, the authenticity of such document would depend on whether such a document was what it purported to be. This meant that there was no clear division in between the question of identity and authenticity and each could provide a base for admissibility. The approach given by National Australia Bank Ltd v Rusu was followed by Justice Austin in ASIC v Rich[53]. Emphasis was placed in this case on the question of the evidence being provided by the Law Reform Commission have the chances of affecting the probabilities, where these were accepted.

Considerable doubt had been expressed by Gyles and Weignberg JJ in O’Meara v Dominican Fathers[54] regarding the decision given in National Australia Bank Ltd v Rusu. Yet, by the end of this case, the two were satisfied on the evidence in that case regarding the document in issue being an authentic one. They also held that as a result of its possibility of confusing or misleading, the document could be rejected in exercising the general discretion which had been afforded by section 135[55] of this act. Kirby J, in Smith v The Queen provided in his dissenting judgement that it was not desirable that as a matter of legal policy and in context of the unnecessary terms of admissibility covered under section 55, to set up relevance as a hurdle which was too high.

Justice Austin, in ASIC v Rich, accepted that this statement had not been consistent with test of relevance, which had been adopted in Smith v The Queen through the majority judgement. The provisions relevance[56] section covered under this act allows for the evidence to be used in such a manner that the party to proceedings is deemed as a member of joint criminal enterprise for determining whether they have in fact been a member of such enterprise. There have been explanations by the Law Reform Commission regarding such evidence to be tendered on the basis that it is reasonably open for the courts or the tribunals of fact to establish or to find out if the person is a member of such enterprise or not; and that it is not provided for a hearsay purpose and is thus not caught under the hearsay provisions covered under the governing act, as was seen in cases of R v Masters[57] and Ahern v The Queen[58].

The case which is crucial in context of relevance of evidence and which has been referred to in the discussion carried above is that of Smith v The Queen. In this case, four men had entered in a bank to rob the bank. The security cameras of the bank took photographs of the entire scenario. It was alleged by the Crown that the appellant had been one of the individuals who had entered the Bank and the evidence which was available from the photos. The police had earlier dealt with the appellant and provided the evidence saying that they recognize him through those photos. In this matter, the consideration of identity was taken from the material which was available to the jury. Thus, the assertion of recognition of the witness was not deemed as evidence which could affect the consideration in a rational manner, which could be made to the jury on the very same matter, as a result of which it was not relevant. Where the assessment of probability of fact had been affected as a result of the evidence by the police officer, it was not by any reasoning process, but had been simply due to the decision maker permitting the swapping of view of officers with their own. Where the issue extended beyond the narrow question of who had been presented in the photo, it could be relevant for witness to provide recognition evidence[59].

The evidence had been provided by the police regarding previously having seen the accused person, dressed in a very distinctive jacket. As a result of this, they were able to depose that they had recognized the person who had been accused, in the jacket in the photographs of bank security. The other examples which had been provided by the necessity of giving evidence regarding the appearance of accused differing from their appearance at the trial in a major manner or that the photo showed certain distinctive features being present in the accused could only be identified by someone who had familiar appearance as that of the accused. As a result of all this, the conviction and sentencing of the accused was quashed and a new trial was ordered[60].

Conclusion

To bring the discussion to its end, the previous segments highlighted the different aspects of relevance under the evidence law. This was done in context of relevance covered under both common law and statutory law. The different case studies highlighted that relevance often required a deep analysis, as was perfectly demonstrated through the case of Smith v The Queen, and gave the learning that there is a need for more information to be provided before the court which was relevant to ensure that the proper evidence was presented, in place of the irrelevant evidence. The quoted case established that the evidence of photograph had to be properly analysed in terms of its relevance. This is the reason why the court went into the details of the accused being identified by the police to hold the relevance of their identification. Only after the court went in the details, did the court realize that there had been an improper identification of the accused. There is a need to learn from this case where only the relevant evidence or information is presented before the courts. By admitting the irrelevant evidence, in terms of the identification due to prior knowledge of police of the accused wearing a similar jacked, was not required to be provided or presented before the court, as it merely prolonged the trial and wasted the resources of the court. Further, unnecessary hassle was caused to the accused due to the irrelevant evidence being presented before the court.

The crux of the matter is that the parties should provide only that information to the court which is relevant to the matter at hand. Where this is not done, the evidence would not be admitted in the court. There is a need to understand the need of relevance and to uphold it sincerely in the court of law, as it forms an important part of the rules of evidence in the nation. This is not only covered under the case laws, but also under the different provisions of the evidence act of the commonwealth. The previous parts highlighted a number of examples and different provisions to establish this very point. There is a need to keep a strict eye on the relevance matter and for this purpose the aforementioned analysis is of assistance.

Arenson KJ, and Bagaric M, Rules of Evidence in Australia: Text & Cases (2nd ed, LexisNexis Butterworths, 2007)

Brown RA, Documentary Evidence: The Laws of Australia (2nd ed, Thomson Reuters (Professional) Australia Limited, 2013)

Kumar M, Odgers S, and Peden E, Uniform Evidence Law: Commentary and Materials (Lawbook Company, 2015)

Odgers S, Uniform Evidence Law (9th ed, Thomson Reuters, 2010)

Adam v The Queen (2001) 207 CLR 96

Ahern v The Queen (1988) 165 CLR 87

ASIC v Rich (2005) 216 ALR 320

Australian Competition and Consumer Commission v Air New Zealand Ltd (No 1) (2012) 301 ALR 326

Barrett Property Group Pty Ltd v Carlisle Homes Pty Ltd [2008] FCA 375

BBH v The Queen (2012) 245 CLR 499

Daw v Toyworld (2001) 21 NSWCCR 389

DSJ v R (2012) 215 A Crim R 349

Elias v R [2006] NSWCCA 365

Evans v The Queen (2007) 235 CLR 521

HML v The Queen (2008) 235 CLR 334

Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 1250

IMM v The Queen [2016] HCA 14

Johnstone v State of NSW (2010) 202 A Crim R 422

Lithgow City Council v Jackson (2011) 244 CLR 352

Merrylands Bowling, Sporting and Recreation Club Ltd v P & H Property Services Pty Ltd [2001] NSWCA 358

National Australia Bank Ltd v Rusu (1999) 47 NSWLR 309 (SC)

Nodnara Pty Ltd v Deputy Commissioner of Taxation (1997) 140 FLR 336

O’Meara v Dominican Fathers [2003] ACTCA 24

Papakosmas v The Queen (1999) 196 CLR 297

Perish v R [2016] NSWCCA 89

R v Slack (2003) 139 A Crim R 314

R v Smith [2001] WASCA 102

R v Wilson (1970) 123 CLR 334

R v Cakovski (2004) 149 A Crim R 21

R v Clark (2001) 123 A Crim R 506

R v Masters (1992) 26 NSWLR 450

R v Shamouil (2006) 66 NSWLR 228

R v TA (2003) 57 NSWLR 444

Smith v The Queen [2001] HCA 50

Trimcoll Pty Ltd v Deputy Commissioner of Taxation [2007] NSWCA 307

Washer v Western Australia (2007) 234 CLR 492

Evidence (National Uniform Legislation) Act, 2011 (NT)

Evidence Act, 1995 (Cth)

Evidence Act, 1995 (NSW)

Evidence Act, 2001 (Tas)

Evidence Act, 2004 (NI)

Evidence Act, 2008 (Vic)

Evidence Act, 2011 (ACT)

Find Law, The relevance of photographic evidence: Smith v The Queen (2018) <https://www.findlaw.com.au/articles/612/the-relevance-of-photographic-evidence-smith-v-the.aspx>

Judicial Commission of New South Wales, Relevance (2018) <https://www.judcom.nsw.gov.au/publications/benchbks/civil/relevance.html>

[1] Roger Alasdair Brown, Documentary Evidence: The Laws of Australia (2nd ed, Thomson Reuters (Professional) Australia Limited, 2013)

[2] Stephen Odgers, Uniform Evidence Law (9th ed, Thomson Reuters, 2010)

[3] Miiko Kumar, ‎Stephen Odgers, and ‎Elisabeth Peden, Uniform Evidence Law: Commentary and Materials (Lawbook Company, 2015)

[4] Evidence Act, 1995 (Cth)

[5] Kenneth J. Arenson and ‎Mirko Bagaric, Rules of Evidence in Australia: Text & Cases (2nd ed, LexisNexis Butterworths, 2007)

[6] Evidence Act, 1995 (NSW)

[7] Evidence Act, 2008 (Vic)

[8] Evidence Act, 2001 (Tas)

[9] Evidence Act, 2011 (ACT)

[10] Evidence (National Uniform Legislation) Act, 2011 (NT)

[11] Evidence Act, 2004 (NI)

[12] Judicial Commission of New South Wales, Relevance (2018) <https://www.judcom.nsw.gov.au/publications/benchbks/civil/relevance.html>

[13] R v Wilson (1970) 123 CLR 334 at [337]

[14] Evidence Act 1995, ch3

[15] Evidence Act 1995, s55; Smith v The Queen [2001] HCA 50

[16] Papakosmas v The Queen (1999) 196 CLR 297 at [81]

[17] Evidence Act 1995, s55, s56

[18] IMM v The Queen [2016] HCA 14.

[19] R v Smith [2001] WASCA 102

[20] Evidence Act 1995, s135

[21] Evidence Act 1995, s 90, s136, s137, s138

[22] IMM v The Queen at [43], [49]

[23] Evidence Act 1995, s55        

[24] R v Shamouil (2006) 66 NSWLR 228 at [60]–[62]

[25] Adam v The Queen (2001) 207 CLR 96 at [22], [60]

[26] DSJ v R (2012) 215 A Crim R 349 at [8], [53]–[56]

[27] Washer v Western Australia (2007) 234 CLR 492 at [5], n 4

[28] Evans v The Queen (2007) 235 CLR 521 at [23]

[29] Lithgow City Council v Jackson (2011) 244 CLR 352 at [26]

[30] BBH v The Queen (2012) 245 CLR 499

[31] Australian Competition and Consumer Commission v Air New Zealand Ltd (No 1) (2012) 301 ALR 326

[32] HML v The Queen (2008) 235 CLR 334 at [5]

[33] Elias v R [2006] NSWCCA 365 at [26]

[34] R v Cakovski (2004) 149 A Crim R 21 at [36], [56]–[57], [70]

[35] Evans v The Queen at [27]

[36] Smith v The Queen at [11]

[37] R v TA (2003) 57 NSWLR 444 at [6], [24], [26]

[38] R v Clark (2001) 123 A Crim R 506 at [111]–[112]

[39] Evidence Act 1995, s55(2)

[40] R v Slack (2003) 139 A Crim R 314 at [31]–[34]

[41] Barrett Property Group Pty Ltd v Carlisle Homes Pty Ltd [2008] FCA 375 (Heerey J) at [75]–[76]

[42] Evidence Act 1995, s56

[43] Perish v R [2016] NSWCCA 89

[44] Evidence Act 1995, s136

[45] Johnstone v State of NSW (2010) 202 A Crim R 422 at [102]–[103]

[46] Evidence Act 1995, s57

[47] Nodnara Pty Ltd v Deputy Commissioner of Taxation (1997) 140 FLR 336 (Young J) at 338

[48] Merrylands Bowling, Sporting and Recreation Club Ltd v P & H Property Services Pty Ltd [2001] NSWCA 358 at [35]

[49] National Australia Bank Ltd v Rusu (1999) 47 NSWLR 309 (SC) at [19] et seq

[50] Idoport Pty Ltd v National Australia Bank Ltd [2000] NSWSC 1250

[51] Daw v Toyworld (2001) 21 NSWCCR 389 at [46]

[52] Trimcoll Pty Ltd v Deputy Commissioner of Taxation [2007] NSWCA 307 at [30]

[53] ASIC v Rich (2005) 216 ALR 320 at [116]–[119] and at [152] et seq

[54] O’Meara v Dominican Fathers [2003] ACTCA 24 at [85]

[55] Evidence Act 1995, s135

[56] Evidence Act 1995, s57(2)

[57] R v Masters (1992) 26 NSWLR 450 at 460–461

[58] Ahern v The Queen (1988) 165 CLR 87 at 93–94, 99–100

[59] Find Law, The relevance of photographic evidence: Smith v The Queen (2018) <https://www.findlaw.com.au/articles/612/the-relevance-of-photographic-evidence-smith-v-the.aspx>

[60] Ibid

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