Relevance and discretionary exclusion

• Adducing evidence– Chapter 2

• Admissibility of evidence– Chapter 3

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Y e s

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Is the evidence relevent? (See Part 3.1)

THE EVIDENCE IS ADMISSIBLE

Should a discretion to exclude the evidence be exercised? (See Part 3.11.)

Does a privilege apply? (See Part 3.10.)

Does the evidence contravene the rules about identification evidence? (See Part 3.9.)

Does the credibility rule apply? (See Part 3.7. See also Part 3.8 on character evidence.)

Does the tendency rule or the coincidence rule apply? (See Part 3.6. See also Part 3.8 on character evidence.)

Does the evidence contravene the rule about evidence of judgments and convictions? (See Part 3.5)

Does the opinion rule apply? (See Part 3.3. See also Part 3.4 on admissions and Part 3.8 on character evidence.)

Does the hearsay rule apply? (See Part 3.2. See also Part 3.4 on admissions and Part 3.8 on character evidence.)

THE EVIDENCE IS

NOT ADMISSIBLE

Section 55 – Definition of relevance

(1) The evidence that is relevant in a proceeding is evidence that, if it were accepted, could

rationally affect (directly or 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 – key provision

(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.

Relevant to a “fact in issue”

• In civil proceedings?• In criminal proceedings?

Definition of “probative value”

"the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue".

McHugh J in Papakosmas (1999) HC

• In assessing relevance the judge assumes that the evidence is reliable – [81]– Approved in Adam v The Queen at [22] (p 397 of

KOP)

Example of the importance of defining relevance

Smith v The Queen (2001) HC• What was the evidence the subject of the

appeal?

Gleeson CJ, Gaudron, Gummow and Hayne JJ at [8]

“ …question for the jury was whether they were satisfied, to the requisite standard, that the person then standing trial before them is shown in those photographs.”

Could the police officer’s evidence assist the jury to determine this question?

At [11]Because the witness's assertion of identity was founded on material no different from the material available to the jury from its own observation, the witness's assertion that he recognised the appellant is not evidence that could rationally affect the assessment by the jury of the question we have identified. The 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 when the conclusion is based only on material that is not different in any substantial way from what is available to the jury.

Evans v R (20070

• Was the evidence of the accused putting on the balaclava and sunglasses relevant?

• Was the evidence of saying “Give me the serious cash” relevant?

• Was the evidence of the accused walking in the overalls relevant?

Admission and use of evidence

• Multiple relevance of evidence – example of complaint evidence in Papakosmas v The Queen

• Complainant said “I was raped”

Provisional relevance

Where evidence is relevant in combination with other evidence, the judge may receive the evidence conditionally upon the assurance of the party that the other information will be properly tendered.

Section 57(1) If the determination of the question whether evidence adduced

by a party is relevant depends on the court making another finding (including a finding that the evidence is what the party claims it to be), the court may find that the evidence is relevant:

(a) if it is reasonably open to make that finding; or(b) subject to further evidence being admitted at a later stage of the proceeding that will make it reasonably

open to make that finding.

(2) Without limiting subsection (1), if the relevance of evidence of an act done by a person depends on the court making a finding that the person and one or more other persons had, or were

acting in furtherance of, a common purpose (whether to effect an unlawful conspiracy or otherwise), the court may use the evidence itself in determining whether the common purpose existed.

Purpose of section 57" [T]he Evidence Act should be approached in a purposive manner to aid the court process and not to delay it. The only construction which fulfils this purpose is to hold that evidence is relevant if it appears to the court to be relevant at the time it is tendered. If it were necessary to have a voir dire examination to examine the objective facts underlying relevance each time an objection arose, trials would never finish". - per Young J in Nodnara Pty Ltd v Deputy Commissioner of Taxation (1997) 140 FLR 336 (NSW SC)

Section 58

(1) 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 an inference as to its authenticity or identity.

(2) Subsection (1) does not limit the matters from which inferences may properly be drawn.

Discretionary exclusion and limits on the use of evidence

Introduction

• What is discretion?• What is discretionary exclusion of evidence?• Discretion developed in common law –

Christie v R [1914] AC 545

Yes

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Is the evidence relevent? (See Part 3.1)

THE EVIDENCE IS ADMISSIBLE

Should a discretion to exclude the evidence be exercised? (See Part 3.11.)

Does a privilege apply? (See Part 3.10.)

Does the evidence contravene the rules about identification evidence? (See Part 3.9.)

Does the credibility rule apply? (See Part 3.7. See also Part 3.8 on character evidence.)

Does the tendency rule or the coincidence rule apply? (See Part 3.6. See also Part 3.8 on character evidence.)

Does the evidence contravene the rule about evidence of judgments and convictions? (See Part 3.5)

Does the opinion rule apply? (See Part 3.3. See also Part 3.4 on admissions and Part 3.8 on character evidence.)

Does the hearsay rule apply? (See Part 3.2. See also Part 3.4 on admissions and Part 3.8 on character evidence.)

THE EVIDENCE IS

NOT ADMISSIBLE

Discretions to exclude

- 135 - 137- 138- 90- 136

Section 135 – General discretion to exclude evidence

The court may refuse to admit evidence if its probative value is substantially outweighed by the danger that the evidence might:(a) be unfairly prejudicial to a party; or(b) be misleading or confusing; or(c) cause or result in undue waste of time.

Section 137

Exclusion of prejudicial evidence in criminal proceedings In a criminal proceeding, the court must refuse to admit evidence adduced by the prosecutor if its probative value is outweighed by the danger of unfair prejudice to the defendant.

ss 135, 136, 137, 138 and 90

• Do these sections apply in civil or criminal cases, or both?

• What are the important terms in these sections ?

• Who can use these sections?• How does the judge apply the sections?

Definition of “probative value”

"the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue".

Probative value

• Relevance is defined in s 55 as “evidence that, if it were accepted, could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding.”

• Probative value is defined in the Dictionary as:“the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue.”

Differences

• PV is a matter of degree• No explicit requirement in the definition of PV

that crt assume evidence will be accepted.

McHugh J in Papakosmas (1999) HC

• In assessing relevance the judge assumes that the evidence is reliable – [81]– Approved in Adam v The Queen at [22]

• In assessing “probative value” the judge takes into account reliability – [86]

Gaudron J in Adam

–Gaudron J in Adam did not agree with McHugh J’s view about the significance of the words ‘if it were accepted” – [59- 60]

Other cases…

• Chief Justice in Shamouil (2006) approved of Gaudron J’s comments in Adam.– Significance of “could” – see [61].

• This was applied in Sood [2007] NSWCCA 214 – application for special leave to HC refused.

Dupas [2012] VSCA

• The Trial Judge should have taken into account the reliability of identification evidence under s 137.

• The TJ held that the reliability of the evidence was a matter of weight not admissibility.

• Question: Should the Court follow Shamouil?

Crown case

• Identification evidence – Mrs Burman– Mr Weller– Mrs Melnik– Mrs Baran

• Lies• Admissions to cellmate (Mr Fraser)• Clothing found at home• Forensic evidence• Evidence of opportunity

Defence case

• Who was Dr Kemp?• What was his evidence?• How was it admissible?

Decision

• Summary at [63]• ALRC report at [65]• NSW is wrong – why? [68]

Categories of evidence where there was application of discretionary exclusion

• Identification evidenceWhy was this type of evidence unreliable?Why did judge use discretion to exclude?

* Confessions and admissions• Accomplice evidence• Expert evidence• Tendency and coincidence

• What did the court hold? • How should the statute be read? [164]• What does [181] say? [184]?• What do they say about NSW’s methodology?

[206]• What do they conclude? [226]• Did the trial judge correctly apply s 137?

NSW responds

• R v XY [2013] NSWCCA 121

Aytugrul v The Queen [2012] HCA 15

The expert who did the DNA testing (Gina Pineda) gave evidence that to the effect that one in 1,600 people in the general population (which is to say the whole world) would be expected to share the DNA profile that was found in the hair (a frequency ratio) and that 99.9 per cent of people would not be expected to have a DNA profile matching that of the hair (an exclusion percentage). – not excluded under s 137

Unfair prejudiceSome examples

• Evidence that is admitted for one purpose yet has another unfair use.

• Evidence which permits the jury to adopt an illegitimate form of reasoning.

• Unfair prejudice could result from the jury giving undue weight to evidence.

• Unfair prejudice may arise from procedural considerations.

ALRC 26, vol 1, para 644• The ALRC explained what it meant by the term (The risk of

unfair prejudice is one of the potential disadvantages mentioned. By risk of unfair prejudice is meant the danger that the fact-finder may use the evidence to make a decision on an improper, perhaps emotional, basis, ie on a basis logically unconnected with the issues in the case. Thus evidence that appeals to the fact-finder's sympathies, arouses a sense of horror, provokes an instinct to punish, or triggers other mainsprings of human action may cause the fact-finder to base his decision on something other than the established propositions in the case. Similarly, on hearing the evidence the fact-finder may be satisfied with a lower degree of probability than would otherwise be required.

McHugh J in Papakosmas at [91]

Evidence is not unfairly prejudicial merely because it makes it more likely that the defendant will be convicted. In R v BD [(1997) 94 A Crim R 131 at 139 Hunt CJ at CL pointed out:

The prejudice to which each of the sections [ss 135, 136 and 137] refers is not that the evidence merely tends to establish the Crown case; it means prejudice which is unfair because there is a real risk that the evidence will be misused by the jury in some unfair way’

• This approach was applied in Ainsworth v Burden [2005] NSWCA 174 at [99].

R v Lisoff [1999] NSWCCA 364

• DNA evidence excluded by TJ • On a crown appeal….

R v Lisoff [1999] NSWCCA 364 at [60]

In our opinion, by applying to the statutory formula,—“the danger of unfair prejudice”,—a test of mere possibility, his Honour erred in law. Section 137 requires a real risk of unfair prejudice to the defendant by reason of the admission of the evidence complained of. It is not sufficient to establish that the complexity or nature of the evidence was such that it created the mere possibility that the jury could act in a particular way. His Honour applied the wrong test.

R v Dann [2000] NSWCCA 185

- Appellant argued for the exclusion of medical evidence under s 137

- Unattractive nature of the subject matter was not itself prejudicial

Is the inability to cross examine unfair prejudice?

• See Ordukaya v Hicks [2000] NSWCA–Lack of xx would bear on the weight

given to the document.

Note Ainsworth v Burden at [105]

La Trobe Capital & Mortgage Corporation Limited v Hay Property Consultants Pty Ltd (2011) 190 FCR 299

[64] It is true that the meaning of the term “unfair prejudice” has been somewhat contentious. The ALRC explained the risk of unfair prejudice as being the danger that the evidence might be used in an improper, perhaps emotional, way: ALRC, Evidence (Interim) Report, Report no 26 (1985), v 1, [644]. Clearly, a risk of that kind is much greater in the context of jury trials. However, there are also numerous authorities that suggest that an unfair prejudice may arise from procedural considerations: see Odgers, Uniform Evidence Law (9th ed, 2010) [1.3.14560].

Cure prejudice with a direction

• R v Clark [2001] NSWCCA 494

Section 138 - Exclusion of improperly or illegally obtained evidence

• Section 138(1), which applies both in criminal and civil cases, provides that evidence that was obtained improperly or in contravention of an Australian law, or in consequence of an impropriety or of a contravention of an Australian law, is not to be admitted unless the desirability of admitting the evidence outweighs the undesirability of admitting evidence that has been obtained in the way in which the evidence was obtained.

• discretion to admit otherwise inadmissible evidence, not to exclude otherwise admissible evidence

The balancing exercise required

• In Bunning v Cross (1978) 141 CLR 54, the High Court indicated that a court must weigh competing requirements of public policy: "the desirable goal of bringing to conviction the wrongdoer" on the one hand and, on the other, the avoidance of "the undesirable effect of curial approval, or even encouragement, being given to the unlawful conduct of those whose task it is to enforce the law" (at 74 per Stephen and Aickin JJ).

• Section 138(3) sets out various non-exhaustive factors which the court is to take into account in exercising its discretion under s 138(1).

Cases

• Robinson v Woolworths [2005] NSWCCA 426