Seminar 3: Relevance and Judicial Discretion

1. Relevance and Admissibility

1.1 Introduction
Section 56 is both inclusionary and exclusionary- it admits relevant
evidence and excludes irrelevant evidence.
Evidence Act 1995 Section 56 Relevant evidence to be admissible

(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.

1.2 Relevance and admissibility
The first question always to be asked is whether the evidence is relevant.
If it is not relevant, it is excluded. If it is relevant, it will be admissible
unless one of the exclusionary rules in Ch 3 applies, such as the rules
against hearsay evidence or against opinion evidence
o Some of the rules of admissibility operate as exceptions to the
exclusionary rules, allowing evidence that would ordinarily be
excluded by the exclusionary rule to be admitted.
o Some evidence, although admissible, may be subject of a warning
to the jury. The warning provisions of the Act are not rules of
admissibility (because they only operate once evidence is deemed
admissible). Some of these warning are nevertheless contained in
Chp 3 of the Act for convenience (e.g. warning with respect to
identification of evidence; s 116 EA).
It is not clear whether the exclusionary rules (including s 56) only apply
where there is an objection by a party to the admission of evidence or if
they apply in absolute terms. From the principle perspective, the latter
should be the case, thus not admissible under the UEA means not
admissible over objection (Commissioner of Taxation v SNF; Salmon v R).
o Evans v R Balaclava- Cannot force someone to dress up in clothes
from the scene as it does not increase the probability of fact in
issue.

1.3 Relevance- Definition

Evidence Act 1995 Section 55 Relevant evidence

(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: (e.g.
evidence that are indirectly relevant)
(a) the credibility of a witness, or
(b) the admissibility of other evidence, or
(c) a failure to adduce evidence.
What are facts in issue?
o Evidence is relevant if it has some rational connection to a fact in
issue, in the sense that it could increase or decrease the probability
of that facts existence.

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 Example: if a witness to a car accident is called to give
evidence about the colour of the traffic light when the
collision occurred, evidence of her ability to have seen the
traffic light (because she was not wearing her glasses) will be
relevant to her credibility

o Evidence that is relevant to the admissibility of other evidence

could include evidence about threats or violence made towards an
accused at the time of his confession to the offence.
o That evidence is not relevant directly to the fact in issue but it will
be relevant to the reliability of the confession and, therefore, to its
admissibility
The failure of a party to adduce evidence might be relevant
to show that the party has something to hide.
Logical relevance
o In Washer v State of Western Australia in order to establish
relevance it is necessary to point to a process of reasoning by which
the information in question could affect the jurys assessment of the
probability of the existence of a fact in issue at the trail.
o The ALRCs intention was that relevance be interpreted broadly, so
that evidence need only have a minimal logical connection with a
fact in issue to be considered relevant: Papakosmas v R {1999}
o The concept of relevance at common law was more restricted- it
required that evidence be legally or sufficiently relevant, rather than
merely logically relevant.
o The common law notion of relevance is based partly on
pragmatism: the court process would be unduly weighed down and
delayed, and the jury would potentially be distracted, if all evidence
that might have only the slightest bearing on an issue were to be
admitted.
R v Stephenson {1976}: Mr Stephenson drove through an
intersection, colliding with another car which was coming
from the opposite direction and which was attempting to
make a right hand turn at the intersection. Three of the four
occupants of the fiat were killed in the collision. At the trial Mr
Stephenson had sought to adduce evidence of the blood
alcohol readings of the four occupants of the fiat. The trial
judge excluded the evidence on that ground that it was not
relevant. The full court of the supreme court of Victoria said
the following:
although logic is the test of relevance, not all
evidence which is logically relevant is legally
admissiblesuch evidence may be more correctly
described as insufficiently relevant or too remotely
relevant
Why was the evidence insufficiently relevant in this
case?
o The condition of the driver of the fiat was
unknown and could not be established
o Although the movement of the fiat was a matter
of relevance, there was very little evidence
about this, and none to suggest the fiat had

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 been in the wrong position on the road or that it
had been behaving inappropriately
o Therefore the connection between the condition
of the occupants of the car and a fact in issue
was so tenuous as to be virtually irrelevant.

The same result would probably be achieved if the

case were heard today. However, the evidence would
likely be excluded under the discretion in s 135.
o The probative value of the evidence (which is
very little) would arguably be substantially
outweighed by the danger that it would be
unfairly prejudicial to a party, because it might
be used by the jury in an unacceptable way, for
example, by provoking some irrational,
emotional or illogical response, or by giving it
more weight than it truly deserves: R v
Suteski {2002}
R v Fieldman (Ruling No 1) {2010}: another case
concerning the relevance of the behaviour of the deceased
prior to a motor vehicle accident in which the deceased died.
The accused had been charged with culpable driving causing
the death of Mr Yannopoulos. The accident occurred when the
accused noticed his motorbike had been stolen and heard the
sound of the bike travelling along the highway near his
property. He pursued the bike in his station wagon and
ultimately collided into the back of the trail bike then being
ridden by Mr Yannopoulos. The accused had told police that
almost immediately before the impact the deceased had
slowed down or stopped as if he intended to turn left onto a
track in this area of the road. It was the accuseds case that
the dramatic slowing down by Mr Y of the bike cause the
accident.
The issue was whether the deceaseds fairly extensive
criminal record, which included motorbike theft, was
relevant to any fact in issue.
The defence argued that the prior convictions were
relevant to the manner in which the deceased had
been driving the motorbike almost immediately before
the moment if impact
o Justice Kaye discussed s 55 and 135: it is clear
that the issue whether Mr Y slowed down his
vehicle immediately before impact is a very
relevant, and important, issue in the trial. If the
jury concluded that Mr Y did slow down it would
provide an explanation as to why the accused
man came into collision. Thus the evidence
would be relevant to the issue of the causation
of the accident
The argument by Ms Fox is that the evidence of Mr Y
previous convictions is relevant, because it bears on
the probabilities as to why Mr Y may have sought to
access the escape route, rather than continuing along
the highway.

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 The question of the relevance of the evidence sought
to be adduced by the accused. Section 55(1) provides
that evidence which is relevant in a proceeding is
evidence which if accepted could rationally affect
directly or indirectly the assessment of the probability
of a fact in issuing a proceeding.

o Two points could be noted about s 55:

In order to be relevant, the rational effect
of the evidence on the assessment of the
probabilities can be either direct or
indirect
S 55(1) does not provide that the
evidence must affect the probabilities,
but, rather it is sufficient if the evidence
could have a rational effect either directly
or indirectly on an assessment of the
probabilities.

o If has been held that evidence of a previous

history of violence by a deceased may be
relevant as to whether the deceased did act in a
violent manner alleged by the accused in a case
in which as issue of self-defence is raised: R v
Besim
That evidence is admitted if it has the capacity to bear
rationally on the probabilities of whether the deceased acted
in a manner alleged by the accused.
The previous convictions of Mr Y would have the
capacity to bear rationally on the assessment of the
probabilities, whether immediately before impact Mr Y
was minded to or felt the need to take the slightly risky
course of slowing down. For those reasons the
evidence as to Mr Y previous convictions is relevant
Smith v R {2001}
PAGE 92 Stephensen also concerned potentially prejudicial evidence
about the deceased occupants of the fiat just prior to the
Judgements: collision. It was held to be irrelevant under the common law
concept
Is an example of evidence that of
was relevance.
found not to have satisfied the broad test in s 55, because it
had no capability of affecting the jurys
There wasassessment
no evidence of the probability
to show of a fiat
that the factwas
in issue?
In the judgment of the majority in the HC the following was
behaving in an untoward manner held
The appellant was indicted in the DC of NSW on a charge that, being in company with others, he
robbed two bank officers of a sum of money which was the property of the bank. To that charge
he pleaded not guilty but he was convicted. Appeal was dismissed.
Bank security cameras had taken photographs showing what happened. The prosecution case
against the appellant was that he was the person who was shown in the photographs, standing
near the back of the automatic teller machine.
Therefore, a fact in issue on the trial of the appellant whether the appellant, the person standing
trial, is the person depicted at the right hand side of some of the security photographs.
Two police officers gave similar evidence at trial over the objection of the appellant. Each said
that he had previous dealings with the appellant and that he recognised the person depicted in
the bank photographs as the accused.
The question on this appeal is whether that evidence was properly received.
First question is whether the evidence is relevant. If the evidence is not relevant no further
question arises about its admissibility. Two axioms propounded by Thayer and adopted by
Wigmore:
o None but facts having rational probative value are admissible, and
o All facts having rational probative value are admissible, unless some specific
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a g forbids.
e
The question of relevance must be answered by applying Pt 3.1 of the Act and s 55 in particular.
Thus, the question is whether the evidence, if it were accepted, could rationally affect (directly
or indirectly) the assessment by the tribunal of fact, here the jury of the probability of the
existence of a fact in issue in the proceeding
Smith v R {2001} CONTINUED
PAGE 9
Judgements:
The only evidence led against the appellant in relation to that disputed fact was the evidence
of the two police officers and the evidence that demonstrated that the photographs which
were tendered in evidence had been taken by the banks security cameras during the robbery.
Neither police officer suggested that he had any basis for concluding that it is the appellant
depicted in the bank photographs other than the knowledge that he had gained of the
appellants physical appearance during the earlier encounters.
By the time the evidence had concluded the jurors had probably spent more time in the
presence of the appellant than had the police witnesses before they gave their evidence.
police witness were in no better position
Thus not only was the issue that was raised a very narrow issue, the data available to the jury
for its resolution was no different in any significant way from the data upon which the police
officers based their asserted conclusion.
Is an assertion, in evidence by a witness that he now recognises, or has previously recognised,
the person who is depicted in those photographs as the accused, relevant evidence?
In the language of s 55, could that evidence if accepted, rationally affect the assessment by
the jury of the probability that it is the person standing trial who is depicted in the
photographs?
Because the witnesss assertion of identity was founded on material no different from the
material available to the jury from its own observation, the witnesss assertion that he
recognised the appellant is not evidence that would rationally affect the assessment by the
jury of the question we have identified.

R v Goodall: the question included whether the accused owned a jacket of

the kind that the offender depicted in security photographs of a robbery was
shown to be wearing. Two police officers gave evidence that they had seen
the accused wearing this kind of jacket before the robbery. They gave further
evidence that the man depicted in the photograph was the accused, and that
he was wearing a jacket of the kind they had seen him wearing before the
robbery. The evidence was therefore relevant to link the accused to the
jacket. It went beyond the bare assertion of recognition of the person on trial
as the person shown in the photograph.

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 o The evidence of identification will be relevant because it goes to an
issue about the presence or absence of some identifying feature other
than one apparent from observing the accused on trial and the
photograph which is said to depict the accused.
Evidence from someone who knew how the accused looked at the time of the
offence, that the picture depicted the accused as he or she appeared at that
time, would not be irrelevant.
o R v Tipene: there is an issue whether photographs of different
incidents depict the same person, evidence given about the identity of
the person depicted may not be irrelevant
Had the police officers been in a better position than the jury to
identify the accused, their evidence would have been relevant.

1.4 Provisional relevance and inferences as to relevance

Inferences as to relevance
The relevance of an item of evidence will depend on showing that it is
what it claims to be. This refers to the concept of authentication.
o EXAMPLE: knife will not be relevant unless it can be authenticated-
shown to be the knife that was found at the murder scene by
evidence of the person who found it
Section 58 now allows the court, when a question arises as to the
relevance of a document or thing, to examine it and to draw any
reasonable inference from it, including an inference as to its authenticity
or identity.
o EXAMPLE: a court to examine a document that has been signed by a
person and draw the inference, on the basis of the signature that
the document is authentic (it is what it purports to be- a document
adopted by the person who signed it)
In ACCC v Air New Zealand it was decided that a court, in determining the
authenticity of a document, may draw reasonable inferences from the
document itself.

Provisional relevance
Sometimes the relevance of evidence will depend on the court being
satisfied of another fact.
o Example: the relevance of one witnesss evidence may often
depend on the evidence of a witness who is later to give evidence.
Thus relevance of a knife found at the scene of a crime by a police
officer might depend on a fingerprint
For this reason it is necessary to have a mechanism that allows the earlier
witness to give that evidence, even if it is not apparently relevant at that
stage.
This is provided by section 57- provisional relevance. The section
provides that, if the question whether evidence is relevant depends on the
court making another finding, the court may find that the evidence is
relevant if it is reasonably open to make that finding, or may find it
relevant subject to further evidence being admitted at a later stage of the
proceedings that will make it reasonably open to make that finding .
o If evidence is admitted provisionally under s 57, it must be shown
ultimately to be relevant in order for it to be admissible
NAB v Rusu {1999}: court distinguished between authenticity and
provisional relevance. In that case, the bank had attempted to prove that

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 one of the Ds had deposited money into his account at another bank the
day after the money was alleged to have been stolen from the P banks
safe. That fact, together with evidence of other transactions, was part of a
circumstantial case that the D had stolen the money. The P relied on a
document purporting to be a copy of a bank statement to prove the fact
that the D had deposited the money. Counsel asked that the court
provisionally admit the evidence on the basis that its relevance would
become apparent after the later evidence of other transactions. The
problem was that the document itself was not authenticated. Document
contained neither the name of the bank nor the name of the depositor.
o The court held that provisional relevance was not the same as
authentication. The document could be admitted as provisionally
relevant under s 57(1), but only if it were already authenticated.

1.5 Summary
The logical test in s 55 insists that all evidence that might possibly have a
bearing on the issue be considered. This is balanced by the judicial
discretion, in s 135, to exclude evidence in circumstances where it might
be considered to be too remotely relevant.
o Example: because it probative value is substantially outweighed by
its potential to be unfairly prejudicial to a party, to be misleading or
confusing
Probative value- degree of relevance: the extent to which the evidence
could rationally affect the assessment of the probability of a fact in issue.
There are 5 main questions to be asked when considering the admissibility
of evidence
o Is the evidence relevant?
o If so, does an exclusionary rule apply to exclude it?
o If so, is there an exception to the exclusionary rule that would apply
to allow it to be admitted?
o If so, should the evidence be excluded or limited by discretion?
o If the evidence is admitted, do the warning provisions apply?

2. Judicial Discretion
2.1 Introduction
The flexibility of the law is not only maintained by having overarching
discretions. This is also achieved by the existence of principles. In most
areas of law, there are two different types of norms:
o Rules; and
Rules (e.g. no driving over 60 km/h) apply to conclusively
resolve an issue or not hence, rules never clash.
Rules produce legal certainty.
o Principles
Principles (e.g. no person should benefit from his/her own
wrongdoing) are standards observed because of a

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 requirement of fairness or justice and secure some individual
or group right.
Principles provide flexibility in the law.
There are four discretions in the EA; 135, 136, 137 and 138 (Although,
technically, s 137 is a rule of exclusion rather than a discretion).
o Sections 135-138 of the Act set out what are termed discretions
which enable courts to exclude relevant evidence that has not been
excluded by any other rule of inadmissibility.
They operate to make otherwise admissible evidence
inadmissible.
The key concepts governing the application of the discretions are the
probative value of the evidence and its prejudicial nature.
o At common law, there is one overarching residual discretion that
exists in criminal cases to exclude what would otherwise be
admissible evidence. It is known as the Christie discretion and is
the principle that evidence should be excluded where its prejudicial
effect outweighs its probative value. (R v Christie).
The discretions in the Act are wide-ranging, given that they
invoke broad terms which do not have settled meanings and
involve a considerable degree of subjective judgment.
Judges, like all people, prefer to shape the world in a manner
that accords with their values and beliefs. Hence, as a matter
of practical reality, there is little guidance that can be derived
from previous cases regarding the manner in which a
particular discretion is likely to be exercised.
2.2 Granting Leave

Section 192 Leave, permission or direction may be given on terms

o If because of this Act, a court may give any leave, permission or
direction, the leave permission or direction may be given on such
terms as the Court thinks fit.
o Without limit the matters that the court may take into account in
deciding whether to give the leave, permission or direction, it is to
take into account:
The extent to which to do would be likely to add unduly to, or
to shorten, the length of the hearing; and
The extent to which to do would be unfair to a party or to a
witness; and
The importance of the evidence in relation to which the leave
permission or direction is sought; and
The nature of the proceedings; and
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.
In 3WJ Pty Ltd v Kanji it was noted that it is not always necessary for a
judge to expressly refer to the considerations set out in s 192 when
making a decision in relation to which s 192 applied.
o In Stanoevski v R it was held that s 192 is not exhaustive of the
matters to be taken into account in deciding whether leave should
be granted. The weight to be accorded to the disputed evidence is
of significant relevance. If the evidence is likely to have little weight,
this is a strong reason for not granting leave.

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 2.3 The relevant provisions

Evidence Act 1995 Part 3.11 Discretionary and mandatory exclusions

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.

136 General discretion to limit use of evidence

The court may limit the use to be made of evidence if there is a danger that a particular use of
the evidence might:
(a) be unfairly prejudicial to a party, or
(b) be misleading or confusing.

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 Section
value 135 discretion:
is outweighed by the danger of unfair prejudice to the defendant.
o Probative value of evidence means the extent to which the evidence
could rationally affect the assessment of the probability of the
existence of the fact in issue.
o Unfair prejudice:
Section 135 discretion applies in both civil and criminal
proceedings. In R v Suteski it was noted:
Damage to the defence case in some unacceptable
way, for example by provoking some irrational,
emotional or illogical response or by giving the
evidence more weight than it truly deserves Where it
only has slightly probative value, but which carries
with it a probability that it will be misused by the
tribunal of fact in a way logically unconnected with the
issue in the case. There must be more than a
hypothetical risk of it being unfairly prejudicial in this
way- the risk must be a real one (R v GK).
o Mislead or confusing
This was considered in R v McNeill it held:
Misleading or confusing evidence occurs were a court
incorrectly assess the weight of a particular piece of
evidence.
Evidence is not unfairly prejudicial to a party merely
because it tends to damage the partys case or support
the case of its opponent. Unfair prejudice means that
the trier of fact may use the evidence to make a
decision on an improper basis by, for example, giving
that evidence more weight than it should be given.
Accordingly there is likely to be some overlap between
s 135(a) and (b). Evidence which is potentially

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 misleading and confusing may also, thereby, be
unfairly prejudicial to an accused.
In Hodgson v Amcor Ltd; Amcor Ltd v Barnes and Ors was
applied to exclude confusing evidence. In that case, the court
was required to rule on whether a file note on a solicitors file
should be exclude even though it was admissible as a
business record under s 69 of the Act. Court held:
The court takes the view that it should refuse to admit
the file note into evidence. Such probative value as it
might have given the shortcoming as to the proof of
the document and its precise meaning, are
substantially outweighed by the danger that the
evidence might be unfairly prejudicial to Mr Hodgson or
be confusing.
Section 136 discretion:
o Section 136 is not used frequently. It enables a court to limit the
manner in which evidence can be used. Section 136 is likely to be
applied in relation to s 60 (heresay evidence) and s 77 (opinion
evidence).
o The functionality of s 136 is questionable given that once evidence
is admitted it is intellectually questionable that its use can be
contained to only credibility.
Section 137 discretion:
o This discretion applied in criminal proceeding. In R v D G; D G v R
the Victorian Court of Appeal held that the onus in relation to s 137
is on the accused. This is now consistent with the NSW position.
o There are two aspects where some of the jurisdiction differ in
application of s 137:
Whether s 137 operates as a rule or akin to a discretion; and
McCartney v R highlights the competing views:
o House v King and Aytugrul v R held s 137
involved the trial judge to undertake an
evaluative task. The judge must assess the
probative value of the evidence and the danger
of unfair prejudice to the accused. If the judge
concludes that the probative value is
outweighed by the danger of unfair prejudice to
the accused. If the judge concludes that the
probative value is outweighed by the danger of
unfair prejudice, the evidence must be excluded.
NO EXERCISE OF DISCRETION IS CALLED FOR.
Whether, in considering the probative value of the evidence
the court should take the evidence at its highest, or factor
into consideration relating to the reliability of the evidence.
Another area of controversy in relation to s 137 relates
to the concept of probative value in particular, whether
the court should assume that the evidence is both

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credible and reliable (i.e. taken at its highest the NSW
Approach); or
o R v Linard Shamouil (2006) provided support for
this proposition- see page 505.
o R v XY (2013) also supported this proposition
and declining to apply the Victorian position
below. The Court stated that the operation of s
137 may vary depending upon the
circumstances of the case. In broad terms, the
principles has three elements:
In determining the inadmissibility under s
137 the judge should asses the evidence
proffered by the prosecution on the basis
of its capacity to advance the prosecution
case;
It follows from (1) that the judge should
deal with the evidence on the basis of any
inference or direct support for a fact in
issue which would be available to a
reasonable jury considering the proffered
evidence, without speculating as to
whether the jury would in fat accept the
evidence and give it particular weight;
and
It also follows from (1) that the judge
should not make his or her own findings
as to whether or not to accept the
inference or given the evidence particular
weight.
This principle does not produce uniformity
of approach in all cases. The weighing
exercise required if s 137 is engaged not
only involves incommensurate, but
elements that may interrelate in a variety
of ways.
Determining which inferences should be
accepted was quintessentially a function
for the jury.
o Thus, determination of the credibility of
evidence will often depend upon the assessment
of the witness who gives the evidence.
Determination of reliability will often depend
upon some analysis of the circumstances
surrounding the coming into existence of the
evidence.
This may depend and judged upon after
cross examination of the witnesses and

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 also upon an assessment of the evidence
of one witness against another.
Whether the court should assume the evidence is
credible but not assume and may examine whether the
evidence is reliable (i.e. evaluate the weight to be
given to the evidence, Victorian approach) before
determining its probative value.
o Dupas v R (2012) provided support for this
proposition- see page 505.
Meaning of unfairly prejudicial:
o There has been far less controversy surrounding the meaning of
unfairly prejudicial in the context of the discretion. In R v Shamouil
the Court elaborated on the meaning of prejudicial which has
universal application. The Court stated:
There is now a considerable body a case law in this Court
which emphasis the fact that the assessment of this element
require any prejudice to be unfair. There must be a real risk
that the evidence will be misused by the jury in some way
and that risk will exist notwithstanding the proper directions
which it should be assumed the Court will give (R v BD).
The Court went on to state:
It is only when the probative value of the evidence is
outweighed by its prejudicial effect that the Crown can
be deprived of the use of relevant but weak evidence.
And evidence is not prejudicial merely because it
strengthens the prosecutions case. It is prejudicial
only when the jury are likely to give the evidence more
weight than it deserves or when the nature or contents
of the evidence may influence the jury or divert the
juror from their task.
o In Doolan v R the Court again pointed out that s 137 only applies
where evidence is unfairly prejudicial, rather than being simply
damaging to the accused.
Notwithstanding, the similarities and differences identified
above, an example of a case where s 137 was applied to
exclude evidence is Steve v R:
The evidence that the appellants wife, Gail, said to the
complainant He put the hard word on you, hasnt he?
And It okay hes done it before was prejudicial.
o The Court stated that s 137 is mandatory in its
terms and is not dependent upon objection
being taken to the admission of the evidence.
In my opinion, this evidence fell into that category of
evidence that should have been excluded under s 137.
It was evidence that characterised the appellant as a
sexual predator. As such, it was evidence of bad
character and was the type of evidence that could and
most likely would have influenced the jurys

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 determination in circumstances where the case
depended upon the credibility of the complainant, to
more readily accept her evidence.
The evidence of the fight between the appellant and
his wife was not relevant. It was not argued that it was
part of the res gestae. It was evidence of bad character
because it indicated that the appellant was prepared to
be violent towards women and thus prejudicial.

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