Welcome to the Evidence Act 2008

This blog was started back when the Evidence Act 2008 was nothing more than a gleam in Parliament's eye. It was an attempt to further understanding of some challenging new legislation when information about it was difficult to find.

Since then, many authors and luminaries have turned their minds to the complex issues the Act obliges Victorian lawyers to engage with. A blog devoted exclusively to this one piece of legislation isn't necessary, and is impossible for us to give the attention it deserves.

If you're looking for a more conventional blog posting on topical legal issues, have a look at Quis Custodiet Ipsos Custodes? by the same authors.

This site is no substitute for legal advice from an Australian lawyer. If you have a legal problem, it's great that you are doing a bit of research, but go consult a professional.


55. Relevant evidence

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-

(a) the credibility of a witness; or

(b) the admissibility of other evidence; or

(c) a failure to adduce evidence.

Relevance is a preliminary threshold test: DPP v McRae [2010] VSC 114. Unlike other exclusionary rules in the Evidence Act, evidence which is not relevant is not admissible. This is so even though it may satisfy other statutory tests of admissibility.

What is a fact in issue will be determined by the trial judge. In R v Middendorp [2010] VSC 147, Byrne J said [at 17]:

17 This is a criminal trial. The accused by pleading not guilty raises the general issue. At common law an accused is incapable of admitting a fact. Pursuant to s 184 of the Evidence Act an accused may admit matters of fact, subject to certain conditions or agree facts pursuant to s 191. Under s 183 of the Criminal Procedure Act an accused may make an admission in response to a notice of pre-trial admissions given by the prosecution under s 182. None of these courses appears to have been taken in this case, so that all factual matters to be proved by the prosecution are technically facts in issue.

In R v Fieldman (Ruling No 1) [2010] VSC 257 the prior convictions of the deceased were held to be relevant, in that they may have motivated the deceased to flee from the accused with particular desperation. Kaye J held that the evidence was substantially more probative than prejudicial, and declined to exercise his discretion under s 135.

The High Court considered the NSW Evidence Act in Smith v The Queen (2001) 206 CLR 650 [at 654]:

In determining relevance, it is fundamentally important to identify what are the issues at the trial. On a criminal trial the ultimate issues will be expressed in terms of the elements of the offence with which the accused stands charged. They will, therefore, be issues about the facts which constitute those elements. Behind those ultimate issues there will often be many issues about facts relevant to facts in issue. In proceedings in which the Evidence Act 1995 (NSW) applies, as it did here, 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.

A consideration of relevance requires consideration of the process of reasoning by which the information could rationally affect the assessment of the probabilities. The word rationally is significant in this context. In order to establish relevance, it is necessary to point to a process of reasoning by which the information in question could affect the jury’s assessment of the probability of the existence of a fact in issue at the trial: Lasry J in DPP v Williams Ruling No 1) [2010] VSC 34 at 13, citing the High Court in Washer v Western Australia [2007] HCA 48.

Relevance is not reliant on reliability: Papakosmas v The Queen (1999) 196 CLR 297, McHugh at 321. The court may also make a finding of provisional relevancy if further evidence to be given will shed light on whether the evidence is truly relevant or not: s 57. Questions are not irrelevant simply because some potential answers may not rationally affect the probability of the existence of a fact in issue: Evans v The Queen (2007) ALJR 250 [at 157], though an irrelevant answer may be.


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