JCV online test 2

The Judicial College of Victoria released the second part of their online self-test yesterday.

There are ten questions to test your knowledge of relevance, opinion evidence and the discretions. Like the last part, you'll probably need to refer to the Evidence Act 2008 to complete it.

Good luck!

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77. Exception - evidence relevant otherwise than as opinion evidence

77. Exception - evidence relevant otherwise than as opinion evidence

The opinion rule does not apply to evidence of an opinion that is admitted because it is relevant for a purpose other than proof of the existence of a fact about the existence of which the opinion was expressed.

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58. Inferences as to relevance

58. Inferences as to relevance

(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.

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57. Provisional relevance

57. Provisional relevance

(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.

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56. Relevant evidence to be admissible

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.

Evidence which is irrelevant is not objectionable, it is inadmissible. Under certain circumstances a failure to make an objection may entitle a court to conclude that certain facts are not in dispute. It is unclear whether waiver may apply to evidence which is not relevant in Victoria: see R v Chai [2002] NSWCCA 512 for the NSW position.

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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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