Relevance (NSW)

By James Stevens, Director and Solicitor, Go To Court Lawyers. Last reviewed 20 April 2026.

In criminal matters, there are very strict rules about what may be admitted as evidence. These rules are set out in the Evidence Act 1995 and exist to ensure that a person is not found guilty of an offence based on evidence that is unreliable or that was improperly obtained. The most fundamental rule of evidence is that evidence is only admissible if it is relevant to the proceeding. This page deals with relevance under New South Wales criminal law.

Understanding the concept of relevance is crucial for both legal practitioners and individuals facing criminal charges in NSW. The Evidence Act 1995 provides a comprehensive framework that governs how evidence is assessed, admitted, and used in criminal proceedings. Relevance serves as the gateway for all evidence - without it, even the most compelling information cannot be presented to the court.

Relevance and the Evidence Act

Under section 55 of the Evidence Act 1995, evidence is relevant to a proceeding provided if it were accepted, it could rationally affect the assessment of the probability of the existence of a fact at issue in the proceeding.

Evidence is not to be taken to be irrelevant only because it related to:

• the credibility of a witness
• the admissibility of other evidence
• a failure to adduce evidence.

Evidence that is relevant is admissible unless it is inadmissible because of another provision of the Evidence Act 1995.

The Rational Connection Test

The test for relevance under section 55 requires a rational connection between the evidence and the facts in issue. This is a relatively low threshold - the evidence doesn't need to prove the fact conclusively, but merely needs to have the potential to affect the court's assessment of whether that fact exists. Courts in NSW have consistently applied this test liberally, recognising that the weight of evidence is a separate consideration from its relevance.

Determining Facts in Issue

For evidence to be relevant, it must relate to a "fact in issue" in the proceeding. Facts in issue include the elements of the offence charged, any defences raised, and matters relating to the credibility of witnesses. The prosecution's case, the defence response, and any preliminary legal arguments help establish what facts are truly in issue for each specific criminal matter.

Proving Elements of an Offence

In a criminal proceeding, the prosecution must prove every element of the offence beyond a reasonable doubt. Whether evidence is relevant in a proceeding depends on what needs to be proved and what issues the court must consider.

For example, if the accused is charged with stealing, the prosecution must prove that:

• they dishonestly took something
• the thing belonged to someone else
• the accused did not intend to return it.

In a stealing matter, it may be relevant to call evidence about who committed the alleged acts and whether the owner of the property gave them permission to take it.

Evidence may be relevant because it:

• helps to explain the relationships between people involved
• explains what happened at the time of the offence
• relates to an element of the offence
• relates to the credibility of a witness.

Circumstantial Evidence and Relevance

Circumstantial evidence plays a significant role in criminal proceedings and must also meet the relevance test. This type of evidence doesn't directly prove a fact but allows the court to infer the existence of that fact. For instance, fingerprints at a crime scene, CCTV footage showing the accused in the vicinity, or evidence of financial difficulties in fraud cases may all be relevant circumstantial evidence that supports the prosecution's case.

Provisional Relevance

Under section 56 of the Evidence Act 1995, a court may provisionally find that evidence is relevant to a proceeding in a situation where another finding needs to be made to determine its relevance. In this situation, the court may reserve its decision about the evidence until further evidence has shed more light on its connection to particular facts.

Practical Applications of Conditional Relevance

Provisional relevance often arises in complex criminal cases where the connection between evidence and the facts in issue becomes clear only after additional evidence is presented. For example, phone records may seem irrelevant initially, but become highly relevant once evidence establishes that certain calls were made at crucial times. Courts in NSW regularly use this provision to manage evidence presentation efficiently while ensuring all relevant material is properly considered.

When Evidence is Relevant but Not Admissible

In some cases, evidence that is relevant to the proceeding may be inadmissible for some other reason – for example, because of the way it was obtained, because it is an opinion, or because it is hearsay. In these situations, evidence may be found to be inadmissible, or excluded from the proceeding on a discretionary basis, despite being relevant.

Common Exclusionary Rules

Several provisions in the Evidence Act 1995 can render relevant evidence inadmissible. These include the hearsay rule (sections 59-75), opinion evidence restrictions (sections 76-80), and character evidence limitations (sections 94-111). Additionally, sections 137 and 138 provide discretionary grounds for excluding evidence where its probative value is substantially outweighed by unfair prejudice or where it was improperly or illegally obtained.

Judicial Discretion and Relevance

NSW courts possess significant discretionary powers when determining the relevance and admissibility of evidence in criminal proceedings. Under sections 135-137 of the Evidence Act 1995, judges can exclude relevant evidence if its probative value is substantially outweighed by the danger of unfair prejudice, if it would be misleading or confusing, or if it would cause undue waste of time.

Balancing Probative Value and Prejudice

The court must carefully balance the probative value of relevant evidence against any potential prejudicial effect. This is particularly important in serious criminal matters where highly prejudicial evidence might unfairly influence the jury's decision-making process. Factors considered include the strength of the evidence, its importance to the case, and whether alternative evidence could prove the same point with less prejudicial effect.

Tendency and Coincidence Evidence

Sections 97-101 of the Evidence Act 1995 deal with tendency and coincidence evidence, which can