Relevance and Admissibility (Tas)
One of the most fundamental rules of evidence is that evidence is only admissible in a proceeding if it is relevant to the proceeding. In Tasmania, the rules of evidence are set out in the Evidence Act 2001. This page deals with relevance and admissibility in criminal matters in Tasmania.
What evidence is relevant?
Under section 55 of the Evidence Act 2001, evidence is relevant if it could rationally affect the assessment of the probability of the existence of a fact in issue in the proceeding.
In a criminal proceeding, the facts whose existence are at issue are:
- whether the offence was committed
- whether the accused was involved in the offence
- what role the accused played
- whether there is a legal defence that applies.
Each of the above issues is made up of a number of elements that must be established through evidence adduced by the party seeking to prove the issue. Any fact that is relevant to proving one of these elements is relevant to the proceeding.
Relevant evidence and admissibility
Under section 56 of the Evidence Act 2001, evidence that is relevant is admissible and evidence that is not relevant is not admissible. However, evidence that is relevant may still be inadmissible if it contravenes another rule of evidence – for example, if it is an opinion or if it is inadmissible hearsay.
Where party seeks to adduce evidence that is not relevant
If a party seeks to adduce evidence that the other party does not believe is relevant to the proceeding, this may lead to a voir dire.
A voir dire is a pre-trial proceeding that is used to determine the admissibility of evidence that has been objected to. If the court grants a voir dire in a criminal matter, both the prosecution and the defence will have the opportunity to call evidence and make submissions on the evidential issue. The court will then make a determination as to whether or not the evidence is admissible.
If a party seeks to ask a question of a witness during examination-in-chief or cross-examination that the other party does not believe is relevant, there is likely to be an objection. The party asking the question will be expected to explain to the court how the line of questioning in relevant and make a case for why it should be permitted.
Relevance is different to reliability
It is common in criminal matters for the accused to feel that some of the prosecution evidence is unfair or unreliable. For example, evidence given by a witness known to the accused may be felt to be unreliable if the person has a vendetta against them or some other motivation for lying.
It is important to remember that just because evidence has been accepted into court as relevant, does not mean that it will necessarily be treated as reliable. The issue of reliability will be dealt with separately to the issue of relevance.
If there is reason to believe that evidence is unreliable, the court will treat the evidence with caution. Depending on the circumstances, unreliable evidence may be given little or no weight.
Hearsay
The hearsay rule is the well-known rule of evidence that prohibits a witness from giving evidence of what another person said for the purpose of establishing the truth of the other person’s statement. In Tasmania, this rule is codified in section 59 of the Evidence Act 2001.
Under section 60 of the Evidence Act 2001, there is an exception to the hearsay rule when evidence is relevant for a purpose other than proving the truth of another person’s statement. The easiest way to illustrate the difference between these two situations is through examples.
If Person A were to give evidence that Person B said that the accused was present at the scene of the crime, this evidence would not be admissible. However, if Person A gave evidence that they heard the accused make a threat to kill a person this would be admissible as evidence that the threat was made.
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