Relevance (NSW)

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.

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.

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.

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.  

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.

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