Relevance and Admissibility (NSW)

The evidence that is used to prosecute or defend a person who is accused of a criminal offence can take many forms including witness testimony, audio-visual recordings, documents, objects and forensic material such as DNA. The Evidence Act 1995 sets out the rules that apply to different types of evidence and how they can be used. The most fundamental rule of evidence is that evidence is only admissible if it is relevant to the proceeding. This page deals with relevance and admissibility in criminal proceedings.

What is relevance?

The test for relevance is found in section 55 of The Evidence Act 1995 which states:

(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.

Under section 56 of the Evidence Act 1995, evidence is admissible in a proceeding if it is relevant unless it is inadmissible because of another provision of the Act.

Relevance and admissibility in criminal proceedings

In criminal proceedings, the prosecution is required to prove each element of the offence beyond reasonable doubt. Whether something is “relevant” to a fact in issue in the proceedings will depend on what needs to be proved for each offence and what issues the court needs to consider. For example:

if the alleged offence was assault, the prosecution must prove beyond a reasonable doubt that the accused:

1. Intentionally or recklessly applied force to the alleged victim; or
2. caused a person to fear immediate and unlawful violence; and
3. did so without e person’s;

In the above example, it might be relevant to call evidence about:

• who it was who committed the alleged assault (ie was it the accused) and
• whether the complainant consented to the physical contact or not.

Evidence is relevant  in a proceeding if the court accepts that it could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue in the proceeding. Relevance is given a broad definition. For example, something could be relevant because it:

• Explains the relationship between the people involved in the matter;
• Explains what happened at a particular time;
• Goes to prove a particular element of the offence; or
• It is relevant in considering the credibility of a witness.

Provisional relevance and admissibility

Under section 57 of the Evidence Act 1995, a court may provisionally admit evidence if its relevance depends on the court making another finding. In this situation, the court may reserve its decision as to the relevance of the evidence until further evidence has demonstrated its connection to a particular fact. For example, where there is uncertainty about who the author of a document is, the document may be found to be provisionally relevant because it would be relevant if the accused was the author.

Relevant evidence that is not admissible

Evidence may be relevant to a disputed fact in a proceeding but may still be inadmissible for some other reason. Examples of where relevant evidence may be inadmissible include:

• Where the evidence is inadmissible hearsay under section 59 of the Evidence Act 1995
• Where the evidence is an opinion and is inadmissible under section 75 of the Evidence Act 1995
• Where the evidence was improperly obtained – for example an admission that was not made voluntarily or an item that was obtained during a search that was conducted unlawfully.

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