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This article was written by Michelle Makela - Legal Practice Director

Michelle has over 15 years experience in the legal industry, working across commercial litigation, criminal law, family law and estate planning.  Michelle has been involved in all practice areas of the firm and in her personal practice has had experience in litigation at all levels (State and Federal Industrial Tribunals, the Supreme Court, Court of Appeal, the Federal Court, Federal...

Relevance and Admissibility (Vic)


The evidence used in a criminal matter can take many forms, including objects, witness testimony, audio or video recordings, documents, and facts that are agreed upon between the parties. The Evidence Act 2008 sets out the rules that apply to different types of evidence and the ways they can be used. But the most fundamental question that must be posed in relation to any evidence is simple: is it relevant? Section 55 of the Evidence Act 2008. sets out what constitutes relevance. Evidence is relevant if it could rationally affect the court’s assessment of the facts in issue in the proceeding. In other words, evidence is admissible in a proceeding if it is relevant to the proceeding.

Relevance in criminal proceedings

In criminal proceedings, the issues for the court to determine are whether the crime was committed, the role the accused played in any agreement with others to commit the crime and whether the accused has a full or partial defence. Each of these issues is made up of a number of elements that must be proven by the party raising the issue. The prosecution alleges an offence was committed and so must prove all its elements beyond a reasonable doubt. An accused relies on a defence such as duress or self-defence and so must prove the elements of that defence.

Proof of a disputed fact

Each element of a criminal offence requires a fact or a series of facts to be proven and each fact may be the subject of dispute. Only evidence that is logically connected to the facts in dispute, or related facts that go to their proof, is relevant and admissible. This is true even if the evidence is only marginally connected to those facts. For evidence to be logically connected to a fact, it must make that fact logically more or less likely to exist. If the decision-maker– a magistrate, a judge, or a jury – could not reasonably accept that the evidence makes a disputed fact more or less likely to exist, the evidence must be ruled inadmissible on the basis of lack of relevance. 

For example, if a person is charged with stealing something from a shop, the prosecution must prove that they did the physical act. In other words, they must prove the offender’s identity. By itself, evidence that a person likes to shop at that store and that they go there often does not prove that they were there on the day the theft occurred, much less that they took the item stolen. Consequently, CCTV footage of the accused attending the shop three days before the theft will not be relevant to the proceeding and will be ruled inadmissible.

More likely than not to be relevant

The court may accept the relevance of a piece of evidence on the basis that it is more likely than not to have relevance to a material fact at issue in the proceeding. The court may reserve its decision about the relevance of evidence until its connection to a material fact has been demonstrated by further evidence from a party. In the example used above, the court might consider the CCTV footage to be relevant if the prosecution intends to produce other evidence that, when taken together with the footage, makes it more likely that it was, in fact, the accused who stole the item.

Reliability and fairness 

Defendants often feel that evidence is unfair or unreliable. For example, the testimony proposed to be given by an ex-partner who now detests the accused, or a photograph taken from Facebook and used out of context. Determining the relevance of evidence does not involve a judgment about whether it is reliable or fair. Both those questions are subject to other tests. 

If you require legal advice in a criminal matter or in any other legal matter, please contact Armstrong Legal.

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