2 Relevance

Starting point s 7 Evidence Act 2006 (EA):

7 Fundamental principle that relevant evidence admissible

(1) All relevant evidence is admissible in a proceeding except evidence that is—

(a) inadmissible under this Act or any other Act; or

(b) excluded under this Act or any other Act.

(2) Evidence that is not relevant is not admissible in a proceeding.

(3) Evidence is relevant in a proceeding if it has a tendency to prove or disprove anything that is of consequence to the determination of the proceeding.

• This is a low threshold for admissibility.

• Relevance is a “relational concept” (Mueller and Kirkpatrick) where one fact “renders probable the past, present or future existence or non-existence of the other” (Stephen).

2.1 Therefore, before assessing relevance you must establish your ultimate issues

Smith v The Queen: “In determining relevance, it is fundamentally important to identify what are the issues … On a criminal trial the ultimate issues will be expressed in terms of the elements of the offence with which the accused stands charged.” (HCA)

Facts in issue are derived from the substantive law for civil and criminal law and must have an evidential foundation. You may have subordinate or collateral facts in issue such as the credibility of witnesses or ancillary rulings (where you must adduce some evidence in support of a copy).

One may also try to prove subsidiary facts or circumstantial evidence: facts relevant to facts in issue. There are 3 categories:

• Pre-offence conduct (prospectant evidence) – Joy v Phillips – involved a stable boy killed in his employment with no direct witnesses. One piece of prospectant evidence was that he was in the habit of teasing the horses. When combined with the generalisation that this would make it more likely for a horse to react, it was held relevant. He was also found with a halter in his hands making it more likely he was near the horses at the time of death.

• Contemporaneous conduct (concomitant evidence)

  • Woolf v Woolf – divorce proceedings requiring proof of fault/adultery. There was evidence that they were seen in bed together and shared a bedroom. Held to be relevant to inferring adultery.

  • Res gestae evidence – the thing done. Usually something required to be proved to make sense of a person’s story.

    • R v Olamoe – police arrived within minutes of domestic violence. They found a woman with injuries to her face and got a statement within 15 minutes. The court held this evidence to be res gestae and although she didn’t want to the woman was called forward to adduce the evidence.

• Post-offence conduct (retrospectant evidence):

  • R v Hines – defendant gave a false alibi: held to be relevant as relating to the defendant’s guilt.

  • R v Anderson – 3 months after an alleged indecent act on a 14 year old boy there was evidence that the accused showed the boy pornographic videos, but this would only rebut an “innocent association” argument which was not a fact in issue being run by the defence.

2.2 Relevance under the Evidence Act 2006

Wi v R – NZSC: “The question is whether the evidence has some, that is any, probative tendency, not whether it has sufficient probative tendency. Evidence either has the necessary tendency or it does not.”

Mahoney has observed two elements to relevance:

• Materiality – relating to a matter in issue

• Probativeness – making the matter more or less likely.

Buy the full version of these notes or essay plans and more in our LAWS 307 Law of Evidence Notes.