LAWS50037 · Evidence And Proof
Relevance
Relevance is the first gate in the admissibility ladder and the only one every item of evidence must pass. The test (s 55) is deliberately low: evidence is relevant if, were it accepted, it could rationally affect (directly or indirectly) the assessment of the probability of a fact in issue. If it could, s 56(1) makes it admissible unless another rule excludes it; if it could not, s 56(2) shuts it out for good. The high-value trap the examiners reward is Smith v The Queen — evidence is irrelevant where the tribunal is in no better position than the jury to draw the inference. Relevance is rarely the whole answer, but it is the compulsory first step: state the rational use of the item, then ask whether it could affect a fact in issue. This chapter also covers the witness-examination rules that sit alongside relevance — competence and compellability, examination-in-chief, cross-examination, the rule in Browne v Dunn, and prior consistent/inconsistent statements.
What this chapter covers
- 01s 55 — the relevance test (could rationally affect a fact in issue)
- 02s 56 — relevant = admissible unless excluded; irrelevant = out
- 03s 57 provisional relevance · s 58 inferences
- 04Smith v The Queen · Papakosmas — the leading cases
- 05Competence & compellability (ss 12–13, 17–18)
- 06Examination-in-chief, leading questions, cross-examination, re-examination
- 07The rule in Browne v Dunn · prior consistent/inconsistent statements
Worked example: is the police identification relevant?
- +1State the rational use. The evidence is led to prove identity — that the person in the footage is the accused, a fact in issue.
- +1Apply s 55. Ask whether, if accepted, it could rationally affect the probability of that fact. The officer is in no special position: the jury watches the same footage and sees the accused themselves.
- +1Apply Smith v The Queen. Where the tribunal of fact is in no better position than the jury to make the comparison, the opinion adds nothing rational — so it is not relevant under s 55 and is inadmissible by s 56(2).
- +1Distinguish. The result flips if the officer had special knowledge the jury lacks (e.g. prior familiarity with the accused’s appearance over time) — then the officer is better placed and the evidence could be relevant.
Key terms
- Relevance (s 55)
- Evidence is relevant if, were it accepted, it could rationally affect (directly or indirectly) the assessment of the probability of the existence of a fact in issue. Three elements: a rational connection, to a fact in issue, capable of affecting probability — a minimal threshold (‘could’, not ‘does’).
- Fact in issue
- A fact the proceeding must resolve — an element of the offence or a fact that bears on one. Relevance is always tested against a fact in issue and a stated rational use; the same item can be relevant for one use and not another.
- s 56
- The consequence of relevance: s 56(1) relevant evidence is admissible unless excluded by another rule; s 56(2) irrelevant evidence is not admissible. Distinguish ‘irrelevant’ (out for good) from ‘relevant-but-excluded’ (a rule or discretion bars it).
- Smith v The Queen (2001)
- Evidence is irrelevant where the tribunal of fact is in no better position than the jury to draw the inference — e.g. a police officer ‘recognising’ the accused in footage the jury can compare for itself. The examiners’ favourite relevance trap.
- The rule in Browne v Dunn
- A rule of fair cross-examination: a party must put to a witness any matter on which it will later contradict them, giving the witness a chance to respond. Failure to do so may limit the contradicting submission or invite a comment.
Relevance FAQ
Is relevance a high bar?
No — it is deliberately low. The test is whether the evidence could rationally affect the probability of a fact in issue, not whether it does, or does so strongly. Treating relevance as a demanding standard is a common error; most evidence clears s 55, and the real work happens at the exclusionary rules and the discretions. The exception is genuinely irrelevant evidence — the Smith situation, where the witness adds nothing the jury cannot do itself.
Why must I fix the rational use before testing relevance?
Because relevance is use-relative (Papakosmas): the same item can be relevant for one purpose and irrelevant for another. Once you fix the use, you test s 55 against that use, and the Act’s scheme — not common-law instinct — governs. Fixing the use first is also what makes the later hearsay, opinion and tendency analysis clean, because those rules attach to the use.
Can evidence that only goes to credibility be relevant?
Yes. Section 55(2) makes clear that evidence is not irrelevant merely because it goes only to a witness’s credibility, or to the admissibility of other evidence, or to a failure to adduce evidence. Credibility evidence then faces its own gate (the credibility rule, s 102, and its exceptions), but it is not knocked out at the relevance stage.
What does Browne v Dunn require me to do in the exam?
If a brief shows a party intends to contradict a witness on a point but never put that point to the witness in cross-examination, flag the rule in Browne v Dunn: the contradicting evidence or submission may be limited, or the court may comment on the failure. It is a fairness rule about the conduct of the examination, sitting alongside the relevance and exclusionary analysis rather than inside it.
Exam move
Make relevance your automatic first step on every item: write the rational use in one line, then ask the s 55 question — could this, if accepted, affect the probability of a fact in issue? Bank the low threshold and the two leading cases: Smith (irrelevant when the witness is no better placed than the jury) and Papakosmas (relevance turns on the use). Keep a tab for the witness-examination rules — competence/compellability, leading questions, Browne v Dunn, prior consistent/inconsistent statements — because they surface as add-on marks in problem questions. The trap to avoid is confusing irrelevant (s 56(2), out permanently) with relevant-but-excluded by a later rule.
