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1、1/. RelevanceThe Rules of EvidenceTheEvidence Act (NSW) (1995)applies to all proceedings in a NSW court, except sentence proceedings. The Act applies to sentence proceedings only if the court directs, but such a direction must be given if a party applies and the fact is significant in determining se
2、ntence (s. 4 Evidence Act).RelevanceThe fundamental rule governing the admissibility of evidence is that it be relevant. In every instance the proffered evidence must ultimately be brought to that touchstone: Barwick CJ inWilson (1970) 123 CLR 334at 337. The touchstone of admissibility is relevance.
3、 Evidence which is relevant is generally admissible, and evidence which is irrelevant is inadmissible:s. 56 Evidence Act. Evidence is relevant if it is evidence which, if accepted, could rationally affect the assessment of the probability of a fact in issue in the proceedings:s. 55 Evidence Act,Mund
4、arra Smith (2001) 206 CLR 650, 75 ALJR 1398. A fact in issue means the factual elements of the offence charged and any defence. Evidence may also be relevant if it relates to the credibility of a witness, the admissibility of other evidence, or a failure to adduce evidence:s. 55(2).Types of Evidence
5、Three important types of evidence in criminal proceedings are: confessional evidence- he told me that he did it identification evidence- I saw him do it circumstantial evidence- he must have done it.2/. The Confessiona. What Can Constitute a Confession or AdmissionAdmissions GenerallyAn admission is
6、 defined in theDictionary to the Evidence Actas a previous representation made by a party to proceedings ( including a defendant in criminal proceedings) which is adverse to the persons interest in the outcome of the proceedings. The hearsay rule and the opinion rule do not apply to evidence of an a
7、dmission:s. 81 Evidence Act. But for this provision, strictly speaking, an admission would be inadmissible because of of the hearsay rule, because it is an out of court statement tendered to prove the truth of the statement. Admissions which are second hand hearsay (X told me that Y told him that Y
8、did the murder) are inadmissible:s. 82 Evidence Act.In the usual case, it is clear what is an admission and what is not; thus, for example, in a murder trial I have killed Mum is an admission. The balance of this section relates to less obvious types of representation which may, by words or conduct,
9、 constitute an admission.Statements in the Presence of the Accused.A statement made in the presence of the accused is not admissible unless it is in some way adopted by him:Christie1914 AC 545.Silence in response to the policeThen common law position is that a statement made in the presence of an ac
10、cused may be treated as adopted by him by his silence if a denial could be reasonably be expected in the circumstances. It is very clear that a failure or refusal to reply to an allegation after a caution is given is not an admission and is not admissible:Ireland(1970) 126 CLR 321,Woon(1964) 109 CLR
11、 529.Indeed, failure to respond to police questioning does not constitute an admission even before the caution:s. 89Evidence Act,Hall1971 1 WLR 298 (Privy Council),Paterson v Martin(1966) 11 CLR 506,Maiden and Petty(1991) 55 A Crim R 322, 173 CLR 95.The jury can be told that a person has exercised h
12、is right to silence but that they should not draw an adverse inference to the accused:Astill(CCA 17/7/92, u/r, PD 173),Reeves(1992) 29 NSWLR 109. This still applies after theEvidence Act:Matthews(NSW CCA 28/5/96), (1996) PD 211, however inRoss v Regina 2012 NSWCCA 207it was suggested that this would
13、 have to be reconsidered (esp at para 69). This direction should be given as soon as the evidence is given:Berrigan(1995) PD 58.Section 89 also has the effect that a jury cannot draw an inference adverse to a party if a person other than a party to the proceedings (e.g. a witness) exercises the righ
14、t to silence:Jones 2005 NSWCCA 443.As from 1 September 2013, unders. 89A Evidence Act, an unfavourable inference can be drawn against a defendant where he has refused or failed to mention a fact which he could reasonably have been expected to mention at the time, and which he later relies on in his
15、defence, if: the offence is a serious indictable offence; a special cautionwas given (that the person does not have to say anything, and anything the person says or does may be used in evidence, but it may harm the persons defence if the person does not mention it and later seeks to rely upon it lat
16、er in court) the special caution was given in the presence of an Australian legal practitioner and the defendant had the opportunity to speak to the Australian legal practitioner in the absence of the investigating official about the general nature and effect of special cautionsThe provision does not apply if the defendant is under the age
