14. Relevance (Vic) — ss 55–58 Evidence Act 2008¶
Scope and currency
Cheat sheet · ss 55–58 (with 60, 101A–104, 136–137) Evidence Act 2008 (Vic) · statute and case law integrated, each case with facts, decision and significance
Relevance is the gateway to admissibility and the first question for any piece of evidence (Smith v The Queen (2001) 206 CLR 650; [2001] HCA 50). The test in s 55 is one of capacity, not weight; the threshold is a minimal logical connection to a fact in issue; and there is no discretion — evidence is relevant or it is not. Irrelevant evidence is inadmissible as a matter of law under s 56(2), with no probative-value-versus-prejudice balancing. The single most valuable distinction in this topic is between evidence that is legally irrelevant because it has no logical capacity at all, and evidence that is merely weak — the first is struck out under s 55, the second survives to be assessed under s 137.
1 · The basic rule (ss 55–56)¶
| Provision | The rule |
|---|---|
| s 55(1) | Evidence is relevant if it 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. "Could" means capacity or capability, not the weight the tribunal may ultimately give it; "rationally" means a logical connection, not the judge's view of veracity or reliability. |
| s 55(2) | Evidence is not irrelevant merely because it relates only to (a) the credibility of a witness; (b) the admissibility of other evidence; or © a failure to adduce evidence. Do not dismiss credibility-only, foundation, or absence-of-evidence material as irrelevant — s 55(2) expressly saves it. |
| s 56(1) | Except as otherwise provided by the Act, relevant evidence is admissible. |
| s 56(2) | Evidence that is not relevant is not admissible. Relevance is therefore an indispensable precondition to admissibility — but relevance alone does not guarantee admission, because an exclusionary rule or discretion may still apply. |
| ENGINE The order of analysis | |
| Relevance is always the first question. → 1. Identify the fact in issue and the purpose for which the evidence is tendered. → 2. Apply s 55 — is there a process of reasoning by which the evidence could rationally affect the assessment of that fact? This is a question of capacity, not weight. → 3. Not relevant: excluded under s 56(2) as a matter of law. Stop — there is no discretion and no s 137 balancing. → 4. Relevant: admissible under s 56(1), unless an exclusionary rule (hearsay, opinion, tendency, credibility, admissions) or a discretion (ss 135–137) applies. → Practice: if relevance is challenged, the tendering party must state the purpose for which the evidence is led and how it is relevant and admissible. |
2 · The threshold — minimal logical connection¶
The propositions, in sequence: The test is whether there is a logical connection between the evidence and a fact in issue (Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37). The party must be able to "point to a process of reasoning by which the information in question could affect the assessment of the probability of the existence of a fact in issue" (Washer v Western Australia (2007) 234 CLR 492; [2007] HCA 48), and determining relevance is an exercise in logic (DPP v Wise [2016] VSCA 173 at [68]). Relevance does not depend on the evidence's capacity, by itself, to prove the case or raise a doubt — the effect to look for is that of the contested evidence taken with the other evidence, admitted or to be called (Evans v The Queen (2007) 235 CLR 521 at [177] per Heydon J).
Where the effect is so ambiguous that it could not rationally affect the assessment, the evidence is irrelevant (Lithgow City Council v Jackson (2011) 244 CLR 352), PI case, sued local council. On appeal to HCA, council argued that a report by ambulance officer was too ambiguous to be relevant. In the report it says “fell from 1.5m onto concrete”. It’s unclear whether this is a question or a statement, if statement the basis of the observation. The HCA agreed it was ambiguous therefore irrelevant.
2·A — The s 55 and s 56 tests: the foundational authority¶
| Case | Facts | Decided | Significance |
|---|---|---|---|
| Smith v The Queen (2001) 206 CLR 650; [2001] HCA 50 | Police witnesses who had prior interactions with the accused but did not witness the robbery gave evidence identifying him as the person depicted in low-quality bank security photographs. | The High Court held the officers' evidence of recognition was irrelevant and inadmissible — they were in no better position to make a comparison than the jury using its own observations. | The witness-adds-nothing rule. Identification from images is irrelevant where the witness has no special familiarity or advantage over the jury. Knowing another person's conclusion on identity does not assist the jury's logical reasoning. Also the source of the no-discretion proposition. |
| Papakosmas v The Queen (1999) 196 CLR 297; [1999] HCA 37 | In a sexual assault trial the prosecution adduced previous representations of complaint made by the complainant to co-workers shortly after the incident. | The High Court held the prior complaints were logically relevant to the facts in issue — consent and credibility. Once admitted under a hearsay exception (s 66), the evidence was admissible for all purposes under s 60. | The low threshold, and the classic dual-relevance case. If evidence has any rational tendency to affect the probability of a fact in issue it is relevant; it need not be probative in any strong sense. Pair it with s 136 to limit the use once s 60 opens the hearsay door. |
| Washer v Western Australia (2007) 234 CLR 492; [2007] HCA 48 | The appellant was tried for conspiracy to possess methylamphetamine. The judge admitted prior recorded conversations about drug dealing but excluded evidence that he had been acquitted of a similar earlier conspiracy charge. | The High Court held the fact of the prior acquittal was irrelevant — there was no logical process of reasoning by which it could affect the assessment of guilt in the separate, subsequent conspiracy. | Relevance is determined by logic and general experience, not judicial discretion. A party must be able to point to a specific, non-speculative logical line of reasoning connecting the evidence to a fact in issue. |
| Evans v The Queen (2007) 235 CLR 521; [2007] HCA 59 | In an armed robbery trial the prosecution required the accused to put on overalls and a balaclava, walk in front of the jury, and speak words used by the robber, so the jury could compare his appearance and voice with the CCTV footage. | The High Court majority held the in-court demonstration was irrelevant and inadmissible — the clothing was mass-produced and did not fit uniquely, so it provided no rational basis for comparison. | Speculative demonstrations are irrelevant. Demonstrations or experiments are irrelevant if they do not replicate the original conditions with sufficient precision. Heydon J's judgment is also the source of the "taken with the other evidence" proposition at [177]. |
| Lithgow City Council v Jackson (2011) 244 CLR 352; [2011] HCA 36 | A plaintiff was found unconscious in a concrete drain and sued the council. The ambulance record contained the notation "? Fall from 1.5 metres onto concrete". His liability case depended entirely on proving he fell over a vertical retaining wall. | The High Court majority held the ambulance representation inadmissible: the statement was so highly ambiguous that it was logically irrelevant under s 55(1), because it did not indicate where the fall occurred. | Ambiguity defeats relevance. Where evidence is so fundamentally ambiguous that it is equally consistent with competing, mutually exclusive hypotheses, it lacks any logical capacity to affect the probability of a fact in issue. Note it is unclear on the face of the note whether it was a question or a statement, and on what basis the observation was made. |
3 · Taken at its highest — and the limiting case¶
Assume the evidence is accepted. Because s 55 says "if [it were] accepted", relevance is assessed on the footing that the jury will accept the evidence — it is presumed credible and reliable. The judge does not weigh credibility or reliability; "the only question is whether it has the capability, rationally, to affect findings of fact". There is one limiting case: evidence so inherently incredible, fanciful or preposterous that no rational jury could accept it has a nil effect and fails the relevance criterion (IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14).
3·A — The limiting case in application¶
| Case | Facts | Decided | Significance |
|---|---|---|---|
| IMM v The Queen (2016) 257 CLR 300; [2016] HCA 14 | The accused was charged with indecent dealing. The prosecution adduced uncharged sexual conduct to show a tendency, together with complaint evidence. | The High Court plurality held that when assessing probative value under s 137 or s 97 the judge must assume the evidence is true — taken at its highest — and cannot assess credibility or reliability. | The core rule plus the carve-out. Credibility and reliability are assumed. But the Court carved out a "limiting case" where evidence is so inherently incredible, fanciful or preposterous that no rational jury could accept it, meaning its probative value is nil. |
| DPP v Paulino (Ruling No 4) VSC 346 (Bell J) | In a homicide trial the Crown sought to lead CCTV footage showing a vehicle similar to the accused's being driven near the crime scene around the time of the killing. | Bell J held that, taken as part of the overall circumstantial case, the footage was incapable of supporting a rational inference that the vehicle belonged to the accused. | Circumstantial gaps. Even taking the footage at its highest as depicting a similar vehicle, without a non-speculative link to the accused the evidence was irrelevant under s 55(1) and inadmissible under s 56(2). This is the paradigm of the limiting case being properly invoked. |
| DPP v Wise [2016] VSCA 173 | In a penile-oral rape trial the Crown sought to lead DNA evidence showing a mixture of DNA from the accused, the complainant and a third female inside the complainant's underpants. | The Court of Appeal upheld the exclusion. Taken at its highest the DNA proved only contact or transference, and could not rationally prove penile-oral penetration without a "seductive leap of logic". | Speculation is not probative value. The taken-at-its-highest rule is not without limit — it does not force the court to accept speculative, circular or seductive leaps of logic unsupported by a rational chain of inferences. Note also the "CSI effect": the unwarranted "mantle of legitimacy" a jury gives DNA (at [69]–[70]). |
| DPP v Lu (Ruling No 1) VSC 162 (Fox J) | The defence applied to exclude prosecution witness evidence — on the original notes, evidence about whether a pedestrian traffic light was red or green — on the basis that it was incredible, fanciful or preposterous under the IMM exception. | Fox J applied the limiting case, holding the court is not blinded by the taken-at-its-highest rule where evidence is genuinely preposterous or robbed of rational capacity by external facts. It was excluded not because the witnesses were preposterous but because "the myriad of other issues" around their observations robbed the evidence of logical capacity. | The limiting case can be engaged by surrounding facts, not just by the witness. A trial judge retains power to exclude evidence as irrelevant where a myriad of confounding and undisputed facts rob it of any logical capacity to affect a fact in issue. |
3·B — The critical distinction: "preposterous" versus merely "weak"¶
| Limiting case (fanciful / preposterous) | Weak evidence | |
|---|---|---|
| Effect on probability | Nil — cannot rationally affect a fact in issue | Some — still logically points to a resemblance or fact |
| Provision | Fails s 55(1) → inadmissible under s 56(2) | Passes s 55 → assessed under s 137 |
| Result | Struck out as irrelevant | Admitted unless low probative value is outweighed by unfair prejudice |
| Example | Speculative inference from CCTV (Paulino); observations robbed of logical capacity (Lu) | The IMM "foggy night" identification — brief, bad light, stranger witness (Dickman) |
The "foggy night" point: An identification made briefly, in fog and bad light, by a witness who did not know the suspect is not inherently incredible or fanciful — it is weak, because it is inherently qualified by the poor conditions of observation. It therefore passes s 55. But when taken at its highest for s 137, the "highest" of such qualified evidence is "not very high at all" — so it is excluded, if at all, under s 137, not struck out under s 55.
3·C — Where the limiting case was NOT engaged: identification frailties¶
| Case | Facts | Decided | Significance |
|---|---|---|---|
| The Queen v Dickman (2017) 261 CLR 601; [2017] HCA 24 | In an assault trial the victim identified the accused from a photoboard. The victim had previously misidentified another suspect, and police had strongly suggested the offender's photograph was on the board. | The High Court allowed the Crown appeal and reinstated the conviction, holding that while the photoboard identification was of low probative value, there was no risk of unfair prejudice under s 137. | Low probative value does not equal high prejudicial effect. Unfair prejudice under s 137 refers to a risk that the jury will misuse the evidence or reason incorrectly. Frailties that can be exposed in cross-examination do not warrant exclusion. |
| Fowkes v The King (2023) 72 VR 95; [2023] VSCA 160 | The applicant was identified as an armed robber by a witness who viewed his photograph on Facebook. The initial observation was brief, in poor conditions, and of a partially masked offender. | ⚠ The two accounts conflict on the outcome — see the flag below. | Inherent frailties are not credibility assessments. Under IMM the court assumes the witness is truthful, but must still assess the inherent weaknesses of the observation itself — fog, distance, brevity — and the suggestiveness of the identification process, both of which limit probative value for s 137. |
4 · Circumstantial evidence, speculation, and the defence threshold¶
| Case | Facts | Decided | Significance |
|---|---|---|---|
| Elomar v R NSWCCA 197; (2014) 316 ALR 206 | In a terrorism trial the Crown relied on uncharged acts and materials to prove the accused's state of mind — possessing a thing in connection with terrorism. | The court analysed how circumstantial and state-of-mind evidence are to be constructed to prove a tendency or a continuing state of mind. | Circumstantial evidence is relevant if it permits a rational inference of a continuing state of mind, but the chain of reasoning must be based on proven facts, not speculative conjecture. Relevance is a relative concept judged on the whole of the case, so a piece may be relevant even though, standing alone, it cannot establish guilt. |
| Marsh v The Queen ACTCA 55 | An appeal concerning the standard of appellate review on circumstantial evidence, logical relevance, and jury directions. | The Court of Appeal confirmed that "plausible conjecture" or speculation is entirely insufficient to establish relevance under s 55. | Speculation is excluded. For circumstantial evidence to be relevant there must be a logical, non-speculative connection between the facts proven and the ultimate facts in issue. |
| Murrell v The Queen VSCA 334 | In an armed robbery trial the circumstantial case rested on four separate "pillars", including DNA and co-accused statements. | The Court of Appeal held that pieces of circumstantial evidence must not be examined in isolation — relevance and probative value are determined by their combined force. | Circumstantial accumulation. Evidence is relevant under s 55 if, combined with other evidence in the prosecution's matrix, it rationally supports an inference of guilt, even if any single item in isolation is equivocal. Contrast Paulino, where each item had to be relevant on its own before being wound into the string. |
| Green (a pseudonym) v The Queen [2015] VSCA 279 | In an incest trial the accused sought to tender a letter written by the complainant to demonstrate her tone and attitude, arguing it was relevant to her fabrication of the charges. The trial judge excluded it. | The Court of Appeal held the trial judge erred: the letter was relevant to her credit and motive to fabricate. | The threshold is particularly low for defence evidence. The right to a fair trial requires that the defence be permitted to lead any evidence of "minimal logical connection", and trial judges should be slow to exclude defence evidence on relevance unless it is clear the evidence is not relevant (at [34]–[35]). |
| Semaan v The Queen (2013) 39 VR 503; VSCA 134 | In a trial for dangerous driving causing death the Crown led evidence of the accused's aggressive driving and speeding earlier in the day to prove his state of mind at the time of the crash. | The Court of Appeal held the earlier driving evidence irrelevant and inadmissible — there was too great a spatial and temporal gap to connect it rationally to the driving at the time of the collision. | Temporal and spatial remoteness defeats relevance. Conduct on another occasion is irrelevant where the gap is so wide that any suggested connection is speculative. Prior driving is relevant only where there is a "sufficient relationship" — episodes so closely related in time, distance and circumstance as to infer the same character of driving (R v Scott [2003] VSCA 55 at [11]). |
5 · The witness-adds-nothing line, and "fact in issue"¶
The rule: A witness's assertion adds nothing — and is irrelevant — where the tribunal is in as good a position to draw the conclusion. Police "recognising" the accused as the person in security images is irrelevant, because identity from the footage is the jury's task (Smith), and requiring the accused to don a balaclava and overalls for comparison likewise adds nothing (Evans). The exception is where the witness has a genuine advantage — specialised knowledge, or knowledge of the accused's earlier appearance where it has since changed.
| Case | Facts | Decided | Significance |
|---|---|---|---|
| Honeysett v The Queen (2014) 252 CLR 122; [2014] HCA 29 | An anatomist gave expert evidence comparing CCTV footage of an armed robber with video of the accused, pointing out "anatomical similarities". | The High Court held the evidence inadmissible under s 79(1): the anatomist's observations were of ordinary human features and did not employ any specialised scientific knowledge. | The limit of lay or pseudo-expert observation. If a witness's opinion is based on material no different from what is available to the jury, it "adds nothing" and is irrelevant. |
| Meade v The Queen VSCA 171 | In a murder trial a footwear expert opined that work boots worn by the accused in CCTV were "consistent" with the Redback boots that left bloody prints at the scene. | The Court of Appeal held the evidence admissible, distinguishing Honeysett: the expert possessed genuine specialised knowledge of boot manufacture and design features which ordinary jurors lacked. | Specialised knowledge distinguishes the case. Where an expert can point to specific manufactured features or details not apparent to a layperson, the opinion "adds something" and is highly relevant under s 55 (at [183]–[185]). |
| Murdoch (a pseudonym) v The Queen (2013) 40 VR 451; [2013] VSCA 272 | A sexual assault trial examining the definitions of "facts in issue" and "probative value" under s 55. | The Court of Appeal held that "facts relevant to facts in issue" — including subordinate and collateral facts such as credit or the admissibility of other evidence — are also governed by s 55. | The scope of "fact in issue". Section 55 is not confined to the ultimate elements of the offence; it encompasses intermediate facts, motive, and subordinate facts. A fact in issue is fixed by substantive law — the elements, any mode of complicity relied on, and any defence open (approving Smith at [76]). |
Evidence going only to a question of law: Such evidence is not relevant — except that a court may receive expert evidence on whether words or phrases have a specialised meaning (Victorian WorkCover Authority v Elsdon (2013) 42 VR 434; [2013] VSCA 235 at [84]–[85]). ⚠ The source material does not contain R v Elsdon, so this proposition rests on your original notes rather than on any verified report; verify it independently.
6 · Further relevance applications¶
| Case | Facts and decision | Significance |
|---|---|---|
| R v Sadler (2008) 20 VR 69 | ⚠ The two accounts differ. Your original notes record that the defence should have been allowed to cross-examine the complainant on heroin addiction and occupation. The source material instead describes a trial in which the prosecution led uncharged acts as "context" or "relationship" evidence, and the Court of Appeal held such acts do not need to be proven beyond reasonable doubt. | On your notes: credibility does not make evidence irrelevant — s 55(2)(a) — and matters going to a witness's capacity to perceive and recall are relevant. On the source material: uncharged acts led as context are governed by the ordinary threshold of logical relevance (s 55), not the criminal standard, unless they are indispensable links to guilt. Both propositions are useful; confirm which belongs to this citation. |
| Swan v The Queen | ⚠ Two different cases share this name. Your notes cite (2013) 234 A Crim R 372, a culpable driving case in which evidence of heroin use was not relevant because, without knowing amount or purity, and given tolerance and possible suboxone, it was impossible to say the ingestion had any effect on the driving. The source material gives Swan v The Queen QCA 217, a Queensland joint murder appeal in which a witness's credibility was bolstered by a co-accused's inadmissible record of interview, causing a miscarriage of justice. | The Victorian authority stands for the proposition that evidence of drug use is irrelevant absent a demonstrable effect on the conduct in issue. The Queensland authority stands for credibility-enhancement prejudice in a joint trial. Use the Victorian citation for the relevance point. |
| Patrick v The Queen (2014) 42 VR 651; VSCA 89 | On your notes, the accused's apology "for things done" was wrongly admitted: where the complainant gave direct evidence of the assaults, her interpretation of the apology added no greater support than her direct evidence, though no miscarriage resulted. The source material records the same appeal analysing CCTV footage as a "document" under s 48 and the application of s 58. | Two propositions from one appeal: an interpretation of ambiguous conduct adds nothing where direct evidence of the same fact exists; and s 58 empowers the court to examine a document or thing and draw reasonable inferences as to its authenticity, identity and logical relevance. |
| Hothnyang v The Queen [2014] VSCA 64 | On your notes: in a murder trial, evidence of a "continuum of drunken belligerence" was relevant to whether the accused could form the intent to cause really serious injury despite her intoxication. ⚠ The source material does not contain it. | Intoxication evidence is relevant to capacity to form intent. Retained from your original notes; verify independently. |
| BBH v The Queen (2012) 245 CLR 42; HCA 9 | An uncharged act — the brother's camping observation — was equivocal and open to an innocent explanation. French CJ held it irrelevant; a majority admitted it as propensity evidence. | Illustrates how sharply views can differ on the same equivocal facts, and shows that a circumstantial item is logically relevant to motive even where the jury must draw intermediate inferences to establish that relevance. |
7 · Relevance and the downstream filters¶
FILTERS Where relevance stops and the other rules start
Do not reach for s 137 when the real answer is irrelevance. → s 56(2), not s 137: irrelevant evidence is out under s 56(2) as a matter of law, with no probative-value-versus-prejudice balancing. s 137 arises only once relevance is established (Smith, per Gleeson CJ, Gaudron, Gummow and Hayne JJ). → Relevant only to credibility: s 55(2)(a) keeps credibility-only evidence relevant — but it then becomes credibility evidence governed by Part 3.7. s 101A defines credibility evidence; s 102 makes it inadmissible unless an exception applies — s 103(1) in cross-examination where the evidence could substantially affect credibility, or s 104 for the accused, where s 104(2) requires leave and s 104(3) dispenses with leave for bias, motive to lie, inability to recall, or a prior inconsistent statement (Adam v The Queen [2001] HCA 57). → Multiple or dual relevance: where evidence is relevant for more than one purpose, pin the purpose — the Act is purpose-driven. Complaint evidence is the classic example, being directly relevant to a fact in issue and indirectly relevant to credibility (Papakosmas). Once admitted for a non-hearsay purpose the hearsay rule does not apply to it (s 60), so it becomes available for its hearsay use, and the court may then limit the use under s 136 to avoid unfair prejudice or misleading the jury. → The practice point: arguments about drug use, stress, poor conditions, inconsistent statements or contamination are credibility and reliability arguments — they belong in s 137 and with the jury, not in the limiting case. Reserve the limiting case for evidence with no logical capacity at all (Paulino; Lu).
8 · Provisional and inferential relevance (ss 57–58)¶
s 57(1) Provisional / conditional relevance
Does relevance depend on the court first making another finding — including that the evidence is what the party claims it to be? The court may (a) find the evidence relevant if it is reasonably open to make that finding; or (b) admit it provisionally, subject to further evidence being led later that makes the finding reasonably open — an undertaking to "connect it up". "Reasonably open" approximates reasonable evidence or a prima facie case (R v Watt [2000] NSWCCA 37 at [8]; Jackson v TCN Channel 9 Pty Ltd [2002] NSWSC 1229 at [40]). A knife found in a drain is admitted if it is reasonably open to find it was the weapon; a witness may speak to a contract not yet in evidence on an undertaking to prove it up. → If left unconnected — the Dasreef consequence: in Dasreef Pty Ltd v Hawchar (2011) 244 CLR 589; [2011] HCA 21 an expert chemist gave an opinion on quantitative silica exposure without explaining his mathematical reasoning. The High Court held the opinion inadmissible under s 79(1), and Heydon J analysed ss 55, 57 and 58, noting that a failure to establish the factual foundation of an opinion destroys its relevance. An expert opinion is logically irrelevant if the party fails to prove the underlying factual assumptions on which the reasoning depends. → The procedural mechanics: where an undertaking is given but the attempt to prove the foundational facts is frustrated, the opposing party should draw attention to the continuing gap at the close of the tendering party's case, at which point it may become the strict duty of the trial judge to reject the conditionally admitted evidence. → The three remedies: striking out the evidence, so there is a substantive difference between conditional and unconditional admission; judicial directions to ignore it, withdrawing it from the jury's consideration or directing them to treat the case as if the evidence had never been given because its factual foundation was not proved; and, where the evidence is highly prejudicial and warnings are insufficient, discharging the jury, resulting in a mistrial.
s 57(2) Common purpose / conspiracy
Can the act itself prove the common purpose that makes it relevant? Where the relevance of evidence of an act depends on a finding that the person and others had, or acted in furtherance of, a common purpose — including an unlawful conspiracy — the court may use the evidence of the act itself in deciding whether the common purpose existed. The conspiracy need not be proved wholly separately first. For example, Bob's secretive handover to Charlie can itself be used to infer the common purpose that makes it relevant against Alice.
s 58 — inferential relevance¶
The bootstraps rule is overcome. If a question arises as to the relevance of a document or thing, the court may examine it and draw any reasonable inference from it, including as to its authenticity or identity. This overcomes the common law "bootstraps" rule that a document could not be used to prove its own authenticity, and s 58 works together with s 183. Caveat: drawing authenticity from a document's own features does not by itself discharge the practical need to prove provenance (NAB v Rusu (1999) 47 NSWLR 309). ⚠ The source material gives NAB v Rusu, R v Watt and Jackson v TCN Channel 9 as "not in the source material" — all three are retained from your original notes and should be verified independently.
The advocate's checklist¶
• Ask the relevance question first, and separately. Irrelevant evidence is out under s 56(2) as a matter of law. Reaching for s 137 to exclude weak or unhelpful evidence concedes relevance you may not need to concede.
• State the purpose before anything else. The Act is purpose-driven, and where relevance is challenged the tendering party must state the purpose and explain how the evidence is relevant and admissible.
• Do not confuse the limiting case with weakness. Preposterous evidence has nil effect and fails s 55; weak evidence has some effect and goes to s 137. Drug use, stress, poor lighting, inconsistent statements and contamination are credibility arguments — they belong in s 137 and with the jury.
• Use Paulino and Lu when you genuinely have no logical capacity. Paulino — a speculative link between CCTV and the accused. Lu — a myriad of confounding facts robbing observations of any logical capacity. Both are limiting-case wins.
• Take the ambiguity point where the evidence cuts both ways. Lithgow — evidence equally consistent with competing, mutually exclusive hypotheses lacks any logical capacity and is irrelevant.
• Test whether the witness actually adds anything. Smith and Evans — if the jury is in as good a position, the assertion is irrelevant. Meade is the answer: point to specific manufactured features or details not apparent to a layperson.
• Argue the whole of the case, not the item in isolation. Evans at [177] and Murrell — relevance is assessed on the combined force of the evidence. But note the tension with Paulino, which required each item to be relevant on its own before being wound into the circumstantial string.
• Push the low threshold hard for defence evidence. Green — the threshold is particularly low where the accused adduces the evidence, and judges should be slow to exclude it on relevance.
• Remember credibility-only evidence is still relevant. s 55(2)(a) saves it — but it then becomes credibility evidence under Part 3.7, so identify the s 103 or s 104 gateway.
• On dual-relevance evidence, plan for s 60 and s 136. Papakosmas — once admitted for a non-hearsay purpose the hearsay rule falls away, so seek a s 136 limitation if the hearsay use is prejudicial.
• Police provisional admissions to the end of the case. Dasreef — if the foundation is never proved, draw attention to the continuing gap and seek striking out, a direction to ignore, or discharge of the jury.
Currency watch¶
• 23 August 2026 — case law layer rebuilt. The statutory analysis is unchanged from the 7 July 2026 version.
• The relevance provisions are stable — ss 55–58 are long-standing and untouched by the recent reform packages. The currency risk in this topic lies in the case law, not the statute.
• Verified previously — Smith [2001] HCA 50 and Adam [2001] HCA 57 confirmed on AustLII; Green v R [2015] VSCA 279 confirmed from the source notes, an earlier web check having mis-dated it to 2005.
• Two live conflicts — the Fowkes outcome and the Hague identity and outcome. Both are flagged above and must be settled before either case is cited.