Relevancy and Admissibility of Evidence

Evidence is the backbone of any civil and criminal trial. Section 5 of the Evidence Act 1950 mentions evidence may be given of facts in issue and relevant facts, but not others. An act can only be regarded as evidence if it is connected to the facts in issue or any relevant facts. The word " and of no others" in section 5 is mandatory (See Muthusamy v Public Prosecutor). Read also section 6 until section 55 which talks about facts declared to be relevant by this Act.

Relevancy of evidence is a question of fact and the general rule is that all relevant evidence are prima facie admissible to the Court. However, this general rule is subject to few exceptions. Firstly, hearsay and opinion are not admissible to the Court laid down in the case of R v Turner. Secondly, a relevant evidence would be tender inadmissible if the nature of the evidence is so prejudice to the accused, which overrides its probative significance.

The second exception concerns with two scenarios. Citing from the Court in the landmark case of  Markin v AG of New South Wales, it is not competent to adduced evidence other than those covered in the indictment because if the acts of a previous crime committed by the accused is being admit as an evidence, it would leave the impression to the jury that the accused is more likely to commit the same nature of crime again. This type of evidence will only be admissible if it bears upon the question whether the acts alleged to constitute the crime charged in the indictment were designed or accidental, or the evidence is to rebut a defense which would open to the accused. If it fails to bear upon the question, it is inadmissible not because it is irrelevant, but the weight of its prejudicial nature to the accused is greater than its probative significance.

Another scenario that might affects the admissibility of the evidence is the legality of the evidence obtained. Citing from the remark of Crompton J in R v Leatham centuries ago, “it matters not how you get it; if you steal it even, it would be admissible". The court is not concerned with how the evidence was obtained (See Kurma v The Queen), evidence illegally or improperly obtained is admissible as long as it is relevant. But, it is not admissible if it is obtained from a trick (See Public Prosecutor v Haji Hashim), that would be prejudice to the accused where a fair trial would be endangered. Note that entrapment set up by the authorities is generally not consider as a trick (See R v Sang). A evidence is not admissible if the strict rule of admissibility would operate unfairly against the accused (Per Lord Goddard in Kurma v The Queen).

However, not all admissible evidence is universally relevant. Per Lord Simon in the case of R v Kilbourne, admissible evidence may be relevant to one count of an indictment and not to another. It may be admissible against one accused (or party) but not other. It may be admissible to rebut a defense but inadmissible to reinforce the case of the prosecution.

Therefore, it is important to remember that:

1) All relevant evidence is admissible (subject to conditions);

2) Not all admissible evidence is relevant; and

3) Irrelevant evidence is inadmissible.