Relevance and admissibility of evidence looks at whether the information you or the other party wish to bring before the court can indeed be presented. There are a number of reasons why evidence may not be allowed. It is important to note the difference between relevance in the ordinary sense of the word and its legal sense.

The general rule is that only relevant information will be admissible. If the material is legally relevant then as a result it will automatically be admissible unless an exception applies.

Something will be relevant where it can be used in proving or disproving a factual issue that the parties do not agree on. It can be relevant to either to the specific fact in dispute (direct fact) or to circumstances surrounding that fact (indirect fact). The relevance of information may be due to the witness having actually perceived the event or thing (direct relevance) or it may be helpful in deciding how reliable that information is (indirect relevance).

In Western Australia where a matter is both logically relevant and not too remote it will be legally relevant. For example: A was charged with criminal damage under s444 of the Criminal Code of Western Australia. The property is a car. This is a criminal offence which requires it to be shown that the accused wilfully and unlawfully destroyed any property.

Direct fact = Arnold struck the windscreen of the car using a screwdriver.

Indirect fact = Arnold was seen in the carpark where the car was parked on the day that it was damaged.

It is possible for evidence to be legally relevant in 1 of 4 ways:

  1. Direct relevance to direct fact – Barbara saw Arnold (the accused) hitting the glass of the windscreen with a screwdriver.
  2. Indirect relevance to direct fact – Barbara was 100 metres away when they observed Arnold.
  3. Direct relevance to indirect fact – Charlie (the parking inspector) saw Arnold in the carpark that day.
  4. Indirect relevance to indirect fact – Charlie was very busy and pre-occupied with issuing a parking infringement when he saw Arnold.

Please click on this image to see a table representing the four scenarios of legal relevance.


Exclusions: There are a number of reasons for which information will be excluded.

Discretions: The trial judge may exercise a discretion,that is they have a choice, whether or not to allow certain information. This choice would be used where admitting evidence would be prejudicial or unfair to the accused or plaintiff (these are called the Christie and Fairness discretions) or where the public authority submitting the material obtained it improperly (Public Policy discretion). The trial judge will look to several factors in exercising the discretion.

Burden and Standard of Proof Edit

Burden of proof

The burden or onus of proof is the term used to describe WHO it is that has to convince the court of a particular matter.

  1. Evidential burden: enough evidence must be presented to the court so that they are convinced that a trial is necessary.
  2. Legal burden: the requirement of proving the fact that is not agreed upon by the parties.

Guilt in a criminal case must be proved by the prosecution. Legislation may change who bears the burden for specific offences. If the proof relates to a fact which makes up a general part of the offence under legislation then the prosecution will have to satisfy the legal burden. This burden may change and be placed on the defendant if they are claiming that they fall within an exception to the offence.

Criminal cases


Civil cases


Statute – legislation may change who bears the onus. The courts have to determine the meaning of particular statutes as required.

Standard of proof

  • This is concerned with what level of proof is required
  • The judge will decide whether evidentiary burdens are satisfied.
  • In criminal trials the facts that are in disputed must be shown to exist beyond reasonable doubt. In relation to a defence which the defendant must prove the standard is on the balance of probabilities.
  • In civil trials it is only necessary to show that facts are on the balance of probabilities true.