Introduction to Relevance and Admissibility Evidence

Introduction:

This note will discuss the meaning of relevant and admissible evidence, the test for the relevance of evidence, and distinguish between two types of inadmissible evidence-evidence inadmissible per se and evidence inadmissible upon an objection.

Meaning of Relevant Evidence:

In Section 51 (1) of the Evidence Decree, 1975 (NRCD 323) , relevant evidence is defined as

Evidence , including evidence relevant to the credibility of a witness or hearsay declarant, which makes the existence of any fact that is of consequence to the determination of the action more or less probable than it would be without the evidence.

This statutory definition can be understood by breaking it down as follows:

a. In every civil or criminal action, there are disputes about whether a fact exists. For example, in a civil action, there may be a dispute whether a contract exists between the parties. In a criminal action, there may be a dispute whether the accused had an intention to kill.

b. Some facts, when found to exist or not exist, help in determining the civil or criminal action. These facts are facts that are “of consequence to the determination of the action.” Meaning they are connected to the case and determine the outcome of the case.

c. Some other facts, when found to exist or not exist, do not help in determining the case. For example, in a murder trial, whether or not the accused is a powerful wizard who uses his powers to kill does not help in determining the action. These facts are facts that are not of consequence to the determination of the action .

d. In conclusion, evidence is relevant if it has any tendency to make the existence of a fact that is of consequence to the determination of the action more or less probable than it would be without the evidence. Put differently, evidence is relevant if it can:

i. Make it more probable [than it would be without the evidence] that a fact that helps determine the case exists, or

ii. Make it less probable [than it would be without the evidence] that a fact that helps determine the case exist.

e. The phrase “than it would be without the evidence” speaks to impact. This simply means the evidence must have an impact or make a difference.

In the case of Nortey v. African Institute of Journalism & Communication and Others [2014] GHASC 125 (26 February 2014) , the Supreme Court of Ghana, in throwing more light on the definition of relevant evidence in Section 51(1) (supra), said:

The Commentary to the Evidence Decree states in part that “The Decree clarifies the law on this subject by defining relevance and limiting its meaning to the existence of a logical connection, based on human understanding and experience, between evidence offered and the fact to be proved. …It is enough that the evidence has some effect on the probability of the existence of the fact to be proved. To be relevant the evidence need not be sufficient to support a finding of fact. As Prof. McCormick has said, ‘A brick is not a wall. To be relevant the evidence need only constitute a part not the whole of what is needed.’

Thus, if the fact to be proved is the intent of an accused, evidence offered must have a logical connection with intent. Secondly, the evidence, on its own, need not be conclusive but must be of such nature that it can lead to a conclusion if added to other pieces of evidence, just like a brick making a wall if added to other bricks.

In the case of DPPv. Kilbourne [1973] AC 729, Lord Simon characterised relevant evidence as follows:

Evidence is relevant if it is logical, probative or disprobative or evidence which make the matter which requires proof more or less probable.

Evidence is said to be probative if it has the probability of proving or disproving a fact in issue.

In the United States’ Federal Rule of Evidence 401 , a much simpler definition of relevant evidence is provided. It says that evidence is relevant if:

it has a tendency to make a fact more or less probable than it would be without the evidence.

In the case of Mensah & Others v. The Repbulic (1979) GLR 523, the court, in characterising relevance, said:

The definition of “relevance” given by Stephen J. in his book Digest of the Law of Evidence (12 ed.), art. 1: (see Cross on Evidence (3rd ed.) at p. 13) is that:

“any two facts to which it is applied are so related to each other that according to the common course of events one either taken by itself or in connection with other facts proves or renders probable the past, present, or future existence or non-existence of the other.”

For example, where A is charged with stealing, evidence that the goods were found in A’s possession shortly after they were missing and he gave no adequate explanation as to how he came by them, would be relevant in determining that A must have stolen the goods. The evidence of recent possession without adequate explanation is logically probative, and has direct relevance to the fact it purports to establish. Therefore evidence which has no probative value to the matter at issue must be regarded as irrelevant and must be rejected

The Black’s Law Dictionary, 9th ed., defines relevant evidence as:

Evidence tending to prove or disprove a matter in issue. Relevant evidence is both probative and material and is admissible unless excluded by a specific statute or rule.

Test for Relevance:

From the above definitions of relevant evidence, any piece of evidence may only be said to be relevant if:

1. It has any tendency to make a fact more or less probable than it would be without the evidence. And

2. The fact is of consequence in determining the action.

The above test was stated in the Federal Rule of Evidence 401. The first test is on the probative value of the evidence, and the second is on materiality.

Meaning of Admissible Evidence:

The Black’s Law Dictionary, 9th ed., defined admissible evidence as follows:

Evidence that is relevant and is of such a character (e.g., not unfairly prejudicial, based on hearsay, or privileged) that the court should receive it

Brobbey, in Essentials of the Ghana Law of Evidence, advanced that:

Admissibility literally means the acceptance by the court of a piece of evidence offered by a party or witness.

Usually, parties in a suit will offer several pieces of evidence to the court, but it is up to the court to admit such evidence.

Types of Inadmissible Evidence:

When evidence is not admissible, it is said to be inadmissible. Per the case law, inadmissible evidence is in the following two forms:

1. Evidence that is inadmissible per se.

2. Evidence that is inadmissible upon an objection.

These two forms were recognised in the case of Taylor v. Taylor, Court of Appeal, 20 January 1969, unreported; digested in (1969) C.C. 47 , where it was held as follows:

A distinction can be made between evidence which is per se inadmissible and evidence which would have been rejected as inadmissible upon an objection being taken at the trial ...

These distinctions have also been recognised by Ghanaian courts. In In Re Okine (Decd); Dodoo and Another b. Okine and Others [2003-2005] 1 GLR 630 , the Supreme Court characterised evidence inadmissible per se as follows:

Evidence is inadmissible per se when a statute or law makes it inadmissible and its inadmissibility is not founded upon the fact that the matter to be proved by that evidence had not been pleaded.

One of such enactments is Article 121(4) of the 1992 Constitution which reads:

An answer by a person to a question put by Parliament shall not be admissible in evidence against him in any civil or criminal proceedings out of Parliament, except proceedings for perjury brought under the criminal law.

In light of this provision, a statement made by a person in response to a question from parliament is inadmissible per se.

Also, in the case of Welbeck v. Acheampong (J4/71/2023) [2024] GHASC 35 (10 July 2024) , the Supreme Court held that evidence that is inadmissible per se should be distinguished from evidence whose admissibility is dependent on a party objecting timeously to the evidence being admitted.

Whether or not inadmissible evidence is inadmissible per se or inadmissible upon a timeous objection has effects on the duty of the court to exclude the evidence, whether the court should consider the evidence upon admitting it, and whether a party that failed to object to the evidence when it was first introduced at trial can successfully object to it on appeal. These are discussed in a subsequent note.