1) Probative value – s 138(3)(a) The probative value of evidence is the extent to which the evidence could rationally affect the assessment of the probability of the existence of a fact in issue. This is an extension of the relevance test in s 55. The facts in issue are those facts necessary to prove each element of the offence beyond relevant doubt. Therefore, the considerations include: i. How important is the evidence to the case to be made? ii. How relevant is the evidence? iii. Does it have strong or low probative value? iv. Is it a strong or low consideration? 2) Importance of evidence – s 138(3)(b) The importance of the evidence in the proceeding must also be considered. The main factor is the relative importance of the evidence – is this evidence needed to prove a certain fact or is there another piece of evidence that can be used in substitution to prove the same fact? Therefore, it may be considered desirable to admit the evidence if it is the only piece of evidence available to prove a fact.
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Approximately 18855 words over 43 pages. Prepared in 2019.