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Inadmissible Evidence Law In Australia

beyond reasonable doubt

In any legal proceeding, the evidence presented plays a crucial role in determining the outcome. In Australia, as in many common law jurisdictions, the admissibility of evidence is a fundamental principle of the legal system. Admissible evidence refers to information, documents, or oral evidence that a court accepts as relevant and reliable.


In contrast, inadmissible evidence is information that the court deems unacceptable or unreliable for various reasons and does not consider it to be admissible evidence in court.

What Does Admissible and Inadmissible Evidence Mean?

Admissible evidence encompasses all information, materials, or oral evidence that are permitted by the court to be presented during legal proceedings. To be considered admissible, evidence must meet specific criteria established by Australian law.


These criteria are in place to ensure the fairness, integrity, and reliability of the judicial process. Generally, admissible evidence must be:


  • Relevant: The evidence must be directly related to the facts in issue, meaning it has the potential to prove or disprove a fact that is relevant to the case. Irrelevant evidence, including documentary evidence that is not relevant cannot be admitted before a judge or a jury.
  • Reliable: The court must have confidence in the accuracy and authenticity of the evidence. This requires that the evidence is obtained and preserved in a manner that minimises the risk of tampering or contamination.
  • Not subject to exclusionary rules: Certain types of evidence are automatically excluded from consideration due to legal rules, such as hearsay or illegally obtained evidence.
  • Not unfairly prejudicial: Evidence that has a high potential to unduly influence the jury or judge, causing them to make a decision based on emotion rather than fact, may be excluded.
  • Not privileged: Some communications are considered confidential and are protected by privilege. This may include communications between lawyers and clients or spouses.

Inadmissible evidence refers to information, materials, or testimony that the court deems unacceptable or unreliable for one or more reasons and is not admissible in court. This classification may be due to a failure to meet the criteria of admissibility, as outlined above. Inadmissible evidence can be excluded from consideration during the legal proceedings.



Hearsay is a type of evidence in which a person reports information that they have heard from someone else. This information is generally not admissible because the original declarant is not present to be cross-examined. For example, if a witness testifies that they heard a third party say the defendant committed a crime, it would likely be considered hearsay and inadmissible.


Hearsay evidence, under the Evidence Act in New South Wales, refers to statements made by a person who is not a witness in the proceeding and is offered to prove the truth of the matter asserted in the statement. In simpler terms, it involves presenting in court a statement made by someone who is not testifying as a witness, in order to prove the truth of what was said.


In NSW, the Evidence Act 1995 governs the rules of evidence in legal proceedings, including a criminal case court proceeding. According to the Evidence Act, hearsay evidence is generally not admissible unless it falls under one of the recognised exceptions.


The primary rationale behind the hearsay rule against hearsay is to ensure that evidence presented in court is reliable and subject to cross-examination. When a statement is made out of court and not subject to cross-examination, there is a higher risk of inaccuracy or manipulation.


Illegally Obtained Evidence


Evidence that is obtained in violation of a person’s constitutional rights, such as evidence obtained without a valid search warrant, may be considered inadmissible. This is to deter the NSW Police from engaging in unlawful practices.


Section 138(1) stipulates that, in both civil and criminal proceedings, evidence procured through improper or illegal means “shall not be accepted unless the benefits of admitting such evidence outweigh the drawbacks of doing so,” considering the manner in which it was acquired.


While Section 138 does not explicitly elucidate what constitutes evidence obtained “improperly,” Section 138(2) outlines specific situations where an admission will be deemed to have been acquired in such a manner. Furthermore, Section 139 asserts that the failure of an investigating official to caution a suspect prior to questioning will result in the statement being classified as improperly obtained.


Privileged Communications


Communications that are protected by privilege, such as those between a lawyer and client or spouses, are generally considered inadmissible in court. This is to encourage open and honest communication within these relationships.


The Commonwealth of Australia, along with five of its eight states and territories, has established legislation pertaining to legal professional privilege. These laws, which are largely uniform and align with common law principles, safeguard specific aspects of legal communication.


Both common law and statutory provisions recognise two distinct forms of privilege: legal professional privilege and litigation privilege.


Legal advice privilege shields “confidential communications” exchanged between a client and their lawyer. This extends to confidential documents prepared by a client, lawyer, or a third party, provided they were created for the primary purpose of providing legal advice.


Litigation privilege safeguards confidential communications and documents created with the primary intent of being used in actual or anticipated legal proceedings.


The scope of litigation privilege encompasses communications between a client and their lawyer, and in certain instances, it may also cover specific categories of communications between an lawyer and a third party.


Opinion Evidence


In most cases, witnesses are not allowed to offer their opinions on the guilt or innocence of a defendant. Expert witnesses, however, may provide opinions within their area of expertise.


Opinion evidence, under the Evidence Act in New South Wales, refers to evidence that expresses a witness’s opinion or inference about a fact in issue, rather than stating the facts themselves. This type of evidence involves a witness providing their personal assessment, belief, or judgment on a matter.


The general rule in NSW, as outlined in Section 76 of the Evidence Act 1995, is that witnesses should provide factual evidence based on what they directly observed or experienced, rather than offering their opinions. This is because opinions can be subjective and may not be as reliable as factual evidence.

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Legal Advice On Inadmissible Evidence

Accordingly, admissible evidence must meet specific criteria to ensure its relevance, reliability, and fairness. Inadmissible evidence, on the other hand, is information that the court deems unacceptable for various reasons. Understanding the distinction between admissible and inadmissible evidence is crucial for criminal defence lawyers and civil lawyers, ensuring a fair and just adjudication process.


If you have jury trial coming up, or a defended hearing in NSW, contact our Parramatta criminal lawyers today. We can provide you with free legal advice for up to 15 minutes.

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