The distinction between relevancy and admissibility is the structural key to the entire BSA. Relevancy asks: "Is this fact connected to the fact in issue?" Admissibility asks: "Is this fact permitted to be proved in this proceeding?" The two are related but not identical, and confusing them is the commonest error in evidence law answers.
BSA S.3 = IEA S.5 (only relevant facts may be proved). BSA S.51 = IEA S.56 (facts judicially noticed need not be proved). BSA S.18 = IEA S.24 (confession by inducement, an exclusionary rule).
The Distinction
| Basis | Relevancy | Admissibility |
|---|---|---|
| Nature | A question of logic and probability | A question of law |
| Test | Does the fact make the existence of the fact in issue more or less probable? | Does the BSA permit this fact to be proved in this manner? |
| Governed by | Part II of the BSA (S.3 to S.50): the catalogue of relevant facts | Parts III to V: rules on proof, production, and examination |
| Relationship | A necessary condition for admissibility | Requires relevancy plus compliance with exclusionary rules |
| Example | A's motive is relevant to whether he committed murder | But A's confession to a police officer, though relevant, is inadmissible under S.22 unless it leads to discovery |
Why a Relevant Fact May Be Inadmissible
The BSA excludes certain categories of evidence on policy grounds even though they are logically relevant:
| Exclusionary Rule | BSA Provision | Policy Reason |
|---|---|---|
| Confession obtained by inducement, threat or promise | S.18 | Unreliable; coerced confessions are untrustworthy |
| Confession to a police officer | S.22 | Risk of police torture; reliability concern |
| Privileged communications (husband-wife, lawyer-client) | S.126 to S.131 | Protection of confidential relationships |
| Character evidence in civil cases (generally) | S.46 | Prejudicial effect outweighs probative value |
| Hearsay (general rule) | S.58 (directness) | Absent witness cannot be cross-examined |
| Contents of a document proved by oral evidence | S.57 proviso | Best evidence rule: produce the document |
| Without prejudice communications | Not expressly in BSA but recognised at common law | Encourages settlement |
The formula: Admissibility = Relevancy + No exclusionary rule applies + Compliance with mode of proof.
Why an Admissible Fact May Seem Irrelevant
This is rarer, but arises in two situations:
| Situation | Explanation |
|---|---|
| Judicial notice (S.51) | A fact judicially noticed is treated as proved without evidence being given. The court "admits" it into its reasoning without the party proving it in the ordinary sense |
| Presumptions (S.79 to S.82) | The court presumes a fact. The presumed fact enters the case without direct evidence; its "admissibility" is a matter of law, not of relevancy in the ordinary sense |
These are not true exceptions to the rule that only relevant facts are admissible; rather, the law treats certain facts as not requiring proof at all.
The Practical Consequence
When faced with a piece of evidence in an exam problem, apply this two-step test:
- Is the fact relevant? Check whether it falls within any category in BSA Part II (S.3 to S.50). If not, it is inadmissible and the inquiry ends.
- Is it admissible? Even if relevant, check whether an exclusionary rule bars it (coerced confession, privilege, hearsay without exception, secondary evidence without foundation).
Illustrations
| Evidence offered | Relevant? | Admissible? | Reason |
|---|---|---|---|
| A's confession to a magistrate, voluntary | Yes (S.18) | Yes | Voluntary, to a magistrate, no exclusion |
| A's confession to a police officer | Yes (logically relevant) | No (S.22) | Policy exclusion: risk of torture |
| A told his wife "I killed B" | Yes (admission, S.14) | No (S.127: marital privilege) | Wife cannot be compelled to disclose |
| A's character for violence, in a murder trial | Yes (S.47: previous conviction relevant) | Yes | Character of the accused is relevant in criminal cases |
| A's character for honesty, in a contract dispute | No (S.46: character not relevant in civil unless in issue) | No | Not relevant, therefore inadmissible |
| A document's contents proved by a witness who read it | Relevant (contents matter) | No (S.57: contents must be proved by the document itself) | Best evidence rule violated |
Recall Check
- What is the difference between relevancy and admissibility?
- Can a relevant fact be inadmissible? Give two examples.
- What is the two-step test for admissibility?
- Why does the BSA exclude confessions to police officers despite their relevancy?
Distinctions
| Basis | Relevancy | Admissibility |
|---|---|---|
| Determined by | Logic and the BSA's catalogue (Part II) | Law (Parts III to V) |
| Question type | "Is this fact connected to the fact in issue?" | "May this fact be proved in this way?" |
| All relevant facts admissible? | No: exclusionary rules may bar them | Only if no exclusion applies |
| All admissible facts relevant? | Generally yes; judicial notice and presumptions are the edge cases | Relevancy is the prerequisite |
| Who decides | The court, applying Part II | The court, applying Parts III to V |
| Basis | Exclusion for Unreliability | Exclusion for Policy |
|---|---|---|
| Rationale | The evidence is likely to be untrue | The evidence may be true but admitting it would cause greater harm |
| Example | Coerced confession (S.18): unreliable because extracted by force | Marital privilege (S.127): may be perfectly true, but admitting it destroys the marital relationship |
| Who benefits | The accused (protection from false conviction) | The relationship (husband-wife, lawyer-client) |
| Can be waived? | No (involuntary confession is always excluded) | In some cases (privilege is the privilege-holder's right to assert or waive) |
Flashcards
What is the difference between relevancy and admissibility?
Relevancy is a logical connection between a fact and the fact in issue. Admissibility is legal permissibility: whether the BSA allows the fact to be proved in that manner.
Can a relevant fact be inadmissible?
Yes. Examples: a confession to a police officer (relevant but excluded by S.22); a privileged communication (relevant but excluded by S.127).
State the two-step test for admissibility.
(1) Is the fact relevant under Part II? If no, inadmissible. (2) If relevant, does any exclusionary rule bar it? If no exclusion, admissible.
Why are confessions to police officers excluded despite being relevant?
Policy ground: risk of police torture makes such confessions unreliable. S.22 excludes them to protect the accused from coerced self-incrimination.
What is the "best evidence rule" in the context of admissibility?
Contents of a document must be proved by the document itself (primary evidence), not by oral testimony of someone who read it. S.57 enforces this.
Exam Scenario
Problem: In a murder trial, the prosecution offers: (a) a voluntary confession made by the accused before a Judicial Magistrate under S.164 BNSS; (b) a statement by the accused to the investigating officer saying "I hid the knife under the bridge"; (c) the testimony of the accused's wife that she heard the accused say to a friend "I finished him off"; (d) a previous conviction of the accused for assault five years ago. The defence objects to each. Advise.
Step 1: Test relevancy of each item
| Item | Relevant? | Under which provision? |
|---|---|---|
| (a) Confession to Magistrate | Yes | S.18 (confession is an admission by accused) |
| (b) Statement to IO leading to discovery | Yes | S.23 (statement leading to discovery of fact) |
| (c) Wife's testimony of accused's statement | Yes | S.14 (admission by the accused) |
| (d) Previous conviction for assault | Yes | S.47 (previous conviction relevant in criminal case) |
All four are relevant. Now test admissibility.
Step 2: Test admissibility
| Item | Exclusionary rule? | Admissible? |
|---|---|---|
| (a) Confession to Magistrate, voluntary | None. S.18 excludes only confessions by inducement, threat or promise. A voluntary judicial confession is admissible | Yes |
| (b) Statement to IO | S.22 excludes confessions to police. But S.23 saves "so much of such information as relates distinctly to the fact thereby discovered" | Partly: only the fact discovered (the knife under the bridge) and the fact of discovery are admissible, not the confessional part of the statement |
| (c) Wife's testimony | S.127 marital privilege covers communications between spouses. Here the statement was made to a friend, not to the wife. She overheard it | Admissible: not a privileged marital communication |
| (d) Previous conviction | S.47 permits proof of previous conviction in a criminal case | Yes |
Step 3: Summarise
| Item | Relevant | Admissible | Basis |
|---|---|---|---|
| (a) Judicial confession | Yes | Yes | Voluntary, no exclusion |
| (b) Statement to IO | Yes | Partly | Only discovery portion under S.23 |
| (c) Wife's testimony | Yes | Yes | Not a marital communication; she overheard a statement to a third party |
| (d) Previous conviction | Yes | Yes | S.47 |
S.22 does not exclude the discovery. The confessional wrapper ("I hid the knife") is excluded. The fact discovered (the knife was found under the bridge) and the conduct of the accused leading to discovery are admissible under S.23. This is the most tested distinction in evidence law.
Marital privilege is narrow. It covers communications made by one spouse to the other during marriage. A statement made by the accused to a friend, which the wife happened to overhear, is not a communication to the wife. She may testify to what she heard.
Conclusion. (a) Admissible in full. (b) Admissible only as to discovery. (c) Admissible (not a privileged communication). (d) Admissible under S.47.
See Also
- Fact, Fact in Issue and Relevant Facts : the threshold question of what facts the BSA declares relevant.
- Confession to Police Officer and Discovery : the detailed treatment of S.22 and S.23.
- Competency and Privileged Communications : marital and professional privilege.