Chapter 8: Evidence

Question 1

What is Evidence?

Answer 1

Evidence is the term for the whole body of material which a court or tribunal may take into account reaching their decision.

It may be in oral, written, or verbal form.

Question 2

What are the three categories of evidence?

Answer 2

• How evidence may be given
• Who may give evidence
• What type of material may be given in evidence

Question 3

What is admissible evidence?

Answer 3

Evidence is admissible if it is legally able to be received by court

Question 4

What is the definition of fact-finder?

Answer 4

The judge or jury

Question 5

What are the “facts in issue”?

Answer 5

Those which the prosecution must prove in order to establish the elements of the offence. Or those which the defendant must prove on order to succeed with a defence in respect of which he or she carries the burden of proof.

Question 6

What is the “weight of evidence”?

Answer 6

It’s value in relation to the facts in issue. This will depend upon a wide range of factors such as relevance, extent of which it is supported or contradicted, and the veracity of the witness. Weight is the probation value that can be accorded to the evidence.

Question 7

What is probation value?

Answer 7

How strongly and centrally the evidence assists in proving or disproving a case.

Question 8

What is prejudicial?

Answer 8

Evidence adverse to a party’s case; the drawing of an interference against a party

Question 9

What is veracity?

Answer 9

The disposition of a person to refrain from lying

Question 10

What is propensity?

Answer 10

A person’s tendency to act in a particular way or have a particular state of mind

Question 11

What is direct evidence?

Answer 11

Any evidence by a witness as to a fact in issue which they have seen, heard, or otherwise experienced

Question 12

What is circumstantial evidence?

Answer 12

Evidence of circumstances that do not directly prove any fact in issue but which allow interferences about the existence of those facts to be drawn

Question 13

What is section 6 of the Evidence Act?

Answer 13

The purpose of the Act:
- Providing for facts to be established by logical rules
- providing rules of evidence that recognise the importance of the BOR
- Promoting fairness to parties and witnesses
- Protecting rights of confidentiality and other important public interests
- Avoiding unjustifiable expense and delay
- Enhancing access to a law of evidence

Question 14

When is evidence relevant?

Answer 14

When it has a tendency to prove or disprove anything that is of consequence to the determination of the proceeding.

Question 15

When it comes to excluding evidence, what does section 8(1)(a) exclude?

Answer 15

It takes into account the defendants right to offer an effective defence, which allows the judge to exclude evidence which may risk illegitimate prejudice on the defence case

Question 16

When it comes to excluding evidence, what does section 8(1)(b) exclude?

Answer 16

Evidence that will needlessly prolong the proceedings.

Question 17

What does section 9 of the Evidence Act allow?

Answer 17

Allows evidence to be admitted by agreement between the parties, even if it would otherwise be inadmissible.

It also enables prosecution and defence to admit certain facts so they do not need to be proved in trial - maximizing efficiency.

Question 18

What is reasonable doubt?

Answer 18

It is an honest and reasonable uncertainty left in your mind about the guilt of the accused after you have given careful and impartial consideration to all of the Evidence.

Question 19

What must the balance of probabilities show?

Answer 19

That it is more probable than not

Question 20

What is the Burden of Proof?

Answer 20

It is the presumption of innocence

Question 21

Who does the burden of proof lie with?

Answer 21

Prosecution

Question 22

What happens once a case is proven by the prosecutor?

Answer 22

There is an evidential burden on the defence to provide an explanation.

Question 23

What happens when defence offers an explanation or evidence?

Answer 23

Anything raised becomes a live issue and the prosecution is to destroy the defence to retain burden of proof.