Definitions

Question 1

Admissible Evidence

Answer 1

evidence is admissible if it is legally able to be received by a Court

Question 2

Relevance

Answer 2

Evidence is relevant ‘if it has a tendency to prove or disprove anything that is of consequence to the determination of a proceeding’ (s7(3) of the Evidence Act 2006)

Question 3

Facts in Issue

Answer 3

Facts in issue are those which:

• the prosecution must prove to establish the elements of the offence, in other words to prove the case or
• the defendant must prove to succeed with a defence, in respect of which he or she carries the burden of proof

Question 4

Exclusionary rules

Answer 4

these are rules that exclude evidence (usually because it is unreliable, unduly prejudicial or otherwise unfair to admit it)

Question 5

Weight of evidence

Answer 5

the ‘weight’ of evidence is its value in relation to the facts in issue.

The value will depend on a wide range of factors, such as:

• the extent to which, if accepted, it is directly relevant to or conclusive of, those facts
• the extent to which it is supported or contradicted by other evidence produced
• the veracity of the witness

The ‘weight’ is the degree of probative force that can be accorded to the evidence.

Question 6

Offer Evidence

Answer 6

Evidence must be elicited before it is ‘offered’. Merely putting a proposition to a witness is not offering evidence; it becomes so when the witness accepts the proposition - s96(1) Evidence Act 2006.

Offering evidence in the evidence act includes eliciting evidence by cross-examination of a witness called by another party.

‘Giving evidence’ is included in ‘offering evidence’: a witness ‘gives evidence’ a party ‘ offers evidence. A party who testifies both gives and offers evidence.

Question 7

Giving evidence

Answer 7

In a proceeding evidence may be given:
In the ORDINARY WAY either
-orally in the presence of a judge (and jury) parties to the proceeding, counsel etc.
-or in an affidavit filed in court
-or by reading of a written statement in a courtroom, if both prosecution and defence consent, the statement is admissible and it is the personal statement of the maker.

in an ALTERNATIVE WAY
-in the courtroom but unable to see the defendant or other person, outside the courtroom, or by video recording made prior to the hearing.

in ANY OTHER WAY provided for by the evidence act 2006 or any other relevant enactment

Question 8

Incriminate

Answer 8

to incriminate is to provide information that is reasonably likely to lead to or increase the likelihood of the prosecution of a person for a criminal offence.

Question 9

Statement

Answer 9

spoken or written assertion by a person or non-verbal conduct of a person intended by that person as an assertion of any matter

Question 10

Witness

Answer 10

person who gives evidence and is able to be cross-examined

Question 11

Hearsay Statement

Answer 11

a statement that -
was made by a person other than a witness, and
- is offered in evidence at the proceeding to prove the truth of its contents.

This means that out-of-court statements made by a ‘witness’ are not excluded from the hearsay rule because the statement maker is able to be cross examined.

Question 12

Veracity

Answer 12

that is the disposition of a person to refrain from lying, whether generally or in a proceeding

Question 13

Propensity

Answer 13

propensity evidence is evidence about a person’s propensity to act in a particular way or have a particular state of mind, and includes evidence of acts, omissions, events or circumstances with which a person is alleged to have been involved

Question 14

Direct or circumstantial

Answer 14

Direct - evidence given by a witness as to a fact in issue that they saw, heard or otherwise experienced

Circumstantial - evidence that does not directly prove the facts in issue but which allow inferences about the existence of those facts to be drawn.

Question 15

Expert

Answer 15

a person who has specialised knowledge or skill based on training, study or experience

The Judge must determine whether the expert witness is properly qualified to testify

Question 16

Leading Question

Answer 16

one that directly or indirectly suggests a particular answer to the question

Question 17

Hostile Witness

Answer 17

Means the witness

• exhibits or appears to exhibit a lack of veracity when giving evidence unfavourable to the party who called the witness on a matter about which the witness may reasonably be supposed to have knowledge; or
• gives evidence that is inconsistent with a statement made by that witness in a manner that exhibits, or appears to exhibit, an intention to be unhelpful to the party who called the witness;
• refuses to answer questions or deliberately withholds evidence