Definitions Flashcards
Evidence
“Evidence” is the term for the whole body of material which a court or tribunal-ie in criminal cases the Judge or Jury - may take into account in reaching their decision.
Evidence may be in oral, written, or visual form.
Admissible evidence
Evidence is admissible if it legally able to be received by the court.
Relevance
Evidence is relevant “if it has a tendancy to prove or disprove anything that is of consquence to the determination of a proceeding” sec.7(3) of the Evidence Act 2006.
Facts in issue
Facts in issue are those which:
The prosecution must prove to establish the elements of the offence, or
The defendant must prove to succeed with a defence, in respect of which he or she carries the burden of proof.
Exclusionary rules
These are rules that exclude evidence (usually because it is unreliable, unduly prejudicial or otherwise unfair to admit it).
Weight of evidence
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.
Offer evidence
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 - sec.96(1) of the Evidence Act 2006. Offering evidence in the Evidence Act 2006 includes eliciting evidence by cross examination of a witness called by another party.
Give evidence
“Giving evidence” is included in “offering evidence”: a witness “gives evidence”: a party “offers evidence”. A party who testifies both gives and offers evidence.
In a proceeding, evidence may be given:
In the ordinary way either orally in a courtroom in the presence of a Judge (or Judge and Jury), parties to the proceeding, counsel, and members of the public allowed by the Judge; or in an affidavit filed in court or by reading a written statement in a courtroom, if both prosecution and defence consent, the statement is admissible, and it is the personal statement of the deponent or 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 before the hearing. Ie AVL.
In any other way provided for by the Evidence Act 2006 or any other relevant enactment.
Incriminate
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.
Proceeding
This means a proceeding conducted by a court, and any application to a court connected with a proceeding.
Statement
This is a spoken or written assertion by a person, or non-verbal conduct of a person intended by that person as an assertion of any matter.
Witness
This is a person who gives evidence and is able to be cross examined in a proceeding.
Hearsay statement
This is a statement that was made by a person other than the witness, and is offered in evidence in the proceeding to prove the truth of its contents. This definition means that out of court statements made by a “witness” are not excluded by the hearsay rule because the maker is available to be cross-examined. Such statements may still be excluded by a different rule. A statement offered for some purpose other than proving the truth of its contents, for example merely to show that the statement was made or uttered, is not a hearsay statement.
Veracity
This is the disposition of a person to refrain from lying, whether he generally or in a proceeding.
Propensity
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.
