Definitions

Question 1

Evidence

Answer 1

“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.

Question 2

Admissible Evidence

Answer 2

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

Question 3

Facts in issue

Answer 3

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.

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) 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.

Question 7

Gives Evidence

Answer 7

“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 8

Giving Evidence in the Ordinary Way

Answer 8

Either orally in a courtroom in the presence of a judge (or a judge and jury), parties to the proceeding, counsel, and members of the public allowed by the judge; or in affidavit filed in court or by reading a written statement in a courtroom, if both the prosecution and defence consent, the statement is admissible, and it is the personal statement of the deponent or maker.

Question 9

Giving Evidence in the Alternative way

Answer 9

In the courtroom but unable to see the defendant or other person; outside the courtroom; or by video recording made before the hearing. The Court (Remote Participation) Act 2010 provides for audio and visual communication between participants (by audio-visual link), when some or all of them are not physically present at the place of hearing for all or part of the proceeding. The criteria under that act does not limit the operation of ss103-106 of the EA2006, which provides for applications and directions regarding alternative ways of giving evidence.

Question 10

Giving Evidence in any other way

Answer 10

Provided for by the EA2006 or any other relevant enactment

Question 11

Incriminate

Answer 11

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 12

Proceeding

Answer 12

This means a proceeding conducted by a court, and any application to a court connected with a proceeding.

Question 13

Statement

Answer 13

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.

Question 14

Witness

Answer 14

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

Question 15

Hearsay Statement

Answer 15

Under the Act, a hearsay statement is defined as (s4):
A statement that –
(a) was made by a person other than a witness; and
(b) is offered in evidence at the proceeding to prove the truth of its contents”

“Statement” means (s4):
• a spoken or written assertion by a person of any matter, or
• non-verbal conduct of a person that is intended by that person as an assertion of any matter.

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.

Question 16

Veracity

Answer 16

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

Question 17

Propensity

Answer 17

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 18

Direct Evidence

Answer 18

This is any evidence given by a witness as to a fact in issue that he or she has seen, heard or otherwise experienced (e.g. an eyewitness who states that she saw the defendant stab the complainant with a knife).

Question 19

Circumstantial Evidence

Answer 19

This is evidence of circumstances that do not directly prove any fact in issue, but which allow inferences about the existence of those facts to be drawn (e.g. the defendant was seen in the vicinity of the scene of the crime).

Circumstantial evidence is a fact from which the judge or jury may infer the existence of a fact in issue. As such, it offers indirect proof of a fact in issue. As more circumstances lead to the inference, the chain of circumstantial evidence becomes stronger, to the point where the pieces of circumstantial evidence, viewed as a whole, are sufficient to prove guilt.

Question 20

Opinion

Answer 20

A statement of opinion that tends to prove or disprove a fact.

Question 21

Enforcement Agency

Answer 21

This refers to the NZ Police or any body or organisation that has a statutory responsibility for the enforcement of an enactment, including the NZ Customs Service, the Ministry of Fisheries and the Inland Revenue Department.