Definitions Flashcards
Evidence
Evidence is the term for the whole body of material which a court or tribunal i.e. in criminal cases the Judge or jury - may take into account in reaching their decision.
Admissible evidence
Evidence is admissible if it is legally able to be received by a court.
Relevance
Evidence is relevant if it has a tendency to prove or disprove anything that is of consequence to the determination of the proceeding.
s7(3) Evidence Act 2006
Facts in issue
Are facts those which:
- Prosecutions must prove to establish the elements of the offence, or
- Defendant must prove to succeed with a defence, in respect of which he or she carries the burden of proof.
Exclusionary rules
Rules that exclude evidence (usually 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 of which, if accepted, it is directly relevant to or conclusive of, those facts
- the extent to which it is supported or contracted 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 - s96(1) Evidence Act 2006. Offering evidence in the Evidence Act 2006 includes eliciting 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 or in the presence of a Judge or 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 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. The Courts (remote participation) Act 2010 provides for audio and visual communication between participants (by audio-idual link).
- 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 reasonable likely to lead to, or increase the likelihood of, the prosecution of a person for a criminal offence.
Proceeding
Means a proceeding conducted by a court, and any application to a court connected to a proceeding.
Statement
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
A person who gives evidence and is able to be cross-examined in a proceeding.
Hearsay statement
Statement made by a person other than a 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 (not hearsay) are not excluded by the hearsay rule because the maker is available to be cross examined, which negates the rule of “inability to test for credibility and accuracy”.
Such statement may still be excluded by a different rule. A statement offered for some purpose other than proving the truth of it’s contents, for exampled merely to show that the statement was made or uttered, is not a hearsay evidence.
Veracity
This is the disposition of a person to refrain from lying, whether 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, which includes evidence of acts, omissions, events or circumstances with which a person is alleged to have been involved.
