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

Relevance

Answer 3

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 4

Facts in Issue

Facts in issue are those which

• The prosecution must…..
• The defence must…..

Answer 4

• 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 5

Exclusionary Rules

Answer 5

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

Question 6

Weight of Evidence

Answer 6

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 7

Offer Evidence

Answer 7

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 8

Give Evidence

and ways of giving evidence

Answer 8

“Giving evidence” is included in “offering evidence”: a witness “gives evidence”; a party “offers evidence”. A party who testifies both gives and offers evidence.

Of note

In a proceeding, evidence may be given:
• in the ordinary way either orally in a courtroom or in an affidavit filed in court

• in an alternative way such as by video link
• in any other way provided for by the Evidence Act 2006 or any other relevant enactment.

Question 9

Incriminate

Answer 9

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 10

Proceeding

Answer 10

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

Question 11

Statement

Answer 11

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 12

Witness

Answer 12

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

Question 13

Hearsay Statement

Answer 13

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

Of note

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 14

Veracity

Answer 14

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

Question 15

Propensity Evidence

Answer 15

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 16

Direct Evidence

Answer 16

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 17

Circumstantial Evidence

Answer 17

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 18

Opinion

Answer 18

A statement of opinion that tends to prove or disprove a fact (s.4)

A statement of opinion is not admissible in a proceeding, except as provided by section 24 and 24 (s.23)

Question 19

Hostile Witness

Hostile, in relation to a witness, means that the witness—

Answer 19

• exhibits, or appears to exhibit, a lack of veracity when giving evidence unfavorable 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; or
• refuses to answer questions or deliberately withholds evidence.