Evidence Flashcards
Define evidence
Evidence is the term for the whole body of material which in a court or tribunal may take into account in reaching their decision
Evidence may be in oral, written or visual form
What is admissible evidence?
If it is legally able to be received in court
Define relevance
If evidence has a tendency to prove or disprove anything that is of consequence to the determination of a proceeding
S7(3) Evidence Act 2006
What are the facts in issue?
SA
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
What are the exclusionary rules in relation to general evidence?
3 points
These are rules that exclude evidence (usually because it is unreliable, unduly prejudicial or otherwise unfair to admit it)
What is the weight of evidence?
Is the value in relation to the facts in issue. The value depends on 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
Define 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. Includes eliciting evidence by cross-examination of a witness called by another party
What are the three ways to give evidence?
- In the ordinary way - orally in the courtroom in the presence of a judge
- In an alternative way - in the courtroom but unable to see the defendant, outside the courtroom or by video recording made before the hearing or by audio-visual link
- In any other way provided for by the Evidence Act 2006 or any other relevant enactment
Define incriminate
To incriminate is to provide information that is reasonably likely to increase the likelihood of the prosecution of a person for a criminal offence
What is a proceeding?
This means a proceeding conducted by a court, and any application to a court connected with a proceeding
What is a 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
What is a witness?
This is a person who gives evidence and is able to be cross-examined in a proceeding
Define a hearsay statement
A statement that was made by a person other than a witness and is offered in evidence in the proceeding to the truth of its contents
Define veracity
This is the disposition of a person to refrain from lying whether generally or in a proceeding
Define propensity
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
What is direct evidence?
Evidence given by a witness as to a fact in issue that he or she has seen, heard or otherwise experienced
What is circumstantial evidence?
Evidence of circumstances that do not directly prove any fact in issue but allow for inferences about the existence of those facts to be drawn
Define an enforcement agency
Refers to the NZ Police or any body or organisation that has a statutory responsibility for the enforcement of an enactment eg Fisheries, Customs, IRD etc
What is the Woolmington principle within the burden of proof?
This principle establishes that, subject to specific statutory exceptions, the burden of proof lies clearly with the prosecution in relation to all of the elements of the offence.
What is the practical obligation on defence when it comes to the Woolmington principle?
It is simply a practical obligation to point to some evidence that suggests a reasonable doubt about conclusions one would otherwise draw from the prosecution case
Define the evidential burden for defence in relation to a live issue
Having an evidential burden means that a defence cannot be left to the jury or judge unless it has been made a live issue by the defence. It is not a burden of proof, and once its made a live issue the the prosecution must destroy the defence, because the burden of proof remains with the prosecution - the question always remains: has the prosecution proved its case
What are the three exceptions to Woolmingtons principle?
- Defence of insanity (S23(1) CA1961
- Express statutory exceptions by Parliament
- Public welfare regulatory offences which are offences that regulate everyday conduct which have a tendency to endanger the public or sections of the public. These are strict liability offences.
Define discharging the burden of proof
Where the legal burden is on the prosecution it must be discharged beyond reasonable doubt. Any element which the defence bears the burden of proving need only be proved on the balance of probabilities
What is beyond reasonable doubt?
R v Wanhalla
Reasonable doubt is an honest and reasonable uncertainty left in your mind about the guilt of the defendant after you have given careful and impartial consideration to all of the evidence
The starting point is the presumption of innocence. You must treat accused as innocent until the Crown has proved guilt. The presumption of innocence means that the accused does not have to give or call any evidence and does not have to establish their innocence
It is not enough for the Crown to persuade you that the accused is probably guilty or even that they are very likely guilty. On the other hand it is virtually impossible to prove anything to an absolute certainty