EVIDENCE and PROOF Flashcards
Define EVIDENCE
The WHOLE BODY OF MATERIAL which the court may take into account reaching their decision.
Define ADMISSIBLE EVIDENCE
Evidence LEGALLY ABLE to be received by the court.
Define RELEVANCE
TENDENCY TO PROVE OR DISPROVE anything of consequence to the proceeding.
Define 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.
Define the EXCLUSIONARY RULES
These are rules that exclude evidence (usually because it is
UNRELIABLE,
unduly PREJUDICIAL or otherwise
UNFAIR to admit it).
Define WEIGHT OF EVIDENCE
The PROBATIVE FORCE.
Or the degree to which the evidence:
* has DIRECT RELEVANCE to the facts
* is SUPPORTED by other evidence
* Contributes to VERACITY.
Define:
OFFER EVIDENCE
Evidence must be ELICITED before it is “offered”
Define:
GIVE EVIDENCE
A WITNESS “gives evidence”; a party “offers evidence”.
Evidence may be given:
* in the ORDINARY way
* in an ALTERNATIVE way
* in any OTEHR way provided for.
Define:
INCRIMINATE
To PROVIDE INFORMATION likely to lead to prosecution for a criminal offence.
Define:
PROCEEDING
This means a proceeding CONDUCTED BY A COURT, and any application to a court
connected with a proceeding.
Define 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.
Define:
WITNESS
A person who GIVES EVIDENCE and is able to be CROSS-EXAMINED in a proceeding.
Define:
HEARSAY STATEMENT
A statement that was made by a person OTHER THAN A WITNESS.
They’re unavailable to:
• Promise to tell the truth
• Be cross-examined
What is an example of a statement NOT made by the witness but the reason for its admission is not regarded as hearsay?
A STATEMENT OFFERED FOR SOME PURPOSES 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.
Define:
VERACITY
A disposition of a person to REFRAIN FROM LYING.
Define:
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.
Define:
DIRECT EVIDENCE
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).
Define:
CIRCUMSTANTIAL EVIDENCE
Evidence which ALLOWS 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).
Define:
ENFORCEMENT AGENCY
Any body or organisation that has a statutory responsibility for the ENFORCEMENT OF AN ENACTMENT.
What is the fundamental principle in criminal law?
What is this principle called?
The WOOLMINGTON PRINCIPLE:
The presumption of innocence.
I.e. The burden of proof lies clearly with the prosecution in relation to all of the elements of the offence.
What are four exception categories to the WOOLMINGTON PRINCIPLE:
The defence may have a:
(1) Practical obligation
(2) Evidential burden
(3) a reversed burden of proof
(4) the principal may simply not apply
What is a PRACTICAL OBLIGATION on the prosecution?
It’s a practical OBLIGATION TO POINT TO EVIDENCE THAT SUGGESTS A CONCLUSION IS WRONG. The defendant doesn’t have to prove anything, rather they are merely casting reasonable doubt as to whether they did the act or had the mental element.
What is meant when the defendant has an EVIDENTIAL BURDEN?
If the defendant wishes to put up a defence, they will have a CORRESPONDING EVIDENTIAL BURDEN TO SUPPORT THEIR DEFENCE, but not a burden of proof. The burden of proof remains with the prosecution to prove their case.
What are three examples of exceptions to the Woolmington Principle:
(1) The INSANITY defence
(2) where specific STATUTORY exceptions exist. Examples such as the offence of having a prima facie intent to use a firearm s202A.
(3) PUBLIC WELFARE offences
What is the WANHALLA formulation for assessing REASONABLE DOUBT?
“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 the evidence.”
This is not mandatory but should be encouraged to promote consistency
According to WANHALLA, what is the presumption on innocence?
It is the starting point. You must treat the accused as innocent until the Crown has proved their guilt. The accused does not have to establish his innocence.
BALANCE OF PROBABILITIES:
Who is usually held to this standard of proof?
When has the balance of probability been discharged?
If the DEFENDANT needs to prove anything, it will usually be to the standard of the balance of probability
This is discharged when it reaches the threshold of being MORE PROBABLE THAN NOT. If the balance is equal, the burden has not been discharged.
What is meant by ‘the rules of evidence’?
The rules of evidence determine the FORM in which, and the MEANS by which, the evidence may be presented in court. Found in statute and case law.
