EVIDENCE and PROOF

Question 1

Define EVIDENCE

Answer 1

The WHOLE BODY OF MATERIAL which the court may take into account reaching their decision.

Question 2

Define ADMISSIBLE EVIDENCE

Answer 2

Evidence LEGALLY ABLE to be received by the court.

Question 3

Define RELEVANCE

Answer 3

TENDENCY TO PROVE OR DISPROVE anything of consequence to the proceeding.

Question 4

Define FACTS IN ISSUE

Answer 4

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 5

Define the 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

Define WEIGHT OF EVIDENCE

Answer 6

The PROBATIVE FORCE.

Or the degree to which the evidence:
* has DIRECT RELEVANCE to the facts
* is SUPPORTED by other evidence
* Contributes to VERACITY.

Question 7

Define:
OFFER EVIDENCE

Answer 7

Evidence must be ELICITED before it is “offered”

Question 8

Define:
GIVE EVIDENCE

Answer 8

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.

Question 9

Define:
INCRIMINATE

Answer 9

To PROVIDE INFORMATION likely to lead to prosecution for a criminal offence.

Question 10

Define:
PROCEEDING

Answer 10

This means a proceeding CONDUCTED BY A COURT, and any application to a court
connected with a proceeding.

Question 11

Define 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

Define:
WITNESS

Answer 12

A person who GIVES EVIDENCE and is able to be CROSS-EXAMINED in a proceeding.

Question 13

Define:
HEARSAY STATEMENT

Answer 13

A statement that was made by a person OTHER THAN A WITNESS.

They’re unavailable to:
• Promise to tell the truth
• Be cross-examined

Question 14

What is an example of a statement NOT made by the witness but the reason for its admission is not regarded as hearsay?

Answer 14

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.

Question 15

Define:
VERACITY

Answer 15

A disposition of a person to REFRAIN FROM LYING.

Question 16

Define:
PROPENSITY

Answer 16

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 17

Define:
DIRECT EVIDENCE

Answer 17

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 18

Define:
CIRCUMSTANTIAL EVIDENCE

Answer 18

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).

Question 19

Define:
ENFORCEMENT AGENCY

Answer 19

Any body or organisation that has a statutory responsibility for the ENFORCEMENT OF AN ENACTMENT.

Question 20

What is the fundamental principle in criminal law?
What is this principle called?

Answer 20

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.

Question 21

What are four exception categories to the WOOLMINGTON PRINCIPLE:

Answer 21

The defence may have a:
(1) Practical obligation
(2) Evidential burden
(3) a reversed burden of proof
(4) the principal may simply not apply

Question 22

What is a PRACTICAL OBLIGATION on the prosecution?

Answer 22

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.

Question 23

What is meant when the defendant has an EVIDENTIAL BURDEN?

Answer 23

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.

Question 24

What are three examples of exceptions to the Woolmington Principle:

Answer 24

(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

Question 25

What is the WANHALLA formulation for assessing REASONABLE DOUBT?

Answer 25

“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

Question 26

According to WANHALLA, what is the presumption on innocence?

Answer 26

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.

Question 27

BALANCE OF PROBABILITIES:
Who is usually held to this standard of proof?
When has the balance of probability been discharged?

Answer 27

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.

Question 28

What is meant by ‘the rules of evidence’?

Answer 28

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.