Definitions Flashcards
Definition of evidence
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.
Relevance in regards to Evidence
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).
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.
Weight of evidence meaning
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.
Offering 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) 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.
Giving evidence
In a proceeding, evidence may be given:
• in the ordinary way either orally in a courtroom in the presence of a judge (or judge and jury), parties to the proceeding, counsel, and members of the public allowed by the judge; or in an affidavit filed in court or by reading a written 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-visual link), when some or all of them are not physically present at the place of hearing for all or part of the proceeding. The criteria under that Act does not limit the operation of ss103-106 of the Evidence Act 2006, which provides for applications and directions regarding alternative ways of giving evidence;
• in any other way provided for by the Evidence Act 2006 or any other relevant enactment.
Incriminate defintion
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.
Proceedings definitions
This means a proceeding conducted by a court, and any application to a court connected with a proceeding.
Statement definition
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.
Witness Definition
This is a person who gives evidence and is able to be cross-examined in a proceeding.
Hearsay Definition
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. 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.
Veracity Definition
This is the disposition of a person to refrain from lying, whether generally or in a proceeding.
Propensity Definition
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.
Direct evidence definition
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).
Circumstantial definition
This is evidence of circumstances that do not directly prove any fact in issue, but which allow 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).
