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CIB 009 - Evidence > Definitions > Flashcards

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“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.


Admissible evidence

Evidence is admissible if it is legally able to be received by a court.



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.....
- The defence must.....

• 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.


Exclusionary Rules

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


Weight of Evidence

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.


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 – 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.


Give Evidence

and ways of giving evidence

“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.



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.



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



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.



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


Hearsay Statement

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.



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


Propensity Evidence

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

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 Evidence

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).



A statement of opinion that tends to prove or disprove a fact


Hostile Witness

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

- Exhibits, or appears to exhibit, a lack of veracity when giving evidence unfavourable 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