Flashcards in Evidence Deck (90)
“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.
Define: 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).
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: 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 “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.
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 – 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.
Define: Give 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.
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.
Define: 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.
This is the disposition of a person to refrain from lying, whether generally or in a proceeding.
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
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).
Define: Enforcement agency
This refers to the New Zealand Police or any body or organisation that has a statutory responsibility for the enforcement of an enactment, including the New Zealand Customs Service, the Ministry of Fisheries and the Inland Revenue Department.
What is the Woolmington Principle?
subject to specific statutory exceptions, the burden of proof lies clearly with the prosecution in relation to all of the elements of the offence.
Name one exception to the Woolmington principle
s202A(4)(b) Crimes Act 1961: Possession of an Offensive Weapon shifts the burden of proof to the defendant in regard to the intent.
What does R v Wanhalla say about proof beyond reasonable doubt?
Proof beyond reasonable doubt is a very high standard of proof which the Crown will have met only if, at the end of the case, you are sure that the accused is guilty.
reasonable doubt is an honest and reasonable uncertainty left in your mind about the guilt of the accused after you have given careful and impartial consideration to all of the evidence.
Define: Balance of probabilities
Balance of probabilities is the standard of proof required for the defence to prove a particular element of its case. It means it must carry a reasonable degree of probability, but not so high as is required in a criminal case. If the evidence is such that the tribunal can say: “We think it more probable than not”, the burden is discharged; if the probabilities are equal, the burden is not discharged.
What are the six purposes of the Evidence Act 2006?
(a) providing for facts to be established by the application of logical rules;
(b) providing rules of evidence that recognise the importance of the rights affirmed by the New Zealand Bill of Rights Act 1990;
(c) promoting fairness to parties and witnesses; and
(d) protecting rights of confidentiality and other important public interests;
(e) avoiding unjustifiable expense and delay; and
(f) enhancing access to the law of evidence.
Define: Facts in issue
The facts which in law need to be proven to succeed with the case. In criminal cases, the facts in issue are usually those which are alleged by the charging document and denied by a plea of not guilty.
Define: Facts relevant to the facts in issue
Facts relevant to the facts in issue tend to prove or disprove a fact in issue.
What is the section 7 test for relevance?
(include the definition of relevance evidence)
(1) All relevant evidence is admissible in a proceeding except evidence that is—
(a) inadmissible under this Act or any other Act; or
(b) excluded under this Act or any other Act.
(2) Evidence that is not relevant is not admissible in a proceeding.
(3) Evidence is relevant in a proceeding if it has a tendency to prove or disprove anything that is of consequence to the determination of the proceeding.
List the two exceptions to the rule that evidence must be produced in support of a fact.
1. Where judicial notice is taken.
2. The facts are formally admitted.
What are uncontroverted facts under s128 EA06?
Facts so known and accepted either generally or in the locality in which the proceeding is being held that they cannot reasonably be questioned.
What does s129 EA06 say about admission of reliable published documents?
A Judge may, in matters of public history, literature, science or art, admit as evidence any published documents that the Judge considers to be reliable sources of information on the subjects to which they respectively relate.