Glossary
Admissible evidence:
(i) Hearsay - information the witness heard someone say. Hearsay is inadmissible unless the defendant or, in the case of a company an employee of the defendant, made the statement.
(ii) Opinion - normally a witness is permitted to give evidence only about facts within the witness’s own knowledge, and will not be permitted to express an opinion on anything. The law makes an exception for experts, where their opinion is relevant to an issue in the case. An expert is one who has made a study of and gained experience in a particular field of learning and knowledge (eg, a professional planner).
(iii) Admissions - if a defendant makes an admission (ie, admits that he/she committed the offence), this admission can be used in evidence against the defendant. However, if one defendant gives information about another defendant, the prosecution may have difficulty using this information, depending on the circumstances. Therefore, if at all possible, try to obtain an admission from the defendant himself/herself. It is important to ensure that any admissions are volunteered. Any admission that has been obtained through a threat or inducement may not be admissible.
Beyond reasonable doubt: the standard of proof for a prosecution under the Act is “beyond reasonable doubt”. A reasonable doubt is a doubt that would prevent a reasonable and just Judge or jury from coming to a conclusion.
What is a real and substantial doubt? It is only another way of saying a reasonable doubt, and a “reasonable doubt” is simply that degree of doubt which would prevent a reasonable and just man from coming to a conclusion. Bater v Bater [1950] 2 All ER 458 at 459, CA, per Denning LJ.
I have never yet heard any court give a real definition of what is a “reasonable doubt”, and it would be very much better if that expression was not used. Whenever a court attempts to explain what is meant by it, the explanation tends to result in confusion rather than clarity. It is far better, instead of using the words “reasonable doubt” and then trying to say what is a reasonable doubt, to say to a jury: “You must not convict unless you are satisfied by the evidence given by the prosecution that the offence has been committed.” The jury should be told that it is not for the prisoner to prove his innocence, but for the prosecution to prove his guilt, and that it is their duty to regard the evidence and see if it satisfies them so that they can feel sure, when they give their verdict, that it is a right one. R v Summers [1952] 1 All ER 1059 at 1060.
Chain of custody: the passage of an exhibit, from where it was located up until the time it is produced in Court as evidence. The chain of custody proves that an exhibit is, in fact, what it is alleged to be (ie, what is produced in Court is precisely what was originally found at the scene).
Common law: law embodied in judicial decisions as opposed to statute law.
Exhibit: a document or other thing shown by a witness while giving evidence and sworn by him or her.
Information: charge: the laying of the information (charge) is the commencement of the criminal proceedings. (See also summons.)
On the balance of probabilities: this means that once both sides have presented their evidence the Judge will find for the party who, on the whole, has a stronger case (eg, the party whose evidence tips the balance of probability, however slight the edge may be Garner BA, A Dictionary of Modern Legal Usage (2nd ed 1995), 98.).
Sentencing: the process whereby a Court arrives at an appropriate punishment for offending. Sentencing is a balancing exercise in which a range of factors are weighed.
Strict liability offence: a strict liability offence is an offence in which the prosecution does not need to prove mens rea (wrongful intention) on the part of the defendant, but only the commission of the actus rea (that the defendant committed the prohibited act). The defence of due diligence (reasonable care) is available for a strict liability offence. The defences in s 341(2) are a codification of the common law defence of due diligence.
Subjudice: while a matter is under judicial consideration newspaper comment on the case is prohibited because the matter has not yet been decided by the Court and is still debatable.
Summons: an information and a summons are identical, except the summons is the copy of the information which is served on the defendant. The summons states the date and time of the hearing.
