QLD BAR EXAM REVIEWS WITH
CORRECT ANSWERS
Legal Burden vs Evidentiary Burden of proof - CORRECT
ANSWER-Evidentiary burden: BRING EVIDENCE. The burden
of a party to bring evidence that there is sufficient evidence to
raise an issue as the existence of a FII. The party who is
making a claim or assertion must be able to prove it with
evidence.
Legal burden: PROVE THE EVIDENCE to a the standard, or
level of proof a party has an obligation to reach to prove a FII
(e.g. Crown as to BRD).
Judge's Discretion - CORRECT ANSWER-A judge has a
discretion to exclude evidence (eg. a confession) on the ground
that it is highly prejudicial and not probative (reliable) or for
public policy reasons (eg. evidence illegally obtained): Bunning
v Cross (1978); s130 Evidence Act 1977 (Qld); ss135-139 EA;
R v Christie.
Browne v Dunn - CORRECT ANSWER-Rule: Unless notice has
been given, Counsel that wishes to contradict a witness by
calling other evidence must put that evidence to the witness for
their comment.
Rationale: Anti-ambush rule for fairness. Allows other party to
call evidence so they can explain it.
,Court can then enjoy joinder evidence/FII.
Consequences of non-compliance:
Ethical and evidentiary implications; can be given less weight,
denial of right to respond by party/witness, other party may be
entitled recall evidence/put rebuttal evidence. Potential mistrial,
appeal or jury warning given.
Provide an example.
Jones v Dunkel [1959] - CORRECT ANSWER-Rule: In certain
circumstances, a party that provides an unexplained failure to
provide evidence may lead to an inference that the uncalled
evidence would not have assisted the party's case.
Rationale: Deterrence against parties tempted to withhold
evidence; promotes fairness, discourages parties from hiding or
suppressing evidence that could weaken their position, and
promotes transparency.
Provide example.
When does Jones v Dunkel not apply? - CORRECT ANSWER-
Limited application in criminal proceedings, can be used
against Crown.
Also does not apply in the appropriate circumstances: 1) when
the party is 'required to explain or contradict something' and 2)
it is within their power to tender it, and 3) there is no adequate
explanation as to failure.
Bunning v Cross [1978] - CORRECT ANSWER-Rule: Evidence
that was obtained unlawfully/improperly must not be admitted
unless the importance/probative value > factors (public interest,
unfairness and prejudice). Codified in s138 CEA. Factors are:
deliberateness of the conduct, probative value of the evidence,
ease with which compliance with law might have been
, achieved, nature of the offence charged, purpose of the
legislative restrictions.
Rationale: Striking a balance between enforcing public interest
with fair policing/disclosure against exclusion of evidence
otherwise not manifestly unfair/prejudicial (eg niche technical
points). Operative deterrence against bad policing and reliance
on exclusionary rules of evidence.
Exclusion of Relevant Evidence - CORRECT ANSWER-1) R v
Christie: prejudicial value > probative value.
2) Unfairness in s 130 EAQ/s 135 EAC.
Provide example of each.
Admissibility of expert evidence - CORRECT ANSWER-7
conditions, also in s 79 EAC.
1) Expert opinion is in field of specialised knowledge.
2) Identified aspect of that field which witness is an expert (by
training, study or experience.
3) The opinion is wholly/substantially based on the expert's
KNOWLEDGE
4) Expert must identify factual assumptions/primary facts which
form the opinion (assumption identification rule)
5) Evidence is, or will be admitted that supports the findings of
primary fact which are 'sufficiently' like the factual assumptions
used by experts (the basis rule)*
6) Must establish facts used on which the opinion is formed.
7) Must be an intelligible scientific/intellectual basis for the
opinion demonstrated.
Relevance, admissibility and weight - CORRECT ANSWER-
Relevance: Evidence is relevant when it tends to prove a FII.
Admissibility: Whether certain evidence can be received by the
Court. All evidence that is relevant is admissible, subject to
exceptions/exclusionary rules.
CORRECT ANSWERS
Legal Burden vs Evidentiary Burden of proof - CORRECT
ANSWER-Evidentiary burden: BRING EVIDENCE. The burden
of a party to bring evidence that there is sufficient evidence to
raise an issue as the existence of a FII. The party who is
making a claim or assertion must be able to prove it with
evidence.
Legal burden: PROVE THE EVIDENCE to a the standard, or
level of proof a party has an obligation to reach to prove a FII
(e.g. Crown as to BRD).
Judge's Discretion - CORRECT ANSWER-A judge has a
discretion to exclude evidence (eg. a confession) on the ground
that it is highly prejudicial and not probative (reliable) or for
public policy reasons (eg. evidence illegally obtained): Bunning
v Cross (1978); s130 Evidence Act 1977 (Qld); ss135-139 EA;
R v Christie.
Browne v Dunn - CORRECT ANSWER-Rule: Unless notice has
been given, Counsel that wishes to contradict a witness by
calling other evidence must put that evidence to the witness for
their comment.
Rationale: Anti-ambush rule for fairness. Allows other party to
call evidence so they can explain it.
,Court can then enjoy joinder evidence/FII.
Consequences of non-compliance:
Ethical and evidentiary implications; can be given less weight,
denial of right to respond by party/witness, other party may be
entitled recall evidence/put rebuttal evidence. Potential mistrial,
appeal or jury warning given.
Provide an example.
Jones v Dunkel [1959] - CORRECT ANSWER-Rule: In certain
circumstances, a party that provides an unexplained failure to
provide evidence may lead to an inference that the uncalled
evidence would not have assisted the party's case.
Rationale: Deterrence against parties tempted to withhold
evidence; promotes fairness, discourages parties from hiding or
suppressing evidence that could weaken their position, and
promotes transparency.
Provide example.
When does Jones v Dunkel not apply? - CORRECT ANSWER-
Limited application in criminal proceedings, can be used
against Crown.
Also does not apply in the appropriate circumstances: 1) when
the party is 'required to explain or contradict something' and 2)
it is within their power to tender it, and 3) there is no adequate
explanation as to failure.
Bunning v Cross [1978] - CORRECT ANSWER-Rule: Evidence
that was obtained unlawfully/improperly must not be admitted
unless the importance/probative value > factors (public interest,
unfairness and prejudice). Codified in s138 CEA. Factors are:
deliberateness of the conduct, probative value of the evidence,
ease with which compliance with law might have been
, achieved, nature of the offence charged, purpose of the
legislative restrictions.
Rationale: Striking a balance between enforcing public interest
with fair policing/disclosure against exclusion of evidence
otherwise not manifestly unfair/prejudicial (eg niche technical
points). Operative deterrence against bad policing and reliance
on exclusionary rules of evidence.
Exclusion of Relevant Evidence - CORRECT ANSWER-1) R v
Christie: prejudicial value > probative value.
2) Unfairness in s 130 EAQ/s 135 EAC.
Provide example of each.
Admissibility of expert evidence - CORRECT ANSWER-7
conditions, also in s 79 EAC.
1) Expert opinion is in field of specialised knowledge.
2) Identified aspect of that field which witness is an expert (by
training, study or experience.
3) The opinion is wholly/substantially based on the expert's
KNOWLEDGE
4) Expert must identify factual assumptions/primary facts which
form the opinion (assumption identification rule)
5) Evidence is, or will be admitted that supports the findings of
primary fact which are 'sufficiently' like the factual assumptions
used by experts (the basis rule)*
6) Must establish facts used on which the opinion is formed.
7) Must be an intelligible scientific/intellectual basis for the
opinion demonstrated.
Relevance, admissibility and weight - CORRECT ANSWER-
Relevance: Evidence is relevant when it tends to prove a FII.
Admissibility: Whether certain evidence can be received by the
Court. All evidence that is relevant is admissible, subject to
exceptions/exclusionary rules.
