Qld Bar Exam – Evidence Questions 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)
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)
