Queensland Bar - Cases
Questions and Complete
Solutions Graded A+
Jones v Dunkel - Answer: Evidence (Civil) Adverse inferences may be drawn from the unexplained failure
of a party to adduce particular evidence where such evidence would be reasonably expected to shed
light on a matter. Case about man killed by a truck driven by D. D fails to appear as W. Corresponds to ss
9 (EAC doesnt affect CL) and 20 (failed to provide evidence) of tge EAC. Cases where judge can comment
should be rare and exceptional - ie Weissensteiner
Bale v Mills - Answer: Ethics. Treatment of witnesses. Any W should be confronted with and afforded an
opportunity of dealing with an allegation of dishonesty. Case concerned a new trial being ordered for
making adverse credibility findings against a solicitor in circumstances where allegation of dishonesty
had not been put to him in XXN. Despite P alleging that Browne v Dunn should be waived for non-
compliance, judge decided that the waiver was not applicable as the judge has an obligation to ensure
fair trial including fair treatment of W where the judge is asked to make a finding impeaching W's credit.
Weissensteiner - Answer: Evidence (Criminal) - D not testifying
Two people owned a boat that disappeared. D was found in possession of the boat and charged. D did
not call any evidence at his trial, nor did he take the witness stand. As a result of this, the trial judge
directed the jury that they were entitled to draw an inference of guilt due to D's failure to explain the
circumstances surrounding the case, in circumstances where he was likely to have some knowledge of
what had in fact occurred. A negative inference cannot be drawn from D's decision to stay silent. A jury
can only draw an inference of guilt which is made available by the Prosecution's facts, facts that are
given some additional credibility by D's unwillingness to provide evidence to the contrary.
R v Edwards (1993) - Answer: Evidence - Admissions. A case where D was convicted for procuring
another prisoner to give him a "head job" by threats of "bashing" and D lied about it in the W box. Other
prisoners also assaulted that prisoner. A lie can constitute an admission against interest only if it is
concerned with some circumstance or event connected with the offence and if it was told by the
accused in circumstances in which the explanation for the lie is that he knew that the truth would
implicate him in the offence. EG, a false alibi.
,Bunning v Cross - Answer: Evidence - Improperly Obtained.
Extension of Ireland discretion.
Applicant was cleared of charge of driving under influence because the police did not use the correct
procedure to test for alcohol when they stopped him. Court has discretion to exclude evidence
improperly obtained which can rightly be exercised where the unfairness to the D outweighs the public
interest in enforcement of the law and obtaining evidence to aid that enforcement. Evidence may also
be excluded by an exercise of judicial discretion where the extent to which it would produce a fair trial
outweighs its probative value.
5 element test:
1) did police deliberately disregard the law?
2) does illegality of attaining evidence result in lower reliability of the evidence?
3) how easy would it have been for the police to comply with the law?
4) what is the nature of the offence?
5) in what manner does legislation appear to control police actions?
Makita v Sprowles - Answer: Evidence - Admissibility of Expert Opinion. decision on whether an
employer failed to provide a safe means of access between the car park and offices. A central issue was
whether the stairs were safe and an expert gave his opinion that the stairs were slippery at the time of
the accident. The admissibility of his opinion was questioned as the tests forming the basis of his opinion
were performed nine years after the accident.
7 steps:
1) it must be demonstrated that there is a field of specialised knowledge;
2) there must be an identified aspect of that field in which W demonstrates that by reason of specified
training, study or experience, W has become an expert;
3) it must be demonstrated that the opinion proffered is wholly or substantially based on the W's expert
knowledge;
4) the expert must identify the assumptions of primary fact on which the opinion is offered (the
"assumption identification rule");
5) the opinion is not admissible unless evidence has been, or will be, admitted, whether from the expert
or from some other source, which is capable of supporting finding of primary fact which are "sufficiently
like" those factual assumptions to render the opinion of the expert of value (the "basis rule");
6) there must be a demonstration that the facts on which the opinion is based form a proper foundation
for it;
, 7) the opinion of an expert requires demonstrations or examination of the scientific or other intellectual
basis of the conclusions reached.
Tripodi - Answer: Evidence (Criminal) - Co-accused v Coconspirator. When the case for the prosecution is
that in the commission of a crime a number of persons have acted in preconcert, once reasonable
evidence of the preconcert has been adduced, evidence of directions, instructions, arrangements or
utterances accompanying acts given or made by one of the persons in the absence of the other or others
in furtherance of the common purpose which constitutes or forms an element of the crime becomes
admissible against the other or others, assuming it not to be otherwise admissible. The basal reason for
admitting such evidence is that the combination for preconcert to commit the crime is considered as
implying an authority to each to act or speak in furtherance of the common purpose on behalf of the
others. Evidence of acts and words of a coconspirator not in the presence of a co-accused is admissible
to establish that they took place and the truth of the matters asserted against that co- accused once
there is done other evidence that the latter is connected with conspiracy. This means that the acts of the
conspiracy cannot be used to prove conspiracy between the parties to start with.
Day v Perisher - Answer: Ethics - Coaching of witnesses, collusion. Original case involved P, ski lift
operator, suing Ski resort after being struck by a skier where he alleged Employer were negligent and Ski
resort alleged P was negligent. Witnesses for Ski resort prior to trial had communications with each
other and others, including solicitors for Ski resort, with respect to the form and content of the evidence
they were to provide. There was no XXN directed at reliability of the evidence in light of such
communications. Proper practice is to take proofs of evidence from Ws separately and to encourage Ws
not to discuss their evidence with others and particularly not with other potential Ws. Verdict set aside
and appeal allowed.
Aon Risk Services Pty Ltd v ANU - Answer: Practice & Procedure - Federal Court. Unreasonable delay in
changing pleadings, effect not only on litigants but on the public at large. In 2003 D after a bushfire
destroying its observatory commenced proceedings against its three insurers. Insurers responded that D
understated values of properties. Then in 2006 D filed an amended statement of claim adding Its risk
insurance broker as the fourth D. P appealed. High Court allowed appeal holding that allowing D to
amend pleadings would have too prejudicial effect on P: substantive nature of amendments, Trial date
already set, no explanation given for delay, costs would be an inadequate remedy. Substantial delay,
wasted costs, party's ability to change pleadings should be limited if the litigation is advanced-
opportunity not right to change pleadings; effect on other litigants as a whole will be considered.
R v Christie ( Christie discretion) - Answer: Evidence - Unlawfully Obtained (Criminal). The discretion to
exclude evidence where its probative value is outweighed by the risk of unfair prejudice derives from
the common law discretion, which enables the trial judge in criminal trials to exclude evidence which is
likely to produce incorrect verdicts by misleading or prejudicing the jury. The case involved D being
accused of indecent assault of a 5 yo boy and the out of court statements by the boy. See EAQ s 130.
Questions and Complete
Solutions Graded A+
Jones v Dunkel - Answer: Evidence (Civil) Adverse inferences may be drawn from the unexplained failure
of a party to adduce particular evidence where such evidence would be reasonably expected to shed
light on a matter. Case about man killed by a truck driven by D. D fails to appear as W. Corresponds to ss
9 (EAC doesnt affect CL) and 20 (failed to provide evidence) of tge EAC. Cases where judge can comment
should be rare and exceptional - ie Weissensteiner
Bale v Mills - Answer: Ethics. Treatment of witnesses. Any W should be confronted with and afforded an
opportunity of dealing with an allegation of dishonesty. Case concerned a new trial being ordered for
making adverse credibility findings against a solicitor in circumstances where allegation of dishonesty
had not been put to him in XXN. Despite P alleging that Browne v Dunn should be waived for non-
compliance, judge decided that the waiver was not applicable as the judge has an obligation to ensure
fair trial including fair treatment of W where the judge is asked to make a finding impeaching W's credit.
Weissensteiner - Answer: Evidence (Criminal) - D not testifying
Two people owned a boat that disappeared. D was found in possession of the boat and charged. D did
not call any evidence at his trial, nor did he take the witness stand. As a result of this, the trial judge
directed the jury that they were entitled to draw an inference of guilt due to D's failure to explain the
circumstances surrounding the case, in circumstances where he was likely to have some knowledge of
what had in fact occurred. A negative inference cannot be drawn from D's decision to stay silent. A jury
can only draw an inference of guilt which is made available by the Prosecution's facts, facts that are
given some additional credibility by D's unwillingness to provide evidence to the contrary.
R v Edwards (1993) - Answer: Evidence - Admissions. A case where D was convicted for procuring
another prisoner to give him a "head job" by threats of "bashing" and D lied about it in the W box. Other
prisoners also assaulted that prisoner. A lie can constitute an admission against interest only if it is
concerned with some circumstance or event connected with the offence and if it was told by the
accused in circumstances in which the explanation for the lie is that he knew that the truth would
implicate him in the offence. EG, a false alibi.
,Bunning v Cross - Answer: Evidence - Improperly Obtained.
Extension of Ireland discretion.
Applicant was cleared of charge of driving under influence because the police did not use the correct
procedure to test for alcohol when they stopped him. Court has discretion to exclude evidence
improperly obtained which can rightly be exercised where the unfairness to the D outweighs the public
interest in enforcement of the law and obtaining evidence to aid that enforcement. Evidence may also
be excluded by an exercise of judicial discretion where the extent to which it would produce a fair trial
outweighs its probative value.
5 element test:
1) did police deliberately disregard the law?
2) does illegality of attaining evidence result in lower reliability of the evidence?
3) how easy would it have been for the police to comply with the law?
4) what is the nature of the offence?
5) in what manner does legislation appear to control police actions?
Makita v Sprowles - Answer: Evidence - Admissibility of Expert Opinion. decision on whether an
employer failed to provide a safe means of access between the car park and offices. A central issue was
whether the stairs were safe and an expert gave his opinion that the stairs were slippery at the time of
the accident. The admissibility of his opinion was questioned as the tests forming the basis of his opinion
were performed nine years after the accident.
7 steps:
1) it must be demonstrated that there is a field of specialised knowledge;
2) there must be an identified aspect of that field in which W demonstrates that by reason of specified
training, study or experience, W has become an expert;
3) it must be demonstrated that the opinion proffered is wholly or substantially based on the W's expert
knowledge;
4) the expert must identify the assumptions of primary fact on which the opinion is offered (the
"assumption identification rule");
5) the opinion is not admissible unless evidence has been, or will be, admitted, whether from the expert
or from some other source, which is capable of supporting finding of primary fact which are "sufficiently
like" those factual assumptions to render the opinion of the expert of value (the "basis rule");
6) there must be a demonstration that the facts on which the opinion is based form a proper foundation
for it;
, 7) the opinion of an expert requires demonstrations or examination of the scientific or other intellectual
basis of the conclusions reached.
Tripodi - Answer: Evidence (Criminal) - Co-accused v Coconspirator. When the case for the prosecution is
that in the commission of a crime a number of persons have acted in preconcert, once reasonable
evidence of the preconcert has been adduced, evidence of directions, instructions, arrangements or
utterances accompanying acts given or made by one of the persons in the absence of the other or others
in furtherance of the common purpose which constitutes or forms an element of the crime becomes
admissible against the other or others, assuming it not to be otherwise admissible. The basal reason for
admitting such evidence is that the combination for preconcert to commit the crime is considered as
implying an authority to each to act or speak in furtherance of the common purpose on behalf of the
others. Evidence of acts and words of a coconspirator not in the presence of a co-accused is admissible
to establish that they took place and the truth of the matters asserted against that co- accused once
there is done other evidence that the latter is connected with conspiracy. This means that the acts of the
conspiracy cannot be used to prove conspiracy between the parties to start with.
Day v Perisher - Answer: Ethics - Coaching of witnesses, collusion. Original case involved P, ski lift
operator, suing Ski resort after being struck by a skier where he alleged Employer were negligent and Ski
resort alleged P was negligent. Witnesses for Ski resort prior to trial had communications with each
other and others, including solicitors for Ski resort, with respect to the form and content of the evidence
they were to provide. There was no XXN directed at reliability of the evidence in light of such
communications. Proper practice is to take proofs of evidence from Ws separately and to encourage Ws
not to discuss their evidence with others and particularly not with other potential Ws. Verdict set aside
and appeal allowed.
Aon Risk Services Pty Ltd v ANU - Answer: Practice & Procedure - Federal Court. Unreasonable delay in
changing pleadings, effect not only on litigants but on the public at large. In 2003 D after a bushfire
destroying its observatory commenced proceedings against its three insurers. Insurers responded that D
understated values of properties. Then in 2006 D filed an amended statement of claim adding Its risk
insurance broker as the fourth D. P appealed. High Court allowed appeal holding that allowing D to
amend pleadings would have too prejudicial effect on P: substantive nature of amendments, Trial date
already set, no explanation given for delay, costs would be an inadequate remedy. Substantial delay,
wasted costs, party's ability to change pleadings should be limited if the litigation is advanced-
opportunity not right to change pleadings; effect on other litigants as a whole will be considered.
R v Christie ( Christie discretion) - Answer: Evidence - Unlawfully Obtained (Criminal). The discretion to
exclude evidence where its probative value is outweighed by the risk of unfair prejudice derives from
the common law discretion, which enables the trial judge in criminal trials to exclude evidence which is
likely to produce incorrect verdicts by misleading or prejudicing the jury. The case involved D being
accused of indecent assault of a 5 yo boy and the out of court statements by the boy. See EAQ s 130.
