QUEENSLAND BAR EXAM – EVIDENCE QUESTIONS &
ANSWERS
What is the hearsay rule? - Answer -Evidence of a previous representation made by a
person is not admissible to prove the truth of the facts asserted (s59 EAC)
What are the exceptions to Hearsay? - Answer -Original evidence - prove matter
distinct from words, or to prove terms
What is the business records exception to Hearsay? - Answer -EAC 69 Hearsay rule
does not apply to documents where representation made by person with personal
knowledge of asserted fact
What EAC section is hearsay? - Answer -EAC 59 - Definition
What EAC section are hearsay exceptions? - Answer -EAC 60-75
What EAC section is relevance? - Answer -EAC 55-56
What EAC section is opinion? - Answer -EAC 76
What EAC section is admission? - Answer -EAC 81
What EAC section is general discretion to exclude? - Answer -EAC 135 - prejudicial >>
probative
What EAC section is exclusion of prejudicial evidence in criminal proceedings? -
Answer -EAC 137 - derived from CL christie direction
What EAC section is discretion to exclude for illegality? - Answer -EAC 138
What EAC section is relevance? - Answer -EAC 55
What EAC sections govern tendency and coincidence evidence? - Answer -EAC 97-98
replaced Pfennig/Hoch at CL
What EAC section allows for evidence to be given in narrative form? - Answer -EAC 29
Narrative form if so directed by the court may replace standard Q&A system
What is the Briginshaw standard? - Answer -the strength of evidence necessary to
establish facts on the balance of probabilities, may depend on the nature of what is
sought to be proven.'
, More serious, more stringent
EAC 140(2)
What is legal burden of proof? - Answer -Requirement of a rule of law that a fact in
issue be proved to either preponderance of evidence or beyond reasonable doubt
What is evidential burden of proof? - Answer -Requirement to show sufficient evidence
to raise an issue as to existence or non existence of a fact in issue.
Minimum threshold for raising an issue at trial
Who determines decides on whether the legal and evidentiary burdens have been met?
- Answer -Trier of fact decides legal burden, judge decides evidentiary burden.
What is a Fact in Issue? - Answer -All facts which P must prove to succeed at trial and
which D must prove to establish defence.
What is circumstantial evidence? - Answer -Facts the existence of which may infer the
existence of a Fact in Issue
What is the Jones v Dunkel rule? - Answer -Unexplained failure to call evidence /
witness / document may lead to inference that the missing material would not have
assisted that party's case.
Applies to civil and criminal (P only)
Only applies where a party is required to explain (natural for party to call)
How to rebut Jones v Dunkel implication? - Answer -Must provide reasonable
explanation based on evidence, not merely presumed
What is the best evidence rule? - Answer -contents of a tendered document in court
can only be proved by tendering the original of that document.
Abolished by EAC 51
What is the threshold for relevance? - Answer -Relatively low, anything which COULD
affect assessment of FII
Not dismissed by possibility of fabrication -- that goes to weight.
General rule of admissibility - Answer -Allr relevant evidence is admissible, subject to
exclusionary rules - hearsay, opinion being the main ones
What is the applicability of EAC? - Answer -All federal courts - EAC 4
ANSWERS
What is the hearsay rule? - Answer -Evidence of a previous representation made by a
person is not admissible to prove the truth of the facts asserted (s59 EAC)
What are the exceptions to Hearsay? - Answer -Original evidence - prove matter
distinct from words, or to prove terms
What is the business records exception to Hearsay? - Answer -EAC 69 Hearsay rule
does not apply to documents where representation made by person with personal
knowledge of asserted fact
What EAC section is hearsay? - Answer -EAC 59 - Definition
What EAC section are hearsay exceptions? - Answer -EAC 60-75
What EAC section is relevance? - Answer -EAC 55-56
What EAC section is opinion? - Answer -EAC 76
What EAC section is admission? - Answer -EAC 81
What EAC section is general discretion to exclude? - Answer -EAC 135 - prejudicial >>
probative
What EAC section is exclusion of prejudicial evidence in criminal proceedings? -
Answer -EAC 137 - derived from CL christie direction
What EAC section is discretion to exclude for illegality? - Answer -EAC 138
What EAC section is relevance? - Answer -EAC 55
What EAC sections govern tendency and coincidence evidence? - Answer -EAC 97-98
replaced Pfennig/Hoch at CL
What EAC section allows for evidence to be given in narrative form? - Answer -EAC 29
Narrative form if so directed by the court may replace standard Q&A system
What is the Briginshaw standard? - Answer -the strength of evidence necessary to
establish facts on the balance of probabilities, may depend on the nature of what is
sought to be proven.'
, More serious, more stringent
EAC 140(2)
What is legal burden of proof? - Answer -Requirement of a rule of law that a fact in
issue be proved to either preponderance of evidence or beyond reasonable doubt
What is evidential burden of proof? - Answer -Requirement to show sufficient evidence
to raise an issue as to existence or non existence of a fact in issue.
Minimum threshold for raising an issue at trial
Who determines decides on whether the legal and evidentiary burdens have been met?
- Answer -Trier of fact decides legal burden, judge decides evidentiary burden.
What is a Fact in Issue? - Answer -All facts which P must prove to succeed at trial and
which D must prove to establish defence.
What is circumstantial evidence? - Answer -Facts the existence of which may infer the
existence of a Fact in Issue
What is the Jones v Dunkel rule? - Answer -Unexplained failure to call evidence /
witness / document may lead to inference that the missing material would not have
assisted that party's case.
Applies to civil and criminal (P only)
Only applies where a party is required to explain (natural for party to call)
How to rebut Jones v Dunkel implication? - Answer -Must provide reasonable
explanation based on evidence, not merely presumed
What is the best evidence rule? - Answer -contents of a tendered document in court
can only be proved by tendering the original of that document.
Abolished by EAC 51
What is the threshold for relevance? - Answer -Relatively low, anything which COULD
affect assessment of FII
Not dismissed by possibility of fabrication -- that goes to weight.
General rule of admissibility - Answer -Allr relevant evidence is admissible, subject to
exclusionary rules - hearsay, opinion being the main ones
What is the applicability of EAC? - Answer -All federal courts - EAC 4
