QLD BAR NEWEST ACTUAL EXAM - EVIDENCE WITH
COMPLETE QUESTIONS AND ANSWERS/ VERIFIED/GRADED
A+/
Bunning v Cross [1978]
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
1) R v Christie: prejudicial value > probative value.
2) Unfairness in s 130 EAQ/s 135 EAC.
Provide example of each.
Page 1 of 29
,Admissibility of expert evidence
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
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.
Weight: the persuasion or cogency drawn from the
admitted/adduced evidence.
Page 2 of 29
, Memory refreshing
Can be used in certain circumstances during examination in
chief:
QLD: - A witness may refresh his memory in court, WITH
LEAVE, from a document that was:
§ made by the witness, or verified by the witness as
substantially accurate;
§ made at a time sufficient contemporaneous with the event
(such that it was fresh in their memory); and
§ where the original can be produced to the court, if required.
Commonwealth: Governed by s 32, EAC. Leave required: s
32(1).
Legal Burden vs Evidentiary Burden of proof
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).
Page 3 of 29
COMPLETE QUESTIONS AND ANSWERS/ VERIFIED/GRADED
A+/
Bunning v Cross [1978]
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
1) R v Christie: prejudicial value > probative value.
2) Unfairness in s 130 EAQ/s 135 EAC.
Provide example of each.
Page 1 of 29
,Admissibility of expert evidence
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
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.
Weight: the persuasion or cogency drawn from the
admitted/adduced evidence.
Page 2 of 29
, Memory refreshing
Can be used in certain circumstances during examination in
chief:
QLD: - A witness may refresh his memory in court, WITH
LEAVE, from a document that was:
§ made by the witness, or verified by the witness as
substantially accurate;
§ made at a time sufficient contemporaneous with the event
(such that it was fresh in their memory); and
§ where the original can be produced to the court, if required.
Commonwealth: Governed by s 32, EAC. Leave required: s
32(1).
Legal Burden vs Evidentiary Burden of proof
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).
Page 3 of 29
