Qld Bar Exam - Evidence
Legal Burden vs Evidentiary Burden of proof - ANS-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 - ANS-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 - ANS-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] - ANS-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? - ANS-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] - ANS-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 - ANS-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 - ANS-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 - ANS-Relevance: Evidence is relevant when it
tends to prove a FII.
Legal Burden vs Evidentiary Burden of proof - ANS-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 - ANS-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 - ANS-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] - ANS-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? - ANS-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] - ANS-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 - ANS-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 - ANS-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 - ANS-Relevance: Evidence is relevant when it
tends to prove a FII.
