Queensland Bar Exam - Evidence Questions and Answers Fully Solved
What is the hearsay rule? - Answers 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? - Answers Original evidence - prove matter distinct from words, or
to prove terms
What is the business records exception to Hearsay? - Answers 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? - Answers EAC 59 - Definition
What EAC section are hearsay exceptions? - Answers EAC 60-75
What EAC section is relevance? - Answers EAC 55-56
What EAC section is opinion? - Answers EAC 76
What EAC section is admission? - Answers EAC 81
What EAC section is general discretion to exclude? - Answers EAC 135 - prejudicial >> probative
What EAC section is exclusion of prejudicial evidence in criminal proceedings? - Answers EAC 137 -
derived from CL christie direction
What EAC section is discretion to exclude for illegality? - Answers EAC 138
What EAC section is relevance? - Answers EAC 55
What EAC sections govern tendency and coincidence evidence? - Answers EAC 97-98
replaced Pfennig/Hoch at CL
What EAC section allows for evidence to be given in narrative form? - Answers EAC 29
Narrative form if so directed by the court may replace standard Q&A system
What is the Briginshaw standard? - Answers 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? - Answers 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? - Answers 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? - Answers Trier
of fact decides legal burden, judge decides evidentiary burden.
What is a Fact in Issue? - Answers All facts which P must prove to succeed at trial and which D must
prove to establish defence.
What is circumstantial evidence? - Answers Facts the existence of which may infer the existence of a
Fact in Issue
What is the Jones v Dunkel rule? - Answers 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? - Answers Must provide reasonable explanation based on
evidence, not merely presumed
What is the best evidence rule? - Answers 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? - Answers Relatively low, anything which COULD affect assessment
of FII
Not dismissed by possibility of fabrication -- that goes to weight.
What is the hearsay rule? - Answers 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? - Answers Original evidence - prove matter distinct from words, or
to prove terms
What is the business records exception to Hearsay? - Answers 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? - Answers EAC 59 - Definition
What EAC section are hearsay exceptions? - Answers EAC 60-75
What EAC section is relevance? - Answers EAC 55-56
What EAC section is opinion? - Answers EAC 76
What EAC section is admission? - Answers EAC 81
What EAC section is general discretion to exclude? - Answers EAC 135 - prejudicial >> probative
What EAC section is exclusion of prejudicial evidence in criminal proceedings? - Answers EAC 137 -
derived from CL christie direction
What EAC section is discretion to exclude for illegality? - Answers EAC 138
What EAC section is relevance? - Answers EAC 55
What EAC sections govern tendency and coincidence evidence? - Answers EAC 97-98
replaced Pfennig/Hoch at CL
What EAC section allows for evidence to be given in narrative form? - Answers EAC 29
Narrative form if so directed by the court may replace standard Q&A system
What is the Briginshaw standard? - Answers 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? - Answers 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? - Answers 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? - Answers Trier
of fact decides legal burden, judge decides evidentiary burden.
What is a Fact in Issue? - Answers All facts which P must prove to succeed at trial and which D must
prove to establish defence.
What is circumstantial evidence? - Answers Facts the existence of which may infer the existence of a
Fact in Issue
What is the Jones v Dunkel rule? - Answers 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? - Answers Must provide reasonable explanation based on
evidence, not merely presumed
What is the best evidence rule? - Answers 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? - Answers Relatively low, anything which COULD affect assessment
of FII
Not dismissed by possibility of fabrication -- that goes to weight.
