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Qld Bar Exam - Evidence Questions and
Correct Answers
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.
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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
© 2025 All rights reserved
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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.
© 2025 All rights reserved
Qld Bar Exam - Evidence Questions and
Correct Answers
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.
© 2025 All rights reserved
, 2 | Page
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
© 2025 All rights reserved
, 3 | Page
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.
© 2025 All rights reserved
