Queensland Bar Exam – Evidence question and answer verified

Queensland Bar Exam – Evidence question and answer verified What is the hearsay rule? -✔✔ 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 excep tions to Hearsay? -✔✔ Original evidence - prove matter distinct from words, or to prove terms What is the business records exception to Hearsay? -✔✔ EAC 69 Hearsay rule does not apply to documents where representation made by person with personal knowledg e of asserted fact What EAC section is hearsay? -✔✔ EAC 59 - Definition What EAC section are hearsay exceptions? -✔✔ EAC 60 -75 What EAC section is relevance ? -✔✔ EAC 55 -56 What EAC section is opinion? -✔✔ EAC 76 What EAC section is admission? -✔✔ EAC 81 What EAC section is general discretion to exclude? -✔✔ EAC 135 - prejudicial >> probative What EAC section is exclusion of prejudicial evidence in criminal proceedings? -✔✔ EAC 137 - derived from CL christie direction What EAC section is discretion t o exclude for illegality? -✔✔ EAC 138 What EAC section is relevance? -✔✔ EAC 55 What EAC sections govern tendency and coincidence evidence? -✔✔ EAC 97 -98 replaced Pfennig/Hoch at CL What EAC section allows for evidence to be given in narrative form? -✔✔ EAC 29 Narrative form if so directed by the court may replace standard Q&A system What is the Briginshaw standard? -✔✔ 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? -✔✔ 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? -✔✔ 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 w hether the legal and evidentiary burdens have been met? -✔✔ Trier of fact decides legal burden, judge decides evidentiary burden. What is a Fact in Issue? -✔✔ All facts which P must prove to succeed at trial and which D must prove to establish defence. What is circumstantial evidence? -✔✔ Facts the existence of which may infer the existence of a Fact in Issue What is the Jones v Dunkel rule? -✔✔ Unexplained failure to call evidence / witness / document may lead to inference that the missing material woul d 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? -✔✔ Must provide reasonable explanation based on evidence, not merely presumed What is the best evidence rule? -✔✔ contents of a tendered document in court can only be proved by tendering the original of that docum ent. Abolished by EAC 51 What is the threshold for relevance? -✔✔ Relatively low, anything which COULD affect assessment of FII Not dismissed by possibility of fabrication -- that goes to weight.