Bar Exam Questions and
Complete Solutions
Graded A+
Bailey v Commissioner of Taxation - Answer: Part 15 Particulars -
Purpose is to confine issues, refine pleadings and avoid surprise.
General Steel Industries Inc v Comm. for Railways - Answer: UCPR 13.4 - no cause of action
"so obviously untenable that it could not possibly succeed"
R v Kneebone - Answer: Duty of the Crown to call all witness available who may be able to assist the
court
SH v R - Answer: Competency - s 13
A witness incompetent to give sworn evidence may be competent to give unsworn evidence if 13(5) is
satisfied. If so, the witness is so competent (no discretion)
Browne v Dunn - Answer: It is necessary to put to a witness in cross examination the nature of the case
to be relied on in contradiction of their evidence, particularly if it relies on inferences from other
evidence.
NAB v Rassu - Answer: A tendered document is not authenticated by admission. It must be shown that it
is what it purports to be - different to relevance
ACCC v Air NZ - Answer: 1. Documents don't have to be authentic to be admissible.
2. Authenticity is for the tribunal of fact to determine.
3. S 58 allows inferences to be drawn from the document itself re relevance and authenticity.
,Smith v R - Answer: 1. There is no discretion in determining relevance of evidence- either it is relevant or
it is not.
R v Shamouil - Answer: When assessing the probative value of evidence, take the evidence at its highest.
ss 97, 98, 101, 137
R v Sood - Answer: "Questions of credibility and reliability play no part in the assessment of the
probative value of evidence"
Lee v The Queen - Answer: s 59 is purposive. Consider what is intended to be asserted by representation
and whether the evidence is intended to be led to establish the truth of that assertion.
Graham v The Queen - Answer: s 66 (Crim - Maker Available)
"Fresh" usually means hours or days, not weeks or months.
Adam v R - Answer: Overturned by insertion of s 101A. In s 102, the other use to be made of the
evidence must be admissible.
Papakosmas v R - Answer: The discretionary exclusions should not used to reinstate the common law
tests for admissibility.
Esso Australian Resources Ltd v Commissioner of Taxation - Answer: s 118/119 apply to adducing
evidence, not to production by compulsory process.
The test of CLP is whether the document or communication was created for the "dominant purpose" of
providing legal advice.
Mann v Carnell - Answer: 1. Waiver of privilege arises from inconsistency between the conduct of the
client and maintenance of confidentiality, not fairness operating at large.
Stanoevski v R - Answer: Any exercise of discretion or leave requires the court to consider s 192 EA.
, R v Ellis - Answer: The test in s 101 must be applied by the statutory language. The common law test in
Pfenning may be relevant, but cannot usurp the statutory language.
Jones v The Queen - Answer: Shamouil does not prevent the consideration of competing inferences
which may arise from the evidence, when considering its probative value
Jones v Dunkel - Answer: If evidence could properly be given by a party on a matter in dispute, and the
party does not give evidence, then a court may infer that the evidence would not have assisted the
party's case.
Dyers v The Queen - Answer: A Jones v Dunkel inference should not be drawn in criminal cases as it is
incompatible with the presumption of innocence.
Dasreef v Hawchar - Answer: 1. Expert evidence under s 79 must be given by a witness with specialised
knowledge based on training, study or experience.
2. It must be apparent from the opinion that it was based on training, study or experience.
Lithgow City Council v Jackson - Answer: s 78 (Lay Opinion)
1. Must be based on what the person saw, heard or otherwise perceived.
2. "necessary" must be more than convenient. It is intended to facilitate the evidence of witness where
a complete account could not be given without the lay opinion.
[facts: ambulance officers recording "?fall from 1.5m]
Honeysett v The Queen - Answer: s 79 - Expert Evidence
The evidence of the expert must be wholly or substantially based upon their training.
[Facts: anatomist giving evidence based merely on subjective observations]
Tuite v The Queen - Answer: s 79 - Expert Evidence
Evidence may be expert despite the field of knowledge being novel, developing or questioned by others
Em v R - Answer: 1. S 90 EA is a safety net provision if no other ground of exclusion is met.
Complete Solutions
Graded A+
Bailey v Commissioner of Taxation - Answer: Part 15 Particulars -
Purpose is to confine issues, refine pleadings and avoid surprise.
General Steel Industries Inc v Comm. for Railways - Answer: UCPR 13.4 - no cause of action
"so obviously untenable that it could not possibly succeed"
R v Kneebone - Answer: Duty of the Crown to call all witness available who may be able to assist the
court
SH v R - Answer: Competency - s 13
A witness incompetent to give sworn evidence may be competent to give unsworn evidence if 13(5) is
satisfied. If so, the witness is so competent (no discretion)
Browne v Dunn - Answer: It is necessary to put to a witness in cross examination the nature of the case
to be relied on in contradiction of their evidence, particularly if it relies on inferences from other
evidence.
NAB v Rassu - Answer: A tendered document is not authenticated by admission. It must be shown that it
is what it purports to be - different to relevance
ACCC v Air NZ - Answer: 1. Documents don't have to be authentic to be admissible.
2. Authenticity is for the tribunal of fact to determine.
3. S 58 allows inferences to be drawn from the document itself re relevance and authenticity.
,Smith v R - Answer: 1. There is no discretion in determining relevance of evidence- either it is relevant or
it is not.
R v Shamouil - Answer: When assessing the probative value of evidence, take the evidence at its highest.
ss 97, 98, 101, 137
R v Sood - Answer: "Questions of credibility and reliability play no part in the assessment of the
probative value of evidence"
Lee v The Queen - Answer: s 59 is purposive. Consider what is intended to be asserted by representation
and whether the evidence is intended to be led to establish the truth of that assertion.
Graham v The Queen - Answer: s 66 (Crim - Maker Available)
"Fresh" usually means hours or days, not weeks or months.
Adam v R - Answer: Overturned by insertion of s 101A. In s 102, the other use to be made of the
evidence must be admissible.
Papakosmas v R - Answer: The discretionary exclusions should not used to reinstate the common law
tests for admissibility.
Esso Australian Resources Ltd v Commissioner of Taxation - Answer: s 118/119 apply to adducing
evidence, not to production by compulsory process.
The test of CLP is whether the document or communication was created for the "dominant purpose" of
providing legal advice.
Mann v Carnell - Answer: 1. Waiver of privilege arises from inconsistency between the conduct of the
client and maintenance of confidentiality, not fairness operating at large.
Stanoevski v R - Answer: Any exercise of discretion or leave requires the court to consider s 192 EA.
, R v Ellis - Answer: The test in s 101 must be applied by the statutory language. The common law test in
Pfenning may be relevant, but cannot usurp the statutory language.
Jones v The Queen - Answer: Shamouil does not prevent the consideration of competing inferences
which may arise from the evidence, when considering its probative value
Jones v Dunkel - Answer: If evidence could properly be given by a party on a matter in dispute, and the
party does not give evidence, then a court may infer that the evidence would not have assisted the
party's case.
Dyers v The Queen - Answer: A Jones v Dunkel inference should not be drawn in criminal cases as it is
incompatible with the presumption of innocence.
Dasreef v Hawchar - Answer: 1. Expert evidence under s 79 must be given by a witness with specialised
knowledge based on training, study or experience.
2. It must be apparent from the opinion that it was based on training, study or experience.
Lithgow City Council v Jackson - Answer: s 78 (Lay Opinion)
1. Must be based on what the person saw, heard or otherwise perceived.
2. "necessary" must be more than convenient. It is intended to facilitate the evidence of witness where
a complete account could not be given without the lay opinion.
[facts: ambulance officers recording "?fall from 1.5m]
Honeysett v The Queen - Answer: s 79 - Expert Evidence
The evidence of the expert must be wholly or substantially based upon their training.
[Facts: anatomist giving evidence based merely on subjective observations]
Tuite v The Queen - Answer: s 79 - Expert Evidence
Evidence may be expert despite the field of knowledge being novel, developing or questioned by others
Em v R - Answer: 1. S 90 EA is a safety net provision if no other ground of exclusion is met.
