Qld Bar Exam - Evidence Questions and Answers

Legal Burden vs Evidentiary Burden of proof - Answer-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 - Answer-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 - Answer-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] - Answer-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? - Answer-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] - Answer-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 - Answer-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 - Answer-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 - Answer-Relevance: Evidence is relevant when it tends to prove a FII. Admissibility: Whether certain evidence can be received by the Court. All evidence that is relevant is admissible, subject to exceptions/exclusionary rules. Weight: the persuasion or cogency drawn from the admitted/adduced evidence. Memory refreshing - Answer-Can be used in certain circumstances during examination in chief: QLD: - A witness may refresh his memory in court, WITH LEAVE, from a document that was: § made by the witness, or verified by the witness as substantially accurate; § made at a time sufficient contemporaneous with the event (such that it was fresh in their memory); and § where the original can be produced to the court, if required. Commonwealth: Governed by s 32, EAC. Leave required: s 32(1)