Queensland Bar Exam - Evidence
What is the hearsay rule? - ANS-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? - ANS-Original evidence - prove matter distinct
from words, or to prove terms
What is the business records exception to Hearsay? - ANS-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? - ANS-EAC 59 - Definition
What EAC section are hearsay exceptions? - ANS-EAC 60-75
What EAC section is relevance? - ANS-EAC 55-56
What EAC section is opinion? - ANS-EAC 76
What EAC section is admission? - ANS-EAC 81
What EAC section is general discretion to exclude? - ANS-EAC 135 - prejudicial >>
probative
What EAC section is exclusion of prejudicial evidence in criminal proceedings? -
ANS-EAC 137 - derived from CL christie direction
What EAC section is discretion to exclude for illegality? - ANS-EAC 138
What EAC section is relevance? - ANS-EAC 55
What EAC sections govern tendency and coincidence evidence? - ANS-EAC 97-98
replaced Pfennig/Hoch at CL
What EAC section allows for evidence to be given in narrative form? - ANS-EAC 29
Narrative form if so directed by the court may replace standard Q&A system
, What is the Briginshaw standard? - ANS-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? - ANS-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? - ANS-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?
- ANS-Trier of fact decides legal burden, judge decides evidentiary burden.
What is a Fact in Issue? - ANS-All facts which P must prove to succeed at trial and
which D must prove to establish defence.
What is circumstantial evidence? - ANS-Facts the existence of which may infer the
existence of a Fact in Issue
What is the Jones v Dunkel rule? - ANS-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? - ANS-Must provide reasonable explanation
based on evidence, not merely presumed
What is the best evidence rule? - ANS-contents of a tendered document in court can
only be proved by tendering the original of that document.
Abolished by EAC 51
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