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Queensland Bar – Cases questions with correct answers
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Queensland Bar – Cases questions with correct answers
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Queensland Bar – Cases questions with correctanswers
Jones v Dunkel Correct Answer-Evidence (Civil) Adverse inferences
may be drawn from the unexplained failure of a party to adduce
particular evidence where such evidence would be reasonably expected
to shed light on a matter. Case about man killed by a truck driven by D.
D fails to appear as W. Corresponds to ss 9 (EAC doesnt affect CL) and
20 (failed to provide evidence) of tge EAC. Cases where judge can
comment should be rare and exceptional - ie Weissensteiner
Bale v Mills Correct Answer-Ethics. Treatment of witnesses. Any W
should be confronted with and afforded an opportunity of dealing with
an allegation of dishonesty. Case concerned a new trial being ordered for
making adverse credibility findings against a solicitor in circumstances
where allegation of dishonesty had not been put to him in XXN. Despite
P alleging that Browne v Dunn should be waived for non-compliance,
judge decided that the waiver was not applicable as the judge has an
obligation to ensure fair trial including fair treatment of W where the
judge is asked to make a finding impeaching W's credit.
Weissensteiner Correct Answer-Evidence (Criminal) - D not testifying
Two people owned a boat that disappeared. D was found in possession
of the boat and charged. D did not call any evidence at his trial, nor did
he take the witness stand. As a result of this, the trial judge directed the
jury that they were entitled to draw an inference of guilt due to D's
failure to explain the circumstances surrounding the case, in
circumstances where he was likely to have some knowledge of what had
in fact occurred. A negative inference cannot be drawn from D's
decision to stay silent. A jury can only draw an inference of guilt which
,is made available by the Prosecution's facts, facts that are given some
additional credibility by D's unwillingness to provide evidence to the
contrary.
R v Edwards (1993) Correct Answer-Evidence - Admissions. A case
where D was convicted for procuring another prisoner to give him a
"head job" by threats of "bashing" and D lied about it in the W box.
Other prisoners also assaulted that prisoner. A lie can constitute an
admission against interest only if it is concerned with some circumstance
or event connected with the offence and if it was told by the accused in
circumstances in which the explanation for the lie is that he knew that
the truth would implicate him in the offence. EG, a false alibi.
Bunning v Cross Correct Answer-Evidence - Improperly Obtained.
Extension of Ireland discretion.
Applicant was cleared of charge of driving under influence because the
police did not use the correct procedure to test for alcohol when they
stopped him. Court has discretion to exclude evidence improperly
obtained which can rightly be exercised where the unfairness to the D
outweighs the public interest in enforcement of the law and obtaining
evidence to aid that enforcement. Evidence may also be excluded by an
exercise of judicial discretion where the extent to which it would
produce a fair trial outweighs its probative value.
5 element test:
1) did police deliberately disregard the law?
2) does illegality of attaining evidence result in lower reliability of the
evidence?
3) how easy would it have been for the police to comply with the law?
,4) what is the nature of the offence?
5) in what manner does legislation appear to control police actions?
Makita v Sprowles Correct Answer-Evidence - Admissibility of Expert
Opinion. decision on whether an employer failed to provide a safe
means of access between the car park and offices. A central issue was
whether the stairs were safe and an expert gave his opinion that the stairs
were slippery at the time of the accident. The admissibility of his
opinion was questioned as the tests forming the basis of his opinion were
performed nine years after the accident.
7 steps:
1) it must be demonstrated that there is a field of specialised knowledge;
2) there must be an identified aspect of that field in which W
demonstrates that by reason of specified training, study or experience, W
has become an expert;
3) it must be demonstrated that the opinion proffered is wholly or
substantially based on the W's expert knowledge;
4) the expert must identify the assumptions of primary fact on which the
opinion is offered (the "assumption identification rule");
5) the opinion is not admissible unless evidence has been, or will be,
admitted, whether from the expert or from some other source, which is
capable of supporting finding of primary fact which are "sufficiently
like" those factual assumptions to render the opinion of the expert of
value (the "basis rule");
6) there must be a demonstration that the facts on which the opinion is
based form a proper foundation for it;
7) the opinion of an expert requires demonstrations or examination of
the scientific or other intellectual basis of the conclusions reached.
, Tripodi Correct Answer-Evidence (Criminal) - Co-accused v
Coconspirator. When the case for the prosecution is that in the
commission of a crime a number of persons have acted in preconcert,
once reasonable evidence of the preconcert has been adduced, evidence
of directions, instructions, arrangements or utterances accompanying
acts given or made by one of the persons in the absence of the other or
others in furtherance of the common purpose which constitutes or forms
an element of the crime becomes admissible against the other or others,
assuming it not to be otherwise admissible. The basal reason for
admitting such evidence is that the combination for preconcert to
commit the crime is considered as implying an authority to each to act or
speak in furtherance of the common purpose on behalf of the others.
Evidence of acts and words of a coconspirator not in the presence of a
co-accused is admissible to establish that they took place and the truth of
the matters asserted against that co- accused once there is done other
evidence that the latter is connected with conspiracy. This means that the
acts of the conspiracy cannot be used to prove conspiracy between the
parties to start with.
Day v Perisher Correct Answer-Ethics - Coaching of witnesses,
collusion. Original case involved P, ski lift operator, suing Ski resort
after being struck by a skier where he alleged Employer were negligent
and Ski resort alleged P was negligent. Witnesses for Ski resort prior to
trial had communications with each other and others, including solicitors
for Ski resort, with respect to the form and content of the evidence they
were to provide. There was no XXN directed at reliability of the
evidence in light of such communications. Proper practice is to take
proofs of evidence from Ws separately and to encourage Ws not to
discuss their evidence with others and particularly not with other
potential Ws. Verdict set aside and appeal allowed.
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