Bar Exam October 2023 Flashcards
Q: What is the best evidence rule?
A: The best evidence rule prevents a party who could produce the original document from tendering a copy (Myers v DPP; McIver v McKenzie)
Q: What is the key to the best evidence rule?
A: Is there a better means of proof.
Exceptions: Q: What are 5 exceptions to the best evidence rule?
If the other party makes an admission. Where a stranger in possession fails to produce a document after being issued with a subpoena. Where an opponent has failed to respond to a notice to produce. Production is impossible (e.g. inscription on a tomb). Cannot be found without due search.
Q: What should you do if you are not in possession of secondary evidence, and the opposing party has failed to respond to a notice to produce? .
A: File a subpoena
Q: Does the best evidence rule apply in both state and federal courts?
A: Only State, the Cth evidence Act abolished the rule.
Q: If a question relates to the tendering of a document in a CTH Court, what provisions of the Cth apply are relevant.
A: Proof of the contents of a document is housed in s 48 of the Cth Act. Requests for the production of documents can be made through s 167.
Q: What is the difference between a formal and informal admission?
A: A formal admission binds a party, while an informal admission can be explained away.
Q: What is the common law definition of an admission?
A: What a party himself admits to be true, may reasonably be presumed to be so (Slatterie v Pooley).
Q: The prosecution wishes to tender one paragraph from a transcript of a confession.
A: object on the basis that the entire confession ought to be tendered because everything ought to be read which is fairly connected to that admission (Lyell v Kennedy). The reason for this is so that exculpatory evidence that was also given by the accused should be admitted to give context to the admission (Nguyen v R).
Q: When acting for a co-accused, can the prosecution rely on an admission made by another co-accused against your client? State relevant principle.
A: Not unless it’s a joint criminal enterprise, (Ahern; Tripodi). s 8, competent to give evidence in their defence but not compellable.
Q: If strict proof or authority to act in a civil case may cause unnecessary expense, delay or inconvenience, how may the Court direct that evidence be given?
A: In any way that the Court directs under s 129A(2) of the QLD Ev Act.
Q: What is the general principle of ‘vicarious admissions’ and give 2 examples (one from civil and one from criminal) where such could be made.
A: Admissions by those in privity with a party to litigation may be given in evidence against the party (Ahern; Tripodi). In crim, acts done by one co-conspirator are receivable against another if done in a concerted plan. In civil, a solicitor can make admissions on behalf of their client.
Q: What is the general principle which underscores vicarious admissions in cases of conspiracy?
A: Agency (Ahern v R).
Q: What two ways can a confession can be excluded at common law?
Threat promise or inducement by person in authority (McDermott v R)
Basal involuntariness. If it was obtained at a time when the accused’s mind was so unbalanced as to render it wholly unsafe to act upon (Jackson v R).
Q: What is the authority for excluding a evidence obtained in an illegal or improper manner at common law?
Bunning v Cross. Known at common law as the Ireland discrestion.
Q: What is the authority and what are circumstances where it would be unfair to admit a confession against an accused?
A: s 130 of the Ev Act QLD - where evidence is of only slight probative value and the prejudicial effect is substantial (R v Hasler). Take into account age, race, intellect, education.
Q: How are confessions excluded at law in QLD?
S 416 of the PP&R Act states that they must not be induced by a threat or promise.
S 10 of the Criminal Law Amendment Act states that a confession following a threat or promise will be deemed to have been so unless the contrary is shown.
Q: What is the leading hearsay statement and state the authority.
A: evidence of a statement made to a witness by a person who is not himself called as a witness may or may not be hearsay. It is inadmissible when the object of the evidence is to establish the truth of what is contained in the statement. It is not hearsay and is admissible when it is proposed to establish by the evidence, not the truth of the statement, but the fact that it was made.
Q: Give 3 reasons why hearsay should be rejected.
A: it’s not the best evidence or given on oath or affirmation (Teper v. R); it may be concocted; a party is unable to confront the maker of a statement.
Q: What’s an example of a question which would invoke an answer intended to infringe on the rule against narrative or prior consistent statements?
A: Did you give a statement to police at the scene of the accident that is identical to the version that you’ve just given in Court?
Q: What are 3 situations in which evidence of a prior consistent statement is admissible?
A: when it relates to a complaint in a sexual matters (Nominal Defendant v Clements), forms part of the res gestae, or negatives a suggestion that the witness’s evidence is an afterthought (Nominal Defendant v Clements).
Q: Give an example of an implied assertion by conduct and an implied assertion by a statement.
A: Implied statement: John called out “stop hitting me Peter” (Ratten v R). Implied by conduct: Peter can away from the crime scene (Holloway v McFeeters).
Q: What is the definition of original evidence?
A: evidence is said to be original when a witness narrates another person’s statement for some purpose other than that of inducing the court to accept it as true (Ritz Hotel Ltd v Charles of the Ritz Ltd).
Q: What is the leading statement on non expert opinion.
A: The law makes allowance by permitting witnesses to state their opinion without specialised knowledge when it’s impossible for them to separate their inferences from the facts on which the inferences are based (Weal v Bottom).
Q: When is it necessary to obtain expert evidence?
A: whenever the subject matter of inquiry is such that inexperienced persons are unlikely to form a correct judgment on it without such assistance (Clark v Ryan).
Q: What are the 7 conditions of admissibility of expert opinion.
1, It must be demonstrated that there is an organised branch of knowledge in which the witness is an expert (Clark v Ryan).
2, There must be an aspect of the field whereby because of the witnesses specified training, study or experience, the witness has become an expert (R v Robb).
3, It must be demonstrated that the opinion proffered is wholly or substantially based on the witnesses expert knowledge. This requirement is a corollary of the first and second requirement.
4, The witness must identify the assumed primary facts on which the opinion is offered (HG v R)
5, Opinion is not admissible unless evidence has or will be admitted which is capable of supporting the findings of assumed primary facts which are sufficiently like those assumed primary facts to render the opinion of the expert of value (Farrell v R).
6, There must be a demonstration that the facts on which the opinion is based form a proper foundation for it. This requirement is a corollary of the 4th and 5th requirements.
7, The opinion requires demonstration or examination of the scientific or other intellectual basis of the conclusions reached and how this basis applies to the facts assumed so as to produce the opinion propounded (Dasreef v Hawchar).
Q: At common law, what must a non expert opinion witness possess for the opinion to be accepted?
A: The witness must have qualifications, in the sense of the intelligence and powers of observation according to the witness’s experience of life and affairs (Warming v. O’Sullivan).
Q: What, if possible, should be avoided from an expert testimony.
A: Their opinion on the ultimate issue If avoidable (Brodie v Singleton Shire Council).
Q: What is required if an expert has had colleagues perform experiments and tests?
A: Scientific tests run by assistants of the expert witness on which the expert witness relies must be called (R v Frizell). If people who carried out work for the expert do not give evidence, the evidence of the expert witness may be excluded (R v Sing)
Q: What is the definition of opinion.
A: An opinion is an inference drawn from observed or communicable data - from assumed or observed facts (Hannes v DPP).
