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Question 1

What is the definition of original evidence? What is direct evidence?

Answer 1

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).
Evidence is said to be direct when the perceives a fact within their five senses.

Question 2

When is it necessary to obtain expert evidence?

Answer 2

Outside the experience and knowledge of the judge or jury Farrell v R & Clark v Ryan.

Question 3

At common law, what must a non expert opinion witness possess for the opinion to be accepted and when would it be necessary to accept non expert opinion?

Answer 3

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).
Opinion can be given when it’s impossible to separate the opinion from the facts upon which it is based (Sharrard v Jacob).

Question 4

What, if possible, should be avoided from an expert testimony.

Answer 4

Their opinion on the ultimate issue If avoidable (Brodie v Singleton Shire Council).

Question 5

What is required if an expert has had colleagues perform experiments and tests?

Answer 5

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.

Question 6

What is appropriate if there is objection to a witness refreshing their memory?

Answer 6

The existence of the conditions of admissibility can be tested on the void dire (Re van Belen).

Question 7

What is the standard of proof where the accused bears the legal burden?

Answer 7

Balance of probabilities (R v Carr-Briant).

Question 8

What is the standard of proof in contempt proceedings?

Answer 8

All charges for contempt of court, whether civil or criminal, must be proved beyond reasonable doubt (Keeley v Brooking).

Question 9

Give an example of how the weight of ID evidence can be affected?

Answer 9

If the witness is given any impression prior to a parade that the accused is a suspect (R v Easom).

Question 10

What is the definition of circumstantial evidence?

Answer 10

Any fact, from the existence of which the judge or jury may infer the existence of a fact in issue Festa v R.

Question 11

Is credibility evidence admissible under the common law and the cth evidence act?

Answer 11

There is no distinction so far as relevance is concerned between the credibility of the witness and the facts to which he or she deposes Palmer v R 1998

Question 12

Can rulings made on evidence be reversed at a later stage of trial?

Answer 12

Rulings on evidence in one part of the trial can be changed at another point – R v Rogers

Question 13

Is the label on a vile of a forensic sample hearsay?

Answer 13

If the label is on a piece of real evidence for the purpose of identification then it is part of the real evidence and admissible (Commissioner for Railways v Young).

Question 14

What sections of the QLD evidence act precede the use of s 101?

Answer 14

ss 17, 18, 19, 94(1)

Question 15

What is reasonable doubt?

Answer 15

Since the jury are reasonable people, any doubt they have is considered to be a reasonable one Green v R (R v Irlam).

Question 16

Once you have a case to answer what burden of proof rests on the accused?

Answer 16

Tactical

Question 17

State the 6th condition of admissibility in Makita v Sprowles

Answer 17

Demonstrate how the facts upon which the opinion is based form a proper foundation for it.

Question 18

How can a judge exercise discretion in a criminal case under the QLD evidence act and in a case where documents adduced as evidence?

Answer 18

S 98 and 130

Question 19

In what circumstances can you lead evidence of bad character on the part of the accused?

Answer 19

The proof shows they’re guilty of the offence charged s 15(2)(a)
The accused attempts to establish their own good character s 15(2)(c)
The accused has given evidence against another person charged in the proceedings 15(2)(d).

Question 20

Dyers

Answer 20

Juries should not be invited to speculate about the evidence that might have been given by witnesses who were not called.

Question 21

What conduct constitutes an admission by conduct?

Answer 21

Acts, acquiescence in a state of affairs or demeanour (Woon v. R).

Question 22

What is the general principle of vicarious admissions?

Answer 22

Agency. Admissions made by those in privity to a party to litigation may be given against the party (Bowstead and Reynolds on Agency).

Question 23

State all the common law authorities that should be used in a question relating to an adverse witness.

Answer 23

R v Hayden & Slattery (test)
R v Umanski (bias)
McLelland v Bowyer (prior inconsistent)
R v Caracella (inconsistency must be clear and vital)

Question 24

When will the Crown be permitted to split it’s case?

Answer 24

Exceptional circumstances only. When it could not have reasonable foreseen evidence adduced by the defendant (Shaw v R).

Question 25

When will implied assertions be excluded?

Answer 25

When the inference has the character of a subjective event (Ritz v Charles of the Ritz).

Question 26

Explain Dasreef v Hawchar

Answer 26

There must be a direct and logical connection between some relevant proven fact and the expertise of the witness.

Question 27

What’s the CTH statutory equivalent of R v Carr-Briant?

Answer 27

section 141(2)

Question 28

If the question relates to relevance, what’s the first thing you ask yourself?

Answer 28

What does the evidence tend to suggest.

Question 29

Why should I be careful with the relevance of prior convictions?

Answer 29

Because the prejudicial effect may outweigh the probative value of the evidence and therefore be insufficiently relevant.

Question 30

What are the 3 authorities for lay opinion

Answer 30

Warming v O’Sullivan - must have qualifications in the sense of intelligence and powers of observation according to the witness’s experience of life and affairs
Sharrard v Jacob - lay opinion is admissible when it is impossible to separate opinion from the facts upon which it is based.
Weal v Bottom - a witness can be an expert by experience.

Question 31

In what circumstance would it be wise to attempt to discharge the tactical burden?

Answer 31

• When the trial rules that there is a case to answer.
• Answering to a rebuttable presumption of fact.
• Weissensteiner

Question 32

Give a short description of the three burdens of proof

Answer 32

Ultimate = winning the case as a whole.
Legal = ensuring that enough evidence is before the Court to have an issue decided in ones favour
Evidential = ensuring enough evidence is adduced to justify the court considering an issue raised by a party bearing it.

Question 33

What is the standard of proof for the admissibility of confessions?

Answer 33

Balance of probabilities

Question 34

What is continuance?

Answer 34

A past act, state of mind or state of affairs justifies an inference that an act, state of mind or state of affairs was done at the time the Court is inquiring (McHugh v Minister of Immigration).

Question 35

State four rebuttable presumptions

Answer 35

regularity; mechanical instruments; possession as evidence of ownership; failure to give an explanation when in possession of recently stolen goods.

Question 36

Difference between a presumption of law and fact

Answer 36

Presumption of law must be applied unless rebutting evidence is led whereas presumptions of fact are circumstantial evidence.

Question 37

Continuance

Answer 37

The occurrence of an act or state of affairs in the past justifies that the act of state of affairs exists at the time the court is inquiring (McHugh v Minister of Immigration).

Question 38

What is the standard of proof for admissions under the CTH Act?

Answer 38

s 88 provides that it’s reasonably open to find.

Question 39

What is the difference between s 90 and 138 of the CTH Act

Answer 39

90 relates to fairness while 138 relates to the evidence being obtained improperly.

Question 40

1st exclusionary rule of confessions

Answer 40

Induced by threat or promise by person in authority.
- s 10 of the criminal law amendment act (can’t tender if induced by threat or promise… unless the contrary is shown)
- 416 must not obtain by threat or promise
- s 85 of the Cth Act
- McDermott is the common law authority
- Brennan J laid out the conditions for admissibility in Collin v R (has the persons will been overborne or has the person confessed of their own free choice)

Question 41

2nd exclusionary rule of confessions

Answer 41

Basal involuntariness
- Jackson v R
- s 85 of the Cth Act

Question 42

1st discretion to exclude confessions

Answer 42

Fairness
- s 130 of the Qld Act (Hasler, Suteski, IMM)
- s 90 of the Cth Act
- age, race, intellect, education, literacy

Question 43

2nd discretion to exclude confessions

Answer 43

Illegally or improperly obtained
- s 138 of the Cth Act
- Ireland
- Bunning and Cross
- Fruit of the poisoned tree R v N, GF
- no caution 431
- no recorded 436-439

Question 44

3rd discretion to exclude confessions

Answer 44

prejudice exceeds probative value
- s 137
- applied in similar fact cases (prior convictions)
- Christie

Question 45

What are conditions 4 and 5 of Makita and Sprowles

Answer 45

4, The witness must identify the assumptions of primary fact 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 assumptions of primary facts to render the opinion of the expert of value (Farrell v R).

Question 46

s 89 of the CTH Act relates to evidence of silence. State the common law authority

Answer 46

Bruce v R.

Question 47

Where is the ultimate issue housed in the Cth Act

Answer 47

s 80

Question 48

Whenever hearsay is admitted, what other principles should I automatically consider?

Answer 48

Credibility and prejudice.