Evidence exam - main concepts to memorise

Question 1

Define relevance.#

Answer 1

Evidence is relevant it if could rationally affect (directly or indirect) the assessment of probability of the existence of a fact in issue (Goldsmith; s55 CEA)

e.g. makes a FII more or less likely. If not relevant – not admissible (s56/Goldsmith).

Question 2

Distinguish between relevance, admissibility and weight #

Answer 2

1. The general rule is that all evidence that is relevant is admissible **subject to **common law exceptions, statutory exceptions and judicial discretion.
2. Admissibility is question of law for the judge.
3. The weight of evidence is the degree of reliance the court will place on it. It is a question of fact for the for the finder of fact (judge/jury) to assess (Pell).
4. Admissibility of relevant evidence is found in s56 CEA; Goldsmith

Question 3

What is the weight provision in QEA to statements rendered admissible in evidence?#

Answer 3

Section 102 – Weight to be attached to evidence – regard to be had to the circumstances from which inferences can reasonably be drawn as the accuracy of the statement (e.g. was it made/recorded contemporaneously or was there any incentive to conceal or misrepresent).

NB: Evidence admitted under s84, s92, s93 etc, which are exceptions to the rule against hearsay, the court will weigh that evidence according to factors in s102.

Question 4

What is direct evidence?#

Answer 4

Direct evidence is evidence which a person saw, heard or percieved which is directly related to a fact in issue.

NB: i.e. it is evidence that leads directly to the proof of a fact in issue.

Question 5

What is the weight provision in QEA to statements rendered admissible in evidence?#

Answer 5

Section 102 – Weight to be attached to evidence – regard to be had to the circumstances from which inferences can reasonably be drawn as the accuracy of the statement (e.g. was it made/recorded contemporaneously or was there any incentive to conceal or misrepresent).

NB: Evidence admitted under s84, s92, s93 etc, which are exceptions to the rule against hearsay, the court will weigh that evidence according to factors in s102.

Question 6

What is the rule in the QLD evidence Act for fact finding on sentencing?#

Answer 6

s132C QEA – judge may determine on the balance of probabilities

Question 7

In a civil proceedings, where is the standard of proof found in the CEA and what is the standard?#

Answer 7

s140 – on the balance of probabilities – Briginshaw principle in s140(2) CEA

Briginshaw: in civil proceedings crt can take into account nature/seriousness of the allegation in issue and gravity of consequences of a finding when considering admissibility of evidence on the balance of probabilities.

Question 8

What is the Briginshaw standard? #

Answer 8

When, in a civil matter, the court must determine on the balance of probabilities, the level of satisfaction of the evidence can take into account:

(a) the seriousness of the allegation;

(b) the inherent unlikeliness of that event (behaviour); and

(c) the gravity and consequences flowing from the finding.

Question 9

In criminal proceedings, where is the standard of proof found in the CEA and what is the standard?#

Answer 9

s141 CEA – beyond reasonable doubt for P; BOP for accused (e.g. defence)

Question 10

Where do I find the law on the standard of proof for admissibility of evidence in the CEA? What is the evidentiary standard for the admissibility of evidence?#

Answer 10

s142 CEA – on the balance of probabilities – Briginshaw principle in s142(2)

Question 11

Explain the legal burden – keyword: obligation#

Answer 11

The maxim is that “he/she who asserts must prove”.

In civil cases, the legal burden is the obligation of the party of proving a fact in issue.

In criminal cases it is the burden to prove the elements of the offence.

Question 12

Explain the evidentiary burden?#

Answer 12

The obligation to show there is sufficient evidence to raise an issue as to the existence or not of a fact in issue; with due regard given to the standard (Braysich)

Question 13

Which party bears the evidential burden?#

Answer 13

The general rule is that the party bearing the legal burden also bears the evidential burden. Unless a statutory defence is raised which ‘shifts’ the burden to the party relying on the defence eg. insanity which they need only discharge on the balance of probabilities.

Question 14

When does the burden shift?#

Answer 14

The burden does not technically shift, however, if a proponent appears to discharge the legal burden on an issue, then the opponent risks losing if they do not adduce evidence; in this case it is the evidential burden that shifts.

The legal burden may fall to the defendant in a criminal matter where a defence is raised. The defendant must adduce evidence and meet the burden on the balance of probabilities. Eg defence of insanity

Question 15

What is the test that an accused must satisfy to discharge the evidential burden?#

Answer 15

That there is enough evidence, taken at its highest, that would lead a jury, properly instructed, to have a reasonable doubt that each of the elements of the defence have been negated.

Question 16

What is the tactical burden? (Think tactical – counterattack – at the fact level – inferences)#

Answer 16

The tactical burden is the obligation to produce counter-evidence when a party has **proved a relevant fact **to prevent the court drawing inferences as to the fact in issue (Stone and Wells).

The tactical burden is not a matter of law but of psychology.

Question 17

What is a presumption?#

Answer 17

A conclusion that a fact (a presumed fact) exists which may or must be drawn if some other fact (basic fact)** is proved or admitted**. If this then that.

Question 18

What is the effect of a presumption?#

Answer 18

A presumption dispenses from the normal presentation of evidence. As do formal admissions and judicial notice.

Question 19

What is the ultimate burden of the Crown in a criminal matter?#

Answer 19

The Crown bears the ultimate burden of proving the guilt of an accused person ‘beyond reasonable doubt’ (Woolmington v DPP).

Question 20

What does the standard, ‘beyond reasonable doubt’ mean?#

Answer 20

The court has long maintained that in instructing a jury the standard of beyond reasonable doubt should not be further defined. It means what it says.

Expanded;

Judges should not elaborate on the meaning of beyond reasonable doubt. It could lead to misdirection. Whether a doubt is reasonable is for the jury to say.

Question 21

What does it mean to meet the evidential standard?#

Answer 21

The evidential standard will be satisfied if the party carrying the burden can adduce sufficient evidence on the balance of probabilities to raise an issue as to the existence or non-existence of a fact in issue.

In criminal cases, the evidentiary burden is, getting past the judge; to show there is evidence for the matter to be referred to a jury.

Expanded

Satisfaction on the balance of probabilities calls for the court to feel an actual persuasion of the occurrence or existence of the matter in issue.

**Degrees of proof within each standard **– the flexibility of the civil standard of proof suffices to ensure that the court will require a high degree of probability which is appropriate to what is at stake – eg if you plead fraud in a civil case, the court will expect to be satisfied there was fraud to a high bar.

Question 22

Does the standard apply to each piece of evidence? (NB: no need to memorise, but be familiar with concept)

Answer 22

No, it is not necessary that the jury must be satisfied beyond reasonable doubt of the existence of each and every evidentiary fact, for different members of the jury may be convinced beyond reasonable doubt of the guilt of the accused by their acceptance of the existence of different facts.

It is wrong for the jury to consider each item of evidence separately and eliminate it from consideration unless satisfied beyond reasonable doubt.

Question 23

In instances where the defendant bears the legal burden, to what standard must they adduce evidence?#

Answer 23

The burden on the accused who carries the legal burden is satisfied on the balance of probabilities; it is less than that required by the prosecution.

Question 24

What is the standard of proof in disciplinary proceedings before a tribunal?#

Answer 24

The finder of fact must reach their conclusion on the basis of reasonable satisfaction.

Question 25

What is the section of the CEA deals with hearing voir dires?#

Answer 25

s189 CEA – Miscellaneous

Question 26

What section of the QEA deals with the admission of similar fact evidence and the probative versus possible prejudicial effect?#

Answer 26

s132A QEA– Part 8 Miscellaneous

NB: Says that in a crim proceeding SFE, where probative value outweighs potentially prejudicial effect, must not be ruled inadmissible on the ground that may be as a result of collusion/suggestion - matter of weight.

BUT note Pfennig test

Question 27

In a criminal trial what discretion does the judge have to reject evidence?#

Answer 27

QLD:
s130 QEA: discretion to exclude evidence if its admission would be unfair to the accused.

NB:
CTH:
s135 CEA - general discretion to exclude if unfairly prejudicial, misleading etc;
s136 CEA - discretion to limit use;
s137 CEA - crim only - crt must exclude evidence if probative value outweighed by unfair prejudice.
s138 CEA: discretion to exclude improperly/illegally obtained evidence.

Question 28

What is the purpose of examination in chief?#

Answer 28

To establish the facts which support the party’s theory of the case by obtaining evidence of each of their own witnesses.

Question 29

What are the three objectives of cross-examination#

Answer 29

(a) Obtain evidence favourable to your case (by establishing valuable facts in favour of case (XX as to ISSUES);
(b) Cast doubt on the accuracy of their evidence (by reducing credibility of EIC (XX as to CREDIT); and
(c) Advancing your case.

NOTE:
* Generally all W that give EIC liable to XX.
* If a W who has given EIC (or via a written statement) is unable to be XX, evidence may still be admissible, but weight given to the evidence may be diminished.
* XX can widen admissibility - e.g. XX on parts of doc not used to refresh memory, may let the whole document in; allegation of recent invention may let in a PCS.

Question 30

What is the purpose of re-examination?#

Answer 30

To allow the witness to provide context to answers given in cross.

IMPORTANT: Questions in re-examination are limited to those issues raised in cross examination: s39 CEA

NB:
New matters can only be introduced with leave of the judge.

Cth: see s 39 CEA.
QLD: CL rules

To allow the witness to provide context to answers given in cross.

It is to allow the witness to explain any matters that arose out of cross. It is restricted to matters raised in cross-examination, and there should be a need to re-examine on it.

Questions may not be put, any more than they may be put in chief:

1. No leading questions:
2. PCS can only be put to the W if rendered admissible by the terms of the XX, or as statements in documents made admissible in civil proceedings by statute, or to refresh memory;
3. may ask W about and tender whole PIS to show wording not generally inconsistent.

Question 31

What is the Cth law governing re-examination?#

Answer 31

Under s39 of CEA – Limits on re-examination; questions in re-examination must relate to matters arise from cross-examination unless leave of the court permits other questions.

NB:
s46 CEA - deals with situation where in breach of Brown v Dunn rule a matter is raised on which W not XX, but could have given evidence, leave may be granted to re-call that W for limited purpose of giving evidence on that issue.

Question 32

What is a leading question?#

Answer 32

A question that suggests the answers or assumes the existence of a fact not yet established.

Question 33

What section of CEA refers to leadings question?#

Answer 33

s37 CEA - re when can be used in EIC; leave of the court, or intro, no objection, re matter not in dispute, expert.; AND

s42 CEA: XX allowed unless disallowable ques.

Question 34

When can you ask a leading question in examination in chief (or re-examination)?#

Answer 34

The general rule is that leading questions are banned in EIC and REX because evidence given should be from the witness’s own recollection and not led by Counsel: (s37 CEA, unless crt gives leave or about the below).

There are four exceptions:

1. When it is introductory in nature; or
2. No objection, if each other party is legally
   represented;
3. It relates to undisputed part of the testimony such as their name, address etc; or
4. experts may be lead through their report; or
5. police officers (s33 CEA).

the purpose is to save time.

Question 35

Can a leading question be asked in cross-examination?#

Answer 35

Yes, see s42 CEA.

But the court has the power to control leading questions including the discretion (QLD)/ or duty (CTH) to disallow a question or direct a witness not to answer.

Also s17 QEA and s38 CEA: which allow cross-examination of own witness, in such case can ask leading questions as per usual XX.

Notes:

(no need for a party to object to ques, Crt can intervene under these sections re improper quest on own to protect W): also

s20 QEA/ss102-103 CEA: crt can limit questions on credit if not materially impair confidence

s21 QEA: crt may disallow questions, or inform W they don’t have to answer, if crt considers improper ques, i.e. uses inappropriate language, or is misleading, confusing, annoying, harassing or intimidating, etc;

s41 CEA - disallowable questions (similar terms to s21 QEA, but duty)

Can question re PIS, but hearsay prohibited the same as in-chief.

Crt has a discretion to re-call a W for further XX.

Question 36

Under Qld law, what is the meaning of an improper question? What constitutes an improper question and what is the law against improper questions.

(Hint: work backwards)

Answer 36

s21(4) QEA

Provides the meaning of an improper question – a question that uses inappropriate language or is misleading, confusing, annoying, harassing, intimidating, offensive, oppressive and repetitive.

In deciding whether a question is improper, s21(2) QEA provides the court may take into account any impairment of the witness or other things such as age, education etc.

S21(1) provides that the court MAY disallow an improper question in cross-examination

• QLD: discretion on the court to disallow.

Question 37

What is a prior consistent statement? #
It is a matter of credibility

Answer 37

At common law, a** statement made prior to trial**, that enhances or reinstates the credit of the witness it is not evidence of the fact asserted unless it is so closely associated with the event in question to form part of the common law exception of res gestae.

Section 101(1)(b) QEA abolishes that distinctiion and allows for the admissibility of prior consistent statements to rebut an allegation (in cross) of recent invention (fabrication).

Question 38

Are prior consistent statements allowed in evidence in chief?

Answer 38

No, there is a common law ban on prior consistent statements.

Notes: exceptions:
* sexual assault complaints;
* s66 CEA, prev statement of W where W available, and where asserted facts were fresh in mind when made.

Question 39

What is recent invention?#

Answer 39

A change of story between event and trial.

Notes:
Where put to W that version of events just given is a recent invention, and by implication, untrue.

To give rise to this exception, must be a specific allegation of recent invention, not mere references to inconsistent statements.

To rely on PCS (and PIS) need to map it through QEA - need to map the relationship so that you know which section applies and when to a prior statement; ss101, 94, 17, 18, 19 QEA

s108(3) CEA says credibility rule does not apply to evidence of a prior consistent statement of W if it is or will be suggested (expressly or by implication) that evidence given by the W has been fabricated or reconstructed (whether deliberately or otherwise) or is the result of a suggestion and the court gives leave to adduce the evidence. If admitted under this section statement is admissible to prove the truth of the facts asserted by reason of s 60 CEA - but note s136 discretion open to HH re use.

Question 40

What is s94 QEA material?#

Answer 40

Section 94(1)(b) QEA - admissibility of evidence concerning credibility of person responsible for statement:

admits inconsistent statements (oral or documentary) to test the credit of statements admitted under s84 (book of acc), 92 (civil ad’ty of doc evi), 93 (crim ad’ty of doc evi) or 93A (st’ment by child/impaired person) – when the **maker **of the statement is not called as a witness.

By virtue of s101(2), a statement admitted under s94 is evidence of facts within the maker’s own knowledge. However, if it complies with s84, 92, 93 or 93A, it does not need the assistance of s 101.