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NSW Bar Exam practice questions

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Question 1Civil Procedure and Evidence

In NSW, a statement made by a person who is not called as a witness is generally admissible to prove the truth of its contents only if it falls within an exception to which rule?

  1. The parol evidence rule
  2. The collateral finality rule
  3. The best evidence rule
  4. The rule against hearsay Correct answer.

Explanation

The hearsay rule excludes out-of-court statements tendered to prove the truth of what they assert, subject to statutory and common law exceptions. The other doctrines govern proof of documents, interpretation of written contracts, and limits on re-litigating incidental findings respectively.

Question 2Civil Procedure and Evidence

A party wishes to rely on a document's contents at trial. Under the Evidence Act 1995 (NSW), which method of proof is generally required?

  1. The document must be proved by a certified copy only
  2. The document must be identified by a handwriting expert
  3. The original document must always be produced in court
  4. The document may be proved by an admission or by a copy, subject to the court's discretion Correct answer.

Explanation

The Evidence Act abolished the strict best evidence rule, allowing documents to be proved by tendering a copy or adducing evidence of their contents, subject to authenticity and discretionary exclusion. Originals and certified copies are not universally mandated.

Question 3Civil Procedure and Evidence

Which standard of proof applies to the prosecution in a criminal trial in NSW?

  1. Prima facie case
  2. Balance of probabilities
  3. Clear and convincing evidence
  4. Beyond reasonable doubt Correct answer.

Explanation

The prosecution bears the criminal standard of proof beyond reasonable doubt for every element of the offence. The balance of probabilities governs civil proceedings, and clear and convincing evidence is not a recognised Australian criminal standard.

Question 4Civil Procedure and Evidence

In civil proceedings in NSW, the court may make a costs order. Which principle generally applies?

  1. Costs are fixed by statute at a set percentage
  2. The successful party always recovers full indemnity costs
  3. Each party always bears its own costs
  4. Costs follow the event unless the court orders otherwise Correct answer.

Explanation

The usual rule is that costs follow the event, so the unsuccessful party pays the successful party's costs on the ordinary basis, subject to the court's discretion. Indemnity costs are exceptional and require special justification.

Question 5Civil Procedure and Evidence

What is the effect of a party's failure to comply with a direction made in the court's case management of proceedings?

  1. The court may make costs or other orders, including dismissing the claim or striking out the defence Correct answer.
  2. The direction automatically lapses
  3. The non-complying party is committed for contempt without any hearing
  4. The proceedings are automatically stayed for twelve months

Explanation

Courts have wide powers to enforce directions, including costs orders, unless the interests of justice require otherwise, and may dismiss or strike out in appropriate cases. Automatic lapse, fixed stays, and summary committal without a hearing are not the ordinary consequences.

Question 6Civil Procedure and Evidence

In a civil trial in NSW, the burden of proving a fact in issue generally rests on which party?

  1. The party who denies the fact
  2. The party with the greater financial resources
  3. The party who asserts the existence of the fact Correct answer.
  4. The court, which must investigate the fact independently

Explanation

The persuasive burden generally lies on the party asserting the existence of a fact essential to their case. A party who merely denies an allegation does not ordinarily bear the burden of disproving it.

Question 7Civil Procedure and Evidence

A witness gives evidence of a previous representation made by an unavailable person. Which of the following is a threshold requirement for admissibility under the hearsay exceptions in the Evidence Act 1995 (NSW)?

  1. The maker must be unavailable and the representation must satisfy a recognised exception Correct answer.
  2. The representation must have been made under oath
  3. The representation must be in writing
  4. The representation must be against the maker's interest

Explanation

The statutory exceptions to the hearsay rule generally require that the maker be unavailable and that the representation fall within a specified category, such as a representation about the maker's health or family relationships. Writing and oaths are not universal requirements.

Question 8Civil Procedure and Evidence

Which of the following best describes the rule in Browne v Dunn?

  1. A witness may not be cross-examined on credit
  2. A party must put to a witness the substance of any contradictory evidence the party intends to lead Correct answer.
  3. A court must accept uncontradicted evidence
  4. A party must disclose all documents before trial

Explanation

The rule in Browne v Dunn requires a party to give a witness an opportunity to comment on contradictory material the party intends to rely on, so fairness is preserved. Failure may result in the court discounting or excluding the contradictory evidence.

Question 9Civil Procedure and Evidence

A plaintiff sues in negligence. The defendant wishes to rely on a document that is privileged. What is the general effect of legal professional privilege?

  1. The document is admissible but given reduced weight
  2. The document may be withheld from production and from evidence Correct answer.
  3. The document must be produced but not read aloud
  4. The document must be produced to the court in a sealed envelope

Explanation

Legal professional privilege, now largely reflected in client legal privilege provisions, entitles the client to withhold confidential communications made for legal advice or litigation. The privilege can be waived, but absent waiver the material is protected from production and tender.

Question 10Civil Procedure and Evidence

During cross-examination, counsel asks a witness about a prior inconsistent statement. Which course is consistent with the Evidence Act 1995 (NSW)?

  1. Counsel may not ask about prior statements at all
  2. Counsel must obtain leave of the court before any question on the statement
  3. Counsel may cross-examine on the statement without showing it to the witness
  4. Counsel must show the statement to the witness and give an opportunity to explain or deny it Correct answer.

Explanation

Where a witness is cross-examined about a prior inconsistent statement, the general requirement is that the statement be put to the witness so they may explain or deny it, and the document shown if in writing. This safeguards fairness and allows the witness to respond.

Question 11Civil Procedure and Evidence

A party seeks to adduce tendency evidence in a civil trial. Which consideration is central to admissibility?

  1. Whether the party has pleaded the tendency in the statement of claim
  2. Whether the evidence is relevant and has significant probative value Correct answer.
  3. Whether the evidence is corroborated by two witnesses
  4. Whether the evidence was obtained by subpoena

Explanation

Tendency evidence must first be relevant and then satisfy the statutory threshold of significant probative value, with further restrictions in criminal proceedings. Corroboration, subpoena, and pleading are not the governing tests for admissibility.

Question 12Civil Procedure and Evidence

A witness is shown a document and asked to refresh their memory from it while giving evidence. What is the general position under the Evidence Act 1995 (NSW)?

  1. A witness may never refresh memory from a document in the witness box
  2. Only the judge may decide what document the witness may use
  3. The witness may refresh memory from a document with leave, and the document may then be inspected by other parties Correct answer.
  4. The witness may refresh memory only from a document made contemporaneously and personally by the witness

Explanation

A witness may, with the court's leave, use a document to revive memory, and the opposing party is generally entitled to inspect it and cross-examine on it. The strict common law requirement of contemporaneity and personal authorship has been relaxed by statute.

Question 13Civil Procedure and Evidence

A defendant seeks summary dismissal of proceedings. What must the defendant generally establish?

  1. That the plaintiff's case is weak on the merits
  2. That there is no real question to be tried or the proceedings are an abuse of process Correct answer.
  3. That the plaintiff has failed to serve a notice of intention to defend
  4. That the plaintiff cannot afford legal representation

Explanation

Summary dismissal is reserved for cases where there is no real question to be tried or the claim is untenable or an abuse of process. Mere weakness of the case is not enough because it deprives the plaintiff of a trial.

Question 14Civil Procedure and Evidence

In civil proceedings, a party fails to comply with an order for discovery. What is the court's most likely response?

  1. The court has no power to act until trial
  2. The court must refer the matter to the police
  3. The court may make costs orders, exclude evidence, or strike out pleadings Correct answer.
  4. The court must dismiss the proceedings

Explanation

Courts have broad case management powers to enforce discovery obligations, including costs orders, evidentiary sanctions, and striking out pleadings. Automatic dismissal or mandatory police referral is not the ordinary response.

Question 15Civil Procedure and Evidence

A witness objects to answering a question on the ground that the answer may tend to incriminate them. What is the general position under the Evidence Act 1995 (NSW)?

  1. The objection must be overruled because the privilege was abolished
  2. The witness may object, but the court may still require the answer if the interest of justice requires Correct answer.
  3. The witness must answer and the answer is inadmissible against them in later proceedings
  4. The witness is automatically excused from giving any further evidence

Explanation

The privilege against self-incrimination is preserved, but the court has a discretion to require the witness to answer where the interests of justice so require, often with a certificate protecting the evidence's later use. The privilege is not absolute or abolished.

Question 16Civil Procedure and Evidence

Which of the following statements about the court's discretion to exclude evidence under the Evidence Act 1995 (NSW) is correct?

  1. Evidence may never be excluded once it is relevant
  2. Evidence must be excluded whenever it was obtained unlawfully
  3. Evidence may be excluded only if it is irrelevant
  4. Evidence may be excluded if its probative value is substantially outweighed by the danger of unfair prejudice Correct answer.

Explanation

The court may exclude relevant evidence where its probative value is substantially outweighed by the danger of unfair prejudice or other specified risks. Illegality in obtaining evidence is a factor, not an automatic ground for exclusion.

Question 17Civil Procedure and Evidence

A plaintiff wishes to amend the statement of claim after the limitation period has expired. What principle generally governs the application?

  1. The court may permit amendment unless the amendment would cause prejudice that cannot be compensated by costs or an adjournment Correct answer.
  2. Amendments after the limitation period are automatically prohibited
  3. The court must refuse any amendment after the first directions hearing
  4. Amendments are always permitted regardless of prejudice

Explanation

Amendments are ordinarily permitted to determine the real issues in dispute, subject to considerations of prejudice and the interests of justice. The court weighs any injustice to the other party against the desirability of resolving the true issues.

Question 18Civil Procedure and Evidence

In a criminal trial, the prosecution seeks to adduce evidence of the accused's bad character. What is the primary concern the court will address?

  1. Whether the accused has previously been convicted in another state
  2. Whether the accused has legal representation
  3. Whether the evidence is relevant to a fact in issue and whether its probative value outweighs its prejudicial effect Correct answer.
  4. Whether the evidence was obtained by search warrant

Explanation

Bad character evidence must be relevant to a fact in issue and is subject to the court's discretion to exclude where its prejudicial effect outweighs its probative value. Representation, warrants, and interstate convictions are not the governing considerations.

Question 19Civil Procedure and Evidence

A party seeks to tender a business record containing multiple levels of hearsay. What is the court's approach?

  1. The record is admissible only if the author is called
  2. Each representation must satisfy an exception, and the court may consider the reliability of the information Correct answer.
  3. The record is admissible automatically as a business record
  4. The record is inadmissible because it contains hearsay

Explanation

Where a document contains multiple hearsay, each layer must fall within an exception, and the court assesses reliability, often under the business records provisions. Automatic admissibility and a requirement to call the author are both incorrect.

Question 20Civil Procedure and Evidence

A witness gives evidence that they were told by a third party that the accused was at the scene. The third party is unavailable. Which issue is most likely to determine admissibility?

  1. Whether the statement was recorded in writing
  2. Whether the witness believed the third party
  3. Whether the third party was a police officer
  4. Whether the statement is relevant and falls within an exception to the hearsay rule Correct answer.

Explanation

The evidence is hearsay if tendered for its truth, so admissibility depends on relevance and the availability of an exception, such as an unavailable witness provision. The witness's belief, the third party's occupation, and writing are not the governing tests.

Question 21Civil Procedure and Evidence

A court is considering whether to admit evidence obtained in breach of a statutory requirement. Which factor is most relevant to the exercise of the discretion?

  1. The seriousness of the breach and the desirability of admitting the evidence Correct answer.
  2. The seniority of the investigating officer
  3. The cost of the investigation
  4. The number of witnesses available

Explanation

The discretion weighs the seriousness of the impropriety against the desirability of admitting the evidence, taking into account factors such as the probative value and the nature of the proceedings. Cost, seniority, and witness numbers are not the governing considerations.

Question 22Civil Procedure and Evidence

A party seeks to rely on a witness's evidence given in earlier proceedings. What must generally be shown for the earlier evidence to be admissible in the later proceedings?

  1. The earlier evidence was recorded by audio only
  2. The witness is unavailable and the party against whom the evidence is tendered had an opportunity to cross-examine Correct answer.
  3. The witness has since changed their story
  4. The earlier proceedings involved the same lawyers

Explanation

Earlier testimony may be admitted where the witness is unavailable and the opposing party had a reasonable opportunity to cross-examine in the earlier proceedings. Identity of lawyers, a change of story, or the recording medium are not the governing requirements.

Question 23Civil Procedure and Evidence

Which of the following is a recognised purpose of a directions hearing in civil proceedings?

  1. To identify the issues in dispute and set a timetable for the proceedings Correct answer.
  2. To determine the final merits of the claim
  3. To hear the parties' closing addresses
  4. To empanel a jury

Explanation

Directions hearings are case management events used to identify issues, set timetables, and make procedural orders. They do not determine the final merits, empanel juries, or hear closing addresses, which occur at trial.

Question 24Civil Procedure and Evidence

A plaintiff serves a statement of claim but the defendant does not file a defence within time. What is the plaintiff generally entitled to seek?

  1. Default judgment Correct answer.
  2. An order for specific performance
  3. An injunction restraining the defendant from defending
  4. Summary judgment on the pleadings without any notice

Explanation

Where a defendant fails to file a defence within the required time, the plaintiff may apply for default judgment under the procedural rules. Summary judgment and injunctive relief are separate remedies with their own requirements.

Question 25Civil Procedure and Evidence

A witness is cross-examined about a prior conviction. What is the court's primary concern?

  1. Whether the conviction was more than five years old
  2. Whether the witness has legal representation
  3. Whether the conviction is relevant to credit or a fact in issue and whether its probative value outweighs prejudice Correct answer.
  4. Whether the conviction was recorded in another state

Explanation

Evidence of prior convictions may be relevant to credit or a fact in issue, but the court must weigh probative value against prejudicial effect. The location and age of the conviction and representation are factors, not the governing test.

Question 26Civil Procedure and Evidence

In NSW civil proceedings, which court's rules principally govern pleadings, discovery and interlocutory applications in the Supreme Court?

  1. The Uniform Civil Procedure Rules 2005 (NSW) Correct answer.
  2. The Evidence Act 1995 (NSW)
  3. The Civil Procedure Act 2005 (NSW) alone, without any rules
  4. The Local Court Act 2007 (NSW)

Explanation

The Uniform Civil Procedure Rules 2005 (NSW) supply the detailed procedural code for pleadings, discovery, subpoenas and interlocutory applications in the Supreme Court and most other NSW courts. The Civil Procedure Act 2005 (NSW) provides the overarching statutory framework, including the overriding purpose, but the rules contain the operative detail. The Evidence Act governs admissibility rather than procedure.

Question 27Civil Procedure and Evidence

Which provision of the Civil Procedure Act 2005 (NSW) states the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in dispute?

  1. Section 64
  2. Section 56 Correct answer.
  3. Section 60
  4. Section 58

Explanation

Section 56 of the Civil Procedure Act 2005 (NSW) sets out the overriding purpose of facilitating the just, quick and cheap resolution of the real issues in the proceedings. Sections 57 to 59 then require parties and courts to give effect to that purpose, including in case management and costs. Section 64 deals separately with amendment of documents.

Question 28Civil Procedure and Evidence

A plaintiff's statement of claim discloses no reasonable cause of action. What is the most appropriate procedural step for the defendant?

  1. Request that the matter be transferred to another court
  2. File a defence denying every allegation and await trial
  3. Seek an adjournment of the first directions hearing
  4. Apply for the claim to be struck out or summarily dismissed Correct answer.

Explanation

A pleading that discloses no reasonable cause of action is liable to be struck out under the Uniform Civil Procedure Rules, and the court may also summarily dismiss the proceedings. The defect is one of legal sufficiency rather than factual dispute, so it is raised by motion rather than by a defence. Summary disposal is reserved for cases where the claim is clearly hopeless.

Question 29Civil Procedure and Evidence

A party wishes to obtain documents held by a third party who is not a party to the proceedings. Which procedure is generally available?

  1. A notice to admit facts served on the third party
  2. A subpoena to produce documents Correct answer.
  3. An interrogatory administered to the third party
  4. An application for discovery against the third party

Explanation

A subpoena to produce documents compels a non-party to produce specified documents to the court, and the issuing party may then inspect them with leave. Discovery is ordinarily confined to parties, and notices to admit and interrogatories operate between parties. The subpoena process also allows the third party to object or claim privilege.

Question 30Civil Procedure and Evidence

Which test governs whether a document is privileged under the Evidence Act 1995 (NSW) as a confidential communication made for the dominant purpose of legal advice?

  1. Whether the communication has been disclosed to any third party
  2. Whether the communication was made at a time when litigation was contemplated
  3. Whether the communication was created by a legal practitioner personally
  4. Whether the communication was made for the dominant purpose of obtaining or giving legal advice Correct answer.

Explanation

Client legal privilege under the Evidence Act protects confidential communications made for the dominant purpose of obtaining or providing legal advice, or for use in existing or anticipated litigation. The dominant purpose test is objective and looks at the substantial reason for bringing the communication into existence. Disclosure to a third party may destroy confidentiality but is not itself the governing test.

Question 31Civil Procedure and Evidence

In a civil trial, a party tenders a document containing a statement made by a person who is not called as a witness. Which requirement is central to admissibility under the hearsay provisions?

  1. That the maker of the statement is a party to the proceedings
  2. That a hearsay exception applies to the previous representation Correct answer.
  3. That the document was created before the proceedings commenced
  4. That the document has been discovered to the other party

Explanation

The hearsay rule excludes evidence of a previous representation used to prove the existence of a fact asserted in it, unless an exception applies. The exceptions include those for business records, contemporaneous statements and maker-unavailable provisions. Being a party, being old, or having been discovered does not itself make the representation admissible.

Question 32Civil Procedure and Evidence

What is the general effect of s 128 of the Evidence Act 1995 (NSW) when a witness objects to giving evidence on the ground of self-incrimination?

  1. The court must exclude the evidence as unfairly prejudicial to the accused
  2. The court must declare a mistrial and discharge the jury
  3. The court may grant a certificate allowing the evidence to be given while protecting the witness from use of that evidence in later proceedings Correct answer.
  4. The court must excuse the witness from giving any evidence at all

Explanation

Section 128 permits a witness to object to giving evidence that may tend to incriminate them, and the court may require the evidence to be given while issuing a certificate. The certificate prevents the evidence, and evidence obtained as a direct or indirect consequence of it, from being used against the witness in later proceedings. The provision balances the public interest in receiving evidence against protection of the witness.

Question 33Civil Procedure and Evidence

Which of the following best describes the operation of the rule against tendency evidence in civil proceedings under the Evidence Act 1995 (NSW)?

  1. Tendency evidence must have significant probative value and the court must consider the risk of unfair prejudice Correct answer.
  2. Tendency evidence is admissible whenever it is relevant to a fact in issue
  3. Tendency evidence is inadmissible in all civil proceedings
  4. Tendency evidence is admissible only if the maker gives oral testimony

Explanation

In civil proceedings, tendency evidence must satisfy the significant probative value threshold, and the court retains discretion to exclude it where its probative value is outweighed by the danger of unfair prejudice. The party tendering it must also give reasonable notice. Tendency evidence is not confined to criminal trials, nor is it automatically admissible merely because it is relevant.

Question 34Civil Procedure and Evidence

A witness is asked in cross-examination whether they have discussed their evidence with another witness before testifying. What is the principal relevance of this questioning?

  1. It automatically renders the witness's evidence inadmissible
  2. It shifts the burden of proof to the witness
  3. It may bear on the witness's credibility and the possibility of collusion Correct answer.
  4. It establishes that the witness is hostile as a matter of law

Explanation

Cross-examination about prior discussions with other witnesses is directed to credibility and to the risk that evidence has been coordinated rather than independently recalled. The court may also permit inquiry into whether the witness and another witness concocted their accounts. Such questioning does not render the evidence inadmissible or alter the burden of proof.

Question 35Civil Procedure and Evidence

Which of the following statements about the court's power to exclude evidence under s 135 of the Evidence Act 1995 (NSW) is accurate?

  1. The court may exclude evidence only in criminal proceedings
  2. The court must exclude all evidence obtained unlawfully
  3. The court may exclude evidence if its probative value is substantially outweighed by the danger of unfair prejudice, misleading the court or undue waste of time Correct answer.
  4. The court must exclude evidence whenever either party objects

Explanation

Section 135 confers a discretion to exclude evidence where its probative value is substantially outweighed by the danger it may unfairly prejudice a party, mislead the court or jury, or cause undue waste of time. The discretion applies in both civil and criminal proceedings. Section 137 imposes a mandatory exclusion in criminal proceedings where the danger of unfair prejudice outweighs probative value.

Question 36Civil Procedure and Evidence

A plaintiff seeks to amend the statement of claim to add a new cause of action after the limitation period has expired. Which principle generally governs the application?

  1. The court may allow the amendment only if the defendant consents
  2. The court must allow the amendment because pleadings are always amendable
  3. The court must refuse the amendment because the limitation period has expired
  4. The court may allow the amendment if the new claim arises out of substantially the same facts as the existing claim Correct answer.

Explanation

Amendment after expiry of a limitation period is generally permitted where the new claim arises out of substantially the same facts as a claim already pleaded, so that the defendant is not prejudiced by a truly new cause of action. The court also weighs case management considerations under the overriding purpose. Consent is not required, and expiry does not automatically compel refusal.

Question 37Civil Procedure and Evidence

A defendant fails to file a defence within the time required. What is the plaintiff generally entitled to do?

  1. Apply for an order for costs only
  2. Apply for summary dismissal of the defence
  3. Apply for a stay of proceedings
  4. Apply for default judgment Correct answer.

Explanation

Where a defendant does not file a defence within time, the plaintiff may apply for default judgment under the Uniform Civil Procedure Rules. Default judgment may be set aside if the defendant shows a defence on the merits and a satisfactory explanation for the delay. The other orders do not follow from a failure to file a defence.

Question 38Civil Procedure and Evidence

Which of the following is a recognised function of a directions hearing in civil proceedings?

  1. To hear full argument on all interlocutory applications
  2. To empanel a jury for the trial
  3. To set a timetable for the steps needed to bring the matter to trial Correct answer.
  4. To determine the substantive merits of the claim finally

Explanation

Directions hearings are case management events at which the court sets timetables, identifies issues and makes orders to progress the matter efficiently. They do not finally determine the merits, empanel juries or necessarily hear full argument on every application. Their purpose is consistent with the overriding purpose of just, quick and cheap resolution.

Question 39Civil Procedure and Evidence

A witness gives evidence that a third party told them the accused was at the scene. The third party is unavailable. Which course is most consistent with the Evidence Act 1995 (NSW)?

  1. Tender the evidence only if the third party's statement was sworn
  2. Tender the evidence as original evidence of the accused's presence
  3. Tender the evidence without more because the maker is unavailable
  4. Tender the evidence under the maker-unavailable exception, subject to the court's discretion to exclude it Correct answer.

Explanation

The hearsay rule would otherwise exclude the statement, but the maker-unavailable exception may permit it where the representation is relied on to prove the asserted fact and the maker cannot be called. The court retains discretion to exclude the evidence where its probative value is outweighed by unfair prejudice. Unavailability alone does not make the evidence admissible without satisfying the exception.

Question 40Civil Procedure and Evidence

In civil proceedings, what is the principal consequence of a party's failure to comply with a court order for discovery?

  1. The court has no power to act until the trial begins
  2. The court must automatically enter judgment for the other party
  3. The court must refer the matter to the police
  4. The court may make costs orders, strike out the claim or defence, or exclude evidence Correct answer.

Explanation

Non-compliance with a discovery order is a breach of a court order, and the court may respond with costs orders, unless orders, striking out pleadings or excluding evidence. The overriding purpose and case management powers support a proportionate response. Automatic judgment for the other party is not mandated.

Question 41Criminal Procedure and Evidence

In a criminal trial in New South Wales, the prosecution bears the burden of proving the elements of the offence. What is the standard of proof the prosecution must satisfy?

  1. On the preponderance of evidence
  2. Beyond reasonable doubt Correct answer.
  3. On the balance of probabilities
  4. To a comfortable satisfaction

Explanation

The prosecution must prove every element of a criminal offence beyond reasonable doubt, and this burden never shifts to the accused. The balance of probabilities is the civil standard, while comfortable satisfaction is used in some disciplinary and arbitral contexts.

Question 42Criminal Procedure and Evidence

Which of the following best describes the rule against hearsay in New South Wales criminal proceedings?

  1. A statement made outside court is always admissible if the maker is unavailable
  2. Hearsay evidence is admissible whenever it is relevant to a fact in issue
  3. A previous representation made by a person is inadmissible to prove the existence of a fact that the person intended to assert by the representation Correct answer.
  4. Hearsay evidence is admissible if the party tendering it gives notice to the other side

Explanation

The hearsay rule renders evidence of a previous representation inadmissible when it is tendered to prove the truth of what the person intended to assert. Exceptions exist under the Evidence Act 1995 (NSW), but mere relevance or unavailability does not by itself make hearsay admissible.

Question 43Criminal Procedure and Evidence

A witness in a criminal trial refuses to answer a question on the ground that the answer might incriminate her. What is the general position under the Evidence Act 1995 (NSW)?

  1. She is entitled to object to giving the evidence on the ground of self-incrimination Correct answer.
  2. She must answer if the prosecution gives an undertaking not to use the evidence
  3. She must answer but her answer cannot be used against her in any proceeding
  4. She must answer because the privilege does not apply in criminal trials

Explanation

A person may object to giving evidence, or to answering a particular question, on the ground that the evidence might tend to incriminate the person. The court then determines the objection, and a certificate may be given in appropriate cases.

Question 44Criminal Procedure and Evidence

In a criminal trial, the prosecution seeks to adduce evidence of the accused's bad character. Under what circumstances is such evidence generally admissible?

  1. Only where the accused gives evidence in the trial
  2. Whenever the prosecution considers it relevant to the offence charged
  3. Only where the accused has adduced evidence of good character or the evidence is otherwise permitted by an exception Correct answer.
  4. Whenever the evidence is corroborated by another witness

Explanation

Evidence of the accused's bad character is generally excluded, but it may become admissible where the accused has raised good character or where a specific statutory exception applies. The tender must also satisfy relevance and the discretions in the Evidence Act.

Question 45Criminal Procedure and Evidence

Police wish to search a suspect's home without a warrant. Which statement best reflects the law in New South Wales?

  1. Police may search any home without a warrant if they suspect an offence has been committed
  2. Police may search a home without a warrant if the occupier is not present
  3. A warrantless search of a home is generally unlawful unless a specific statutory power or consent applies Correct answer.
  4. Police may search a home without a warrant whenever entry is peaceful

Explanation

Entry and search of residential premises generally requires a warrant, consent, or a specific statutory power. A general suspicion of offending does not create a warrantless power to search a home.

Question 46Criminal Procedure and Evidence

Evidence obtained by police in contravention of an Australian law is tendered in a criminal trial. What is the primary test the court applies under the Evidence Act 1995 (NSW)?

  1. Whether the police officer intended to breach the law
  2. Whether the evidence is essential to the prosecution case
  3. Whether the desirability of admitting the evidence outweighs the undesirability of admitting evidence obtained in the way it was obtained Correct answer.
  4. Whether the accused objected at the time of the search

Explanation

For improperly or illegally obtained evidence, the court weighs the desirability of admitting the evidence against the undesirability of admitting evidence obtained in the manner it was. The court considers factors such as the probative value, gravity of the impropriety, and public interest.

Question 47Criminal Procedure and Evidence

A child aged 10 is alleged to have committed an offence in New South Wales. What is the position at common law regarding criminal responsibility?

  1. A child under 10 cannot be criminally responsible for any act or omission Correct answer.
  2. A child aged 10 can be prosecuted with the consent of the Director of Public Prosecutions
  3. A child aged 10 is presumed criminally responsible in all cases
  4. A child aged 10 can be prosecuted if the offence is serious

Explanation

The common law conclusively presumes that a child under the age of 10 cannot be criminally responsible. This presumption is reflected in the statutory framework in New South Wales.

Question 48Criminal Procedure and Evidence

A defendant is charged with an indictable offence. Which court in New South Wales generally conducts the committal proceeding?

  1. The District Court
  2. The Court of Criminal Appeal
  3. The Supreme Court
  4. The Local Court Correct answer.

Explanation

Committal proceedings are conducted in the Local Court to determine whether there is sufficient evidence for the matter to proceed to trial in a higher court. The District Court and Supreme Court conduct trials, not committals.

Question 49Criminal Procedure and Evidence

An accused is arraigned and pleads not guilty. What is the effect of the plea on the conduct of the trial?

  1. The court must enter a plea of guilty if the evidence is strong
  2. The accused must prove innocence on the balance of probabilities
  3. The matter proceeds directly to sentencing
  4. The prosecution must prove the elements of the offence to the criminal standard Correct answer.

Explanation

A plea of not guilty puts the prosecution to proof of every element of the offence beyond reasonable doubt. The accused bears no legal burden to prove innocence.

Question 50Criminal Procedure and Evidence

The prosecution wishes to lead evidence of an accused's prior conviction for a similar offence to show propensity. What is the principal concern the court will address?

  1. Whether the prior conviction was recorded in the same court
  2. Whether the probative value of the evidence substantially outweighs the danger of unfair prejudice Correct answer.
  3. Whether the accused consented to the evidence being led
  4. Whether the prior conviction was more than five years old

Explanation

Propensity evidence is subject to the exclusionary discretion, requiring the court to assess whether probative value substantially outweighs the danger of unfair prejudice. The age or venue of the prior conviction is not the governing test.