Queensland Bar Exam: Evidence cheat sheet

Relevance: evidence is relevant if it could rationally affect the assessment of the probability of the existence of a fact in issue (s 55 UEA); irrelevant evidence is inadmissible (s 56).

Hearsay: evidence of a previous representation made by a person is not admissible to prove the existence of a fact that the person intended to assert by the representation (s 59 UEA); exceptions include s 60 (non-hearsay purpose), s 63-66 (first-hand hearsay), s 69-75 (business records etc.).

Opinion rule: evidence of an opinion is not admissible to prove the existence of a fact about the existence of which the opinion was expressed (s 76 UEA); exceptions: lay opinions (s 78), expert opinions (s 79), and s 77 (non-opinion purpose).

Tendency and coincidence: tendency evidence requires significant probative value (s 97) and coincidence evidence requires significant probative value (s 98); in criminal proceedings, the probative value must substantially outweigh any prejudicial effect (s 101).

Credibility: credibility evidence is not admissible (s 102); exceptions include s 103 (substantial probative value), s 104 (accused's credibility), s 106 (rebutting denials), and s 108 (re-establishing credibility).

Privilege: client legal privilege (s 118-119 UEA) protects confidential communications for legal advice or litigation; professional confidential relationship privilege (s 126A-126B); sexual assault communication privilege (s 126H-126I).

Discretionary exclusions: s 135 (general discretion to exclude if probative value outweighed by danger of unfair prejudice, misleading, confusion, or waste of time); s 137 (mandatory exclusion in criminal proceedings if probative value outweighed by danger of unfair prejudice).

Burden and standard: in criminal proceedings, the prosecution bears the burden of proving guilt beyond reasonable doubt (s 141); in civil proceedings, the standard is balance of probabilities (s 140).

Witness examination: examination-in-chief, cross-examination, re-examination; leading questions generally not allowed in examination-in-chief (s 37); unfavourable witnesses (s 38); reviving memory (s 32).

Originating process: proceedings are commenced by filing an originating process (e.g., statement of claim or originating application) in the appropriate court registry; the process must be served on the defendant within the time prescribed by the rules (e.g., 6 months in Queensland).

Service: personal service is required for originating process unless the rules provide otherwise; substituted service may be ordered (e.g., UCPR r 116); service outside the jurisdiction requires leave or compliance with the rules (UCPR r 124-129).

Pleadings: a statement of claim must plead material facts, not evidence (UCPR r 149); a defence must respond to each allegation and plead any affirmative defence; further and better particulars may be ordered.

Summary judgment: a plaintiff may apply for summary judgment if the defendant has no real prospect of successfully defending the claim (UCPR r 292); the court may give judgment for the plaintiff or dismiss the claim.

Default judgment: if a defendant fails to file a notice of intention to defend or a defence within time, the plaintiff may apply for default judgment (UCPR r 283-290); the court may set aside a default judgment (UCPR r 290).

Amendment: a party may amend a pleading once without leave before the close of pleadings (UCPR r 378); otherwise leave is required, and amendment may be refused if it would cause prejudice or is futile.

Discovery and disclosure: parties must disclose documents in their possession or control that are directly relevant to the issues (UCPR r 211); privilege may be claimed; failure to disclose may lead to sanctions.

Costs: costs follow the event (UCPR r 681); the court may order costs on a party and party basis, indemnity basis, or solicitor and client basis; Calderbank offers and offers of compromise (UCPR r 353) may affect costs.

Arrest: police may arrest without warrant if they reasonably suspect a person has committed or is committing an offence (Police Powers and Responsibilities Act 2000 (Qld) s 365); the person must be told the reason for arrest (s 368) and brought before a court promptly.

Search: police may search a person or vehicle without warrant in certain circumstances (e.g., consent, incident to arrest, or reasonable suspicion of specified offences); search of premises generally requires a warrant (PPRA s 150-157).

Bail: bail is governed by the Bail Act 1980 (Qld); there is a presumption in favour of bail for most offences, but exceptions apply for serious offences (e.g., murder, certain drug offences) where bail must be refused unless exceptional circumstances exist.

Indictable offences: serious offences are tried on indictment before a judge and jury; summary offences are tried before a magistrate; some offences are hybrid (may be tried summarily or on indictment).

Committal proceedings: for indictable offences, a magistrate conducts a committal hearing to determine whether there is sufficient evidence to commit the accused for trial (Justices Act 1886 (Qld) s 104-114); the accused may plead guilty or not guilty.

Trial: the prosecution bears the burden of proving guilt beyond reasonable doubt; the accused has the right to silence; the judge directs the jury on the law and the jury decides the facts; verdicts must be unanimous (or majority in some circumstances).

Sentencing: the Penalties and Sentences Act 1992 (Qld) sets out sentencing principles; the court must consider the maximum penalty, the gravity of the offence, the offender's culpability, and aggravating and mitigating factors; imprisonment is a last resort.

Appeals: a person convicted may appeal against conviction or sentence to the Court of Appeal (Criminal Code Act 1899 (Qld) s 668D); the appeal court may allow the appeal if there has been a miscarriage of justice, or if the verdict is unreasonable or cannot be supported by the evidence.

Paramount duty: a solicitor must act in the best interests of the client, subject to the duty to the court and the administration of justice (Australian Solicitors' Conduct Rules 2012 (ASCR) r 4).

Confidentiality: a solicitor must not disclose confidential information obtained in the course of the retainer (ASCR r 9); exceptions include consent, legal compulsion, and preventing a serious criminal offence.

Conflict of interest: a solicitor must not act for two or more clients with conflicting interests (ASCR r 11); a solicitor must not act for a client where there is a conflict between the solicitor's personal interests and the client's interests (ASCR r 12).

Communication: a solicitor must provide clear and timely advice to assist the client to understand relevant legal issues and to make informed choices (ASCR r 7); a solicitor must follow a client's lawful, proper and competent instructions (ASCR r 8).

Fees: a solicitor must disclose costs to the client (Legal Profession Act 2007 (Qld) s 308); costs agreements must be in writing and disclose the basis of calculation; a solicitor must not charge excessive fees.

Trust money: trust money must be held in a general trust account and dealt with in accordance with the Legal Profession Act 2007 (Qld); trust money must not be mixed with the solicitor's own money; trust accounts are subject to audit.

Advocacy: a solicitor advocate must not mislead the court (ASCR r 19); must not make statements to the court that are misleading or inaccurate; must not express personal opinions on the merits of the case (ASCR r 20).

Professional misconduct: conduct that falls short of the standard of competence and diligence that a member of the public is entitled to expect of a reasonably competent solicitor (Legal Profession Act 2007 (Qld) s 418); may result in disciplinary action including suspension or removal from the roll.

Jurisdiction: the court's jurisdiction is determined by statute and the nature of the proceedings; the District Court has civil jurisdiction up to a monetary limit (currently $750,000) and criminal jurisdiction for indictable offences except those punishable by life imprisonment.

Limitation periods: civil claims must be commenced within the limitation period (Limitation of Actions Act 1974 (Qld)); e.g., 6 years for contract and tort, 3 years for personal injury, with extensions possible for disability or fraud.

Case management: the court may manage cases to ensure efficient use of resources (UCPR r 5); parties have a duty to proceed in an expeditious manner; failure to comply with directions may result in sanctions including dismissal or costs orders.

Interlocutory applications: a party may apply to the court for interlocutory orders (e.g., injunction, discovery, amendment) by filing an application and supporting affidavit; the court may hear the application ex parte in urgent cases.

Affidavits: evidence in interlocutory proceedings is usually by affidavit; an affidavit must be sworn or affirmed before an authorised person, contain only admissible evidence, and comply with the rules (UCPR r 430-433).

Judgments and orders: a judgment is a final determination of the rights of the parties; an order is a direction of the court; a judgment may be enforced by writ of execution, garnishee order, or charging order (UCPR r 800-830).

Appeals: appeals from a magistrate to the District Court are by way of rehearing (Justices Act 1886 (Qld) s 222); appeals from the District Court to the Court of Appeal require leave if the amount in dispute is less than the monetary threshold (District Court of Queensland Act 1967 (Qld) s 118).

Alternative dispute resolution: the court may refer parties to mediation or case appraisal (UCPR r 320-325); parties may be ordered to attend a settlement conference; costs consequences may follow unreasonable refusal to participate in ADR.