Queensland Bar Exam: Evidence common mistakes
Queensland Bar Exam: Evidence · Understand the traps and how to avoid them.
Treating the uniform Evidence Acts (Cth and NSW) as if they applied in Queensland, and citing sections such as s 59, s 97 or s 137 as Queensland law without qualification. Queensland is a common-law evidence jurisdiction, so the correct starting point is the common-law rule plus the Evidence Act 1977 (Qld), with the uniform Act mentioned only as comparative or where a Commonwealth matter is involved.
Most Australian study material and many secondary summaries are written around the uniform Evidence Acts, so candidates absorb section numbers by osmosis and reproduce them under exam pressure without checking which jurisdiction the question concerns.
What to do instead
Before writing any evidence answer, state the governing law in one line: 'Queensland: common law plus Evidence Act 1977 (Qld)'. Then cite only Queensland provisions (for example ss 14B, 21A, 21AW, 92, 93B, 95, 101A of the 1977 Act) and reserve uniform Act references for a clearly flagged comparison or a Commonwealth prosecution.
Answering an evidence question by reciting the rule and stopping, without applying it to the specific facts and reaching a conclusion on admissibility or weight. For example, stating the hearsay rule and its exceptions in the abstract when the question asks whether a particular out-of-court statement is admissible.
Candidates memorise doctrine under time pressure and treat the question as a recall test, and the fear of committing to an outcome leads to fence-sitting rather than analysis.
What to do instead
Use a fixed three-step structure for every admissibility issue: identify the rule and its source, apply it to the named fact (who said what, to whom, in what context, for what purpose), then state a conclusion ('admissible for the non-hearsay purpose of proving the words were spoken, but not for the truth of their content'). Practise writing the conclusion sentence first, then building the reasoning to support it.
Confusing the purpose for which evidence is tendered with the nature of the evidence, so that hearsay is treated as automatically inadmissible and non-hearsay uses of a statement are missed. A common version is failing to see that a prior consistent or inconsistent statement may be admissible to bolster or attack credit rather than as proof of its contents.
The hearsay rule is taught as a label attached to types of evidence rather than as a rule about the use to which evidence is put, and candidates do not routinely ask 'what is this evidence being used to prove?'
What to do instead
For every out-of-court statement in a fact pattern, write two lines: the purpose for which the party tenders it, and whether that purpose requires proof of the truth of the assertion. If the purpose is merely to show the words were said, the statement had an effect on the listener, or the speaker's state of mind, the hearsay rule is not engaged. Then consider whether an exception (for example s 93B of the Evidence Act 1977 (Qld) for children's statements, or the res gestae and admissions exceptions at common law) applies to any hearsay use.
Giving a generic character or credibility answer without addressing the exclusionary rules and the gateway requirements. Candidates assert that bad character or prior convictions can be used to attack credit or to show propensity, without identifying the specific pathway (cross-examination on credit, similar fact or propensity reasoning, and the separate leave or exclusion tests).
Character and credibility are taught late in evidence courses and compressed into a few rules, so candidates remember the conclusion ('propensity is generally excluded') but not the analytical steps or the statutory hooks.
What to do instead
Build a checklist you apply mechanically: (1) whose character or credit is in issue; (2) in what capacity is the witness testifying (accused, complainant, ordinary witness); (3) which pathway is being used; (4) what leave, notice or exclusionary discretion applies; (5) what direction the jury would need. Apply the checklist in writing to the facts rather than asserting a conclusion.
Misstating the civil standard of proof or the allocation of the burden. Candidates describe the civil standard as a fixed '51 per cent' or as 'beyond the balance of probabilities', and confuse the legal and evidential burdens, particularly where a party bears a persuasive burden on an issue but the other party bears the evidential burden.
The Briginshaw-style sliding scale and the distinction between legal and evidential burdens are subtle, and simplified summaries flatten them into a single percentage figure.
What to do instead
State the standard as 'the balance of probabilities, applied with the degree of cogency the seriousness of the allegation and the consequences require', and expressly separate who bears the persuasive burden from who must adduce evidence to put an issue in play. Practise with one fact pattern where the defendant bears a statutory burden (for example a limitation or contributory negligence plea).
Applying the wrong limitation period or the wrong procedural step in a Queensland civil matter, for example assuming a uniform three-year or six-year period applies to all claims, or filing a claim without the required pre-litigation steps or without addressing the Personal Injuries Proceedings Act 2002 (Qld) requirements in a personal injury matter.
Limitation and pre-action requirements are scattered across statutes and court rules, and candidates rely on a general impression of 'six years for contract and tort' rather than checking the specific cause of action and any special statutory regime.
What to do instead
Maintain a one-page table of limitation periods by cause of action (contract, tort including personal injury, defamation, recovery of land, judgment debts) with the governing provision for each, and a parallel list of pre-action and notice requirements (PIPA, the Motor Accident Insurance Act, the Uniform Civil Procedure Rules 1999 (Qld)). Before answering, identify the cause of action and check both lists.
Conflating the rules for Queensland criminal procedure with the uniform evidence regime or with another State's procedure, for example describing committal and disclosure obligations, or the test for a no-case submission, in terms drawn from another jurisdiction, or misstating when a magistrate must commit an accused for trial.
Criminal procedure is a patchwork of the Criminal Code (Qld), the Justices Act 1886 (Qld) and practice directions, and candidates generalise from interstate material or from popular accounts of criminal trials.
What to do instead
Anchor every criminal procedure answer in a named Queensland source: the Criminal Code for offences and defences, the Justices Act for committal and summary proceedings, and the Evidence Act 1977 (Qld) for evidence in criminal proceedings. Write the provision number beside each procedural proposition, and if you cannot recall it, say so and describe the effect rather than inventing a citation.
Missing the procedural consequence of a defence or excuse in criminal law, for example treating provocation or self-defence as if it merely negated intent, or failing to identify which party bears the onus once a defence is raised and what the prosecution must negative.
Defences are learned as definitions rather than as rules with evidential thresholds and burdens, and candidates focus on the elements of the offence and run out of time for the defence analysis.
What to do instead
For each defence, memorise three things: the evidential threshold for raising it, who bears the persuasive burden, and exactly what the prosecution must prove to defeat it. In an answer, deal with the elements of the offence first, then raise and dispose of each defence on the facts using that three-part structure.
Answering an ethics question by describing what a 'good lawyer would do' rather than identifying the specific rule, the source of the duty and the practical consequence of breach. Candidates discuss general fairness and candour without naming the relevant conduct rule, the duty to the court, the duty of confidentiality and its exceptions, or the conflict-of-interest tests.
Ethics is perceived as common sense, so candidates write moral commentary instead of rule-based analysis, and they do not have the Australian Solicitors' Conduct Rules structure at their fingertips.
What to do instead
Frame every ethics answer around four questions: which duty is engaged (to the court, to the client, to the administration of justice, confidentiality, conflict); which rule or principle states it; is there a conflict and how is it resolved (the court and the integrity of the process prevail); and what should the practitioner actually do next, including whether to withdraw, disclose or seek the client's informed consent. Cite the rule by name or number where you are confident, and describe it accurately where you are not.
Giving a legal practice and procedure answer that jumps to the substantive merits without identifying the correct court, jurisdiction, originating process and any necessary joinder or amendment issue, or conversely reciting procedure without linking it to the client's objective and cost consequences.
Procedure is learned as a list of steps and documents, so candidates either recite the list mechanically or skip it in favour of the more interesting substantive law, and they rarely connect procedural choices to cost and risk.
What to do instead
Answer procedure questions with a decision tree: identify the claim and amount in dispute, select the court and its jurisdictional basis, choose the originating process, identify parties and any joinder or amendment needs, then address time limits, service and any interlocutory steps. Finish with a short practical paragraph on cost and risk consequences of the chosen course.