Queensland Bar Exam: Evidence flashcards

32 cards. Read the term and the definition here. The deck at the top of this page is optional.

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 rule

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).

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 include lay opinions (s 78) and expert opinions (s 79).

Tendency evidence

Evidence of a person's tendency to act in a particular way is not admissible unless it has significant probative value (s 97 UEA) and, in criminal proceedings, its probative value substantially outweighs any prejudicial effect (s 101).

Coincidence evidence

Evidence that two or more events are unlikely to be coincidental is not admissible unless it has significant probative value (s 98 UEA) and, in criminal proceedings, its probative value substantially outweighs any prejudicial effect (s 101).

Credibility evidence

Credibility evidence is not admissible (s 102 UEA) except in specified circumstances, such as where it has substantial probative value (s 103) or is adduced in cross-examination of the accused (s 104).

Client legal privilege

Confidential communications between a client and lawyer for the purpose of legal advice or litigation are protected from disclosure (ss 118-119 UEA), unless the privilege is waived or an exception applies.

Discretion to exclude

A court may exclude evidence if its probative value is outweighed by the danger of unfair prejudice, misleading or confusing the court, or causing undue waste of time (s 135 UEA). In criminal proceedings, s 137 mandates exclusion if probative value is outweighed by unfair prejudice.

Standard of proof

In criminal proceedings, the prosecution must prove guilt beyond reasonable doubt (s 141 UEA). In civil proceedings, the standard is the balance of probabilities (s 140 UEA).

Originating process

Proceedings are commenced by filing an originating process (e.g., statement of claim or originating application) in the court registry and serving it on the defendant within the time prescribed by the rules.

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).

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.

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 follow the event

Costs are generally awarded to the successful party (UCPR r 681). The court may order costs on a party and party basis, indemnity basis, or solicitor and client basis. Calderbank offers may affect costs.

Amendment of pleadings

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.

Service

Personal service is required for originating process unless the rules provide otherwise. Substituted service may be ordered (UCPR r 116). Service outside the jurisdiction requires leave or compliance with the rules (UCPR r 124-129).

Arrest without warrant

Police may arrest without warrant if they reasonably suspect a person has committed or is committing an offence (PPRA s 365). The person must be told the reason for arrest (s 368) and brought before a court promptly.

Bail presumption

Under 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.

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).

Right to silence

An accused person has the right to silence, meaning they cannot be compelled to answer questions or give evidence at trial. The prosecution cannot comment adversely on the exercise of this right.

Sentencing principles

Under the Penalties and Sentences Act 1992 (Qld), 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.

Criminal appeal

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 the verdict is unreasonable.

Search powers

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).

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 (ASCR r 4).

Confidentiality

A solicitor must not disclose confidential information obtained in the course of the retainer (ASCR r 9), except with consent, when compelled by law, or to prevent a serious criminal offence.

Conflict of interest

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

Costs disclosure

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. Excessive fees are prohibited.

Trust money

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

Advocacy duties

A solicitor advocate must not mislead the court (ASCR r 19) or make misleading or inaccurate statements. The advocate must not express personal opinions on the merits of the case (ASCR r 20).

Limitation periods

Civil claims must be commenced within the limitation period (Limitation of Actions Act 1974 (Qld)). For example, 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 expeditiously. Failure to comply with directions may result in sanctions including dismissal or costs orders.