Queensland Bar Exam: Evidence key terms

The threshold test for admissibility: evidence is relevant if it could rationally affect, directly or indirectly, the assessment of the probability of the existence of a fact in issue in the proceeding.

A matter that must be proved or disproved for a party to succeed in the proceeding, determined by the pleadings, charge or cause of action rather than by the evidence itself.

The obligation of a party to establish a fact or issue to the required standard; the legal burden stays with the party asserting the matter, while the evidential burden may shift.

The degree of persuasion required: beyond reasonable doubt in criminal matters and on the balance of probabilities in civil matters, applied flexibly according to the gravity of the allegations.

A case that, taken at its highest and with inferences favourable to the prosecution or plaintiff, could persuade a rational tribunal to reach the required conclusion if no contrary evidence were called.

A preliminary hearing, held in the absence of the jury where there is one, to determine a threshold question such as the admissibility of evidence or the competence of a witness.

Whether a court may lawfully receive a piece of evidence, decided by applying relevance, exclusionary rules, discretions and any statutory provisions governing the proceeding.

A power to reject otherwise admissible evidence where its probative value is outweighed by the danger of unfair prejudice, misleading the tribunal, causing undue delay or needlessly prolonging the hearing.

An out-of-court representation made by a person, tendered to prove the truth of what it asserts, which is generally inadmissible unless a recognised exception or statutory provision applies.

Evidence of a statement or representation tendered not to prove its truth but to establish that it was made, or to explain conduct, so that the hearsay rule does not apply.

A previous representation made by a party, or by a person with authority to speak for a party, that is adverse to that party's interest in the proceeding and is received as an exception to hearsay.

An admission by an accused person that they committed the offence, or an element of it; its voluntary character must be established before it may be received in evidence.

The requirement that a confession be made freely, without threats, promises or oppressive conduct by persons in authority, failing which it is excluded as unreliable or unfair.

A recorded questioning of a suspect by investigating officers, governed by cautioning, right-to-silence and access-to-lawyer requirements that condition the admissibility of anything said.

Evidence of a person's reputation, disposition or prior conduct, generally inadmissible to show that they acted in conformity with it, subject to limited statutory exceptions.

Evidence of other acts or incidents relied on to prove that the accused committed the charged act, admissible only where its probative value clearly transcends the prejudicial risk of impermissible reasoning.

Evidence tendered to prove that a person had a tendency to act in a particular way or to have a particular state of mind, admissible only if it has significant probative value.

A right of a person to refuse to disclose information or produce a document, or to prevent another from doing so, notwithstanding that the material would otherwise be relevant and admissible.

A client's right to withhold confidential communications made for the dominant purpose of obtaining or giving legal advice, or for use in actual or anticipated litigation.

Protection for communications made in a genuine attempt to settle a dispute, which cannot be tendered as admissions of liability, save where a recognised exception such as fraud applies.

The questioning of a witness by the party who called them, ordinarily confined to non-leading questions and to matters relevant to the issues the party must establish.

Questioning of an opponent's witness, permitting leading questions and directed at testing credit, eliciting favourable material and putting the opposing case to the witness.

A question that suggests the answer or assumes a fact in dispute; generally impermissible in examination in chief but freely permitted in cross-examination.

The process by which a witness consults a document to revive recollection while giving evidence, subject to conditions about the document's creation and the opportunity for inspection by other parties.

An earlier account by a witness that conflicts with their testimony, usable to impeach credit and, in some circumstances, as evidence of the facts stated.

Opinion evidence admitted where a witness has specialised knowledge, based on training, study or experience, and the opinion is wholly or substantially based on that knowledge.

Evidence of what a witness thinks, believes or infers, generally inadmissible except for lay opinions about matters of everyday life and expert opinions within a field of specialised knowledge.

Independent evidence that tends to confirm or support other evidence implicating the accused, relevant to reliability and, historically, to warnings formerly required in certain categories of case.

Evidence that an accused was the person who committed the offence, including a witness's assertion of recognition, which attracts caution because of the risk of honest but mistaken identification.

Whether a person may lawfully give evidence (competence) and whether they can be forced to do so (compellability); spouses, children and the accused raise particular statutory questions.

The party tendering disputed evidence ordinarily bears the onus of satisfying the court, on the balance of probabilities, that the evidence is admissible under the applicable rule.

A discretion to reject evidence obtained improperly or in contravention of law, weighed against the desirability of admitting it having regard to the nature of the evidence and the impropriety.

Submissions made on behalf of an offender after conviction, setting out personal circumstances, remorse and other matters relevant to the sentence the court should impose.

The process by which a court determines the penalty for an offender, guided by statutory purposes, relevant factors and any applicable guideline judgments or comparable cases.

An application at the close of the prosecution or plaintiff case that there is no evidence capable of supporting a finding for that party, inviting dismissal or a directed verdict.

A formal written statement of a party's case, setting out material facts and the relief sought, which defines the issues and confines the evidence that may be led at trial.

The pre-trial process by which parties exchange documents and information relevant to the issues, supporting a fair trial and reducing surprise; obligations of disclosure continue throughout proceedings.

A lawyer's paramount obligation to act honestly, candidly and consistently with the administration of justice, which prevails over the client's instructions where the two conflict.

A situation where a lawyer's personal, financial or other-client interests may compromise, or appear to compromise, the loyal and independent representation of the client.

The professional obligation not to reveal information obtained in the course of the retainer, which is broader than legal professional privilege and survives the end of the engagement.