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Queensland Bar Exam: Evidence study materials
Queensland Bar Exam: Evidence study resources

Queensland Bar Exam: Evidence practice questions

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Question 1Evidence

Under the uniform evidence law, what is the principal test for whether a document may be admitted as evidence of its contents?

  1. The document must be an original rather than a copy
  2. The document must bear a witness signature
  3. The document must have been created before litigation
  4. The document must be authenticated as what it purports to be Correct answer.

Explanation

Authentication is the threshold requirement: a party tendering a document must adduce evidence sufficient to support a finding that the document is what it purports to be. Signature, timing of creation and the original/copy distinction are not independent admissibility requirements, though they may assist proof of authenticity.

Question 2Evidence

A witness is asked to recount a conversation she overheard. Which rule governs whether her account of the words spoken is admissible?

  1. The hearsay rule, because the words may be relied on to prove their truth Correct answer.
  2. The tendency rule, because the words show a pattern of conduct
  3. The credibility rule, because her memory is in issue
  4. The opinion rule, because recounting words involves interpretation

Explanation

Evidence of a previous representation made out of court is hearsay when tendered to prove the truth of what was asserted. The witness's account of the conversation is admissible for other purposes, such as proving the words were spoken, but not to establish the facts asserted in them unless an exception applies.

Question 3Evidence

In a criminal trial, the prosecution seeks to lead evidence of the accused's previous conviction for dishonesty. What is the primary purpose of the tendency and coincidence rules?

  1. To require corroboration of any evidence of prior conduct
  2. To prohibit the use of prior conduct to prove a propensity unless the probative value substantially outweighs prejudice Correct answer.
  3. To permit prior conduct evidence whenever it is relevant
  4. To exclude all evidence of prior misconduct in criminal proceedings

Explanation

Tendency and coincidence evidence is excluded unless the party seeking admission satisfies a heightened probative value test. In criminal proceedings the evidence must have significant probative value, and the court must be satisfied that its probative value substantially outweighs any prejudicial effect.

Question 4Evidence

Which of the following is an example of a privileged communication that a client may object to disclosing?

  1. A confidential communication made to a legal adviser for the purpose of obtaining legal advice Correct answer.
  2. A remark made to a treating nurse about symptoms
  3. A statement made to a police officer during an interview
  4. A comment made to a journalist about a business dispute

Explanation

Client legal privilege protects confidential communications between a client and a lawyer made for the dominant purpose of obtaining or giving legal advice or for use in litigation. Statements to police, health professionals or journalists do not attract the privilege merely because they are confidential.

Question 5Evidence

A party wishes to rely on a statement in a document to prove the truth of its contents where the maker is unavailable. Which concept is engaged?

  1. The rule against self-incrimination
  2. The parol evidence rule
  3. The hearsay exception for unavailable makers of representations Correct answer.
  4. The best evidence rule

Explanation

Where a person who made a previous representation is unavailable to give evidence, the hearsay rule does not prevent admission of evidence of the representation in certain circumstances. The rationale is that the maker cannot be cross-examined, so reliability safeguards apply.

Question 6Evidence

What is the effect of a valid claim of client legal privilege?

  1. The client may waive the privilege and permit disclosure Correct answer.
  2. The privilege automatically expires once proceedings commence
  3. The court may inspect the document and then decide admissibility
  4. The privileged material may be used to prove the client's guilt

Explanation

Client legal privilege belongs to the client, who may waive it expressly or by conduct inconsistent with maintaining confidentiality. Absent waiver, the court cannot compel disclosure of the privileged communication.

Question 7Evidence

Which statement best describes the rule in relation to a witness giving opinion evidence?

  1. A witness may never give an opinion in a criminal trial
  2. A witness may give an opinion whenever it is genuinely held
  3. A witness may give an opinion where it is based on what the witness saw, heard or otherwise perceived and is necessary to explain their evidence Correct answer.
  4. A witness may give an opinion only if they are an expert in the field

Explanation

The opinion rule excludes opinions, but lay witnesses may express opinions where they are based on personal perception and are necessary to convey their evidence, such as estimating speed or identifying a person. Expert opinion is admissible where the witness has specialised knowledge.

Question 8Evidence

A prosecutor seeks to adduce evidence of the accused's silence when questioned by police. What is the general position at common law?

  1. Silence is admissible only in summary proceedings
  2. Silence is always admissible as an admission
  3. Silence is generally inadmissible as evidence of guilt, though it may be relevant in limited circumstances Correct answer.
  4. Silence is admissible if the accused was warned of their right to silence

Explanation

The common law treats an accused's silence in the face of questioning as generally not evidence of guilt, because silence is ambiguous and the right to silence protects the accused. Limited exceptions exist where the accused has adopted a statement or where a specific statutory provision applies.

Question 9Evidence

A witness gives evidence that she saw the accused running from a bank shortly after a robbery. The defence argues the evidence is irrelevant. How should the court approach relevance?

  1. The evidence is relevant only if it is direct rather than circumstantial
  2. The evidence is relevant only if it is corroborated by another witness
  3. The evidence is relevant only if it proves the fact in issue beyond reasonable doubt
  4. The evidence is relevant if it could rationally affect the assessment of the probability of a fact in issue Correct answer.

Explanation

Evidence is relevant if, if accepted, it could rationally affect the assessment of the probability of the existence of a fact in issue. It need not prove the fact conclusively, be corroborated, or be direct rather than circumstantial.

Question 10Evidence

In a civil trial, a plaintiff tenders a business record containing an entry made by an employee who has since left the company. Which requirement is most important for admissibility under the business records exception?

  1. The employee must be called to authenticate the entry
  2. The record must have been created by a director of the company
  3. The record must have been made in the course of the business and it must be represented that the entry was made by a person with personal knowledge Correct answer.
  4. The record must be an original document

Explanation

The business records exception permits proof of representations in documents forming part of records kept in the course of a business, where the representation was made by a person with personal knowledge of the matters dealt with. The maker need not be called.

Question 11Evidence

A defendant claims that a prosecution witness has a motive to lie. The defence wishes to cross-examine the witness about a prior inconsistent statement. What must the defence generally do before proving the prior statement?

  1. Call another witness to prove the statement first
  2. Obtain leave of the court in every case
  3. Put the substance of the statement to the witness and give an opportunity to explain or deny it Correct answer.
  4. Provide the witness with a written copy of the statement before the hearing

Explanation

The rule in Browne v Dunn and the credibility provisions require that a witness be confronted with a prior inconsistent statement so that they have an opportunity to explain or deny it before the statement is proved by other evidence. This ensures fairness and allows the witness to respond.

Question 12Evidence

An expert is asked to give evidence about the likely cause of a fire. The expert's opinion relies on a novel methodology not generally accepted. How should the court assess admissibility?

  1. The court should admit the evidence only if the expert is employed by a government agency
  2. The court must reject the evidence because the methodology is novel
  3. The court should consider whether the expert's specialised knowledge and the methodology are sufficiently reliable to be admitted Correct answer.
  4. The court must admit the evidence because the expert is qualified

Explanation

Expert opinion is admissible where the witness has specialised knowledge based on training, study or experience and the opinion is wholly or substantially based on that knowledge. Reliability of the underlying methodology is relevant to the weight and, in some circumstances, to admissibility.

Question 13Evidence

A party seeks to adduce evidence that the accused had a propensity for violence in a trial for assault. Which factor is most relevant to whether the tendency evidence should be admitted?

  1. Whether the victim is available to give evidence
  2. Whether the accused has been previously convicted of any offence
  3. Whether the evidence was obtained by police
  4. Whether the evidence has significant probative value and its probative value substantially outweighs the prejudicial effect Correct answer.

Explanation

In criminal proceedings, tendency evidence must have significant probative value, and the court must be satisfied that its probative value substantially outweighs any prejudicial effect to the defendant. The mere existence of prior convictions does not satisfy the test.

Question 14Evidence

A solicitor is served with a subpoena requiring production of files relating to a client's advice on a commercial transaction. The client objects. What is the likely outcome?

  1. The files must be produced only if the client is a party to the proceedings
  2. The files may be withheld to the extent they contain confidential communications made for the dominant purpose of legal advice Correct answer.
  3. The files may be withheld only if litigation is contemplated
  4. The files must be produced because a subpoena overrides privilege

Explanation

Client legal privilege protects confidential communications made for the dominant purpose of obtaining or giving legal advice, whether or not litigation is contemplated. A subpoena does not override a valid claim of privilege.

Question 15Evidence

A witness is shown a document and asked to read it aloud in court. The document is a copy of an original that has been lost. What is the position regarding admissibility?

  1. The copy may be admissible if its authenticity is established and any hearsay issues are addressed Correct answer.
  2. The copy is inadmissible because it is not the original
  3. The copy is inadmissible unless both parties agree
  4. The copy is admissible only if the original is produced in court

Explanation

The contents of documents may be proved by copies; the original is not generally required. The tendering party must authenticate the copy and satisfy any applicable hearsay or other exclusionary rules.

Question 16Evidence

During cross-examination, counsel asks a witness about a prior criminal conviction. What is the principal restriction on such questioning?

  1. Leave is required and the court must consider whether the evidence could substantially affect the witness's credibility Correct answer.
  2. The conviction must be less than five years old
  3. Prior convictions may never be raised in cross-examination
  4. The witness must consent before the question is asked

Explanation

Questioning about prior convictions engages the credibility rule. In criminal proceedings, leave is generally required and the court must be satisfied that the evidence could substantially affect the assessment of the witness's credibility.

Question 17Evidence

A plaintiff seeks to rely on a record of a telephone conversation to prove the terms of an oral contract. The defendant objects on hearsay grounds. How should the court analyse the objection?

  1. The record is admissible because it is a document
  2. The record is admissible only if the original recording device is produced
  3. The record is hearsay if relied on to prove the truth of the words spoken, but may be admissible under an exception or for a non-hearsay purpose Correct answer.
  4. The record is inadmissible because it is a recording rather than a written document

Explanation

A recording of a conversation is a previous representation. If tendered to prove the truth of what was said, it engages the hearsay rule, and admissibility depends on an exception or a non-hearsay use such as proving the words were spoken.

Question 18Evidence

A court is considering whether to exclude evidence under its discretion because its probative value is outweighed by the danger of unfair prejudice. Which factor is central to that assessment?

  1. Whether the evidence is circumstantial or direct
  2. Whether the evidence was obtained lawfully
  3. Whether the witness is a police officer
  4. Whether the evidence might be misused by the jury in a way that is unfair to the accused Correct answer.

Explanation

The unfair prejudice discretion focuses on the risk that the evidence may be misused by the tribunal of fact in a manner that is unfair to the party against whom it is tendered, for example by arousing irrational hostility or diverting attention from the real issues.

Question 19Evidence

An accused wishes to adduce evidence that another person confessed to the crime. What is the principal obstacle?

  1. The evidence is privileged
  2. The confession is hearsay and may not be admissible to prove the other person's guilt Correct answer.
  3. Confessions by third parties are automatically admissible
  4. The evidence is irrelevant

Explanation

A third party's confession is a previous representation tendered to prove the truth of what was asserted, so it engages the hearsay rule. Its admissibility depends on an exception or on its relevance to a non-hearsay issue, such as the accused's state of mind.

Question 20Evidence

A witness claims to have no memory of an event but previously made a written statement. What is the most likely route to admissibility of the statement?

  1. The statement is automatically admissible as a prior consistent statement
  2. The statement may be admitted if the witness is available and the representation is proved, subject to the court's discretion Correct answer.
  3. The statement is admissible only if the witness is deceased
  4. The statement is inadmissible because the witness cannot be cross-examined

Explanation

Where a witness does not recall making a representation, evidence of the representation may be admitted if the witness is available to give evidence and the representation is proved, subject to the court's discretion to refuse admission if it would be unfair.

Question 21Evidence

In a criminal trial, the prosecution adduces evidence that the accused possessed a weapon similar to the one used in the offence. The defence argues the evidence is tendency evidence. How should the court characterise the evidence?

  1. It is inadmissible because it is hearsay
  2. It is coincidence evidence because it links the accused to the weapon
  3. It is necessarily tendency evidence because it shows a propensity for violence
  4. It may be circumstantial evidence relevant to the offence without engaging the tendency rule Correct answer.

Explanation

Evidence that an accused possessed a weapon similar to the one used may be circumstantial evidence connecting the accused to the offence rather than evidence of a tendency to act in a particular way. Characterisation depends on the purpose for which the evidence is tendered.

Question 22Evidence

A party seeks to tender a statement made by an accused to a police officer during a record of interview, but the accused was not cautioned. What is the principal basis for exclusion?

  1. The statement is irrelevant
  2. The statement is privileged
  3. The statement may be excluded because it was obtained in circumstances that compromise its reliability or fairness Correct answer.
  4. The statement is automatically inadmissible

Explanation

Statements obtained in circumstances that raise doubts about reliability or fairness, such as the absence of a caution, may be excluded under the discretion to exclude unfair or unreliable evidence. The absence of a caution is a significant factor in that assessment.

Question 23Evidence

An expert witness relies on hearsay material in forming an opinion. How does the law generally treat that reliance?

  1. The expert's opinion is inadmissible because it relies on hearsay
  2. The expert must personally verify every fact relied upon
  3. The expert may rely on hearsay material if it is a proper basis for the opinion, and the weight of the opinion is a matter for the tribunal of fact Correct answer.
  4. The hearsay material becomes admissible for all purposes

Explanation

Experts may rely on material, including hearsay, that is a proper basis for their opinion. The material is not thereby admitted for all purposes, and the tribunal of fact assesses the weight of the opinion in light of the basis on which it rests.

Question 24Evidence

A defendant seeks to adduce evidence of a co-accused's bad character to support a defence that the co-accused committed the offence. What is the key issue for the court?

  1. Whether the evidence has probative value for a purpose other than propensity and whether its use is fair Correct answer.
  2. Whether the co-accused consents to the evidence
  3. Whether bad character evidence is always inadmissible
  4. Whether the evidence was disclosed before trial

Explanation

Evidence of bad character may be admissible where it is relevant for a purpose other than propensity, such as identifying the perpetrator. The court must also consider whether its use would be unfair and whether any exclusionary rule applies.

Question 25Evidence

A document is tendered as evidence of a representation made by a person who is not called. The tendering party relies on the exception for representations made in the course of a business. What must be established about the person who made the representation?

  1. That the person is unavailable to give evidence
  2. That the person signed the document
  3. That the person was a senior manager
  4. That the person had personal knowledge of the matters dealt with Correct answer.

Explanation

The business records exception requires that the representation be made by a person who had, or may reasonably be supposed to have had, personal knowledge of the matters dealt with. The person's seniority, availability or signature is not the operative requirement.

Question 26Evidence

Under the uniform Evidence Acts, what is the standard of proof required for the prosecution to establish the voluntariness of an accused's confession?

  1. On the balance of probabilities
  2. On the preponderance of evidence as in civil matters
  3. Beyond reasonable doubt Correct answer.
  4. By clear and convincing evidence

Explanation

Where the prosecution tenders an admission, it bears the burden of proving that the admission was made voluntarily and in the absence of improper inducement. The uniform Evidence Acts require that this threshold be established beyond reasonable doubt before the admission can be received. This high standard reflects the serious consequences of relying on a confession in a criminal trial.

Question 27Evidence

A witness is called to give evidence but refuses to take an oath or make an affirmation, and the court is not satisfied that the witness understands the nature of an oath. What is the usual course?

  1. The witness's earlier out-of-court statement is admitted as their testimony
  2. The witness may give unsworn evidence if the court is satisfied the witness understands the duty to tell the truth Correct answer.
  3. The witness is automatically guilty of contempt and imprisoned
  4. The trial must be aborted because no evidence can be received

Explanation

The uniform Evidence Acts permit a person who does not understand the nature of an oath to give unsworn evidence, provided the court is satisfied that the person understands the obligation to tell the truth and has been informed of the consequences of giving false evidence. This preserves the witness's account while protecting the integrity of the proceedings. Contempt or aborting the trial are not the ordinary responses.

Question 28Evidence

In a criminal trial, the judge is asked to direct the jury about the use of evidence of the accused's good character. What is the principal effect of such a direction?

  1. It may be used as evidence of the accused's credibility and as tending to show the accused is less likely to have committed the offence Correct answer.
  2. It is inadmissible because good character is irrelevant in criminal proceedings
  3. It shifts the burden of proof onto the accused to establish innocence
  4. It is admissible only to prove the accused's credibility and cannot bear on propensity

Explanation

Evidence of an accused's good character is generally admissible and may be used in two ways: as relevant to the accused's credibility as a witness and as tending to show that the accused is less likely to have committed the offence. This is a recognised exception to the general exclusion of propensity reasoning. It does not reverse the burden of proof.

Question 29Evidence

What is the general rule about the admissibility of evidence of a judgment or conviction in a civil proceeding as proof of the underlying facts?

  1. A conviction is never admissible in civil proceedings for any purpose
  2. A conviction is admissible only if the convicted person consents
  3. A conviction is admissible as proof that the person committed the offence where the conviction is relevant to a fact in issue Correct answer.
  4. A conviction is admissible only to impeach the convicted person's credit as a witness

Explanation

Under the uniform Evidence Acts, evidence of a conviction may be adduced to prove that the person was convicted, and in some circumstances the conviction may be relied on as evidence of the underlying conduct. The precise use depends on the relevance of the conviction to a fact in issue and any discretionary exclusion. It is not limited to credit impeachment.

Question 30Evidence

A party wishes to tender a document that is more than twenty years old and comes from a custody that the court considers proper. What is the usual evidentiary consequence?

  1. The court may presume the document was duly executed and, if relevant, that its contents are as stated Correct answer.
  2. The document must be authenticated by a handwriting expert before receipt
  3. The document is admissible only if the original signatory is called
  4. The document is automatically inadmissible because of its age

Explanation

The uniform Evidence Acts contain a presumption about documents that are at least twenty years old and produced from proper custody. The court may presume that the document was duly executed and, where relevant, that its contents are as they purport to be. This avoids the need for elderly or unavailable makers to be called.

Question 31Evidence

A witness gives evidence that the accused told her, 'I did it, but don't tell anyone.' The accused is charged with the offence. How is this evidence best characterised?

  1. Similar fact evidence requiring a propensity direction
  2. Opinion evidence requiring expert qualification
  3. An admission, potentially admissible as an exception to the hearsay rule if made voluntarily Correct answer.
  4. Hearsay that is inadmissible because the maker is not available

Explanation

A statement by a party against their interest, including an accused's confession to another person, is an admission. Admissions are a recognised exception to the hearsay rule and may be received if the threshold requirements, including voluntariness, are satisfied. The evidence is not opinion or similar fact evidence.

Question 32Evidence

A party seeks to tender a photograph of a scene taken by an automatic security camera. The camera owner cannot be located to give evidence. What is the most likely basis for admitting the photograph?

  1. The document may be admitted as a business record or under a statutory presumption about devices that produce documents Correct answer.
  2. The photograph is admissible only if the accused consents
  3. The photograph is inadmissible because no human witness can authenticate it
  4. The photograph is inadmissible because photographs are never treated as documents

Explanation

The uniform Evidence Acts treat photographs and recordings as documents and provide presumptions about the reliability of devices that produce documents, as well as exceptions for business records. These provisions can allow the photograph to be received without the camera owner being called. Consent of the accused is not required.

Question 33Evidence

During a trial, counsel wishes to cross-examine a witness about a prior inconsistent statement the witness made to police. What is the usual requirement before the statement can be used to impeach the witness?

  1. The prior statement is automatically inadmissible in cross-examination
  2. The witness must first be declared hostile by the judge
  3. The witness must be given an opportunity to explain or deny the prior statement, and the circumstances of the making of the statement may be put to the witness Correct answer.
  4. The prior statement may be used only if it was made under oath

Explanation

The uniform Evidence Acts permit cross-examination about a prior inconsistent statement, but the witness must generally be given a chance to explain or deny it. The circumstances in which the statement was made may also be explored. The statement is not automatically excluded, and a hostility ruling is not a universal precondition.

Question 34Evidence

A plaintiff seeks to rely on a conversation recorded on a mobile phone to prove the terms of an agreement. The defendant objects that the recording is a copy and the original phone is unavailable. What is the most accurate statement of the position?

  1. The copy is inadmissible because the best evidence rule requires the original phone
  2. The copy may be admitted if the court is satisfied it is a true copy or if the original is unavailable for a valid reason Correct answer.
  3. The copy is inadmissible because recordings are not documents
  4. The copy is admissible only if both parties agree to its use

Explanation

The uniform Evidence Acts have largely displaced the strict best evidence rule and permit secondary evidence of a document where the original is unavailable or the copy is shown to be accurate. The court retains a discretion to exclude if authenticity is doubtful. Agreement of both parties is not required.

Question 35Evidence

An accused is charged with assault. The prosecution wishes to lead evidence that the accused had a prior conviction for a similar assault ten years earlier. What is the principal relevance of that evidence?

  1. It is automatically admissible because prior convictions are always relevant
  2. It may be relevant to propensity, but it is subject to exclusion if its probative value is outweighed by unfair prejudice Correct answer.
  3. It is relevant solely to the accused's credibility as a witness
  4. It is admissible only to prove the accused's general bad character

Explanation

Prior convictions for similar conduct may be relevant to propensity, but propensity evidence is carefully controlled. The court must consider whether the probative value of the evidence is outweighed by the danger of unfair prejudice, and similar fact principles may apply. It is not automatically admissible, nor confined to credit.

Question 36Evidence

A witness called by the prosecution gives evidence that is unhelpful and appears to depart from an earlier statement. The prosecutor seeks to treat the witness as hostile. What is the usual threshold for doing so?

  1. The witness must be an expert in the field
  2. The witness must simply disagree with the prosecutor's version of events
  3. The court must be satisfied that the witness is not making a genuine attempt to give evidence truthfully, or has made a prior inconsistent statement Correct answer.
  4. The witness must have a criminal conviction

Explanation

A witness may be declared hostile where the court is satisfied that the witness is not making a genuine attempt to give evidence truthfully, or where the witness has made a prior inconsistent statement. Mere disagreement with the prosecutor is insufficient. A criminal conviction or expert status is irrelevant to the hostility threshold.

Question 37Evidence

A defendant wishes to call an alibi witness whose evidence was not disclosed until the first day of trial. What is the most likely consequence?

  1. The evidence is automatically excluded and cannot be received
  2. The evidence is admissible only if the witness is a police officer
  3. The evidence is admissible only if the defendant gives evidence personally
  4. The court may exclude or comment on the late evidence and may grant an adjournment to the prosecution Correct answer.

Explanation

Late disclosure of alibi evidence does not automatically render it inadmissible. The court has a discretion to exclude, to comment on the lateness, or to grant an adjournment so the prosecution can investigate. This balances the defendant's right to call evidence against the need to avoid unfair surprise.

Question 38Evidence

An expert relies on a novel statistical technique that has not been peer reviewed. The opposing party objects to the expert's opinion. What is the court's principal approach?

  1. The court considers the reliability of the technique, including peer review, error rates, and general acceptance, in deciding whether to admit the opinion Correct answer.
  2. The opinion is automatically admissible because the witness is an expert
  3. The opinion is automatically inadmissible because it is novel
  4. The opinion is admissible only if the jury agrees with the technique

Explanation

Expert opinion evidence must be based on specialised knowledge and be reliable. Courts consider factors such as peer review, known error rates, and general acceptance in the relevant field when assessing novel methodologies. Novelty alone does not make the evidence inadmissible, but it heightens scrutiny.

Question 39Evidence

In a criminal trial, the prosecution tenders evidence that the accused remained silent when first questioned by police. The accused did not mention an alibi that is later relied on at trial. What is the general position?

  1. The silence may be used in limited circumstances, but the court must give a careful direction and the accused's right to silence is protected Correct answer.
  2. The silence is admissible without any restriction or direction
  3. The silence is inadmissible in all circumstances and cannot even be mentioned
  4. The silence is conclusive proof of guilt

Explanation

The right to silence is fundamental, and an accused's failure to answer questions is not generally treated as an admission. However, in limited circumstances, such as where a later explanation is inconsistent with earlier silence, the evidence may be used with a careful judicial direction. It is neither conclusive proof of guilt nor entirely incapable of mention.

Question 40Evidence

A co-accused seeks to adduce evidence of the accused's bad character to support a defence that the accused committed the offence. What is the principal restriction?

  1. The evidence must be relevant to a specific issue in the case and is subject to exclusion if its probative value is outweighed by unfair prejudice Correct answer.
  2. Bad character evidence is inadmissible in all circumstances
  3. Bad character evidence may be used only to prove the accused's credibility
  4. Bad character evidence is always admissible when raised by a co-accused

Explanation

Evidence of bad character is not admitted merely to show that a person is the kind of person who would commit an offence. It must be relevant to a specific issue, and the court must balance its probative value against the danger of unfair prejudice. The co-accused's ability to raise it does not remove these safeguards.

Question 41Civil Procedure

In a civil trial in the Supreme Court of Queensland, which standard of proof must the plaintiff satisfy in relation to the facts in issue?

  1. To a standard of clear and convincing certainty
  2. On the criminal standard as a preliminary matter
  3. On the balance of probabilities Correct answer.
  4. Beyond reasonable doubt

Explanation

In civil proceedings the party bearing the onus must prove the facts in issue on the balance of probabilities, meaning the tribunal must be satisfied that the occurrence of the event was more likely than not. The criminal standard of beyond reasonable doubt has no application to ordinary civil trials.

Question 42Civil Procedure

Under the Evidence Act 1977 (Qld), a document tendered to prove a fact stated in it is generally admissible only if which requirement is met?

  1. The document is authenticated as a true copy of an original
  2. The document is tendered by the party who created it
  3. The document is proved to be part of a business record kept in the ordinary course Correct answer.
  4. The document is certified by a justice of the peace

Explanation

Business records provisions allow documents forming part of records kept in the ordinary course of a business to be admitted to prove facts stated in them, subject to the Act's conditions and any exclusionary rules. Simple certification or tender by the creator is not the governing test.

Question 43Civil Procedure

A witness in a civil trial gives evidence that she heard a bystander shout a warning just before the collision. The plaintiff tenders the evidence to prove the warning was in fact given. What is the evidentiary character of the evidence?

  1. Original evidence, because it is offered to prove the fact that a warning was uttered Correct answer.
  2. Hearsay, because it is offered to prove the truth of the bystander's warning
  3. Privileged, because it was made in the course of a rescue
  4. Opinion evidence, because it concerns the cause of the collision

Explanation

Evidence of a statement is not hearsay when it is tendered merely to prove that the words were spoken rather than to prove their truth. The utterance itself is a fact in issue or relevant fact, so the witness gives original evidence of what she heard.

Question 44Civil Procedure

Which of the following best describes the rule against hearsay as applied in Queensland civil proceedings?

  1. An out-of-court statement is admissible only if reduced to writing
  2. An out-of-court statement is inadmissible when tendered to prove the truth of what it asserts Correct answer.
  3. An out-of-court statement is inadmissible if it was made orally rather than in a document
  4. An out-of-court statement is inadmissible whenever its maker is unavailable

Explanation

The hearsay rule excludes an out-of-court representation when the party tenders it to establish the truth of the matter represented. The rule is purpose-based, so the same statement may be admitted for a non-hearsay purpose.

Question 45Civil Procedure

In a civil proceeding, a party objects to evidence on the ground that it is unfairly prejudicial. Under the Evidence Act 1977 (Qld), the court may exclude the evidence if its probative value is outweighed by which consideration?

  1. The danger of unfair prejudice to a party Correct answer.
  2. The length of the trial
  3. The availability of alternative witnesses
  4. The cost of calling the witness

Explanation

The court retains a discretion to exclude evidence where its probative value is outweighed by the danger of unfair prejudice to a party. Considerations such as cost or trial length are case-management matters, not the statutory test for exclusion.

Question 46Civil Procedure

A plaintiff wishes to rely on a statement made by the defendant in a without prejudice settlement discussion to prove an admission of liability. How should the court treat the statement?

  1. It is inadmissible because it was made in genuine settlement negotiations Correct answer.
  2. It is admissible because admissions are always receivable
  3. It is admissible only if the negotiations were recorded in writing
  4. It is admissible if the plaintiff gives notice to the defendant

Explanation

Communications made in genuine attempts to settle a dispute are protected by without prejudice privilege and cannot be tendered to prove admissions. The protection may be waived by the parties or lost where the communication is used for an improper purpose.

Question 47Civil Procedure

Which of the following communications is most likely to attract legal professional privilege?

  1. A letter from a client to a friend describing the facts of the dispute
  2. A statement given by a witness to the police
  3. A confidential memorandum from a solicitor to the client advising on the strengths of the case Correct answer.
  4. A newspaper article about the litigation

Explanation

Legal professional privilege protects confidential communications between a client and legal adviser made for the dominant purpose of obtaining or giving legal advice or for use in litigation. Communications with friends, media reports and witness statements to police do not ordinarily attract the privilege.

Question 48Civil Procedure

A witness is called to give evidence about a conversation, but the opposing party wishes to cross-examine her about a prior inconsistent statement. What is the usual course under Queensland procedure?

  1. The prior statement may be put to the witness in cross-examination, and if denied, proof may be given in certain circumstances Correct answer.
  2. The prior statement may be used only after the close of the plaintiff's case
  3. The prior statement may never be used to impeach a witness's credit
  4. The prior statement may be used only if the witness consents

Explanation

A party may cross-examine a witness on a prior inconsistent statement, and where the statutory requirements are met the statement may be proved if the witness denies making it. The rules regulate the procedure but do not prohibit impeachment on credit.

Question 49Civil Procedure

In civil proceedings, what is the effect of a formal admission made by a party in its pleadings?

  1. It is treated as hearsay and excluded
  2. It dispenses with the need for the other party to prove the admitted fact Correct answer.
  3. It must still be proved by independent evidence
  4. It operates only if confirmed by affidavit

Explanation

A formal admission in pleadings removes the admitted fact from the matters in issue, so the other party need not adduce evidence to prove it. It binds the admitting party unless leave to withdraw the admission is granted.

Question 50Civil Procedure

A party seeks to adduce evidence of a witness's good character in a civil trial to support the witness's credibility. How is such evidence generally treated?

  1. It is generally inadmissible unless the witness's credibility has been attacked in a relevant way Correct answer.
  2. It is admissible only if the witness is a party
  3. It is always admissible as of right
  4. It is admissible only in criminal trials

Explanation

Evidence of good character is not ordinarily admissible to bolster a witness's credibility, because credibility is presumed unless attacked. Where credibility is impeached in accordance with the rules, evidence may become relevant in rebuttal.