Problems: Admission and Use of Evidence

Problems: Admission and Use of Evidence – Weekend School February 2013

Note these problems are drawn from past exams. Typically I structure exam questions around a scenario that raise issues from several parts of the syllabus. For the purpose of this problem sheet I wanted to isolate issues relating to material covered/to be covered in the second week-end school. For this reason what you are getting are parts of questions.

Question One (September 2011)

Michael Jones, a taxi driver, is on trial in the District Court of NSW charged with the offence of dangerous driving. In the opening address the prosecutor explains that the prosecution will show that Michael Jones picked up five drunken passengers including Rodney Young in Springfield on the Central Coast and drove them to Redfern. When the taxi reached Redfern the passengers refused to pay and Young threw a bottle at Jones. Jones then started his taxi, ran down Young and reversed over him before driving away. Among the other passengers in the car were Larry, Moe and Curly. One of the witnesses called for the prosecution is Larry.

The first question Larry was asked by the prosecutor was: “What happened when the taxi arrived in Redfern?” This question was objected to, the objection was sustained and the examination in chief commenced again, with questions about when and where the five passengers entered the cab. [Do not consider this issue for the purposes of the week end school]

Larry testifies that he was asked to identify the driver of the taxi and did so by examining the photographs on the database containing the license photos of taxi drivers in NSW. The defence objects to the introduction of this evidence but the objection is overruled. Larry is asked: “What did Young say to the taxi driver when you reached your destination.” Although the defence objects that this question is designed to elicit hearsay evidence the trial judge directs the witness to answer it and he states: “Young told the driver that: ‘We have no money and no intention of paying you, thanks a lot for your time.”

Larry is asked to say what happened next and he states that I took off running, so I don’t know but Curly told me later that ‘’The taxi driver, started his car up and drove over Young”.

Comment on the evidentiary issues that arise.

Question Two (September 2009)

Kimberley Vlaar is suing Pietr Arbon, tattoo artist for damages for trespass to the person. Kimberley, now 18 years old, alleges that acting outside her instructions, Arbon tattooed 59 (fifty-nine) stars onto her face, forehead, cheeks, nose and jawbone. Arbon has entered a general denial as a defence to the claim.

1 Before the case came to court, Kimberley had told her solicitor, Karen Stenson, that “I’m not exactly sure how many stars I asked him to put on my face … maybe I’d had more than a few beers.” Karen Stenson seeks your opinion on the question of whether, if called as a witness, she would have to tell the court what Kimberley had confided to her. In the course of negotiations between the parties in an attempt to settle the dispute without litigation, Arbon’s solicitor said, to Stenson, “I admit Arbon could and probably should have got written instructions and a signed consent form before he started work.” He is concerned that this admission might be used as evidence against his client.

Question Three

Trevor Cornish has been brought to trial on charges of armed robbery. It is alleged that on the morning of Tuesday 21 October 2009 Trevor and an unidentified man carried out an armed robbery of the Commonwealth Bank on Main Street in Young.

Assume that you are the trial judge in this case which is being heard by a jury and that you have been asked to make rulings on the admissibility of evidence in the following circumstances:

(a) The prosecution call a witness, Harriet Jones who is identified as a teller in the said bank. She states that a man walked up to the counter pointed a gun at her and said: “This is a hold up …. I want you to put all the money in the sack.” The defence object to the reception of this evidence on the basis that it is hearsay and further that it is prejudicial to the defence.

Question Four (September 08)

Fred Nerk is on trial before a judge and jury in the Criminal Division of the Supreme Court of New South Wales charged with the manslaughter of his ten-month-old son, Patrick. The prosecution alleges that on 12 December 2006 Fred had agreed to drop his son off at the day care centre. He put the child in the car seat in the rear of the car but forgot he was there. He left the car in the parking lot outside his place of work in Parramatta. The temperature that day reached 36º C. When Fred returned to the car at noon the child was dead.

The prosecution calls as a witness Dr Julia Lo, a paediatrician who is on staff at the Children’s Hospital in Sydney. Dr Lo testifies that she has read several studies of experiments run to determine the effect of the surrounding temperature on the temperature in a closed car standing under full sun. This evidence is objected to on the basis that it is outside her area of expertise and is hearsay but the judge dismisses the objection. Dr Lo further testifies that in her opinion, if as these studies suggest, the temperature in the car had reached 46ºC within 40 minutes, the child would have died within an hour. Finally, she testifies that, in her opinion the death was due to criminal

2 negligence on the part of Fred Nerk. The defence objects that the final statement by the expert goes to the ultimate issue. The judge agrees, and accordingly excludes this evidence.

Discuss the evidentiary issues which arise.

Question Five (September 06) Damon Karger is on trial for the murder of Gloria Angstrom. The prosecution allege that the victim was strangled with an article of her own clothing, a camisole. She had been found at 11 am, lying on her bed face down fully clothed but her skirt, underpants, blouse and bra had been cut with a knife so that her back and legs were exposed. She had been sexually assaulted.

The prosecution call W who testifies that she had a sexual relationship with the accused. She describes their sexual activities as “experimental”. She testifies that at one time she had awoken after a night spent with the accused to find that he had cut the underclothes she was wearing off her. The defence object to the introduction of this evidence but are unsuccessful in excluding it.

Assume you are the judge in this case and indicate how you would rule and why?

Question Six

George Gropard is brought to trial on charges of having sexually assaulted and murdered Nancy Nabal. In the course of the investigation Gropard was asked to assist the police with their inquiries and taken to the police station. There he was interviewed about his movements on the night of 14 April. No caution was administered before the interview began. Gropard told the police that he had been nowhere near the carpark on the evening and stating that he had no knowledge of the suitcase. The prosecution are allowed to argue that these lies are evidence of guilt. Comment on the admissibility of this evidence and on whether the prosecution can make the argument.

Question Seven

In the light of what has been called “the overwhelming cynicism of the age, that is the tendency of most people to distrust others”, it has been suggested that the approach of the law that forbids a party to call evidence to support the credit of their own witnesses is perhaps misplaced.

3 Comment on this suggestion indicating whether you think the approach is justified and, if so, why.

Include in your answer at least: a) An outline of the statutory provisions that apply to control the use of credibility evidence, comparing the position that applies when the witness has been called by a party and is being examined in chief by that party and the position that applies when the witness is being cross-examined;

b) A discussion of the provisions that apply where a witness called by a party has been found to be “unfavourable” to that party;

c) An evaluation of the credibility rule with rules of evidence that apply in other contexts designed to limit the length and cost of a trial.

Question Eight

Tom, Dora and Harry who were employees of Splendid Candles between 2005 and June 23 2010 are suing Splendid Candles and Felonious Fink, its managing director and sole shareholder in an attempt to recover their superannuation. You are a junior at the bar assisting Sylvester Silk QC who represents the plaintiffs.

In advance of the trial you are asked to prepare (a number of) briefing notes.

c)In the third you are to advise on whether evidence can be adduced to show that Mr. Fink awarded himself a 60% pay rise on April 15 2011 at a time when the debts of the company were becoming a major problem and that this money was paid into his account every fortnight for the next two months. You are told to assume that this evidence will be objected to on the basis that evidence of the bad character of the defendant is inadmissible.

At the end of the trial you are asked to prepare a final briefing note addressing:

d) The judge’s comment that, because the evidence for the plaintiffs suggests that the defendant Fink was acting in a way that members of the community would condemn as showing a lack of business ethics, the evidence will need to go further than merely showing a probability.