Evidence LPAB Exam Paper September 2012 PDF

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The complete exam paper regarding Evidence LPAB Exam Paper September 2012 Evidence...

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LEGAL PROFESSION ADMISSION BOARD SEPTEMBER 2012 EVIDENCE Time: Three Hours

This paper consists of five questions. Candidates are required to attempt three questions. At least two questions must be chosen from Part A, students may answer one question from Part B. No question is compulsory. All questions are of equal value. If a candidate answers more than the specified number of questions, only the first three questions will be marked. All questions may be answered in one examination booklet. Each answer should start on a new page. Each page of each answer must be numbered with the appropriate question number. Candidates must indicate which questions they have answered on the front cover of the first examination booklet. Candidates must write their answers clearly. Lack of legibility may lead to a delay in the candidate’s results being given and could, in some circumstances, result in the candidate receiving a fail grade. This examination is worth 80% of the total marks in this subject.

Permitted Materials:

This is an open book examination. Candidates may refer to any books and any printed or handwritten material they have brought into the examination room.

As some instances of cheating and of bringing unauthorised material into the examination room have come to the attention of the Admission Board, candidates are warned that such conduct will result in instant expulsion from the examination and may result in exclusion from all further examinations.

©2012 Legal Profession Admission Board

PART A Question 1 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 three briefing notes. a) In the first you are to outline the arguments and authorities that can be cited in support of the admission into evidence of an Excel Spreadsheet. It shows that money labeled was from time to time paid into an account designated by the ledger as “Employee Superannuation Contributions.” This money was then transferred out of the account at the end of each six month period; there is no evidence as to where it went. The computer file in question is one of those on a USB Flash Drive found in the office of Splendid Candles on June 25. Your briefing note is also to indicate how this evidence is to be placed before the court. b) In the second you are to address the question of whether evidence that Mr. Fink was prosecuted under provisions of the Corporations Act and that a ruling was made in that case preventing him from acting as a director for the next five years. 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.

(Question 2 follows) 1

Question 2 Prospero Galateria and Con Builder are on trial charged with conspiracy to murder Michael McTurk. The prosecution calls a witness, Henry Hobbs and, after the formalities have been completed, asks as the first question: Q: What did you hear the defendant say to the man at Maroubra? The question is objected to and disallowed. The examination in chief continues: Q: Do you see anyone here in court, that you recognise? The introduction of the evidence of identification is objected to and a voire dire is held. On voire dire it is established that in the course of the investigation but before Builder was arrested or identified, the witness Hobbs was shown over 200 police photographs and identified Builder. The judge rules that the identification evidence is admissible and the question is repeated and answered. Q: Do you see anyone here in court, that you recognise? A: Yes, I recognise that man (indicating Builder) I saw him at Maroubra on (date specified)? Hobbs goes on to testify that three weeks before shots were fired at McTurk, Builder had a discussion with an unknown man at the Maroubra RSL club. A witness, who was sitting nearby, heard Builder say, “Look Prospero told me you might be interested in carrying out a hit. What would you want to pull it off?” The man addressed responded “I want $50,000 up front and $15,000 later.” Builder responded “That’s a ridiculous suggestion, I can’t agree to pay that much.” The evidence is objected to on the basis that it is hearsay. After shots were fired at McTurk, Galateria and Builder are arrested and interviewed by the police. An audio video recording of the interview of Galateria is introduced into evidence. Counsel for Galateria objects to the introduction of this evidence on the basis that Galateria was not cautioned. Nothing recorded on the tape rebuts this suggestion. The judge admits the evidence. In the recorded interview Galateria says: “I asked Con to speak to a man at Maroubra. I had information that he might be prepared to do the job but the price he wanted was too high and too much of it needed to be paid up front.” Counsel for Galateria argues that this evidence is inadmissible as hearsay; Builder asks that the jury should be instructed not to use this evidence against Builder. Comment on the evidentiary issues that arise.

(Question 2 follows) 2

Question 3 Patricia Waters is charged with a number of counts of being in possession of a commercial quantity of a prohibited substance, specifically methamphetamine. The charges were laid after the police carried out a raid on a home in Mona Vale. A substance was found stashed in three of five terracotta pots kept on her back veranda. The prosecution applies to the court for an order to authorise a visit to the premises to see the five pots. When the trial judge rules on the grounds that this would take too much time that no such order will be made, the prosecution brings one of the terracotta pots into court and invites the jury to examine that pot in the jury room, with a view to deciding whether it could have contained a commercial quantity of the substance. Kenneth Moimoi who works as a chemist in the Forensic Laboratories, Annandale is called as an expert witness. He details his academic qualifications and states that he has worked for the Forensic Laboratories as a chemist for seven years. He is asked to identify the substance and states, over objection that: “On the basis of tests conducted in my laboratory, I can confidently assert that it is methamphetamine, commonly called ice.” He is asked to state how much of the drug was found in the pot and testifies that he was personally responsible for emptying the three pots and weighing the contents and that he found 10 kg of the drug in each of the three pots. He is then asked about the commercial value of a kilogram of the drug known as “ice”. He states that “It is common knowledge that each kilogram is worth about $9,000.” This evidence is rejected by the judge on the basis that no expert is allowed to testify on the basis of common knowledge. The defence questions to the police officers who testify as to finding the drug suggest that, on the basis that five other adults lived in the house, that the decision to charge Waters was difficult to explain. The prosecution proposed to call evidence of other occasions on which Waters had been found to be in possession of prohibited substances. The court rejects this evidence on the basis that it is evidence of tendency or coincidence and thus not admissible. Comment on the issues that arise.

(Part B follows) 3

PART B Answer ONLY one (1) question from this part. Question 4 Write a case note explaining and critically analysing the significance of any ONE of the following cases in light of the Evidence Act 1995 and other case law in the area: a) b)

[2012] HCA 36 (2002) 76 ALJR 402

Question 5 It has been suggested that the provisions in the Evidence Act (1995) dealing with the competence and capacity of witnesses have swung the balance towards admissibility at the expense of reliability. Indicate whether you would agree with this proposition citing reasons for your view. In your answer you must at least include: An outline of the approach to the admissibility of the testimony of children mandated by the Evidence legislation; A discussion of the approach that is taken to the question of overcoming difficulties of communicating with the court; An analysis of the provisions that control the question of whether a member of the family of the accused is allowed to testify or to refuse to testify.

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