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Question 1 Kenny worked for Honest Joe’s Caryard (HJC), a large car dealership on the outskirts of Brisbane. Since the global financial crisis, car sales were down and sales of aftercare products were hit particularly badly. At the same time, Kenny’s wife Julie lost her job and home mortgage interest rates were all over the place. Kenny and Julie fell behind on their mortgage payments. Eventually, their lender foreclosed and their home of a decade was sold out from under them for much less than its true value.

One day, Kenny discovered that HJC, through its complex commissions structure, and with the help of some rigged payroll software, had been ripping off its sales staff for years. Kenny was furious at Joe. What a greedy pig Joe was! (Joe was the owner of HJC). That night, there was a fire at HJC’s showroom. No one was hurt, but the damages bill ran to several hundreds of thousands of dollars. The damage included the destruction of HJC’s payroll records, but similar information was found in email correspondence between Joe and Larry, Joe’s IT consultant.

The next day, Police executed a validly issued warrant at Kenny’s house. In the garbage bin, they found a receipt dated the previous day from Supercheap Auto (a retail store specialising in automotive supplies). The receipt was for a cash purchase of a large 20 litre plastic fuel container and two packets of high-octane fuel accelerants. The cashier’s name and staff number were printed on the receipt: Dave 602312. That was the staff number of David Carr. He has since retired from Supercheap Auto. The store manager believes that he has moved to Victoria to be closer to his grandchildren, but has no contact address for him.

Police investigators formed the view that the fire was no accident and, about a week later, they charged Kenny with arson under s 461 of the Criminal Code (Qld): CRIMINAL CODE - SECT 461

(1) Any person who wilfully and unlawfully sets fire to any of the things following, that is to say; (a) a building or structure; (b) a motor vehicle, train, aircraft or vessel; (c) any stack of cultivated vegetable produce, or of mineral or vegetable fuel; (d) a mine, or the workings, fittings, or appliances of a mine; is guilty of a crime, and is liable to imprisonment for life. (2) It is immaterial whether or not a thing mentioned in subsection (1)(a) or (b) is complete.

The trial was heard in the Supreme Court of Queensland. Police obtained a forensic report about the cause of the fire, prepared by a chemist for ABC Forensic Chemistry Services, Maria Curae. Curae has a Bachelor of Applied Science from QUT granted in 1995 and a PhD granted in 1999. Her PhD thesis concerned munitions and explosives residues. After being awarded her PhD, she spent 10 years working with the Scotland Yard Terrorism Investigation Squad as an explosives investigator. Then in 2009, she returned to Australia to work for ABC Forensic Chemistry Services where she continued to work on munitions and explosives detection. She has published extensively in this area. Since 2013 she has broadened her area of professional interests to include arson investigations. This area of interest was tweaked by her extensive service, since returning to Australia, as a volunteer fire-fighter with a local rural fire brigade. She has published twice on the use of electronics to enable remote ignition and has received a grant from the Insurance Industry Association to research fire mitigation methods in commercial buildings. She has also returned to QUT, where she works as a sessional tutor in a chemistry unit for the Science and Engineering Faculty and a forensic investigations unit for the School of Justice. The substance of Curae’s report is that scientific analysis of materials taken from the HJC site after the fire shows trace residues of an accelerant, most likely to be a high-octane fuel of the type used in racing.

Kenny’s defence team arranged for their own forensic report, prepared by a retired police inspector, Callhan. Callhan has no science degree or academic qualifications, but he did work in the arson squad for 20 years until his retirement last year. Although he had no formal university training, he attended at least 10 days of professional development training every year, which included things like attending forensic arson investigation conferences and doing short courses on arson-related subjects. Additionally, as part of his job, he kept abreast of all the latest scientific techniques in fire investigation by reading academic journals. The substance of his report is twofold: The method of analysis used by Curae will give a positive reading for substances other than high-octane fuel when samples have been refrigerated prior to testing. The research published in the scientific journals make it clear how the samples should be stored prior to testing, that is, between 12 and 25 degrees Celsius (in other words, room temperature). The fact that Curae refrigerated the samples prior to testing has therefore rendered them effectively useless because they will now test positive to a range of possible accelerants.

Callhan inspected the scene the morning after the fire and could smell traces of alcohol on some charred rags in an alcove at the back of the building. Callhan knows, from his experience as a police officer, that this area is used regularly by homeless people at night because it is sheltered from wind and rain. These people frequently drink cheap alcohol and even methylated spirits. In Callhan’s view, the fire could have started in that alcove and the accelerant could have been alcohol. Somehow, the rags were not seized by the crime scene investigators, so they were never subjected to forensic analysis (but the existence of some crumpled material in that alcove is corroborated by crime scene photos taken by police). During the trial one juror, intrigued by Callhan’s explanation, decides to visit the area at night by himself, and he finds that there are indeed homeless people drinking alcohol there. He also spots what looks like the charred remains of a rag in the alcove.

Kenny is acquitted at first instance. Although no appeal lies from an acquittal on indictment, the Office of the Director of Public Prosecutions is concerned that the Crown prosecutor may not have performed well. You have therefore been tasked with

preparing an advice as to whether any evidentiary issues ought to have been raised with the court by the prosecution.

[TOTAL: 30 MARKS]

Question 2 Mr Q has been convicted of one count of sexual assault pursuant to s 352(1(a) of the Criminal Code 1899 (Qld) and one count of rape pursuant to s 349(1) of the Criminal Code 1899 (Qld) in the District Court at Brisbane. He has asked you for advice as to any potential grounds of appeal which may arise in relation to evidentiary issues from his trial.

The complainant, Ms Z, works in a coffee shop in the Brisbane suburb of Oceanside. The following facts were not in dispute at trial. On the material day, Ms Z had arranged to work an afternoon shift. In the morning she attended at her local GP surgery to have a boil on the side of her neck lanced and dressed. She wore a pair of denim shorts and a loose fitting singlet in order to give the doctor easy access to the site of the boil and to avoid any rubbing of clothing around the site after the procedure. The doctor surgically lanced the boil and dressed the wound with a bandage, which was visible outside her clothing. After she left the surgery, the complainant filled a prescription at the pharmacy and immediately took two analgesic tablets (containing 30mg of codeine each) and some antibiotics. She then set off to walk to work, which would take her about 40 minutes. It was a very hot day and her evidence was that after walking for about 20 minutes she became quite nauseous and dizzy. She took a wrong turn down a street she did not know and became disoriented. She sat down on the grass curb next to the street. About 10 minutes later, the accused, who was unknown to Ms Z, drove slowly past in his blue station wagon. He asked her if she was OK. She replied that she was unwell and did he know where the nearest hospital was. He said that he did and that he would drive her there. She agreed and got into the front passenger seat. Ms Z explained what had happened that morning and the accused said that he should really check her temperature and pulse. He placed his hand on her forehead and then on her chest.

Events following this were disputed at trial. Ms Z asserted that she became quite frightened when the complainant put his hand on her chest and in her agitated state was unable to move or speak. She claimed that he then said he needed to get a better contact with her pulse and put his hand beneath her singlet and bra and on her bare breast. She told the accused that she was very disoriented and that she would prefer not to be touched. She claims he continued to grope her breast and told her that she had a beautiful body. The Crown alleged that this constituted the charge of sexual assault. She tried to brush his hand off and said ‘Where is the hospital?’ He replied that he needed to make a stop first. He drove the car into a secluded park and stopped. He then forced his hand down her jeans and digitally penetrated her. This constituted the rape charge. She managed to escape from the car and ran into a local shop where she called a taxi to take her to the hospital.

The accused’s version of events at trial, was that Ms Z had consented to having her breast fondled. He claimed that the incident involving the digital penetration never occurred. The defence case was that the accused was so affected by the medication and the heat that she was delirious at the time of the alleged offences and her account of the events was therefore unreliable.

At trial the Crown tendered no forensic or physical evidence of rape. Crown witness, Ms K, was a triage nurse from the emergency department at Oceanview Public Hospital. In her oral testimony Ms K gave evidence that as the complainant had run into the department, she was accompanied by a man in a taxi company uniform who called out ‘She’s been attacked! Please help this lady!’ The witness said that both the complainant and the man in the taxi uniform, had appeared quite distressed and upset. In addressing the jury, the Crown prosecutor later told them that this was evidence both that Ms Z was clearly upset by something at the time and evidence that the cause of this was that she had been attacked. The taxi driver refused to give evidence himself, on the grounds that it would be against his religious beliefs to do so.

Another Crown witness, Mr Y, had been walking his dog in the park where the offences allegedly occurred. His evidence was that he saw the driver of a blue station wagon ‘putting his hands all over a girl in the front passenger seat’. He said that he observed her exit the car and flee. He then walked over to the driver’s door and asked

the man through the open window ‘Why were you attacking that girl? That was disgraceful!’. The witness gave evidence that the driver remained silent but had thrown a wild punch at him through the window, which missed. In his summing up to the jury, Her Honour the trial judge told them that if they accepted as true, this reaction by the accused as described by Mr Y, that they were entitled to see it as evidence of an admission to the accusation that he had’ attacked’ the complainant.

Another Crown witness, Constable W, testified that the accused was identified as the registered owner of the station wagon fitting the description given by the complainant. Constable W testified that when questioned by police about whether he picked up anyone the day before, the accused had admitted ‘There was a girl who was sick and I took her to the hospital’. While in the accused’s home, Constable W noticed a woman’s handkerchief on a side table, which he pocketed without bringing it to the attention of the accused. At trial this handkerchief was identified by Ms Z as belonging to her.

In cross-examination, the complainant accepted that the medication made her feel lethargic, dizzy and somewhat confused. She also confirmed that she was taking a daily dose of 20mg of an SSRI drug to treat moderate depression at the material time. A retired paediatric psychiatrist, Dr D, was called as a medical expert. Dr D gave evidence about the drugs the complainant had taken on the material day and their effects and possible interactions. His view, based on 28 years of clinical experience, was that codeine could interact with the anti-depressant medication, resulting, in extreme cases, in serotonin syndrome causing confusion, hallucinations and serious memory loss.

Advise Mr Q as to any evidentiary matters which ought to have been raised or objected to at the trial. Further advise him as to whether you are of the view that, on the basis of your analysis of these issues, there are grounds on which he could appeal his convictions. In your answer, refer to any relevant statutory provisions and case law. [TOTAL: 30 MARKS]

Question 3 Part (a)

Adam is charged with the murder of his wife, Sandy on 15 December 2013. The prosecution alleges that Adam was alone at home with Sandy on a Sunday afternoon. Sandy confronted Adam about an affair he was having with the local real estate agent Megan. The prosecution theory of the case is that Adam relied heavily on Sandy’s family money to fund his property development business. Sandy told Adam she would not keep funding his property developments if he was having an affair. Adam allegedly assaulted Sandy causing several deep lacerations to her arms and face he then strangled her and disposed of her body in Enoggera Dam. Adam had recently signed up to purchase a large piece of land in Samford. He needed Sandy’s money to complete the purchase.

Megan and Adam were married while Adam was on bail awaiting trial.

Megan has been called as a prosecution witness to give evidence at trial. The following is the relevant extract of what occurred when she gave evidence in chief. Q.

You told us earlier in your evidence that you went to Adam’s house on the

evening of 18 December 2013? A.

Yes, that is correct

Q.

Please tell the court what you observed when you arrived at Adam’s house that

night. A.

I went inside but it’s ages ago and I can’t really remember.

Q.

Can you recall what you saw when you went inside?

A.

Nope, can’t recall

Q.

Was anyone there when you went inside?

A.

Nope too long ago, but Adam is my husband and I know he would never hurt anyone

Q.

Why did you go to Adam’s house on that evening?

A.

I was driving by and saw that Sandy’s car was not there so I went in to see Adam. I can’t help you with any more questions.

In late February 2014 after returning from New Zealand Meagan provided the police with a statement: “Adam called me on my mobile phone at 4.30pm on the 15th of December he was hysterical and sobbing he asked me come over as something terrible had happened. I went to Adam’s house at 7 Bolland St Samford when I arrived he answered the door he looked terrible and told me Sandy had gone missing and he didn’t know what do to. He asked me to help clean up the lounge before he phoned the police, as he didn’t want the police to see what a mess it was. There was broken glass and what looked like blood on the corner of the glass coffee table. I helped clean up the lounge including the coffee table and then he called the police to report Sandy missing. That evening I caught a plane to Queenstown in New Zealand as I had pre-booked a camping holiday there for two months.

During the investigation into the death of Sandy, a police officer tasked with obtaining forensic evidence relating to the case visited Adam’s office. Adam was not present and the officer told the receptionist that Adam had given permission for him to search the premises. The officer did not have or obtain a search warrant and did not have permission from Adam to search the premises. The police officer removed Adam’s desktop computer. The prosecution now wishes to produce evidence found on the computer in the trial against Adam. On the 15th of December 2013 Sylvia was training for a marathon and was running around her favourite track at Enoggera Dam when she saw a red Mercedes M-class SUV with the number plate “0IWIN0” parked down near the dam with the boot open. She saw a man pull something out of the car and drag it into the water. Sylvia thought this looked very suspicious and noted down the number plate “0IWIN0” a description of the vehicle, the person and the location in the notes pages of her mobile phone. She then returned to the information centre and phoned the police.

(i)

Discuss whether Megan is competent and compellable to give evidence.

(ii)

Referring to the relevant statutory provisions and case law discuss what options are open to the prosecution regarding Megan’s evidence and what procedures should be followed.

(iii)

Discuss any discretion the Judge may have in relation to the evidence obtained from Adam’s office. Do not discuss the Police Powers and Responsibilities Act 2000 (Qld) or the admissibility of the computer evidence.

(iv)

While giving evidence for the prosecution Sylvia cannot recall the number plate or the type of vehicle. Discuss the options open to the prosecution and how they should proceed. [20 marks]

Part (b) George was cycling along Adelaide St in the city at 8am on a Friday morning when a taxi hit him, knocking him off his bike. The taxi continued on without stopping. George is the plaintiff in a civil action alleging negligence against the taxi driver (Samuel) and the owner of the taxi Cheap Fares Pty Ltd. George claims personal injury and nervous shock.

In evidence in chief George gave evidence that it was Samuel’s taxi that hit him that day on Adelaide Street and it did not stop but continued on.

Jenny was walking along Adelaide Street and gave evidence for the defence that she was waiting to cross at the lights when George biked through a red light and was hit by Samuel’s taxi. The light was green for Samuel. Counsel for the plaintiff crossexamined Jenny.

Q.

Why were you on Adelaide Street that day?

A.

I was taking some proofs to the printer for XYZ Travel Ltd to discuss a botched print order and an outstanding invoice.

Q.

You were going to the printer?

A.

Yes, or I might have already been there and was on my way back.

Counsel for the plaintiff wishes to have entered into evidence, the fact that Samuel was convicted of one count of Dangerous Operation of a Vehicle pursuant to s328A Criminal Code 1899 (Qld) as a result of the collision in which George was injured.

Counsel for the defence wish to call as a witness, the administration officer for the printing firm, who will testify that Jenny did not come into the printers that day and that there was in fact no outstanding invoice owing by XYZ Travel Ltd Pty.

Advise as to any evidentiary issues which arise in relation to the evidence and crossexamination of Jenny, in relation to the admissibility of the criminal conviction and in relation to the potential testimony of the administration officer. [10 marks]

[Total: 30 MARKS]

QUESTION 4 Part A Clarence, who is 9 years old, lives with his father Wayne in a boarding house in Cherbourg, Qld. One Friday night when the football was on, Wayne had a couple of friends over for drinks and a BBQ. Unbeknown to Wayne, an old acquaintance of his, Cyril, has just been released from a term of imprisonment for alcohol and...