LLB303 Written Advocacy PDF

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LLB303: WRITTEN ADVOCACY WORD COUNT: 1406

REPRESENTING: BILL

1. AUDIO FILE AND EMAIL

1.1 RELEVANCE The audio file,1 and sent email containing it are relevant documents2 to the fact in issue, in that they form a portion of the threat to murder Sam.3

1.2 EXCLUSION Bill’s statements in the audio file would be classified as hearsay because it is an out of court assertion and is being admitted to prove the truth of its content as it indicates guilt on the part of Bill.4 On the facts, none of Bill’s statements make up any portion of the issue of threats to murder in document. 5 The statement, “We should have Sam taken care of - permanently”, is not an express, nor implied assertion related to the issue, but rather it is Ben’s belief of what that statement may entail which could be considered original evidence, as in the case of Walton v The Queen.6 Whilst, the statement “You can play that audio recording back to Sam for all I care, it would be good to put a scare into the bastard”, constitutes evidence of Bill’s consent to the document in question being sent to Sam at the time of the creation of the audio file, 7 this evidence is likely to be found irrelevant and untrustworthy.8 On the facts, Bill and Ben had been drinking heavily at the time of the recorded conversation, and as such, a genuine understanding of Bill’s state of mind cannot be drawn due to his intoxication.

Contrastingly, the audio file and email may be admitted through the exception of the Res Gestate Doctrine. As in the case of O'Leary v The King,9 evidence which relates to character and intent may be relevant in the context of a connected series of events, which form an integral part of the ‘story’ of what happened. Therefore, whilst the audio file may be considered inexplicable as an isolated insident, its existence alongside other evidence may amount it to being relevant on grounds of establishing Bill’s character.

Furthermore, the audio file and email may be admissible as original evidence simply to prove the fact that the statements were made, and not for their contents.10 The email separately is the fact in 1 Queensland Evidence Act 1977 (Qld) s 92(4). 2 Ibid Sch 3.

3 Goldsmith v Sandiland (2002) 190 ALR 370 (‘Sandiland’). 4 Subramamiam v Public Prosecutor [1956] 1 WLR 965 (‘Subramamiam’). 5 Criminal Code 1899 (Qld) s 308(1).

6 Walton v The Queen (1989) 166 CLR 283 (‘Walton’). 7 Walton (n 5). 8 Teper v The Queen [1952] 1 AC 480 Lord Normand at p 486 9 O'Leary v The King (1946) 73 CLR 566. 10 Subramamiam (n 3).

issue as it is the document in question, pursuant to s 308(1) of the Criminal Code. It is important to establish whether the identities of Bill and Ben are asserted in the audio file, whether expressly,11 or implied.12

1.3 CONCLUSION Where oral evidence would be admissible, so too is a statement contained in a document produced by a device, such as an audio file.13 Thereby, given the email and the audio file enclosed within it are documents in question, both items will likely be admitted as evidence.

2. PHOTO ON BILL’S PHONE, PRINT OUT OF PHOTO AND FAX SENT TO SAM

2.1 RELEVANCE The photo in all three forms is relevant to the act in issue as it is the original image from which the documents threatening to murder came from. Further, the photo specifically identifies Bill as the person in the photograph.14

2.2 EXCLUSION The content of the photo is an out of court statement and is thereby considered hearsay and is inadmissible.15

2.2.1 FAX SENT TO SAM Nevertheless, the faxed document should be admitted on the basis of the document in and of itself being the fact in issue.16 Whilst a fax can practically be traced to the number it was sent from, and assumedly the fax in question could be traced back to Bill, this does not necessarily confirm authenticity. Although identification regarding who sent the document is lacking, 17 the nature of it being a blotched-out photo of an unidentified man holding a knife to his throat provides proof that the threat was made,18 thereby amounting to admissibility.

2.2.2 PHOTO ON BILL’S PHONE

11 Myers v DPP (1965) AC 1001 12 Walton (n 5). 13 Queensland Evidence Act 1977 (Qld) s 95(1). 14 Sandiland (n 3). 15 Subramamiam (n 4). 16 Ibid. 17 Ibid. 18 Ibid.

The document may be found admissible on grounds that it is relevant to a fact in issue, regardless of the truth of its assertion.19 The components of the photo which may be important to the circumstances of the creation of the document in question is the timestamp, and fact of existence on Bill’s phone – which in the context of all other evidence, contributes to Bill’s guilt. It may be important to know the time and date of when the photo was taken, for the purposes of showing Bill’s knowingness of the threat in fax form being sent. Further, it may be important to establish the authenticity of the original image. The fact of the photo evidencing its coming into existence on Bill’s phone asserts that it is not simply an edited photo, and that Bill directly played a role in its creation. The relevance of these components in proving Bill’s guilt to sending the fax containing the threatening photo is not dependent on the truthfulness of these assertions however. These components of the document may lend it to being considered both real and documentary evidence., in which case it may be exempt from exclusionary rules. 20

2.2.3 PRINT OUT OF PHOTO As the content of the photo is more relevant, rather than the piece of paper it was printed out on, the paper would not be submitted as real evidence.21 Whilst the printout of the photo does not amount to hearsay exceptions due to its lack of direct relevance to the fact in issue and Bill’s character,22 a statement in a document may be proved by authentication by producing original document.23 In this case, the print out may be admitted for the purposes of authenticating the fax sent to Sam. The best form of evidence to demonstrate that a fax was composed sent would be to bring the original faxed material – in this case the printout photo with markings.24

2.3 CONCLUSION All three documents are likely to be admitted. The fax document is admissible due to it being the document in question, pursuant to charge of threatening to murder in document. The photo on Bill’s phone may be found admissible due to its factual components, thereby admitting it as real evidence. Lastly, the printed-out form of the photo may be admitted on grounds of the ‘best evidence rule’.

3. PAPER PINNED TO SAM’S DOOR 19 Ibid.

20 Line v. Taylor (1862) 3 F. & F. 731. 21 Ibid. 22 Ibid. 23 Queensland Evidence Act 1977 (Qld) s 96.

24 Commissioner for Railways (NSW) v Young - [1962] HCA 2

3.1 RELEVANCE This document is relevant in that it provides evidence of a document relevant to the questionable issue of threat to murder.25

3.2 EXCLUSION Due to the written document being an out of court statement, it is hearsay and therefore inadmissible.26 Although the paper may be admissible as original evidence simply to prove the fact that the statement was made, and not for its contents.27 Furthermore, the document in and of itself is the threatening document in question, thereby making it admissible.28

Though the CCTV recording of the paper being pinned to Sam’s door was erased, an oral recollection of the process of watching the video may be given by Sam, such as in Taylor v Chief Constable Cheshire.29

The usefulness of the paper evidence is limited considered its lack of information regarding the identity of its creator, and the circumstances which led to it being pinned on Sam’s door. Therefore, it may still need to be tendered to prove the content’s assertions. In this case, Mal – the apprentice Bill asked to carry out the pinning of the document – would be required to testify. In the case that Sam provided an oral recollection of the CCTV recording, Mal would have been identified as having supposedly pinned the paper to the door, further necessitating his oral statement. Whilst s 21A of Queensland Evidence Act 1977 protects potential witnesses whom may be disadvantaged as a result of mental, intellectual or physical impairment, 30 it is the fact of Mal’s dyslexia which is relevant to proving Bill’s guilt. The admissibility of the paper document due to exclusionary rule grants a related statement as admissible evidence.31 Though, whether Mal constitutes a special witness is at the court’s discretion,32 and whether he is available to give evidence in the proceeding is at his own discretion.33

25 Sandiland (n 3). 26 Subramamiam (n 4). 27 Subramamiam (n 4). 28 Ibid.

29 Taylor v Chief Constable Cheshire [1986] 1 WLR 1479 30 Queensland Evidence Act 1977 (Qld) s 21A. 31 Ibid s 932. 32 Ibid s 21(b)(i). 33 Ibid s 93A(1)(b).

The document may only be found relevant if there are identifying features related to Bill. Specifically, if the document was handwritten it may be traced back to Bill via proof of handwriting given by testimonial evidence.34

3.3 CONCLUSION The paper is likely to be admitted as original evidence as it proves the documented threat in question. Though, its contents may require further evidence be called upon; namely, in court oral statements by both Sam and Mal.

34 Ibid s 59....