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Evidence 2016/5013 Semester 2021 Supplementary Tutorial and Revision Questions

Question 1 (All Topics) At about 1 p.m. on 12 January 2016, Mike went to his local pub, the Green Dragon, where, whilst drinking with friends, across the room he saw his friend Dom speaking to Sarah, an acquaintance of Mike’s. Mike saw them talk for a little while, and when Dom appeared to go to the bathroom, Mike saw Sarah reach out and adjust or move Dom’s drink. Dom returned to the table and a few minutes later, Mike saw Sarah leave.

Shortly afterwards Dom collapsed in the pub. Mike rushed to help him and Dom said to him, “Mike, I feel really terrible. I think that Sarah slipped something into my drink. I think that she has been gunning for me for a while.” Jen, Sarah’s partner (they have lived together for two years) was also at the pub that day, and overheard the conversation between Mike and Dom. Dom was rushed to hospital, but was declared dead on arrival. The autopsy later revealed that he died of ricin poisoning. The afternoon of the death, Mike gave a statement to Det Sgt Michelle which was reduced to writing, setting out that he saw Sarah reach out and adjust or move Dom’s drink, and what Dom said to him. The next day, Det Sgt Michelle went to Sarah’s house and knocked on the door. It was quiet and she got no response, so she picked the lock and entered. In the front room she found a small bottle of blue liquid which she pocketed. Moving to the back 1

of the house, she saw Sarah sitting in the lounge room, looking flushed. There were two empty bottles of wine, and some marijuana and related equipment on the coffee table next to her. The room smelled of marijuana. Sarah did not object to her presence, and without giving Sarah a caution, Det Sgt Michelle said to her: Michelle: "Dom was found dead at the pub today, you were the last person to talk to him." Sarah:

"Yes, Got him! That bastard won’t be stealing from me anymore."

Det Sgt Michelle then waited with Sarah for about two hours and got her to walk in a straight line, and conducted a couple of other physical tests. She then drove her to the police station. On the way she gave Sarah a caution and they then had a conversation as follows: Michelle:

“If you confess that you killed him, I can help you get a shorter sentence. If not, you are going to spend the rest of your life in gaol, and your girlfriend will be without someone to take care of her. There is no other way out of this, and after I stop this car, this deal is off the table.”

Sarah:

“Fine, I got rid of Dom.”

Upon arrival at the police station, Sarah was cautioned again, and an ERISP (Electronically Recorded Interview of a Suspect) was conducted with a video recorder. Sarah refused to say anything during the interview.

Jen initially co-operated with police, saying that she and Sarah had become estranged. She gave them a statement setting out that, at the Green Dragon on 12 January 2016, she saw Sarah slip some blue liquid into Dom’s drink, and that she heard what Dom said to Mike.

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Over the last 10 years Sarah has twice been convicted for trafficking marijuana.

In May 2016, Sarah was indicted to stand trial for the murder of Dom. Shortly before Sarah’s trial, Mike died of poisoning. The police are still investigating. A week before giving evidence, Jen told police that she did not want to give evidence. The police called her nonetheless. At the trial, the prosecution:

(a)

Sought to call evidence from Det Sgt Michelle about what Mike said to her, and also sought to tender the transcript of Mike’s draft statement. The defence objected to the evidence being admitted. The judge immediately heard the argument on this point and found the evidence admissible.

(b)

Sought to call evidence from Det Sgt Michelle about what Sarah said to her on 13 January 2016, at Sarah’s house, in the police car, and of her silence at the police station during the ERISP. Over the objection of the defence, in the absence of the jury, the judge admitted all of these conversations.

(c)

Called Dr Tanner, a trained chemist, has two years’ experience working with the police force in the forensics laboratory. He gave evidence that, in his view, the blue bottle that he was told was found at Sarah’s house contained a highly concentrated solution of ricin, and that he has seen documentary shows where a few drops put in a drink, killed within minutes. The method that he used for testing the liquid is very new and has not been peer reviewed or approved by the majority of forensic scientists.

(d)

Called Jen to give evidence. She appeared to be forgetful and refused to state that: (i)

she saw anything untoward at the Green Dragon on 12 January 2016;

(ii)

Dom said anything to Mike at the Green Dragon on 12 January 2016.

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The prosecutor immediately started to cross-examine Jen to the effect that she did see something, and that Dom did say something, but did not refer to Jen’s statement during this cross-examination. Jen continued to deny these matters. The defence objected to these questions. This was over-ruled without further discussion.

The prosecution then tendered Jen’s statement and it was

admitted. (e)

The defence cross-examined Det Sgt Michelle, getting her to concede that Sarah has never come to the police’s attention in relation to murder or violence. In reply, the prosecution then sought to adduce evidence of Sarah’s convictions. This was objected to by the defence, but the judge allowed it.

(f)

Sarah did not give evidence. The judge directed the jury that the failure of Sarah to give evidence meant that the jury could more easily accept the crown evidence.

Sarah was convicted.

Discuss the evidentiary issues that arise from (a) to (f) above.

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Question 2 (All Topics) At about 10.20 pm, on 15 April 2019, the long-distance passenger train “ Sunpiercer” derailed near Broken Hill, New South Wales. A number of passengers and crew were killed including Captain Wilford. Others were injured. A class action was commenced by some of the survivors and the families of the dead as plaintiffs, against the owners of the train service, Speedy Rail Inc, alleging that the accident was caused by the negligence of the company’s employees. The plaintiffs’ case is that the First Officer, Sam Steele, was drunk on duty and that he allowed the train to go too fast, causing the train to jump its tracks. During the hearing, over objection the following takes place:

(a)

The plaintiffs call the Passenger Manager, Melanie Mason, who gives oral evidence that moments before the train derailed, she was present in the driving carriage, in the presence of the Captain, First Officer Steele and Second Officer Fletcher. Mason gives evidence that she heard the Captain say to Steele: “Steele, you are drunk! What’s more, the Engineer tells me that you have been drinking all evening. Reduce speed, immediately!” Mason also gives evidence that she agrees with the Captain’s impression of Steele.

(b)

The plaintiffs subpoena and call Sarah Rose, the Speedy Rail Inc internal investigator of the accident, who gives oral evidence that during an interview (as part of the investigation), First Officer Steele said to her: “I had a couple of drinks with dinner that night.”

In cross-examination by the defence (on voir dire), Rose admits that at the beginning of the interview with Steele, Rose said to him: 5

“We know that you were drinking that night. We have a statement from the dining car staff that you drank two bottles of wine by yourself. If you own up to this and your mistakes, we promise to indemnify you. If not, imagine the shame that will be brought upon your family when we uncover your lies. Now is your last chance.” There is no evidence to suggest that the dinner staff had any knowledge regarding First Officer Steele’s drinking on the night of the accident. (c)

First Officer Steele is called by the defence and gives evidence-in-chief that he had not had anything to drink that day, and that the train speed was normal. In cross-examination, counsel for the plaintiffs puts to Steele that he was drunk and that the train was going too fast.

He denies both suggestions.

In

evidence-in-chief, he also gives evidence that:

(i)

He has always been honest in his dealings with his employer.

(ii)

Captain Wilford “hated him” (Steele), because the Captain did not approve of him dating the Captain’s son.

(d)

The plaintiffs tender an internal report of Speedy Rail Inc, recording that twice in the five years before the accident, First Officer Steele had hidden aboard the driver’s compartment several bottles of wine (which is not permitted). The report was prepared by the compliance and legal department, just after the accident, although such reports are usual after serious incidents. The report was accidentally attached to an email to the plaintiffs’ solicitors by someone at Speedy Rail Inc.

(e)

Passenger Manager Mason is not cross-examined. Second Officer Fletcher is not called to give evidence.

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The plaintiffs’ counsel submits that to succeed, they only need to establish there is enough evidence to show that elements of negligence are more likely than not made out. The judge accepts this. Discuss the evidentiary issues that arise out of the above.

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