Sample/practice exam Autumn 2016, questions and answers PDF

Preview

Summary

2011 S1 ...

Description

LAW4323 – 2019 S2 Practice Exam Question 1: Part A: Relevance This case involves evidence adduced from three former students whom accuse Mr Anderson of sexual assault in 1991. The prosecution seeks to adduce evidence detailing the boys’ accounts to suggest Anderson’s tendency to sexually assault minors, or some coincidence that points to Anderson’s involvement in the three charges. Where this evidence increases the likelihood the offences charged have been committed by Anderson. This is indirect evidence as it has been adduced for a circumstantial or tendency purpose. Per s 55 this evidence is relevant as – were it accepted by the jury – it could rationally affect the probability that Anderson committed the charged assaults. The evidence is therefore admissible (s 56(1)).

Tendency The prosecution would initially seek to adduce the boys’ accounts to indicate a tendency by Anderson to sexually assault minors. Where that tendency makes it more likely that Anderson has committed the three offences now charged. Anderson’s defence will argue that such evidence is inadmissible to prove a tendency per s 97(1).

Notice Requirements Where the prosecution wishes to adduce tendency evidence, they must give notice stating the details of the boys’ account including time, place, and who witnessed the conduct (s 97(1)(a); Velkoski).

Significant Probative Value For the complainants evidence to be admissible the prosecution must convince the Court that the evidence has significant probative value ( ss 97-98) – abolishing the prior common law rule requiring ‘no other rational view’ for admissibility from Hoch and Pfennig. We must firstly look to whether the accounts are probative of a tendency by Anderson, and if that tendency has manifested in relation to the charged acts. OTF the

three accounts given by the former pupils shared many similarities. The alleged conduct occurred when each was in Year 7, and involved in the school’s football team. Each was approached by Anderson whom offered to provide them with ‘individual after-school coaching’. The assaults each follow a similar pattern: that Anderson approached each when showering alone, offering to help ‘clean themselves properly’, before touching their penises. The conduct itself carries no remarkable or distinctive features (i.e. this is conduct a regular paedophile would engage in). However, the repeated offending all shared a modus operandi ( Pfennig; Ellis). Which saw Anderson isolate each boy after school with promises of individual coaching, before cornering them in the shower where they would be out of view of witnesses. Generally offending frequency does not provide greater probative value, however the Court may view the repeated similarity and nature of the offending in the individual accounts as imparting more probative value ( AE v R). The defence will likely argue that the similar accounts between the complainants is attributable to a concocted story developed by the three in unison. They will point to their close friendship (which has been maintained for decades), and that they had each been caught smoking and dropped from the football team at the time as evidence of a lying motive ( Hoch). Each of the complainants has claimed that they remained silent about the offending due to embarrassment and shame. Looking to Boardman, the real similarities between each boys’ account suggests it improbable that the allegations were concocted. The evidence is likely substantially probative in proving that Anderson held a tendency to sexually assault which manifested in relation to the charged acts.

Prejudicial Effect The tendency evidence may still be inadmissible its probative value does not substantially outweigh the prejudicial effect that evidence will have on Anderson’s case ( s 101(2)). Here there is likely some risk the evidence will have an undue impact on the jury given the age of the complainants at the time of the offending. Further, the repeated and similar accounts adduced by the prosecution may lead the jury to overestimate the probative value of these accounts. With multiple stories signalling to the jury that the defendant engaged in a repeating course of conduct, whilst this has yet to be proven. Given this case rests on the complainants accounts, its probative value likely substantially outweighs this potential prejudice the defendant may experience. This evidence may be adduced to establish a tendency by Anderson.

Coincidence Where the evidence has been deemed inadmissible as tendency evidence, it may still be adduced for a coincidence purpose. Here, the prosecution will argue that having regard to the similarities in the complainants accounts that it is improbable the three events occurred coincidentally. The defence will likewise seek to rule the evidence inadmissible per s 98(1).

Per discussion above, the striking similarities between the three accounts suggests it improbable that these accounts were concocted. These accounts are significatically probative in establishing the events did not occur coincidentally.

See above discussion on prejudicial effect.

This evidence may be adduced to establish it improbable that these events occurred coincidentally.

Discretions Even if the accounts are deemed admissible to prove the tendency or lack of coincidence, the Court retains discretion to exclude the evidence under ss 135 – 137.

Question B: Relevance To be relevant to the proceedings, AF’s recorded conversation with Anderson must be capable of rationally affecting (directly or indirectly) the assessment of the probability of a fact in issue (s 55). The recorded conversation serves as a guilty admission made by Anderson in respect of the charged acts, thereby directly affecting the assessment of the probability of Anderson’s guilt in this matter. Accordingly, the recorded conversation is relevant and therefore admissible (s 56(1)).

Admissions As a party in the proceeding, Anderson’s recorded discussion in which he represents that “I’m sorry. I don’t want to say what I did” is an admission (Dictionary, Part 1).

Admissible? The recording is an admission, and therefore the hearsay and opinion rules will not apply to exclude it ( s 81(1)). Note, AF was a party to the recorded conservation hence this evidence is first-hand hearsay (s 82). OTF this admission has been proffered to AF voluntarily (s 84; McDermott). Per s 85(1) as this is a criminal proceeding, where Anderson has made an admission to AF this may be deemed inadmissible unless the surrounding circumstances make it unlikely that its truth was adversely affected ( s 85(2)). The Court, without limiting, must have regard to s 85(3)(a) factors. OTF it is not suggested that Anderson displays any characteristic or condition that may affected his statement’s truthfulness. It is arguable that AF’s comment “Looks like they don’t believe us though. Nothing seems to be happening” may have influenced Anderson’s decision to confess. Particularly where AF continues stating “I don’t really want you to go to jail. I just wish you would say you were sorry.” Whilst Anderson may have felt an admission would allow AF to ‘move on’ and not seek to prosecute, AF was not actually capable of influencing a decision to prosecute at the time of the admission. The truth of this admission is ordinarily a jury matter (Zhang).

Excluded? Per s 90 the Court may refuse to admit the prosecution’s recording where having regard to the circumstances it would be unfair to Anderson to use. Anderson will likely argue that AF attempted to circumvent their right to silence. The accused had previously attended a police interview where after legal advice they had determined to exercise their right to silence during police questioning. It was after this interview, and unbeknownst to the police, that AF had bumped into the accused intending to elicit an admission. Generally the Courts view such circumvention as unfair to the defendant, though usually in relation to circumvention by a police officer. The mere trickery employed by AF to obtain the admission through covert recording is likely insubstantial, where the Court is unlikely to deem such acts unfair to Anderson. Accordingly, the Court will not exclude the recorded admission.

Given that reliability under s 85 has been established it is unlikely the Court will employ their discretion to exclude the evidence under ss 135 – 137.

Question C: Despite being admissible under s 98, the recorded conversation may nevertheless be excluded where the conversation was recorded illegally ( s 138). The Court must balance the competing public interests of the desirability of admitting the evidence against the undesirability of admitting illegally obtained evidence (Bunning v Cross; s 138).

Exclude? OTF the recorded was made unlawfully, the prosecution therefore bears the onus of satisfying the Court that the balancing test in s 138(1) is resolved in favour of admission – after applying s 138(3) mandatory other relevant factors. The admission is: (a) highly probative in affecting the jury’s assessment of Anderson’s guilt ( Ridgeway), (b) important to the case where there is little other evidence in which to determine guilt, (c) concerns serious allegations of sexual assault, and (d) the gravity of illegality employed by AF likely minor (thought not entirely known OTF). In considering these factors, the Court is likely to determine that the desirability of admitting the recorded conversation outweighs the undesirability of admitting due to its illegality.

Question D: Dora’s evidence regarding AF’s statements are prima facie inadmissible to prove that Anderson had sexually assaulted AF as it was a previous representation made by AF in which they reasonably intended to assert that Anderson had sexually assaulted them (s 59). This evidence may still be admissible when an exception to the hearsay rule applies.

Hearsay AF’s statement to Dora is a representation made by a person ( Dictionary). The statement asserts that Anderson touched AF (Walton). The statement has been adduced to prove that Anderson did in fact sexually assault AF. It is clear that the representation made to Dora was intended to assert that Anderson had sexually assaulted AF ( s 59(1)).

OTF Dora’s evidence is hearsay, and will be prima facie inadmissible ( s 59) unless an inclusionary exception applies.

As this is second-hand hearsay, and the evidence does not have another purpose with which to be adduced, it is unlikely that any exceptions to the hearsay rule apply. This evidence is therefore inadmissible.

Question E: Anderson, as the accused, is not compelled to give evidence. The defence may however choose to adduce evidence as to Anderson’s good character. Such evidence can be deemed relevant as it may influence Anderson’s credibility, or the likelihood that they have committed the offences charged....