Sample/practice exam Winter 2013, questions and answers PDF

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Monash University, Faculty of Law LAW5159 – EVIDENCE Semester 2, 2010 SAMPLE “HD” EXAM NO. 2 The following is the transcript of an exam which achieved a “High Distinction” grade. This assignment is being made available to students enrolled in LAW5159 with the express permission of the student who produced it. It may only be used as a source of general feedback and may not be used for any other purpose. Note: This student completed the optional assignment. Accordingly, Part B of this exam was not completed. Jason Harkess Chief Examiner 10 December 2010

QUESTION 1 (a) P are seeking to adduce evidence of a previous representation (the police statement – made out of court) that Lisa (L) had 3 glasses of wine. The evidence may be relevant for a hearsay purpose, in which case the evidence would fall foul of S59 (rule against hearsay), or it may be relevant for a different purpose, in which it will not meet the definition of ‘hearsay evidence’ in S59 and thus be admissible. The previous representation contains the asserted fact that L had ‘about 3 glasses of wine’. This is an express previous representation and it can reasonably be supposed that she intended to assert the existence of that fact (because she was giving a police statement). However it may not be being adduced here to prove the truth of the fact contained within it, ie that she had had 3 glasses of wine. Indeed the defence would perhaps be assisted by proving the opposite, namely that L had had the 5 drinks because it may bear upon the issue of any possible defence raised by B. Instead, the

statement is being adduced for a credibility purpose.

Credibility Rule Adducing the statement is relevant to L’s credibility, which is capable of influencing the jury’s assessment of the existence of the fact in issue, making it relevant per S55. While S102 prime facie prevents credibility evidence being adduced (that is, evidence relevant only to a W’s credibility or also for another inadmissible purpose – here a hearsay purpose) S103 contains a cross-examination exception to the cred rule. Thus P is allowed to x-examine L on her prior inconsistent statement, assuming the P complies with S43, and it can ‘substantially affect L’s credibility (S103(1)). It will substantially affect her credibility especially as it relates to alcohol consumed.

Hearsay Thus, B’s counsel can reply by saying that this is adduced for a credibility purpose. Per S60 it can then, if relevant, be used also for a hearsay purpose as it forms an exception to the hearsay rule.

(b) J wants to give evidence of the argument between B and L. This may be relevant for a hearsay purpose, engaging S59 of the Act. Hearsay evidence The evidence will be of a previous representation containing several asserted facts. Asserted facts and intention to assert The asserted facts are as follows: a) Fuck off, fucktard! This is an implied representation that there is some reason why B needs to fuck off (as in Ratta). It is also an express imperative statement. It can be reasonably supposed per S59(2A)looking objectively at the surrounding circumstance of the right that L intended to assert the imperative statement (because she wanted B to go away). Perhaps she did not intend to assert the implied rep that there is a reason why/cause for her use of the word ‘fuck’ b) It’s Buffy! This is an express representation too, and it seems she intends to assert it in

order to justify having the TV on – perhaps B should be aware of the significance of it being Buffy. This is probably not relevant per S55 to a fact in issue. c) Don’t hit me ...Ow! Stop! Don’t... These are express representation, asserting that she is being attacked (impliedly). She probably intended to assert this per S59(2A) again (due to excited utterance). d) Shouting: There are also ‘representations’ per the Dictionary and may contain an implied asserted fact that help is needed (see (a) as in Ratta). In such a case we could assume per 59(2A) on intention to assert the fact. Adduced to prove truth Representations a,b,c and d seem relevant to prove an element of the charge – that B recklessly caused serious injury (indeed the screaming may suggest an intention). Thus they are relevant for a hearsay purpose, engaging S59. Exceptions However these representations are likely to fall under an exception to the hearsay rule. S60 State of mind: the asserted facts also show L’s state of mind, which is relevant because it can be inferred from that that she was being attacked. A better argument would be to invoke S66A as these are contemporaneous statements about her state of mind/fear etc. Thus in sum the argument is admissible for a hearsay purpose to prove the truth of the facts contained within assertions a,b,c and d.

(c) (i) P may seek the court’s leave to allow J to ‘refresh’ her memory in court (per s32(1)). The trial judge must take into account whether a) she can recall the event , and b) whether the event is ‘fresh’ in her memory. Can J recall?

J seems to not be able to recall because she says ‘I’m sorry but I can’t

remember...’ and is telling the truth. This appears to be an ‘exhaustion’ of the memory (Da Silva) (although it is only 3 months after). Fresh in memory? The statement was made on the night of the incident. Thus, while J is giving evidence of a conversation between L and B and there is a chance that any delay in future could negatively affect the reliability/accuracy of the conversation, this period of time would be sufficient to be fresh in the memory considering the traumatic nature of the event (Da Silva). 192 The court will then refer to the factor in 192. The statement is short so is unlikely to unduly add to or delay proceedings. The evidence is circumstantial (as it is hearsay) and P has L’s statement plus other direct evidence obtained at the scene of the crime. However this is strong circumstantial evidence and it corroborates L’s statement and thus may be unfair to L, considering that J was the only other person present in the house when the incident occurred, not to allow J to refresh. Thus the judge will probably allow. (ii) P may seek leave to x-examine J as an unfavourable witness. J’s evidence is relevant for the reasons mentioned immediately above. (circumstantial evidence bearing upon the fact in issue – capable of affecting the assessment of the probability of those facts being established per (S55). Basis P must specify the basis (Hogan) for the request. Here J will not be making a genuine attempt to give evidence about a matter which it may reasonably be supposed that she has knowledge about (S38(1)(6))(Prior inconsistent statement basis may not apply here if she is simply to say nothing, but otherwise 38(1)(c) is also a valid basis). Factors P must have given notice at the earliest opportunity (S38(6)(a)). The court will also consider, alongside the leave considerations in S192,(6) the matters on which, and the extent to which, J is likely to be questioned by another party. It does not seem likely that she will be questioned by another party. Applying the S192 factors, similar considerations to that discussed above per Q6(i) can be applied. The evidence is important because J was the only other person present in the house at the time (then L and B). It would not unduly add to the length of the proceedings. It is circumstantial and P does seem to have an abundance of other evidence. However, overall because of the factors discussed above, leave will probably be granted.

Scope Thus, per S38(2) the questioning of J will be taken to be x-examined and thus the P could question her on her prior statement and/or her new found motive to lie (because the x-exam exception to the cred rule – S103- would be engaged). However x-exams should probably be limited only to her credibility S38(3).

(d) The email, if an admission, is highly relevant to the P’s case as it directly bears on the fact in issue ie strongly increases the probability of the existence of the facts in issue –that B did the deed (S55). Admission This is a written statement (email) by B made outside court, by B who has become a party to the proceedings and which is adverse to his interest is the outcome of the proceeding (thus an ‘admission’ per the Dictionary definition). First hand The admission is a document – an email print out Admissibility As a first-hand admission the evidence is prime facie hearsay per S59, rendering it inadmissible. However, admissions form exceptions to the hearsay rule (S81). Illegally/improperly obtained/in consequence of B may argue that the evidence was obtained in consequence of a trespass because it was removed from the bin located next to the front door, thus engaging S138(1) of the Act. Even if not illegal, because the bin was at the front of the house where perhaps there is implied consent for the public to traverse, it may be improperly obtained because irregular and inconsistent with standards of acceptable police contact (Carr). However this is not a gross impropriety and is at most only mildly improper involving no depravation of liberty etc (cf. Carr) so it is unlikely that per the factors in S138(3) that P would not be able to satisfy the court that it should be admitted. The evidence is probative (a) because on admission, important, and the contravention

by the police not grave (cf. Ridgeway) Privilege However B may invoke various privileges to exclude the evidence from being admitted. Lawyer-Client B may invoke the privilege afforded to communication between lawyers and clients in SS117-119. The court should notify B of this right per S132. B may say that he has ‘communicated’ his admission to his friend who is an articled clerk. ‘Articled clerk’ would fall under the definition of ‘lawyer’ in S117 (1) because of (d) an employee of a lawyer (assuming he is not yet admitted, otherwise (a) would apply).

Communication & purpose B will argue that the email was a confidential communication to Rob who was under an express/implied obligation not to disclose its contents, for the ‘dominant purpose’ of legal advice (S118). However, there is no suggestion here either that Rob received the communication in his capacity as lawyer (cf. friend) because the email is also addressed to his mother and spiritual advisor, or that it was for any legal advice, let alone the ‘dominant purpose’ of such advice. WAIVER Moreover, even if the above elements could be satisfied, by sending it to the other, printing it out and placing it in a bin on his front doorstep, he has acted inconsistently with the confidentiality which the privilege serves to protect (cf. Mann) and thus seems to have impliedly if not expressly waived such a privilege. Religious A final argument might be that S127 could be invoked here to protect the communication made because it was made to Ven, the Buddhist spiritual advisor. However this privilege is narrow in scope. Even if V could be considered to be a member of the ‘clergy’ (the term is not defined in the Act), this email was not sent to him as a ‘confession’ (unless ‘I have done a terrible thing’ could be construed as a plea for spiritual absolution). In any case the fact that it was also sent to the mother and friend suggests it was not confidential.

(e) (i) The P’s question raises two evidential issues Browne v Dunn: by putting to B the suggestion that P will suggest to the jury that this was not an unfortunate accident, P seems to have complied with the rule in Browne v Dunn. S89 However, P cannot refer to B’s silence in his interview last year. Per S89 a D has a right to silence during investigation, and here B has exercised that right. He refused to be interviewed at all. Unlike in Petts, where Maiden put forward an allegation during questioning and then raised a late defence at trial, here B has remained silent until now. As the HCA said in that case, there is little distinction between inferring guilt from silence and denying credibility to a late defence. Thus P will not be able to ask this question because no adverse inferences can be drawn from B’s earlier silence. (ii) As B has elected to give evidence at trial, he has broken silence and thus must answer all Q’s relevant to facts in issue (Cornwell; S128(10)). Thus this Q from the P seems to be relevant and permissible. Browne v Dunn Again, here it seems that P is putting to B so much of their case as concerns B, and allowing him to respond to their allegations. They will put it to the jury that B did in fact push her and that it was not an accident, ie then will contradict his claims of accident. Thus P is in compliance with Browne v Dunn and will be permitted to ask this question. This is also directly relevant to the main fact in issue – whether B pushed her/acted recklessly (thus admissible S55/56) Further, leading questions (ie ‘That’s what made her fall...) are presumptively permitted in x-exam per S42(1). (iii) P may not be able to ask this question. ‘You’re a bully’: This might be an ‘improper question’ per S41(c) because it is insulting, but will probably be allowed in x-exam because x-exam can be distasteful/challenging to the witness (S41(5). This serves a credibility purpose (ie relevant to undermining B’s credibility S55).

‘You’ve done this before’: P will seek to adduce evidence of the 2008 fight for a credibility and a tendency purpose. Relevance: As credibility evidence it would be relevant because the jury could be likely to be less likely to believe his assertion that he has never hurt a fly and inclined to believe he has lied, and therefore question the credibility of his evidence. As tendency evidence it would show a disposition towards fighting, and combined with the assertion ‘you’re a bully’, invite the assumption to be made that D was a bully/violent on the occasion in question. Evidence of B’s ‘character’ is protected from being adduced by section 102 and 104 (re credibility) and section 97(10) (re tendency). This prime facie question will not be allowed because it would lead to the adducing of bad character evidence, falling foul of 102/104/97. Character ‘shield’ broken? P may argue that by commenting in examination-in-chief that he has ‘never hurt a fly in his entire life’. B has adduced good character evidence, which is permitted per S110. If so, this will mean that P can then adduce evidence (here via x-exam) to rebut that good character evidence. B does seem to have adduced good character evidence (because the statement goes further than merely reputing the P’s claim). The scope of any rebuttal evidence depends on whether B’s assertion portrays him as a person of good character in a general or particular respect. The statement portrays him as a non-violent person. Thus P may adduce rebuttal evidence, or x-exam (with leave of court – S112/192) B about evidence that shows he is a violent person. Leave must be given, so P’s question at this stage is presumptive. Will court give leave? The evidence sought to be adduced is rebuttal – that a fight took place in 2008 over a TV in which the police were called – may not answer the good character evidence because it does not necessarily follow from the fact that a fight took place that it was physical. But the calling of the police suggests it was serious. However this evidence, as it is unproven (ie led to no charges) would be a waste of time to adduce (S192(2)(a)),and lead to a collateral inquiry diverting from the issues at trial (Stanoevski). Thus the trial judge is likely to not give P leave to adduce this evidence here. It would be unfair to B and may undermine the presumption of innocence. If leave were granted, it would need to be accompanied by a stern warning to limit the evidence only credibility (S136) because in order to engage in coincidence reasoning (which is usually invoked where the incident is improve) the thresholds in S98/010 must be overcome.

(f) Can Dr Watts give evidence? The Dr’s evidence is relevant because Lisa seems to admit that B might be right. Thus it bears upon the assessment of the issue – namely whether B had the requisite mens rea for S17 of the Crimes Act. Hearsay However, as a previous representation (made out of court) containing an asserted fact (made by Lisa) which it can reasonably be supposed L intended to assert (because express) and adduced to prove its truth (because of its probative value as an admission), the statement is prime facie hearsay. Exception However as it is an admission (previous representation made by L who is now a party (as the plaintiff) and adverse to her interests (because she concedes that B ‘may be right’) and is firsthand (given orally in court by Dr W), it will be an exception to the hearsay ruse in S81. It may also come in as expert opinion (ie to provide the context to the advice he gave her and to what he will now say in court about her injuries) Objections However, L may object to the adducing of the evidence on two grounds: (1) Settlement negotiation Per S131 evidence is not to be adduced of a communication – ie here the conversation between L and the Dr – made between the parties in ‘connection’ with an attempt to negotiate a settlement to the dispute. Lisa has agreed to the examination in order to facilitate a possible settlement. However, in Field a strict view was taken with regard to the requisite level of ‘connection’ to the attempt to settle. There a conversation between the P and the D’s doctor was viewed as not sufficiently ‘connected’ with settling. Here the ‘connection’ seems even more remote than in Field (because here, unlike there, there was no letter with the ‘without prejudice’ statement accompany the request for medical examination). Thus, if the court adopt this strict common law approach for the purposes of the Act, this privilege will not protect L here. (2) Voluntariness

Perhaps Dr W’s assertion to L ‘I don’t want to have to probe into your eye with my tools any more than I have to’ is an implied threat, especially viewed in the context of the conversation as a whole where he has just impliedly accused her of exaggerating her claims. This L may argue per S84 that the admission was ‘obtained/influenced by violent, oppressive, inhuman or degrading conduct’, or more specifically by a ‘threat’ of such conduct. This issue will be assessed on a voir dire (S189) with D having the burden to prove (on balance of prob S142 (10)) that it was not influenced by such conduct. The conduct could be viewed as threatening, when considering the wider context (as in Zhang). It does seem to influence her admission because she is ‘taken aback’, and only then concedes that B may be right. She ‘decides’ to say what she says, which goes against the argument that she is acting involuntarily however. But per Zhang, if the conduct is one factor, it is still a factor and thus S84 will be satisfied. S138? It may also be the case that the admission may be excluded on the basis that the Dr, during questioning, made a false statement to her about having to use his tools (why would what she says about whether or not B pushed her or whether it was an accident in any way be linked to what the Dr is to do with his tools?). This may have caused her to make the admission (and the Dr may have known that it would). This would engage S138 (which refers to ‘questioning’ and does not seem to be limited to questioning by investigating officials). _______________...