Primary Examination for the Bachelor of Laws

QUESTION SEVEN:

The trial Judge agrees with Defence Counsel and rules MM’s evidence inadmissible. Did the judge err in so ruling?

10 MARKS

There’s probably something to say about background relevance here (i.e. MM can give evidence relevant to motive etc of D) but the main concern of the question is the admissibility of D’s explanation as a confession/statement against interest – There is not necessarily the need to characterise the explanation as a lie (indeed, there is no direct evidence to prove it as such), but the explanation is against D as it shows that he has taken money from passengers (points if concerns are raised about sufficient relevance, BC propensity reasoning from this) – taking the confessional material itself, involuntariness arguable on the basis of external pressure (maybe even the modern test of inducement which doesn’t require person in authority) – Residual discretions on the backend of the voluntariness question: the only discretions potentially applying being fairness/overall, but unlikely.

The Trial

At trial, the Crown evidence ruled admissible on the pre-trial application is presented consistently with the statements the subject of the pre-trial applications. After the Crown case is closed, D gives evidence in his own defence.

D vehemently denies the allegations against him. He says he has no record of transporting and cannot remember MC, EL, NS or AB. He says they have him confused for someone else.

D says he does recognise TH. He recalls giving her a lift because, he testifies, it was such an ‘odd fare’. He says he had pulled into the service station to fill-up for the night. When he returned to his taxi after paying the attendant, he found TH sprawled across his back-seat. He says she was very drunk. He wondered how she had ended up there and looked for anyone that might know her but couldn’t see anyone. He said he shook her gently a few times, saying “wake up”, “wake up”. D says he looked in her wallet and found her driver’s licence. He says he decided to drive her to that address. When they were almost there, TH woke up and became agitated, repeatedly asking where she was. She demanded to be let out. D says he said they were almost at her housebut TH became increasingly agitated. She started yelling profanity. D says he then said, “I’ll drop you, I’ll drop you” and stopped at a park as it was well-lit and not far from her house..

D says he did all he could for TH because he takes great pride in his job as a taxi-driver, and “Taxi-drivers are often called upon to act as modern-day good-Samaritans: helping those in need get home”. But, says D, “What has happened to me shows it is not worth helping people. TH was abusive and rude when I tried to help her, and now she has made these ridiculous allegations against me. She is a drunk – a horrible, ungrateful drunk who no doubt lost her things in the park and now tries to blame me because she is too drunk and foolish to remember!”

At the conclusion of his evidence in chief, the Crown seeks leave to cross-examine D about two charges for theft laid against him in 2003. Defence Counsel object.