Primary Examination for the Bachelor of Laws

QUESTION SIX:

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

15 MARKS

Propensity – Admissibility of uncharged acts/bad character for propensity/non-propensity uses – Discussion and application of HML – Does possession of a knife reveal BC? (probably, yes) – Is possession of a knife sufficiently relevant (probably, yes) – What of the BC revealed in D hitting VW? (again, likely relevant and BC) – What are the arguable non-prop uses, e.g. access to a knife; explanation of why D might seek to rob women (following VW’s taunt about his means); explanation of why D might prey on reasonably young women with money/valuables – The last of these is looking close to a propensity use – In any event, how great is the risk that the evidence will be used for prop reasoning even if admitted for a non-prop use? – Prej>Prob – Nieterink/HML

At trial, the Crown will also seek to call Mark Moses (MM). MM shares a flat with the accused, D, and the two are long-term friends. The Crown will seek to have MM testify in accordance with his statement, a summary of which follows:

Christmas 2007 was a very difficult time for D and me. We were having trouble keeping up with rent payments and were at risk of eviction. I was very upset as I had had a few personal difficulties earlier that year and this was another problem which was moving me to breaking-point. D has always been a good friend to me though and told me not to worry. I remember not long after Christmas he told me, “Don’t worry, MM, I have taken care of everything and paid the rent – looks like we’ll be flat-mates a little while longer yet”. I knew D was having money troubles like me and so demanded to know where he’d found the money. He refused to tell me but I insisted. I told him I would not take his charity and would sooner leave than see him have to pay for me as well as himself. I knew this would make him tell me because he valued our friendship as much as I did. D then told me a young female passenger he’d picked up just after Christmas had dropped her wallet in the cab. He said he’d tried to find her but there was no identification in the wallet and since it was only a few hundred dollars he thought we needed it more than her. I felt really bad and told D it wasn’t right, but since it was an accident and we were desperate I didn’t complain.

The Defence argue MM should not be permitted to testify in these terms.