Primary Examination for the Bachelor of Laws

If Tom dies before trial consider dying declaration exception (NB - does trial concern Tom’s death?).

Discretions - are there other factors which court would take into account ie Tom’s eyesight, weather conditions, visibility?

If the accident occurred in the ACT then; Tom could satisfy requirements of s62 since saw asserted fact; if Tom is dead, and therefore unavailable (dictionary definition cl4(1)(a)) s65 may be applicable – consider relevant subsections – 65(2)(b) and 65(2)(c); Police officer saw representation being made and was soon after accident so unlikely to be a fabrication; if s65 is applicable notice must be given under s67; exclusionary discretions may apply; s137; s135 – not likely to apply. Re use of notes - s33 Evidence Act 1995 permits police W to read notes to the court provided were made at the time or soon after the events, the police officer signed the statement and a copy has been given to D. There is no requirement that the officer first exhaust his memory.

QUESTION TWO:

On 1 November 2009 V reports a rape at her local police station. V tells the police she attended a Halloween party on 31 October, and woke up the next day still in the venue, the‘ACT Night Club’, with her clothes in disarray and with no memory of consenting to intercourse. A police officer is sent to the night club where he takes two security video tapes. The first (labeled ‘Front bar 31 October 2009’) shows copies of a man (whose face is not visible) placing a powder into a drink, which he then offers to a woman who consumes it. V is shown the scene and informs the police that she is the woman shown. She is able to confirm this because she recognizes the Halloween costume she was wearing. She also informs the police she had no knowledge that any drink she consumed that night had been laced with any substance. V is then asked to watch the second video (labeled ‘Back room, 31 October 2009’). That shows a man carrying a woman into an empty room, and having sexual intercourse with her. V is unable to remember the events which are depicted, but again recognizesher costume and is able to confirm that she is the woman in the tape. Despite the poor quality of the video V also identifies D as the man having sex with her and that the location shown in the video isthe back room of the night club. V recognizes D as the security guard who was on duty at the night club the evening of the party.

D is charged with raping V and faces trial in the ACT Supreme Court. D admits that he had sex with V on the night in question, but in his defence alleges that V consented to intercourse. D is the chief security officer of the ACT Night Club.

Is the Prosecution entitled to tender the videotapes and the labels onthem into evidence? Can they call V to testify about the identity of the two people depicted on the tape and the locations (the night club rooms)? Can Vbe cross-examined by Defense Counsel about her appearance on the videotape and be shown the videotapes in order to suggest that her conducton the videotapes is consistent with consent?

Would your answersto these questions be different if the trial was being held in the SA Supreme Court?

10 MARKS

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