The following feedback has been provided to assist you in understanding your exam performance. It does not include every relevant point that could have included in answer to each question - if you have included additional relevant points that do not appear in this answer guide, you would have received appropriate credit for them in your marks.
Read the facts carefully - there were a number of presumptions and misreading of facts which negatively affected analysis.
Provide authority for substantive legal points wherever possible (however, providing full citations is not necessary!).
The Commonwealth Evidence Act is NOT relevant to an action in the SA Supreme Court.
Manage time in the examination carefully, and check you have answered all questions. Sadly, missed questions will cost dear.
Drawing case analogies or distinguishing cases on the facts is the most persuasive form of argument.
Always ensure you apply the law you have stated to the facts of the problem.
Be consistent in your analysis or explain inconsistencies.
You should reach a conclusion!
Specific feedback on each question is provided in bold throughout the examination paper below.
The examination was marked in accordance with the following grade descriptors:
Does not identify or address the legal and factual issues
Outstanding level of understanding and interpretation
Compelling, well-supported and tightly structured legal arguments
Excellent understanding and application of ethical principles to create arguments
Original and sophisticated thinking
Highly developed communication and presentation skills
Excellent anticipation and response to opponent’s case
Students must answer ALL FOUR (4) of thequestions in Part A. The problems are worth 10 marks each.
On the evening of 20 June 2009 Senior Police Constable Karl Knight and his partner, Police Constable Jenny Jones, are called to an accident (a bus has collided with a car) on Unley Road. They arrive on the scene approximately 8 minutes after the collision and before the arrival of any ambulances or other medical assistance. There are a number of injured people lying on the road, including one young woman who is clearly already deceased. Karl and Jenny immediately begin assisting the injured. One gentleman, who is bleeding heavily, tells Karl and Jenny that his name is Tom. Tom says he was the driver of the bus, and that “as I was passing the Targetstore I was blinded by high beams, and when I could see again I was about to collide with that white ford falcon station wagon. It was on the wrong side of the road coming straight towards us! I swerved, but not fast enough, and we collided, and all hell broke loose”. A white ford falcon station wagon with significant damage and the registration XKB 098 is abandoned on the side of the road.
When Jenny and Karl return to the police station in the early hours of 21 June Jenny writes up a report of the accident, including a record of what Tom said. She signs the report and leaves it on Karl’s desk. Two weeks later Karl gives the report back to her with his signature on the bottom.
In late 2010 D (the owner of a white ford registration XKB 098) faces trial in the SA Supreme Court charged with dangerous driving causing death. Karl and Jenny are called by the Prosecution to give evidence. However, Karl is unable to recall anything beyond the location of the accident and the fact a bus was involved. Is there anything the Prosecution can do to assist Karl to give evidence? Are there likely to be any objections made by Defence Counsel to these efforts and will those objections succeed? If Karl can testify are there likely to be any objections made to the evidence which Karl can give on the stand? Would your answers be different if Tom died in the Royal Adelaide Hospital as a result of his injuries? What if the trial was in the ACT Magistrates Court?
Can Counsel try and refresh Karl’s memory on the stand? W cannot simply read the report to the court: Hetherington v Brooks. Court can give leave for W to refer to the report so as to refresh his memory of the events in question (court must determine the issue of leave on voir dire) that the notes were made or verified by karl when the events were ‘fresh in memory’ (question of fact. Upon what factors will this depend??). In this case the notes were made after the assault by another officer. Refreshing memory from jointly prepared memoranda is permitted: O’Sullivan v Waterman but is the lapse of time before Karl signed the notes acceptable? Consider on facts.
Evidence of scene not an out of court statement – Karl is testifying to what he saw. But will evidence of what Tom said be hearsay? Yes, if used to prove that a white ford falcon travelling on the wrong side of the road caused the accident. Are any CL exceptions in SA applicable? Res gestae? Two approaches – strict timing ie Vocisano v Vocisano; Beddingfield and circumstances in which statement made leading to reliability ie Andrews; Walton; Benz. What is the res gestae on these facts? Are their sufficient circumstances to suggest reliability? Events still operating on Tom’s mind when statement made?
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.
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?
Cannot admit the label to prove when/where the video was taken - hearsay. Consider SA exceptions for documents. Is this a business record? ACT: S70 CEA.
Videotape contains relevant images which can be tendered - played to the court: cf Butera - if it can be authenticated. ACT - Whilst the video is a document under s 48 (see dictionary definition), and s 48 allows tender in other forms (following abolition of the best evidence rule by s 51) the CEA does not do away with the need for authentication (s 57 and NAB v Rusu). Only witness of whom we are aware who can formally authenticate the video is D but they cannot be called (an accused cannot be compelled by prosecution to testify – s 17). Might be able to wait and see if D testifies then seek to authenticate in XXE. Otherwise would need some evidence of the origin of the tape through V’s testimony (she might be able to identify the images which occurred before she fell unconscious) or other testimony about the whereabouts of the video camera etc and some expert evidence about the tapes authenticity. Situation the same in SA at common law.
V is competent and can be compelled to testify if required: s9 etc SAEA; s12 CEA.
For Crown or defence to ask V to testify about what is shown on the tape looks like it runs contrary to the HC decision in Smith. Her opinion is either irrelevant or outside ss 78 and 79 CEA. It is also arguably an abuse of XXE (oppressive) for the Defence to put such matters to V. At common law the decision must be the same – her opinion is a non-expert opinion which can be of no assistance to the jury which can interpret the video for itself.
On 14 February 2009 13 year old Janie was confronted by a manwho threatened her with a syringe which he claimed was filled with infected blood while she was walking down Hindley Street in Adelaide. The man stole her wallet, mobile phone and watch. She immediately reported the robbery to the police. On 17 February Janie attended an identification parade at the Hindley Street police station, where she identified Donal as the man who robbed her. Donal was charged with robbery, and he is now facing trial in the Supreme Court of SA.
The Crown is aware that Janie is emotionally fragile after the robbery; both she and her parents have indicated she is extremely afraid of giving evidence at the trial. Can the Crown call Janie to present evidence in court about the robbery and to identify Donal as the man who robbed her? Is there any mechanism to try and minimise the trauma that testifying is likely to present for Janie?
The Crown is concerned that, if called, Janie will be so frightened by the courtroom she will be unable to identify Donal, or even to testify to the fact she identified him at the identification parade. If this occurs could the Crown ask Janie leading questions to establish the previous identification? Could the Crown call another witness to testify that Janie identified Donal at the identification parade? What warnings, if any, should be given to the jury if this evidence was allowed? Would any of your answers be different if the trial was occurring in the ACT?
Janie is compellable, but various mechanisms can be implemented to protect her see s 13A SAEA (NB Janie is a vulnerable witness – under 16 years old and victim of a serious offence against the person). Also note s13B – examination of victims of serious offence against the person an unrepresented D may be restricted in the questions he can ask Janie. S13C video recording of her evidence is an option.
Previous identification: where ID of Accused is in dispute, prior ID’s of suspect can be elicited in examination in chief. The prior ID is an exception to hearsay – it goes not to the truth of the matter asserted, but the state of mind of the witness at the time of prior ID. The earlier the ID the more reliable it is. Court ID’s are fairly worthless. Independent witnesses can be called to testify in support of the W’s testimony that they identified the acc on earlier occasion. If witness does not testify, another witness CANNOT testify to her previous ID. Gibbs J in Alexanderand referring to Christie indicates that without the evidence of W 1, other witnesses attesting that W 1 had made an ID = hearsay.
Leading Janie possible if she is hostile: witness must be unwilling to tell the truth/must be intention (based on demeanour AND prior inconsistent statements). Does NOT apply to W’s who forget, are confused, or fail to come up to proof. Crown would have to establish she is hostile, not merely forgetful, in order to cross examine her. SAEA 27 If the W is accepted to be hostile (must be deliberately not telling the truth), then the W may be xxned and independent evidence of prior statements can be called. This evidence can only go to credit of W and not to truth of fact alleged.
ACT: s 38 more relaxed provision for xxning W. s60 – hearsay rule does NOT apply to prior statement, so evidence of her ID of Acc can be used as proof of the assertion that it was Acc who robbed her, and to inference that he is the robber
On 1 August 2010 a Toyota Corolla collided with a Lamborghini Diablo in the intersection of North Terrace and Frome Road. The Corolla had been travelling east and making a right-hand turn from North Terrace on toFrome Road when the Lamborghini, which was travelling west along North Terrace at 50 kph, hit it head-on in the middle of the passenger side of the Corolla. The Lamborghini was wrecked beyond repair. Its owner has now commenced an action for negligence in the District Court of SA against the driver of the Corolla.Should the Court take a view of the intersection?
The Plaintiff’s case is that the Defendant commenced a right-hand turn when it was not safe to do so. The Plaintiff wants to call an expert witness, a traffic surveyor, to testify that the driver of a car waiting to turn right from North Terrace on to Frome Road has an unrestricted view of all oncoming traffic travelling west along North Terrace. On what basis would Defence Counsel oppose this evidence?
As part of the Defence case, Defence Counsel intends to callthe Chief Statistician of the Adelaide City Council Roadworks Unit to testify that two days after the collisiona routine survey of road users and pedestrians using North Terrace indicated visibility was restrictedby a series of signs and barriers which were in place as part of the North Terrace upgrade. Is evidence of the routine survey admissible? Can it be raised, for the first time, after the Plaintiff has closed its case?
At common law opinion evidence is inadmissible unless one of the exceptions apply ie exception for experts. Is the expert here sufficiently expert? Consider relevant tests. Conclusion – depends on which test is applied. Does the evidence add anything to knowledge of trier of fact? Should it be inadmissible because is normal every-day knowledge for judge sitting in Adelaide?
Failing to raise evidence with plaintiff expert would be potential breach of rule in Browne v Dunn. Where the rule in Browne v Dunn is breached there are several possible remedies or sanctions including
recall of the witness (specifically confirmed in s46 CEA); allow a party to reopen its case so as to lead evidence to rebut the contradictory evidence; making adverse comments about the party in breach to the jury; more readily accept the evidence of a witness to whom contradictory evidence was not put.
Expert opinion must be based on admissible evidence. What is the survey conducted. Is it admissible?
All students must answer ALL FIVE (5) questions in Part B. Part B is worth SIXTY (60) marks. The marks associated with each question are indicated below.
D is charged with five counts of robbery, which are to be tried together before a jury in the District Court of South Australia.
Prior to trial and the empanelment of the jury, the Defence applied for severance and separate trial of each count. The Crown case in respect of each count relied primarily on the statements of the complainants, summaries of which are as follows:
At approximately 11.30 pm on 9 August 2005, Terri Hatcher (TH) was drinking with a male and a female friend at a car-park in the South Parklands of Adelaide, near a sporting complex. TH and her female friend needed to go to the toilet, so the male friend drove them to a nearby service station. TH was quite drunk and unstable. She recalls getting out of the vehicle but does not remember going into the service station. Her next memory, after alighting from her friend’s vehicle, is that of being driven down the road by a man whom she had never before seen. She recalls the man saying, “I’ll cut you” if she did not give him her purse and jewellery. She complied with his demands. The man then drove her to a parknear her house. TH cannot recall what the man looked like, nor can she recall any details about the car except that it may have been white. TH was 23 at the time of the alleged incident.
On 26 December 2007, Marcia Cross (MC) had recently arrived in Adelaide from the Riverland. She was walking along South Terrace at approximately 9.00 pm, headed towards Hindley Street to meet friends, when a man in a yellow car pulled up alongside her. The man beckoned her toward his vehicle. MC thought it was a taxi and approached. He offered to drive her to where she was to meet her friends. MC accepted. The man drove past Hindley Street. When MC questioned him, he centrally locked the vehicle doors and told her “Look at the ground!” He told her he “had a knife” but would not hurt her if she gave him her handbag. She complied. The man then drove her to a park and let her get out. MC recalls the man had dark, olive skin but cannot remember much else. MC was 20 at the time of the alleged incident.
In the early hours of the morning on 18 April 2008, Eva Longoria (EL) was walking along Hindley Street attempting to hail a taxi to take her home. EL had consumed a number of drinks over the course of the evening and was a little unsteady on her feet. EL noticed a man in a yellow vehicle motion towards her. EL stopped and the driver, who identified himself as a taxi driver, asked her if she was looking for a taxi. She said she was and sat in the front passenger seat of the car and asked the driver to take her to Daw Park. He drove to a deserted area in the East Parklands of the city. EL says the man stopped the car there and locked the doors of the vehicle, using central locking. The man then pulled out a small silver knife and told EL he would “stab her” if she did not give him her watch, purse and necklace. EL did so. The man then pushed her out of the car and drove away. EL remembers the man had very dark skin and a thin black moustache but cannot remember much else. EL was 31 at the time of the alleged incident.
At 2.00 am on 6 July 2008, Nicole Sheridan (NS) was walking along Torrens Road towards Port Adelaide, not far from the North Parklands, when a vehicle pulled alongside her. NS was quite drunk. The male driver offered her a lift, which she accepted. She asked the driver to take her to Croydon Park. NS then thinks she must have fallen asleep. The next thing she remembers is being threatened by a man holding a small knife in the Arndale shopping centre car-park. The man held the knife to her throat and snatched off her necklace as well as taking her handbag. The next thing she recalls is seeing a yellow car speed away, which she thinks is the same vehicle that picked her up on Torrens Road. NS was 25 at the time of the alleged incident.
At around 2.30 am on 14 November 2008, Andrea Bowen (AB) was coming out of a nightclub on Hindley Street, intending to catch a taxi. She walked a little way before a yellow car pulled over. The driver asked if she needed a ride. He said he was a taxi driver. AB said she needed to go to Parkside and sat in the front passenger seat. The man then drove out of the city but did not follow her directions. When she questioned him, the man yelled at her to “Keep her face down” and “Don’t look at me”. The man then centrally locked the vehicle doors and drove to a secluded park near the Parkside area. He stopped the vehicle there and told AB that he would “hurt her” if she did not give him her handbag and jewellery. AB said she started screaming at which point the man struck her. He then produced a knife and cut her dress before saying that he would “really hurt her” if she didn’t do what he said. AB then gave him her possessions. The man then pushed her from the car and drove away. AB cannot remember things clearly but recalls the man had dark-olive skin, curly black hair and a moustache. AB was 33 at the time of the alleged incident.
The Crown case is that D, who is a registered taxi-driver, preyed upon these young women who were intoxicated, new to Adelaide or otherwise vulnerable so as to rob them. D has dark, olive skin and now, at the time of trial, has long curly black hair and a thick black moustache but no other remarkable facial hair.
The trial Judge ruled the evidence of each complainant cross-admissible on the other charges and refused the application for severance.Did the judge err in so ruling?
Propensity – Similar Fact – Application of Pfennig/Hoch Tests – The probative relevance of the evidence lies in the improbability of such similar accounts unless the events (allegations) did in fact take place (and, to the extent ID is in issue, those events took place at the hands of the accused). Close attention to similarities between counts therefore the import of the question to establish whether the use of the evidence in that way is sufficiently probative to overcome the exclusionary rule. There is nothing to suggest concoction. Counts 2-5 are probably cross-admissible but Count 1 should likely be severed.
At trial, the Crown will also seek to call Vanessa Williams (VW) to testify in accordance with her statement, a summary of which is as follows:
D and I dated for a few months in the first half of 2008. We’d often go for drives in his cab on his days off. Really, I think that’s what attracted me to him in the first place – the idea of riding around in a taxi for free. Anyway, we were driving down to the beach on a Saturday,it was early in March of 2008 I think. Suddenly a car pulled out in front of us and D had to slam the brakes on. We avoided the accident but after, I noticed a small, silver knife under D’s legs on the driver’s side. It must have slid out from under the seat when he put the brakes on. I asked D why he had a knife in the car. He said he carried it for protection at night because you ‘never know who you’ll pick up’. Not too long after that, probably late March,our relationship came to a fairly nasty end.Riding in his taxi had lost its appeal and, frankly, I thought D was a bit of a ‘no-hoper’. He was still sharing a flat with a friend, like they were just out of high school. I remember telling D that I was looking for someone who could offer me a little more ‘financial security’ for the future. We had a big fight about money and, well, his lack of it. I remember telling him there was no way a man of ‘his means’ could ever hope to be with a woman like me. I took out my purse and said, ‘see I have more money just to go to the shops than you make in a week!’ D went into a rage when I did that and slapped me across the face. I never spoke to him again. I guess it was a bit of a horrible thing to say, but his reaction was over the top.
The Defence object to VW giving evidence in these terms.
The trial Judge agrees with Defence Counsel and rules VW’s evidence inadmissible. Did the judge err in so ruling?
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.
The trial Judge agrees with Defence Counsel and rules MM’s evidence inadmissible. Did the judge err in so ruling?
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.
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.
The trial Judge rules the cross-examination permissible.Did the judge err in so ruling?
Section 18(1)(d) – Is the Shield down? –Requires careful dissection of the concluding remarks of D in chief – D arguably lost the Shield due to imputations against Crown witnesses (TH) and/or giving evidence of his good character (re Samaritan point) - Consider facts carefully in light of case law - Was this a legitimate part of D’s defence?
After closing addresses from counsel, in summing up to the jury, the trial Judge directed the jury that:
If they find that all the robberies were committed by the one person, they must be satisfied beyond reasonable doubt that at least one of the robberies was committed by the accused, D, before they could conclude that D was guilty of all the robberies.
The trial Judge further directed the jury that:
In considering the charges against D, you may take account of his inadequate explanations about the allegations made against him by MC, EL, NS and AB, given his vivid recollection of his encounter with TH.
Did the judge err in these directions to the jury?
Identity is in issue, beyond establishing offences indeed occurred – Discussion of the competing authorities as to whether one count must be proved BRD before it is cross-admissible on the others, or whether they can used cumulatively once SS established: basic dichotomy in Salerno/Hirst – The authority of the SASCFC seems to favour cumulative use so the judge erred (contra, Dawson-Ryan?) –Compare the facts of authorities referred to to the present case to draw analogies/distinctions in the approach that should be taken.
Consider whether judge misdirected in light of right to silence, burdens, POI.