Primary Examination for the Bachelor of Laws
Semester 2, 2010
FEEDBACK
105022 EVIDENCE AND PROOF IN THEORY AND PRACTICE
LAW 3502
LAW 3003
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.
General feedback:

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.
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Always ensure you apply the law you have stated to the facts of the
problem.
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
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:
Fail 0-49%

Does not identify or address the legal and factual issues

Inadequate knowledge of the Priestley 11 topics

Insufficient identification, or understanding, of ethical issues

Does not develop coherent and rational arguments

Demonstrates fundamental errors of understanding of key legal principles
and concepts

Absence of legal analysis

Demonstrates limited analytical and evaluative skills
Pass 50-64%

Adequate identification of legal and factual issues demonstrating adequate
knowledge of the Priestley 11 topics

Adequate identification of ethical issues and understanding of ethical
principles

Adequate articulation of argument

Demonstrates a basic understanding and application of analytic concepts
and theoretical concepts
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
Basic understanding of readings

Insufficient legal or factual analysis
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Credit 65-74%

Demonstrates thorough understanding of the relevant legal materials

Good understanding and application of ethical principles

Demonstrates some critical legal thinking and evaluative skills

Adequate legal analysis

Good skills in presentation and articulation of argument
Distinction 75-84%

High standard of understanding of the relevant legal materials with some
original and sophisticated perspectives

Sophisticated understanding and application of ethical principles

High level of insight and legal analysis

Evidence of high level of critical legal thinking

Well developed analytical and evaluative skills

Developed presentation skills

Good anticipation and response to opponent’s case
High Distinction 85-100%
 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
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PART A
Students must answer ALL FOUR (4) of thequestions in Part A. The problems are
worth 10 marks each.
QUESTION ONE:
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?
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10 MARKS
1. 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.
2. 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?
3. If Tom dies before trial consider dying declaration exception (NB - does trial
concern Tom’s death?).
4. Discretions - are there other factors which court would take into account ie
Tom’s eyesight, weather conditions, visibility?
5. 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.
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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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1. 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.
2. 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.
3. V is competent and can be compelled to testify if required: s9 etc SAEA;
s12 CEA.
4. 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.
QUESTION THREE:
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
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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?
10 MARKS
1. 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.
2. 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 Alexander and referring to Christie
indicates that without the evidence of W 1, other witnesses attesting that W 1
had made an ID = hearsay.
3.
Leading Janie possible if she is hostile: witness must be unwilling to tell the
truth/must be intention (based on demeanour AND prior inconsistent
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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.
4.
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
5.
Directions required regarding identification evidence.
QUESTION FOUR:
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?
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10 MARKS
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?
1.
2.
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.
3.
Expert opinion must be based on admissible evidence. What is the
survey conducted. Is it admissible?
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PART B
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.
Pre-Trial Applications
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:
First Count
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.
Second Count
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
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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.
Third Count
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.
Fourth Count
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.
Fifth Count
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
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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.
QUESTION FIVE:
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?
15 MARKS
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
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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.
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
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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.
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.
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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 backseat. 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.
QUESTION EIGHT:
The trial Judge rules the cross-examination permissible.Did the judge err in so
ruling?
15 MARKS
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
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Course ID: 105022
Page 19 of 20
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:
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Course ID: 105022
Page 20 of 20
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.
QUESTION NINE:
Did the judge err in these directions to the jury?
5 MARKS
1. 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.
2. Consider whether judge misdirected in light of right to silence, burdens,
POI.
END OF EXAMINATION