I PART A
A Question A1
The evidence may be objected to by the plaintiff on relevance.
Only relevant evidence is admissible (s 56). Relevance is defined as evidence that, if
accepted, could rationally affect (directly or indirectly) the assessment of the
probability of the existence of a fact in issue in the proceeding. Here, the evidence is
that Mrs Bourke owes $100,000 to a bookmaker and the fact in issue is whether Mr
Bourke deliberately lit the fire. Relevance requires only a minimum logical
connection between the evidence and facts in issue. Here Mrs Bourke's significant
debt's has a logical connection to the fact in issue that Mr Bourke deliberately lit the
fire to defraud the Insurance Company to pay off debts. Overall, it is likely the
evidence is relevant.
However, the plaintiff could also argue that even if the evidence is relevant, it should
be excluded under s 135. This requires that the probative value of the evidence is
substantially outweighed by danger of unfair prejudice. 'Unfair Prejudice' has been
interpreted by the ALRC as 'the danger the fact-finder may use the evidence to make
a decision on an improper, perhaps emotional basis' and R v Yates as 'where it may
lead a jury to adopt an illegitimate form of reasoning.' Here, the plaintiff could argue
that the extreme gambling debt may cause the fact-finder to look negatively on the
Bourkes simply due to Mrs Bourke's addiction. However, given the high bar of
'substantially outweigh' it is unlikely that the low risk of prejudice against gamblers
can outweigh the probative value of the evidence.
The evidence is likely admissible.
B Question A2
The evidence may be objected to by the plaintiff on the basis that the client legal
privilege applies
As part of client legal privilege, evidence must not be presented if, on objection by a
client, the court finds that presenting the evidence would result in disclosure of a
confidential communication made for the dominant purpose of the lawyer providing
legal advice to the client (s 118(a)).
Client/Lawyer
Mrs Bourke clearly falls within the definition of 'client' as she has engaged Snow to
provide legal services (s 117(1)). Snow likely also meets the definition of 'lawyer' (s
117(1)).
Confidential Communication
'Confidential communication' is defined as a communication made under the
circumstances that the person to whom it was made was under an express or implied
obligation not to disclose its contents depending on the circumstances (s 117(1)).
Here, Mrs Bourke has communicated with Snow about the insurance position of
Bourke Pty Ltd As Bourke Pty Ltd is a private company, it is likely that she intended
this information to be confidential
Dominant Purpose of Providing Legal Advice
'Legal advice' has been characterized as 'the giving of independent legal advice by a
person acting in the role of a legal adviser giving advice to a client' (ASIC v Rich
[2004] NSWSC 1017). Here, providing information to a client about the insurance
position of a company is something a legal adviser would ordinarily do. Therefore, it
is likely this element is satisfied.
As there is no evidence of Mrs Bourke waiving the privilege in some way, it is likely
that if Mrs Bourke objected to the evidence on the basis of client legal privilege under
s 118(a), the evidence would not be admissible
C Question A3
The evidence may be objected to on the basis that it is not admissible under the
coincidence rule.
Under the coincidence rule, 'evidence that two or more events happened is not
admissible to prove that a person did a particular act on the basis that, having regard
to the similarities in the events or the circumstances in which they happened' unless
notice has been given and the court thinks the evidence has significant probative value
(s 98(1)). Notice in advance is required in writing. The following presumes valid
notice was given or waived by application of the plaintiff (s 100(2)).
Coincidence
In CGL v DPP (Vic), the court determined that the relevant questions are: first, are the
similarities in the specified events such that it is improbable that the events occurred
coincidentally and second, would the evidence of those events tend to prove that the
accused did the specified act. This degree of similarity required has also been
described as 'strikingly similar' (Pfennig v The Queen). In 1998, 2002 and 2006
Bourke Pty Ltd's furniture business suffered fire damage. In all cases an incendiary
device was found in the vicinity and the fire started in the back of the shop. Here, the
events are almost entirely the same. First, an incendiary device (gasoline can) was
found near the business. Second, the arson investigation specialist testified the fire
began again in the back of the shop. Given these 'striking similarities' it is arguable
the requisite coincidence exists.
Significant Probative Value
'Significant probative value' is a higher standard than the Evidence Act's Dictionary
definition of 'probative value': the extent to which the evidence could rationally affect
the assessment of the probability of a fact in issue. The word 'significant' has been
interpreted as 'more than mere relevance but something less than a substantial degree
of relevance' and that the evidence must be 'of consequence' (Zaknic). A factor
indicating 'substantial' includes the number of occasions of the particular conduct
(Jacara) and the degree of similarity (Townsend). From above, four fires have
occurred at the furniture store over the last 15 years. In each case, an incendiary
device has been found near the business and the fire started in the back of the shop.
These numerous occasions with striking similarity make indicate significant probative
value.
It is likely the evidence is admissible.
D Question A4
The evidence may be objected on relevance
From above, evidence is relevant if it could rationally affect the assessment of the
probability of the existence of a fact in issue. (s 55(1)). Here, the Insurance Company
may argue that it is relevant as it goes to credibility of Olsen
Credibility Evidence
If evidence is relevant only because it affects the assessment of the credibility of a
witness, it is credibility evidence (s 101A(a)) which is not admissible under the
credibility rule unless an exception applies (s 102).
Exception 1: Led in Cross Examination
If Olsen admits to the knee injury, the plaintiff may argue that this credibility
evidence falls under the exception for cross-examination as to credibility (s 103). This
requires the evidence 'could substantially affect' the assessment of the witness's
credibility. This is a higher standard than mere relevance, requiring the evidence to
have 'real, persuasive bearing' on the reliability of the witness (R v RPS). The court
must have regard to whether the evidence tends to prove that the witness knowingly
or recklessly made a false representation while under an obligation to tell the truth
and the period that has elapsed since the event occurred (s 103(2)). Here, the plaintiff
may argue that since the knee injury has significantly disabled Chief Olsen, impairing
his quality of life, this gives him motive to be untruthful in assessing whether Bourke
deliberately set fire to his shop. Moreover, the fact that the injury occurred only 'a few
years ago' is not too remote to not be effectual. However, the fact that Bourke caused
the injury alone does not immediately give Olsen a motive to lie, as the injury may
have been caused fairly in the game, leading to no malice on the part of Olsen. Given
the high bar of 'substantially affect' required by s 103, it is likely that without more
evidence, the mere fact that Bourke caused Olsen's knee injury will not satisfy the
credibility exception.
Exception 2: Rebutting Denials
If Olsen denies the leg injury, evidence relevant to his credibility may be presented by
anyone else, so long as the court gives leave (s 106(1)). Here, the plaintiff is
attempting to present the evidence of Rememba that Bourke caused the leg injury and
that Olsen then said 'Ben Bourke is a menace! I'll pay him back some day'. As a
preliminary issue, leave is not required if the evidence tends to prove that the witness
is biased or has motive for being untruthful (s 103(2)(a)). Given the words 'I'll pay
him back someday' it is likely that the court will draw the inference that the Olsen
would be 'untruthful' if this 'paid back' Bourke. Overall, it is likely that the evidence
of Rememba would meet requirements under s 106(1)).
There is a preliminary issue however, that Rememba's recall of Olsen's statement that
he would 'pay back' Bourke is a previous representation that falls under the hearsay
rule (s 59). However, it is arguable that this first-hand hearsay falls under the
exception in s 64(3) on the basis that the maker of the representation (Olsen) is
available to be called.
Overall, if Olsen doesn't deny the injury, the evidence may not be admissible.
However, if he does deny the injury, evidence of Rememba may be admissible.
II PART B
A Question B1
What information will be required as a foundation
Authenticity
Any party seeking to introduce a document must first establish its authenticity in
order to establish relevance as a precursor to admissibility
To prove the contents of a document, a party may tender a document that forms part
of business records and the document is or purports to be a copy of the document in
question (s 48(1)(e)). Here the document in question is a credit card receipt from
Baby's Candy Store, a business. While the Evidence Act does not define 'record', in R
v Jones & Sullivan the it was held that the term 'in this context means a history of
events in some form'. A credit card receipt is a history of purchases made in the
business. Therefore, overall, it is likely that a document purporting to be a copy of the
credit card receipt will satisfy the requirements of s 48(1)(e).
Relevance
Again, the test is whether the document, could rationally affect the assessment of the
probability of the existence of a fact in issue. (s 55(1)). Here the document is being
adduced to demonstrate that Joe and Leslie had reconciled and that Joe had no motive
to kill. Given that only a 'minimum logical connection' is required between the
evidence and the fact in issue, it is likely that the evidence is relevant
How will you get the receipt entered?
Although the document itself is hearsay, the defense will argue the business records
exception under s 69. This requires that the document be kept in an ordinary course of
business, for a business purpose and made by a person who might reasonably be
supposed to have first hand knowledge of the information. This analysis is almost
identical to the authenticity issue in s 41(1)(e)).
Do you have to call the record-keeper to the witness stand?
The record-keeper does not need to be called. Instead, proof could be demonstrated by
affidavit or written statement. (s 170). This is because the record keeper is a person
who, had a position of responsibility in relation to making or keeping the document,
here credit card records of Baby's Candy Store (s 171(1)(a)).
B Question B2
The defense has raised a hearsay objection. The statement Leslie told Brooke that she
and Joe had a bitter argument and did not intend to go back to live with Joe is a
previous representation that falls under the hearsay rule (s 59). This is first-hand
hearsay, as Brooke heard Leslie make the previous representation (s 62(2)),
An exception may apply on the basis that the statement maker, Leslie, is unavailable
because she is dead (Evidence Act Dictionary). The prosecution may argue that the
hearsay rule does not apply because the representation was made in circumstances
that make it highly probably that the representation is reliable (s 65(2)(b). Here, Leslie
went to her stepmother, suddenly arriving in a taxi, visibly upset and saying that she
had argued with Joe. Recognized factors for assessing s 65(2)(b) include the
consistency of what was said with other material in the proceeding (Williams v The
Queen). As there is other evidence that Joe was estranged from his Leslie, this points
towards the high probability of the representation being reliable.
Overall, an exception to the hearsay rule likely exists. The objection should be
overruled.
C Question B3
Is the transcript section hearsay
Hearsay requires evidence of a 'previous representation' (s 59(1)). In the Evidence Act
Dictionary 'previous representation' defined as 'a representation made otherwise than
in the course of giving evidence in the proceeding in which evidence of the
representation is sought to be adduced.' Although 'proceeding' is not defined in Hoy
Mobile Pty Ltd, the court held that 'proceeding' 'does not extend to other hearings or
phrases, in which the parties have been engaged prior to that hearing.' Thus, the
transcript of a 'preliminary hearing' is a previous representation that falls within the
definition of hearsay (s 59(1)).
Is it admissible
An exception to the hearsay rule exists in criminal proceedings if the maker is
available. If the person has been called to give evidence the hearsay rule does not
apply to evidence of the representation that is given by that person if, when the
representation was made, the occurrence of the asserted fact was fresh in the memory
of the person who made the representation (s 66(2)). Here, the previous representation
is the preliminary hearing transcript. The previous representation made by Brooke
was clear in her mind at the time. Therefore, the transcript of the preliminary hearing
is admissible.
Is a Warning/Limiting Instruction Appropriate
Under s 165(1), credibility evidence is not of a kind that may be unreliable that allows
a warning. Further, the court may only limit the use of evidence if it might be unfairly
prejudicial to a party (s 136). Here the evidence is that Brook has made a prior
inconsistent statement. As discussed in A1, unfair prejudice requires the risk the fact
finder may use the evidence in an improper/emotional way. Here there is little risk as
the fact finder can weigh up the issue of the prior inconsistent statement in relation to
other evidence in the proceeding.
D Question B4
Generally, a person who is competent to give evidence is compellable (s 12(b)). As
there is no question to competence, Sandra will be compellable unless an exception
applies. Here, Sandra is objecting on the basis of the exception of compellability of
domestic partners and others in criminal proceedings (s 18).
From s 18, a person who is the parent of a defendant may object to be required to give
evidence (s 18(2)(a)). In determining whether the exception applies, the court must
find that there is a likelihood that harm would or might be caused to the person or to
the relationship between the person and the defendant, if the person gives evidence
and the nature and extent of that harm must outweigh the desirability of having the
evidence given (s 18(6)). This is a balancing test, with factors including: the nature
and gravity of the offence, the importance of the evidence and the nature of the
relationship (s 18(7)). While Joe is Sandra's only son and has lived with her
continuously, the damage to this relationship is severely outweighed firstly by the fact
that this is a murder trial, the most serious offence in our society, and the fact that
Sandra's evidence points against Joe's alibi.
Sandra should be compelled to testify.
E Question B5
Part (a)
The best possible objection is s 137. This requires that, in a criminal proceeding, the
court must refuse to admit evidence adduced by the prosecutor if its probative value is
outweighed by the danger of unfair prejudice to the accused. The definition of 'unfair
prejudice' was discussed in Question A1. t may be argued that the photo of the
deceased at the crime scene with her 'eyes open in a deathly gasp' will evoke an
emotional response to the jury. This is compared to a photograph in a forensic setting
where the deceased normally has their eyes closed and mouth shut in a neutral
fashion.
Part (b)
Although s 137 only requires that the unfair prejudice 'merely' outweigh the probative
value of the photograph, a photograph of the deceased at the crime scene, untouched,
is of high probative value, as it allows the court to determine the positioning of the
deceased at the time of death and how her body reacted. Although the deceased's eyes
and mouth are open, these are not particularly gruesome and usually occur when an
individual dies. Moreover, the photograph is in black and white, minimizing its
vividness.
F Question B6
Hearsay Exception
The prosecution has alleged that the statements fall within the business records
exception (s 69). The business records exception applies to a document that contains a
previous representation made or recorded in the document in the course of, or for the
purposes of, the business. (s 69(1)(b)). 'Business' is defined in the Evidence Act
Dictionary to include 'a profession, calling, occupation, trade or undertaking'. Further
in Mundine v Brown (No 3)it was held that there must be 'a commercial or mercantile
flavor to the circumstances in the course of which the document was generated'. Here,
although the document was made as part of a police investigation, the statement has
no commercial/mercantile flavor. Therefore, it is unlikely to fall within the exception.
However, a further exception may apply as the maker of the representation, Brooke,
has suffered a stroke and is unavailable. An exception to the hearsay rule exists if the
previous representation was made shortly after or when the fact occurred and in
circumstances that make it unlikely to be a fabrication (s 65(2)(b)). Here, Brooke
made the statement on the same night of the alleged murder and was clear in her
identification. There is no suggestion in the circumstances that Brooke fabricated or
'made up' her evidence; therefore it is likely this exception exists.
Identification Evidence
As the prosecutor is seeking to adduce evidence of Brooke's assertion that Joe was,
present where the offence was committed this is 'identification evidence' (Evidence
Act Dictionary). Particularly this is 'visual identification evidence' (s 114(1).
From s 114(2), visual identification evidence is not admissible unless an identification
parade that included the defendant was held before the identification was made; or it
would not have been reasonable to have held the parade or the defendant refused to
take part. Here, it is arguable it would not have been reasonable to have held an
identification parade. This is because Brooke made the identification shortly after the
offence occurred. In R v Thompson, it was held it would not have been reasonable to
hold a parade in a case where the identification occurred a few minutes after the
commission of the offence and before the police had begun an investigation. Here, the
police had just arrived on the scene and Silva went to make sure the ambulance had
been called. There he found Brooke who immediately made the identification. Given
that a murder investigation had not formally started at that point, it is likely it would
not have been reasonable to hold a parade. Further, as there is no evidence that Silva
intentionally influenced Brooke to identify Joe (s 114(2), it is likely that the evidence
is admissible. This will need to be accompanied by a s 116 warning that there is a
'special need for caution before accepting identification evidence'.
G Question B7
Is the defence attorney correct?
From the Evidence Act dictionary, an admission is a previous representation that is
made by a person who is a party to a proceeding and is adverse to the person's interest
in the outcome of the proceeding. Here the previous representation is made by Joe,
the defendant, however, there is nothing adverse to his interest in the statement. The
statement is trying to present Joe as having no idea that Leslie had been shot or died
from her wounds. There is self-serving, and therefore not an admission.
What other arguments could the defence attorney raise?
The defence attorney could raise another argument that the statement is an exception
to the hearsay rule on the basis of it being a contemporaneous statement about the
person's health ect (s 66A). This exception is available as the hearsay is first hand,
based on what Officer Silva heard, saw and perceived about Joe (s 62). The
contemporaneous statement exception states that the hearsay rule does not apply to
evidence of a previous representation made by a person if the representation was a
contemporaneous representation, about the person's feelings, sensations, knowledge
or state of mind (s 66A). Here, the statement is being presented to demonstrate that
Joe was not aware that Leslie had been shot or died from her wounds. This statement
expressed his disbelief and his confused state of mind at the time. It is arguable that
this exception exists and the statement is admissible.