LEGAL PRACTITIONERS ADMISSION BOARD MARCH 1996 EVIDENCE TIME: Three Hours. Candidates are required to attempt any THREE questions. If a candidate answers more than the specified number of questions, only the first 3 questions attempted will be marked. No question is compulsory. All questions are of equal value. All questions may be answered in one examination booklet. Each page of each answer must be numbered with the appropriate question number. Candidates must indicate which questions they have answered on the cover of the first examination booklet. Candidates must write their answers clearly. Lack of legibility may lead to a delay in the candidate’s result being given. Permitted Material: No materials, other than those listed below, are permitted in the examination room. Government Printer’s copy of either the Evidence Act 1995 (Cth), or Evidence Law 1995 with Commentary; Crimes Act 1900 (NSW). A copy of the Law Extension Committee’s Evidence case list will be provided. Permitted materials may be underlined or highlighted but must not be otherwise marked or annotated in any way, nor may stickers or fliers be attached to the materials. As some instances of cheating and of bringing unauthorised material into the examination room have come to the attention of the Admission Board, candidates are warned that such conduct will result in instant expulsion from the examination and may result in exclusion from all further examinations. Question 1. Michael Dimain was tried and found guilty by a District Court jury on a number of charges of sexual intercourse without consent in circumstances aggravation. Two of the charges related to sexual assaults on Veronica. Two of the charges related to sexual assaults on Wilma. The trial began on September 4 1995. Dimain is now appealing against the conviction on a number of grounds. The prosecution alleged that Dimain sexually assaulted two fifteen year old girls, Wilma and Veronica. Wilma was the chief prosecution but Veronica was not called to testify. Wilma testified that the girls were together on a suburban street at 3.00 am when Dimain approached them in a motor vehicle. Dimain told them that he was a police officer and produced an identify card which they could not see well. Dimain told them that he suspected them of drug dealing and would have to search them. Before searching them” he put them in his car, put handcuffs on Wilma and Veronica and drove to a public park. Wilma stated that he took Veronica out of the car and she was left alone for some time. After about fifteen minutes Dimain brought Veronica back to the car and took Wilma. He made her take off her clothes fondled her breasts and put his hand between her legs. At that stage a station wagon drove up and Veronica who had freed herself from the handcuffs escaped from Dimain’s car and threw herself in front of the station wagon. Dimain then fled across the park on foot but the security officer in the station wagon managed to intercept him. Wilma testifies that Veronica who was very very upset said to Wilma: He raped me. He made me take my clothes off and lie down. Then he lay on top of me and .....” Wilma’s testimony goes on to give details of what Veronica had told her about the sexual assault while they were waiting for the police to arrive in the park. The police had been summoned by the security officer. Veronica and Wilma were both treated by a rape trauma counsellor. That counsellor is called to testify. She states that Wilma seems to have recovered from her ordeal but that Veronica is now seriously disturbed and was sent overseas to visit her grandmother in New Zealand when the trial approached. The rape trauma counsellor is asked to produce her notes of what the girls said in the sessions. The counsellor objected and the trial judge ruled that the notes need not be produced. There are three grounds of appeal and you are asked to discuss the law that would apply to each of these and indicate what conclusion should follow. a) The appellant argues that the two items of evidence were wrongly admitted and the judge gave incorrect directions to the jury about the use that could be made of this evidence. These were a card which bore the words NSW Police Ball” it is said to be similar to one that was found in the car when the car was searched but that card was lost before the trial commenced. (Questi on 1 continues) (Question 1 continued) The set of handcuffs which were found in the car. The judge told the jury to examine these exhibits in the jury room and attempt to determine whether they could have been fooled by the card if presented in a dim light and whether they could free themselves from the handcuffs. The answers to these questions could be relevant to their view of the facts presented in court. b) The appellant argues that in the absence of Veronica as a witness the evidence of what Veronica had said was inadmissible and the charges relating to sexual assault on Veronica should have been dismissed. c) The appellant argues that there was no basis on which the trial judge could rule that the rape trauma counsellor’s notes did not have to be produced. Question 2. Answer only ONE part of this question Either a) Discuss the following comment on the charges effected by the Evidence Act 1995 explaining both the common law position and the statutory provisions. Include in your answer some consideration of whether the change is desirable and whether it has been achieved in the most effective manner. Evidence of prior statements made by a witness could, under certain circumstances, be allowed into court under the common law rules as going to credit but for no other purpose. Under provisions in the Evidence Act 1995 such statements can now be allowed into evidence as going to truth. Or b) Write a case note on ONE of the following cases, (etc) i) Ridgeway v R ii) Pfennig v R (Question 3 follows) Question 3. In an action, Took v Underhill Mining Pty Ltd, for damages under the Compensation to Relatives Act Judge G.N. Dalf hands down a decision which refuses to grant the order which was sought. His Honour stated reasons for judgment as follows: Lobelia Took bought this action seeking damages under the Compensation to Relatives Act in respect of the death of her husband, Peregube Took. Mr Took was a coal miner employed by Underhill Mining Pty Ltd. He dies when an explosion occurred in the mine in which he was working. The plaintiff contends that the employer company was negligent in that, it ignored various warning signs which should have caused them to close the mine and failed to prevent the men on Took’s shift from descending into the mine. The plaintiff called as the only witness as to negligence a miner named B Oromir who testified that he had been working in the mine during the shift immediately prior to the shift when the accident occurred. Oromir, a simple miner, testified that in his opinion formed while working that shift, the mine was unsafe. In his words There was something wrong, I don’t know exactly what.” I found this testimony to be of no assistance. Indeed, if this was a jury trial I would have ruled the testimony inadmissible. Expert evidence was called from mineralogists who testified that explosions in mines are caused by the building up of hydrocarbon gases, that such buildups should be detectable by gas meters and that a calculation of Co make” above 12 is a clear danger signal which should be acted upon. This evidence was unchallenged. The plaintiff’s case was considerably strengthened when a shift supervisor Gloin called by the defence admitted in cross-examination that he had calculated a CO make” of 19 the afternoon before the explosion. However the basis for such a calculation was never clarified, the defence presented evidence to the effect that several gas meters gave readings that indicated no abnormal build up of gas. Although the normal presumption that scientific instruments are accurate is displaced by subsequent events this evidence does go to prove negligence. I have come to the conclusion that the evidence for and against the plaintiff’s case is so evenly balanced that I am bound by the law as to burden and standard of proof to dismiss this action” Discuss the evidentiary issues which arise out of these reasons for judgments. (Question 4 follows) Question 4. A burglar is discovered in the act by the owner of the house. The owner, David Doe, is murdered by the burglar. The burglar is seen running from the house by an eyewitness, Ed White, who was fourteen when the burglary was committed. The police suspect Anderson, a man with seven convictions for burglary. Anderson was released from prison just before the crime was committed. White identifies Anderson from a mug shot photograph when the photograph is shown to White by the police. The police obtain a warrant for Anderson. He is held for several days for questioning. Although the police are legally required to take him before a magistrate, this is not done. It has in fact become a fairly common occurrence for the police to hold suspects beyond the permitted time. The questioning proves fruitless until the fourth day. On that day, as the police allege, Anderson makes a full confession. The record of interview shows that the confession was preceded by a statement made by Sergeant Bloggs: Look Anderson, we’ve got you cold. An eyewitness saw you running from the scene. In my opinion, any jury will find that evidence convincing and put you away. The game’s up. Why not confess?” The confession was, they say, transcribed in a record of interview and read back to Anderson but he refused to sign it. The interview was not tape-recorded. In the alleged confession, Anderson admits killing the house owner but claims he was acting in self defence. One year later the trial begins. The prosecution seek to adduce evidence of the alleged confession by calling Sergeant Bloggs to testify. The defence objects and argues that the confession is inadmissible. In the voir dire two conflicting versions of the interrogation emerge: a) Anderson asserts that, on the fourth day of questioning, Sergeant Bloggs made the following statements to him: 1) It would be better if you told the truth. 2) You will only get a short sentence if you confess. Anderson asserts that he did not in fact make any confession. b) Sergeant Bloggs asserts that Anderson was treated well during the four days, only being questioned one hour per day. On the fourth day the confession was obtained immediately after he told Anderson there was an eyewitness. None of the three statements which Anderson alleges to have been made by him were in fact made. (Question 4 continues) (Question 4 continued) In closing address counsel for Anderson suggests to the jury that Ed White was responsible for the burglary. Further in the absence of the jury counsel asks the judge to tell the jury that they must look for corroboration of White’s testimony before they can convict Anderson. Discuss the evidentiary issues that arise from these facts and indicate how the trial judge should rule in each case. - End of paper -