Primary Examination for the Bachelor of Laws

Semester 2, 2009

009136 LAW OF EVIDENCE
LAW 3003

Official Reading Time: 10 mins

Writing Time: 150 mins

Total Duration:160 mins

Instructions for Candidates

  • This is an open book examination.
  • This exam consists of two parts: Part A and Part B.
  • BOTH Part A and Part B should be attempted.
  • Part A – candidates must answer FOUR (4) out of SIX (6) short problems. The problems are worth equal marks.
  • Part A is worth 40 marks.
  • Part B is worth 60 marks.
  • This exam constitutes 70% of a candidate's assessment in this subject.

Permitted Materials

  • Candidates may take into the examination room any book or materials other than those borrowed from a University Library.
DO NOT COMMENCE WRITING UNTIL INSTRUCTED TO DO SO

Course ID: 009136Page 1 of 3

PART A

Students must answerFOUR (4) of these SIX (6) shorter problems. Part A is worth 40 marks. The problems are each worth equal marks.

Question 1.

In an action in the SA District Court against the Federal Government for breach of a contract to purchase building materials, the Defendant claims the contract incorporates the “Federal Housing Policy”, which provides that ‘all government building supply contracts should contain the condition that purchase may be refused if, in the opinion of the Minister, the materials are not required by the government.’ To prove that policy can counsel for the Defendant tender a photocopy of that policy as printed by the Commonwealth Government printer and containing the electronic signature of the Minister? Would your answer be different if the document was simply a photocopy of a typewritten letter, addressed to the Defendant, on Minister of Housing letterhead signed by the Minister’s personal assistant and purporting to summarise the policy?

  1. Authorised copy of policy not tendered as hearsay (to prove the truth of any fact asserted in an out of court statement) but as the policy (to prove the statements constituting the policy). Only issues authentication and secondary evidence. May be able to tender as Commonwealth record via ss 182 or 5 CEA (use ss 155, 155A?). Otherwise SA law applies. Ss 35, 37, 37B and 39 SA EA don’t appear to apply to Cth documents but seems no reason why can’t simply use ss 45A or B to dispense with authentication and permit copy (also permitted by s 45C).
  2. The letter containing a summary of the policy is not the policy itself but an out of court assertion of what that policy is and so is secondary and hearsay evidence of the contents. Again either attempt use of CEA or more simply use ss 45A, 45B of the SAEA admitting apparently genuine documents. May be problems whether letter a “business record” under s 45A or whether PA can testify of her own knowledge to the official policy under 45B. Photocopies permitted under these sections as well as s 45C. As letter signed by the PA might also try s 34C.

Question 2

Peta sues Delta in the Supreme Court of the ACT for damages in tort incurred as a result of a road accident. In her statement to a police officer immediately after the accident Peta says that she was traveling slowly looking for a park when Delta came crashing into her from behind. When she testifies she says the same thing. In cross-examination it is put to Peta that she is lying, that she was looking for a park but that when she saw one on the opposite side of the road she suddenly swerved out to do a U-turn. Can Peta be asked in re-examination about the statement she made to the police officer? If she denies it can the police officer be called to testify to that statement? Would your answers be different if the action had been in the SA District Court?

  1. Under UEA. Question of the admissibility of Peta’s prior consistent statement. As this contains relevant admissible first-hand hearsay of the material facts in issue it can simply be referred to in her evidence: s 64(3). If not referred to in chief then counsel could not re-examine on it without leave unless it becomes relevant as a result of cross-examination: s 39.
  2. But the real reason for tendering the statement is presumably to rebut the suggestion of invention in XXE. While this appears to invoke s 108(3)(b) strictly the credibility rule does not apply as the statement is also relevant and admissible under s 64(3). The statement can thus be proved either in re-examination or by calling the police officer if re-examination does not prove fruitful.
  3. At common law there would have to be a strict allegation of recent invention which the prior statement would be capable of rebutting: Nom D v Clements, Mapp v Stephens etc. If admitted it would only be relevant to P’s credit as otherwise hearsay (a self-serving statement not admissible as an admission).

Question 3.

At her trial for assault in the Supreme Court of the ACT Donna denies the assault and testifies that she has never committed a crime of violence before in her life. In cross-examination can she be asked about having been convicted of obtaining money by false pretences? If she denies the conviction can evidence of it be tendered in reply by the prosecution? Would your answer be different if the action had been in the SA District Court?

  1. Under the UEA Dona is giving evidence of good character in a particular respect within s 110(1) which can only be met by evidence of bad character in that respect by the prosecution: s 110(3). ‘A defendant must not be cross-examined about matters arising out of evidence of a kind referred to in this Part (ie character generally or in a particular respect) unless the court gives leave.” Query whether leave would be granted to cross-examine about a conviction for falsity rather than violence. This is not within s 110(3) but arguably permission might extend further to permit XXE about convictions relevant to her credibility which arises as a result of the evidence she has given in chief. If denied the conviction can be proved without leave under s 106(2)(b).
  2. In SA the matter is governed by s 18. Good character evidence has been given, the shield is lost and D may be XXE’d to rebut the good character and to be discredited as a witness. If denied the previous conviction could be proved under s 26 SA EA. Directions would be required as to the use of the conviction.

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Question 4.

Paula sues Dmitri in the Supreme Court of the ACT for breach of contract to supply designer clothing for Paula’s fashion house. In her evidence in chief Paula testifies that the clothes delivered by Dmitri were not of the quality promised. In cross-examination Paula denies that she ever said to Angelo, an employee in her shop, that she just hated Dmitri’s designs and would take whatever steps were necessary to ensure that he paid for them in some way. Can Angelo be called to testify to these statements? If so, for what purposes might they be admissible? Would your answer be different if the action had been in the SA District Court?

  1. Under the UEA this credibility XXE (query whether one could argue this XXE goes directly to the issue) would be permitted by s 103, and if she denies the statement it might be proved with leave under s 106(1)(b) or without leave if under s 106(2)(a) it tends to prove she is ‘biased or has a motive to be untruthful’ or as a prior inconsistent statement under s 106(2)(c) (s 43 would have to be complied with). The statement could also be used as hearsay under s 60 if it is so relevant.
  2. At common law again the finality rule is invoked and provided a proper basis is laid in XXE the prior statement may similarly used to establish bias or as a prior inconsistent statement (if it can be regarded as a statement relative to the subject-matter of the action under s 28): Nicholls and Coates and s 28. Arguably the prior statement is evidence of a biased state of mind and for that reason not caught by the hearsay rule. If admissible the statement can only go to P’s credit (unless her statement might somehow be construed as an admission).

Question 5.

Dante is charged with robbery and tried before a jury in the Supreme Court of the ACT. Can Dante call his close friend Bernardo to testify that he had heard Alex confess to having alone committed the robbery charged? The defence has hired private investigators to locate Alex but has been unable to find him. Assume that Bernardo is called. In cross-examination it is put to him that in fact it was Dante who had admitted committing the crime to him. Bernardo denies that Dante made such an admission. He is further cross-examined to suggest that he told his wife, Ruth, that Dante had made such an admission to him. He denies having made this statement to Ruth. Can Ruth be compelled by the prosecution to testify? If compellable, can Ruth testify admissibly to this statement? For what purposes may it be tendered? Could Dante call his close friend Bernardo to testify that he had heard Alex confess to having alone committed the robbery charged if the charges were heard in the SA District Court?

  1. Under the UEA D can call a witness to the confession by a third party of the crime alleged against the defendant: s 65(2)(d), (7) or under s 65(8) (as W confessing unavailable, within s 5 of Dictionary).
  2. This is XXE on a prior inconsistent statement under s 43 and the prior statement can be proved under s 106(2)(c) without leave if denied. Once admitted it can be used as hearsay evidence to any degree except it seems in the case of an admission (as a result of the amendment to s 60 amending the decision in Lee).
  3. Ruth can be compelled to testify. She is not related to the accused and so s 18 does not apply.
  4. At common law B’s evidence would be hearsay and inadmissible: Van Beelen; Bannon.

Question 6.

Hardiboard Ltd is sued by P in the Supreme Court of the ACT for damages alleged to have resulted from her contracting asbestosis through washing her husband’s working clothes over many years. Her husband had for 20 years worked in the Hardiboard factory which during this time manufactured asbestos building materials. P doesn’t strictly prove that asbestos is a danger to human health. Is strict proof of this fact required? Can the judge inform herself of this fact? If so how? Can P call expert evidence of epidemiological studies of rates of asbestosis contracted by workers in factories manufacturing materials from asbestos, these studies showing that over 80% of workers in such factories contracted asbestosis and over 55% of members of their families who lived withworkers for more than 10 years. If admitted, is the evidence of these epidemiological studies sufficient to prove that the Defendant caused P’s asbestosis?

  1. Judge can inform herself of common knowledge under s 144. Requires notice to parties so they can be heard on it: s 144(4) (there is a decision on this but I didn’t refer students to it: Kent v Wotton & Byrne Pty Ltd (2006) 15 Tas R 264.
  2. Expert evidence of epidemiological studies presumably admissible under s 79 even though it might relate to an ultimate issue: s 80. As relevant to the giving of the expert evidence the epidemiological studies themselves appear to be admissible under s 60.
  3. Whether a statistical probability only can amount to proof on the balance of probabilities (same test under s 140?) was doubted by King in SGIC v Laube and in Seltsam Pty Ltd v McGuiness (2000) 49 NSWLR 262 at [122], [123], [130] Spigelman CJ; Amaca Pty Ltd (Formerly James Hardie &Co Pty Ltd) v Hannell (2007) 34 WAR 109, [2007] WASCA 158 (again students not referred to the last two cases). Probably also need some medical evidence relating to P supporting causation.

PART B

All students must answer this question. Part B is worth SIXTY (60) marks.

Dion and Ava are jointly charged and jointly tried before a jury in the District Court of SA on one count of sexually assaulting Cameron and one count of sexually assaulting Grant. An application by the accused to have the counts separately tried is refused.

The complainants Cameron and Grant are the principal prosecution witnesses. Cameron is aged 18 at the time of the trial and Grant 17.

Cameron testifies that the assault occurred 5 years earlier. His testimony is as follows:

At the time of the assault I was living at home with my mother Ava and my younger brother Grant. My parents had separated and I seldom saw my father. At the time of the assault my mother was in a relationship with Dion, who visited us regularly and often stayed the night. Dion was a teacher at my school and I had heard rumours that he was “homosexual”, although I didn’t know at the time what that meant. From the moment Dion began visiting Dion was always looking at me and touching me whenever possible. He would give me bear hugs and try to wrestle in a playful way. He also brought me lots of presents, which I didn’t mind. One evening, soon after I had gone to bed, he came in with a model plane. My mother was with him. He began asking me what I knew about sex. When I said “Nothing” he said he would teach me and my mother said “Good idea”. Dion began touching me under the sheet. I pushed him away and they left. Some time later, it was the day of my 13th birthday, Dion again came to me as I was going to bed. My mother was with him and said I had to learn about sex and that Dion would teach me. I was very confused and let Dion assault me sexually whilst he gave me a “lesson”. [It is this incident that is the subject of the count of sexual assault against Cameron]. On another occasion during the summer holidays I was woken up by him again touching me and I’m pretty sure my mum was in the room at the same time. Later that year Dion went away. I was told he had taken up a position at a school in Darwin. I felt unable to make any complaint about what had happened while I was still living with my mother but I have now left school and am living with my girl-friend Jo and when I told her my story she encouraged me to report it to the police.

Can Cameron testify admissibly about the uncharged acts and other misconduct alleged against the accused? If so, what directions must be given by the judge to the jury about the use of this evidence? Must any direction or warning be given because of Cameron’s long delay in complaining?

  1. This requires a discussion of Nieterink and HML. Nieterink and Gleeson, Crennan and Kiefel in HML would let in the uncharged acts as relevant other than propensity to explain D’s sexual interest, why D did not complain and provide coherency for determining the credibility of the complainant’s account. If so admitted then the jury would have to be directed as to these uses. It would also be required to find the the sexual interest proved beyond reasonable doubt before using the evidence for this purpose (a majority of HML so holding). If Hayne, Kirby and Gummow in HML are followed the evidence must be admissible as propensity evidence applying the Pfennig test (they would hold the test satisfied) and the jury could then be directed – provided it accepted the propensity established brd – that it could use the evidence as propensity evidence as well as for any other non-propensity purposes.
  2. No warnings required that unsafe to act upon alleged victim’s uncorroborated testimony: s 34L(5). Doesn’t forbid. Delay is now a basis for a forensic disadvantage direction (not a warning) as a consequence of s 34CB SAEA – which abolishes the ‘Longman warning’ (whatever that comprises). Nor must the judge suggest that any inference may be drawn from the mere failure to complain: 34M(2).

Grant testifies only that on one occasion shortly after Cameron’s 13th birthday [the subject of the count charged] after he had gone to bed Dion and his mother came to him, Dion gave him a present of a model train, and after a conversation about sex Dion had sexually assaulted him whilst his mother watched on.

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Is the jury permitted to consider the testimonies of the complainants together in deciding the separate counts charged against the accused?

The evidence in relation to the separate charges against Cameron and Grant must be separately considered unless the evidence is cross-admissible. The argument for cross-admissibility would depend upon Hoch and the possibility of concoction would arguably not be eliminated in the circumstances of this scenario. In fact the defence might argue that concoction is the very basis of these allegations.

Jo testifies that Cameron told her of the incident (she recounts its details), how it had affected him, and that, on her insistence, he had reported the matter to the police.

Is Jo’s testimony admissible and if so for what purpose or purposes?

Jo can give evidence of an ‘initial complaint’ under s 34M. The complaint cannot be used as hearsay evidence and the jury must be directed in accordance with s 34M(4) and (5).

Police testify that having interviewed Dion they interviewed Ava at the police station. The interview was video recorded. They explained the purpose of their visit and gave a caution. Ava denied any knowledge of the incidents until the police said, 'Look, Dion has told us everything so you may as well come clean about it. It was a long time ago and I'm sure no judge will send you to prison given your excellent standing in the community.' Ava then admits she and Dion visited Cameron and Grant in their bed-rooms, that she encouraged them to let Dion sexually assault them and watched with interest whilst the offences occurred. There is no evidence that Dion had admitted his involvement in the crimes at the time of this interview. The judge refuses an application to exclude evidence of the interview.