Problems: Admission and Use of Evidence

Problems: Admission and Use of Evidence

Problem One (September 2005)

Tom, aged 15, Ursula, aged 14, and Victor, also aged 14, are on trial charged with the attempted murder of Anthony Hinchcliffe who was aged five when the incident giving rise to the charge occurred.

The next witness called for the prosecution is Anthony’s cousin Tracey Jones, aged 23. Tracey had, at the time of the incident two years earlier, joined the search party to look for Anthony. She found him about 200 metres from his home. The transcript of her examination in chief shows the following questions and answers:

Q: He was very upset, wasn’t he?

A: Yes, he ran into my arms and burst into tears.

Q. What, if anything, did he say to you?

A: He said: “Some boys and girls tied a rope around my neck and tried to tie me to a tree”.

Discuss the evidentiary issues that arise and indicate what findings the trial judge must have made before allowing Tracey to testify.

Scenario A (March 2002)

Julian Tringle appeared in the District Court charged with supplying a prohibited drug (cannabis leaf - 224 grams).

The charges arose out of the events of the night of July 14 2000. On that evening, two police officers Constables Stone and Wells were on patrol on Epping Road when they noticed a new Toyota Supra with damage to the driver’s side door. They pulled the car over and Constable Stone walked up to the driver of the Supra while Constable Wells remained in the police vehicle and carried out a registration check. Stone subsequently told Wells that as he walked up to the Supra he noticed the driver lean across to the passenger side of the vehicle and place something in the glove box.

The police searched the vehicle, over objection from Tringle and found $860 in the console. They asked him to open the glove box, and when he declined to do so used a key from his key ring to open the glove box themselves. In the glove box they found three plastic bags containing a quantity of vegetable matter.

The following conversation then took place. It was recorded in Constable Wells’ notebook but was not signed by Tringle:

Wells: "You are not obliged to say or do anything unless you wish. Do you understand that?"

Tringle: "Yes."

Wells: "What is that?"

Tringle: "It's marijuana."

Wells: "Where did you get it from?"

Tringle: "From two blokes at the Great Northern."

A subsequent search of the house in which Tringle lived discovered a number of marijuana plants growing in pots.

Assume that you are a judge in the District Court and that you have been asked to make a number of preliminary rulings on matters of evidence. Give reasons for your decisions on the following matters.

Question Two: (refer to the facts in scenario A and answer this question)

On the grounds that there was no reasonable cause for stopping the car, there has been a preliminary finding of fact that the search of the car was illegal. How does this finding affect the admissibility of the evidence of the result of the search?

Question Three: (refer to the facts in scenario A and answer this question)

Counsel for Tringle, argues that no evidence as to anything Tringle said can be admitted because it was not recorded at the time and further that the statement that “It’s marijuana” can not be admitted on the basis that there is no evidence that Tringle was able to identify marijuana.

Question Four (September 08)

Fred Nerk is on trial before a judge and jury in the Criminal Division of the Supreme Court of New South Wales charged with the manslaughter of his ten-month-old son, Patrick. The prosecution alleges that on 12 December 2006 Fred had agreed to drop his son off at the day care centre. He put the child in the car seat in the rear of the car but forgot he was there. He left the car in the parking lot outside his place of work in Parramatta. The temperature that day reached 36º C. When Fred returned to the car at noon the child was dead.

The prosecution calls as a witness Dr Julia Lo, a paediatrician who is on staff at the Children’s Hospital in Sydney. Dr Lo testifies that she has read several studies of experiments run to determine the effect of the surrounding temperature on the temperature in a closed car standing under full sun. This evidence is objected to on the basis that it is outside her area of expertise and is hearsay but the judge dismisses the objection. Dr Lo further testifies that in her opinion, if as these studies suggest, the temperature in the car had reached 46ºC within 40 minutes, the child would have died within an hour. Finally, she testifies that, in her opinion the death was due to criminal negligence on the part of Fred Nerk. The defence objects that the final statement by the expert goes to the ultimate issue. The judge agrees, and accordingly excludes this evidence.

Question Five (September 06)

Damon Karger is on trial for the murder of Gloria Angstrom. The prosecution allege that the victim was strangled with an article of her own clothing, a camisole. She had been found at 11 am, lying on her bed face down fully clothed but her skirt, underpants, blouse and bra had been cut with a knife so that her back and legs were exposed. She had been sexually assaulted.

The prosecution call W who testifies that she had a sexual relationship with the accused. She describes their sexual activities as “experimental”. She testifies that at one time she had awoken after a night spent with the accused to find that he had cut the underclothes she was wearing off her. The defence object to the introduction of this evidence but are unsuccessful in excluding it.

Scenario B (March 03)

Jon Homme and Josh Lord were tried on charges of murdering Victor Mina. The prosecution allege that on the night of October 31 the accused forced their way into the Mina household and in the presence of Mrs Mina forced the deceased to swallow three tablespoons of caustic lye. The following evidence is presented.

Question Six (refer to the facts in scenario B and answer this question)

Jon Homme testified denying any involvement with the accident and claiming that this is a case of mistaken identity. He suggests that Lord has a lengthy criminal record and that his statement to the police should be discounted on that basis.

Question Seven (refer to the facts in scenario B and answer this question)

Defence counsel for Lord call two psychologists to testify. The court accepts that these witnesses are experts and, over objection from Homme, allows them to testify. They state that, in their opinion based on medical records and interviews of both accused that Homme is a violent and sadistic man, while Lord is lacking in imagination and of a submissive character

Question Eight

William McGee is on trial on numerous charges of child sexual assault. The assaults are alleged to have occurred over a thirty year period from 1969 to 1999. Among the witnesses the prosecution calls are the following persons who claim to have been students of McGee when he assaulted them.

a.  Maureen Parl testifies that she was assaulted when she was 12 in 1972. The prosecution seeks also to call Maureen’s brother Simon who will testify, if allowed to do so that Maureen told him about the assault eighteen months later in 1974.

Queston Nine

The Cadabra Drug Company is brought to trial in the Supreme Court of NSW on charges of criminally negligent homicide in relation to the deaths of four people that occurred between August 1 and November 30 2003. These four people were participants in a clinical drug trial which had used 15,000 patients in a test of the drug Abra. It was suggested that Abra could act as a medicine for asthma. The trial was initially planned to last for 36 months but was terminated after 23 months on the basis that in a number of cases the drug put such stress on the heart of the patient that death resulted. The prosecution alleges that the clinical trial had been carried on too long when early results of the clinical trial should have led to it being terminated after 12 months. The four deceased named in the indictment died in the last four months of the clinical trial.

You have been employed by the prosecution to prepare a number of advices on specific evidentiary issues:

a) In preparation for the criminal trial the prosecution has issued a subpoena to compel production of the medical records kept by the Cadabra Company. Lawyers for the company, aware of the fact that the company is the accused in this case, claim that these records do not need to be produced because they can be protected by the privilege against self-incrimination.

Question Ten (Sept 08)

Moonee Bob Lockhart is the defendant in a civil action in which the Cronulla Sharks are seeking damages for breach of contract in the Supreme Court of New South Wales. Lockhart testifies as the first witness for the defence, to the effect that the Cronulla Sharks had breached their contract with him before he left for France. Specifically he alleges that the team management failed to provide him with the services of a personal trainer and a dietician during June and July 2007, despite the fact that it was a term of the contract that these services would be provided on a continuing basis throughout the currency of the contract. In cross-examination Lockhart is asked: Q: It’s true, isn’t it that you showed no loyalty to your club?

Lockhart’s counsel objected to the form of the question but the objection was overruled and Lockhart answered the question. The cross-examiner then questions Lockhart as follows:

Q: Didn’t you, earlier that year, condemn Smith, a player, for showing no loyalty to the club?

A: I don’t remember that, when exactly? (His counsel objects that he needs to be told when and what exactly he is alleged to have said but the plaintiff’s counsel does not comply.)

Q: Isn’t it also true that, on the day before you left for France you said and I quote: “You’ve got to stick with your team and work as a team”?

Lockhart admits having said this but the plaintiff seeks to call as a witness the reporter to whom it was said. This is allowed, over objection.

1