LAW72005 Evidence (2018) Assessment Tasks

By April 20, 2018Academic Papers

Question “facts” for LAW72005 Evidence assignment [2018] This version: 19 February 2018 Page 2 of 9

LAW72005 Evidence (2018)

Assessment Task #1: Due date:

5 Length:

Weight:
10 Submitted:

Problem Question Assignment

Monday 30 April 2018 (Week 9), at 12 noon (Queensland time)

2,000 words (not counting the bibliography, or short headings,1 or any referencing-only footnotes) with 10% leeway

50%
Electronic copy only (upload)

Students are encouraged to use headings to structure their assignment (and to make it easier for readers to follow). As a general rule of thumb, headings should rarely exceed one line each in length, and headings plus footnotes in total should rarely exceed about a dozen lines per page.

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15

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determine which factual details are (or might be) legally relevant;

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give due consideration to the main, plausible counter- arguments; and

Question “facts” for LAW72005 Evidence assignment [2018] This version: 19 February 2018 Page 2 of 9

Assignment Objectives

This assignment requires you to:

apply the relevant legal rules to the factsof a concrete, detailed (and fictitious) case study;

  • disregard red herringsthat are immaterial to the legal issues;

  • give reasons to support your answer, in particular by citing relevant legislative provisions and case law;

provide specific legal advice.

Question “facts” for LAW72005 Evidence assignment [2018] This version: 19 February 2018 Page 2 of 9

This assignment may cover any material from the first six Topics in this

Unit, but will not assess anything that is mainly discussed in Topics 7 to 30 12 (ie, from Week 8 onwards).2

In relation to ANY THREE (3) of the following five questions (Q.1 to Q.5 below), state whether the evidence involved in each scenario is or is not likely to be held admissible (and where applicable on what conditions, if any) by the courts. Eg, in particular:

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On what ground(s) could the opposing party object to that evidence being admitted?

On what ground(s) could the adducing party argue for that evidence to be admitted?

Which way is it likely the trial judge will rule (or would be expected by the appellate courts to rule) on these admissibility issues?

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Ie, no marks are awarded for discussing hearsay (rationale, boundaries, exceptions); similar fact (tendency, propensity and coincidence) evidence; character evidence; sexual history of assault victims; confessions/ admissions/ statements against interest; privileges; judicial discretions and warnings; or corroboration.

Instead, students should only consider Topics 1 to 6 (relevance; burden and standard of proof; testimonial evidence from witnesses: competence, compellability and credibility: vulnerable witnesses; right to silence; examination of witnesses; presumptions and inferences; documents; real evidence; identification, expert opinions, and other opinion evidence).

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Question “facts” for LAW72005 Evidence assignment [2018] This version: 19 February 2018 Page 2 of 9

Give your reasons why, citing relevant legislative provisions and case law.

Each question (Q.1 to Q.5) carries 16.67 marks, for a maximum 50 45 marks when you answer three. All sub-questions within a question (eg,

Q.1.a) are compulsory and are weighted equally.

Students should also note:

Dont waste words repeating lengthy chunks of the question facts. Refer or summarise instead.

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Lines in this PDF document are numbered for convenient citation. If you quote from, or refer to, the text of the problem question, please use in-text line numbers to cite eg [20]to refer to line 20, [37-40]for lines 37 to 40, etc rather than citing page numbers and/or footnotes.

Write this as an essay in the third person, not as a legal adviceor letter from a solicitorin the second person. Ie, write aboutthe parties, not tothe parties.

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Where documents are concerned, don’t dwell on hearsay-based objections (since hearsay is not covered until after the assignment due date). Instead focus on other (Topics 1 to 6) issues regarding the document’s admissibility.

Focus on the admissibility of evidence only: dont spend words trying to predict which way the verdict(s) overall will go.

Kara, the New South Wales Minister for Sustainable Environment &

Economic Development, and Quint, a well-known property developer, 70 are jointly suing the Daily Trumpet, a prominent Sydney newspaper, for defamation over a story it published last month, written by Lois, a

reporterontheDailyTrumpetspayroll.3 Thetrialisbeforeaciviljury.

Loiss story alleged that Kara received a substantial bribe from Quint in

return for her giving him fast-tracked Ministerial approval overruling 75 the local councils refusal for an apartment block that Quint plans to build in a protected wetlands area. The Daily Trumpet reported that Kara and Quint were overheard discussing the bribe and exchanging money

at The Grumpy Cat, a Sydney café, six months earlier.

The Daily Trumpet is claiming a defence of qualified privilege under the 80 Defamation Act 2005 (NSW), s 25 (It is a defence to the publication of defamatory matter if the defendant proves that the defamatory imputations carried by the matter of which the plaintiff complains are

substantially true).4

Parties here have one name only, only to save words. (Yes, this is stylised). Names have been selected to try to avoid coinciding with any 2018 LAW72005 students and if this does happen, it is accidental.

Question “facts” for LAW72005 Evidence assignment [2018] This version: 19 February 2018 Page 2 of 9

3

This is all the substantive defamation law that students need to know for the

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purposes of this question.

Question “facts” for LAW72005 Evidence assignment [2018] This version: 19 February 2018 Page 2 of 9

Kara and Quill are both denying in their statement of claim that they 85 met together at The Grumpy Cat on the day concerned.

To establish the substantial truthof her news report, Lois tells you (her defence counsel) that she wants to call the following evidence:

Question One

90 Taelea, 15 years and 4 months old, works as a waitress at The Grumpy Cat café, which is owned by her mother, Donna. Four months ago,

Taelea phoned Lois and told her:

Youre that reporter from the Daily Trumpet, arent you? You

want a tip-off? Heres something you should really follow up. Last 95 week on my shift I was serving these two customers who were

sitting by themselves at a secluded table in one corner.

I was hoveringdiscreetly nearby, waiting to take their order, I dont think they realised I was there, one of them was saying something like I want that money in that account before I sign the

100 approval. Every last cent, and my son will phone me to verify that its all there. Are we clear?

The other one said, What, you dont trust me? Everyone I do business with, they know my handshake is as good as a cheque. But I need that approval right away, so my contractors can get to

105 work.Then they realised I was nearby and they both went silent.

I didnt know either of them back then. There was no names listed in the reservations book, theyd just shown up. I didnt think much more if it but then, maybe three no, wait, four days afterwards, I saw that blokes face on the TV and they were

110 describing him as a controversial developer identity.I thought, hang on, I know him, so I Googled his name, recognised his face right away from the first images that came up. Saw her face too in the newspaper, realised Id seen her before. Sounds like hes a

Question “facts” for LAW72005 Evidence assignment [2018] This version: 19 February 2018 Page 2 of 9

pretty slippery customer, and shes another corrupt politician. Id 115 be happy to help you put them both in jail.

(Q.1.a) Is Taelea competent to testify? About all matters she knows about, or only one or some of those matters?

(Q.1.b) Is Taelea competent to given sworn evidence on oath or

affirmation? About all matters she knows about, or only one or some of 120 those matters?

(Q.1.c) Suppose Taelea tells Lois she has changed her mind and no longer want to testify because it would bring unwanted publicity to her mother and be bad for the cafés business. Can Taelea be compelled to testify? About all matters she knows about, or only one or some of those

125 matters?

(Q.1.d) Assume Taelea ends up (willingly or otherwise) testifying in court under oath. Defence counsel asks her, inter alia, the following question during examination-in-chief: Did you realise it was a bribe going on while you saw it happening, or did that only dawn on you

130 afterwards? Is that why you waited two months before you felt safe enough to talk to a reporter?

In cross-examination, counsel for the plaintiff asks Taelea: Youre really quite the teenaged drama queen, arent you? Cant have a vampire boyfriend, alas, so youve got to be Erin Brockovitch instead, fearlessly

135 exposing corruption in high places?

(Q.2.a) Sally is a government-car driver who was assigned to chauffeur

Kara that day. Sally testifies that Kara told Sally Can you make sure 140 Im at The Grumpy Cat Café on the dot of 11 AM. I really like their brunchtime specials. Ill only be twenty minutes. You can collect me out

the front.

Sally wants to testify that she saw Quint jumping out of a taxi as it

pulled in abruptly in front of her, stealingher intended parking space, 145 while she was dropping off Kara. I said something a bit unladylike and said Ill get that idiots number and report him, but as soon as Boss Lady [ie Kara] saw it was this Quint character getting out she hurriedly told me Oh, no, dont worry about it, let it go, like she wanted it all

hushed up.

150 Sally was demoted and removed from the government car fleet two weeks later after official complaints lodged by Kara that Sally was a

careless driver.

(Q.2.b) Adam, a part-time taxi-driver, wants to testify that a street-fare

passenger hailed him outside the Dixie Pig a nightclub owned by 155 Quint just before 11 AM; asked him to drop him at The Grumpy Cat and wait twenty minutes; and then, after emerging from the café, had himself dropped off at a bus stop in central Sydney twelve kilometres away, which happened to be only two blocks from one of Quints apartments. This passenger gave no name or credit card and paid Adam 160 in cash the total fare was $83, and the passenger handed him a $100 note, said keep the change,and just boltedin Adamwords: Thats

Question “facts” for LAW72005 Evidence assignment [2018] This version: 19 February 2018 Page 2 of 9

Question Two

Question “facts” for LAW72005 Evidence assignment [2018] This version: 19 February 2018 Page 2 of 9

really uncommon. That sort of passenger usually count every cent when you give them their change.

Counsel for the plaintiff asks Adam: Is it true that you were nearly 165 deported 11 years ago because you were found to have made a false and

misleading statement on your citizenship application?

Adam retorts angrily: I totally sorted that out with Immigration. It was an honest mistake.

170 Question Three

In their phone conversation, Lois asked cautiously Do you have any solid proof to back this up? Any other witnesses? Or is it just your word? And how old are you, anyway, if you dont mind me asking?Taelea replied: Well, actually, I do have some hard evidence I can send you.

175 Two days later, via the Daily Trumpets mail room, Lois received a received a parcel from Taelea. Inside was a sealed plastic airtight food- bag containing a used (plain, white, thick) serviette. Amongst the sauce stains could be seen, written in back biro, 125K???This was crossed out by a line in blue biro, and beneath it, again in blue biro, 200K!in 180 different handwriting. At the very bottom, OK!and a smiley face,

again in black biro.

(Q.3.a) Defence wishes to call Dr John Samuelson to testify that the first and third sentences above are in Quints handwriting and that the

Question “facts” for LAW72005 Evidence assignment [2018] This version: 19 February 2018 Page 2 of 9

second and fourth are in Karas. Samples of their handwriting have been 185 obtained from legal documents each has signed.

Dr Samuelson has a PhD in Criminology and has published extensive research on rehabilitation and recidivism. He is also an avid collector of original Shakespearean manuscripts as his hobby, telling the court that he was a collection of over a dozen: Some of these were fakes, people

190 trying to rip me off, so Ive developed a keen nose for sniffing out the fakes, you see. Like detecting plagiarism in studentsassignments.

(Q.3.b) The jury want to take the serviette into the jury room, to examine it. One juror asks the judge for permission to try writing on it with similar ones to the biros used, since A lot of us [jurors] dont

195 believe anyone could write so neatly on such a messy napkin.

Question Four

The plaintiff wants to adduce as evidence the fact that, eight years

earlier, Lois published a novel (written during her long-service leave), 200 Jewel of Denial, a thriller about an ambitious young reporter who has an affair with a colourful business identity and then, when he cruelly dumps her for her best friend, successfully frames him for drug- smuggling by using her spare key to enter his apartment and plant

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cocaine in his travelling bag.

(Q.5.a) The plaintiff wants to adduce, as evidence, a newspaper clipping from the gossip column of the Sydney Morning Sun, a rival newspaper, dated four years earlier, where the columnist wrote:

210 Little birds tell us that colourful business identity QUINT has become persona non grata overnight at his former favourite haunt, Donnas Café and the feeling is mutual! Seems Quint was violently ill at this café the last time he dined there, and we hear hes been telling everyone around Sydney who wants to hear (and 215 quite a few who dont!) that Donna doesnt refrigerate her seafood carefully. In return, Donna has been telling everyone wholl listen that Quint got himself disgustingly drunk on her house reds, becoming first obnoxious, then tearful, and finally nauseous, and that he’s been blaming her food ever since to cover up his own 220 overindulgence. Certainly a clash of the titansthere! Two

monumental egos who really cant be in the same room together!

The gossipcolumnist concerned has died since, and so cannot be called as a witness.

(Q.5.b) Four of the jurors (who are not sequestered overnight) take 225 themselves to the café, accompanied by defence counsel, and a junior Crown prosecutor, but without anyone informing the judge in advance. When this is reported to the court, the jurors involved tell the judge they couldn’t believe that two people sitting at a table in that particular café could not notice a waitress hoveringnearby while they were

230 (allegedly) talking about something illegal.

Question “facts” for LAW72005 Evidence assignment [2018] This version: 19 February 2018 Page 2 of 9

Question Five

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