INSTRUCTIONS
In
Evidence
, there is only
ONE ASSIGNMENT
.
This assignment is compulsory and must be submitted by all students.
The assignment will constitute 20% of the final mark in this subject
SPECIAL INSTRUCTIONS:
The maximum word limit for the assignment is
2000 words,
excluding citation footnotes. A bibliography is not required). The word limit is to be
strictly adhered to
, and all assignments will penalised at a rate of 10% of the full marks of the assignment’s value for every 100 words (or part thereof) that the assignment exceeds the limit.
All assignments should set out at the foot of each page the number of words that are on that page, and a total number of words is to be provided at the beginning or end of the assignment.
COMPULSORY ASSIGNMENT
In January 2021, Joey is tried by a judge sitting with a jury in the District Court of NSW on one count of Causing Dog to Inflict Grievous Bodily Harm (s 35A of the
Crimes Act 1900
(NSW) –
Joey has elected to have the matter heard by jury).
The prosecution’s case is that, at about 10.00 am on Sunday, 4 November 2020, Rachel was playing with a drone in the backyard of her house at Bronte with her seven-year-old daughter, Monica. The drone accidentally clipped a tree and crashed into the backyard of Rachel’s neighbour, Joey. Because Monica was getting quite upset, and because the drone was unresponsive, Rachel climbed over the 180cm paling fence into Joey’s yard to retrieve the drone. Hearing a noise, Joey went to his rear porch where he saw Rachel climbing the fence. Having been burgled a couple of times recently, Joey panicked, and his dog, “Cochise”, jumped off the porch and attacked Rachel, biting her on the leg and seriously injuring her.
At the trial:
(a)The prosecution calls Monica, who immediately says to the Judge that she does not want to give evidence. The Judge disregards this, but prior to Monica answering a question, the Judge asks her the following:
Q: Do you understand that when you answer questions today, it's important that you tell us the truth, but if you don’t know the answer, or can’t remember, you can say that.
A:
Yes.
Q: Do you understand that if someone suggests to you that something that you say isn’t true but you think it is, then you can say that the person is wrong?
A:
Yes.
The Judge determines that Monica is not able to give sworn evidence, but that she can give unsworn evidence and allows the prosecution to question her.
(b)The prosecution seeks to tender the video taken by the broken drone, which showed it flying and crashing into the tree, and then cut out. However, it briefly continued to record sound, and one and half minutes after going blank it recorded the sound of the drone being picked up and a dog growling, before the audio also cut out. The aerial video also briefly showed Ross, the neighbour who lives on the other side of Joey’s property, trimming his hedges and looking over his (shorter) fence into Joey’s yard.
(c)Joey’s girlfriend of three years, Phoebe, gave a statement to the police setting out that she was also on the porch and that she saw Joey let the dog off a lead. However, when called to give evidence, she objects to doing so. The Judge over-rules this objection and the prosecutor immediately begins cross-examining her:
Q: You have previously given a statement that says that Joey let the dog of its lead, haven’t you?
A:
No.
Q: You are lying, aren’t you? You are just covering up for Joey, and you are being dishonest about it. Do you lie all the time?
A:
No.
Q: You’re being unhelpful because your dependant upon Joey, aren’t you?
Over objection, the prosecutor then tenders the statement that Phoebe gave to the police. Phoebe and Joey have been living together for six months and split the rent and expenses.
(d)Rachel gives evidence that Joey let his dog off a lead to attack her. She also gives evidence that Joey was yelling, “My house, my castle, my right!”. Over objection this is also allowed. In cross-examination, Joey’s counsel puts to Rachel that she doesn’t remember what happened, that she “would say anything to protect herself and her daughter. And that she is a lying woman.” She is not otherwise cross-examined.
(e)Joey’s English is not very good and he asks for a translator at the hearing. As soon as the translator is brought into the Court, the judge asks Joey if he wants to swear or affirm, but he says that he is not sure. The Judge orders him to take an oath. Joey then gives evidence that he didn’t let Cochise loose and was not near the dog at the time that it escaped the porch. The prosecution objects to this evidence and the judge disallows the evidence.
Discuss the evidentiary issues that arise out of the above. In your analysis, you need only consider the topics taught in weeks 1 - 7 (up to, but not including hearsay).