The University of the South Pacific	Examinations Semester 1 - 2003
Emalus Campus

SCHOOL OF LAW

COURSE NAME: Evidence

COURSE NO: LA 310

TIME ALLOWED: Three hours

READING TIME: 10 minutes

NUMBER OF PAGES: 6

NUMBER OF QUESTIONS ON PAPER: 12

NUMBER OF QUESTIONS TO BE ANSWERED: 7

MARK ALLOCATED FOR EACH QUESTION: As indicated

TOTAL MARKS: 100

MATERIALS PERMITTED IN EXAMINATION ROOM:

Writing materials.

SPECIAL INSTRUCTIONS

The marks for each question should guide you in allotting your time in answering questions. You should not spend excessive time on questions which are worth relatively few marks. If you are short of time, you may use point form in answering questions.

This exam is divided into three parts, A, B and C.

Part A

Answer any 5 questions in this part. (5 x 10 = 50 marks)

Question 1

In what ways have the rules of evidence been shaped by historical attitudes regarding juries?

Jurors easily fooled

People with an interest were formerly not allowed to give evidence

Rules of exclusion (especially hearsay) are designed to protect a jury from evidence that is not reliable

Question 2

Depending on the purpose for which it is being adduced, the admission of a document into evidence may involve the rule against hearsay. Discuss with reference to the hearsay rule.

Question 3

A recent complaint made in relation to a sexual offence may be admitted as a previous consistent statement.

(a) What are the preconditions for the admission of such a complaint?

(b) What use may the court make of the complaint if it is admitted?

Question 4

Write a note distinguishing between cross examination and re-examination.

Question 5

With reference to the rules of evidence, distinguish between prior consistent statements and prior inconsistent statements.

Question 6

(a) What is corroboration?

(b) With reference to case law, discuss whether a lie told by an accused can amount to corroboration.

(c) Can a recent complaint in a sexual case be treated as corroboration? Why or why not?

Question 7

What is judicial notice and what purpose does it serve?

Question 8

Myers v DPP [1965] A.C. 1001 provided the incentive for a major legislative change to the common law of evidence. What was this change and how has it affected the law of evidence?

Part B

Answer either of the two questions in this part (30 marks). You may assume that the facts which are described in the questions in this part happened in any one of the South Pacific jurisdictions.

Question 9

Identify and discuss the issues of evidence that arise from the following.

Anna, a 9 year old child was on her way to school one morning. As she walked along Abalone Street, she saw a man running between 2 houses with a yellow back pack. The man did not appear to see Anna coming and passed very close to her as he ran away from the houses. Anna noticed him and his yellow backpack. Anna is a friendly child and as the man passed, she said, “Good morning.” The man responded by saying, “I was not on anyone’s private property and there is nothing stolen in my bag.” He appeared to be quite agitated as he hurried away. Anna turned to watch him go and saw that he had a long scar on the back of one leg. The man also seemed to be limping.

Later that morning at school, the teacher asked all the children to write a true story about something that had happened to them recently. Anna wrote a story called “The limping man with the yellow bag.” In it she described the man, what he said, and what he was wearing. She got an “A” for this story.

Six months later, a man was charged with break and enter of a house which is located very close to where Anna saw the man. The accused has a scar on the back of one leg.

The prosecutor would like to call Anna as a witness. However, she is unable to remember the details of what she saw on the morning in question.

At the trial, the accused gave evidence in his defence. Part of the sequence of questions and answers that make up his examination in chief are as follows:

Q: Please describe to the court what you were doing in the area of Abalone Street on October 15.

A: I was going for a walk. I usually go for a walk in early morning. I realised how late it was and that I had to get home to get ready to go to work so I took a shortcut to get back home.

Q: You were not agitated were you?

A: No, but I was in a bit of a hurry.

Q: And had you been in any of the houses in the vicinity?

A: No

Q: Your bag only had your personal possessions in it, isn’t that right?

A: Yes. And that’s the truth.

Q: Have you ever mentioned that to anyone else?

A: Yes, In fact I told a girl who was walking along the road that I had not been in any houses and there was nothing stolen in the bag.

In cross examination, the prosecutor asks the accused the following questions.

Q: Isn’t it true that you have been sacked from 2 jobs in your life?

A; Yes, that’s right

Q: And in fact, on the morning in question, you did not even have a job did you?

A: Yes I did. I worked at Starfish Welding Limited as a grease maintenance foreman.

Q: I put it to you that that is a lie. Starfish Welding Limited has been out of business for 8 months, isn’t that true?

A: No,

The prosecutor has in his file a “certificate of bankruptcy” issued by the Registrar of Companies which discloses that the Starfish Welding Limited has been dissolved and that its assets were sold at public auction on September 1, a month and a half before the alleged offence. The prosecutor wishes to tender this document as evidence in response to the last answer.

Question 10

Ms. Alice Tara was watching her favorite video on TV one night when she heard a loud crashing noise outside her house. She went outside and saw the aftermath of an accident. A criminal charge is laid as a result of the accident. Ms. A is subpoenaed as a prosecution witness and in response to questions from the prosecutor, gives evidence, which is set out below. You act for the defendant, Mr. B who is charged with criminal negligence causing death.

(a) Study the evidence of Ms Tara and decide whether there is anything you would object to, why you would object to it and what submission you would make to the court to support your objection.

(b) Identify three matters you would you want to cover with Mrs. Tara in cross examination if you represented the accused?

(c) Assume that Ms A is the only witness for the prosecution. Formulate a submission that you would make before deciding whether to call evidence.

Evidence of Ms Tara:

My name is Ms. Alice Tara. I am 30 years old. I live on Manatou Street in Port Vila.

On April 1^st, I was in my lounge watching my favourite video, “Breakdown in Paradise”. It was about 8 pm. It couldn’t have been later because my husband doesn’t get home from work until 8:30. Suddenly I heard scream followed by a loud noise outside. It sounded like a bomb going off it was so loud. I have never heard a bomb but I can just imagine that it sounds like what I heard. I jumped up and ran outside.

When I got outside, I saw a blue car in the ditch in front of our house. The motor had stopped but the stereo in the car was still playing. I approached the car to investigate whether anyone was hurt. Three people were getting out of the car. They were all young men. The first man I saw walked towards me and I could immediately tell that he was drunk. His eyes were bloodshot, he was staggering and he didn’t make any sense when he spoke. He was in no condition to be driving a car. He is the same man who is in court today charged with the offence.

I had a conversation with another of the men who got out of the car. He told me that they had just come from the Furnace Pub where they had been for the last 3 hours. He told me that the driver was Mr. B. and pointed to the first man I had seen. He said that Mr. B was speeding. I could believe that because the sound of the crash I heard couldn’t possibly have come from a car that had been traveling at the speed limit.

Behind the car, near the side of the road, I saw a child lying on the ground. In my opinion, she was between the ages of 6 and 8 years old. She was groaning but I could not get her to speak to me. I ran back into the house to call an ambulance. The ambulance came in about 5 minutes and so did the police. The girl was taken away in the ambulance.

After the event, when I had calmed down, I remembered that I had seen Mr. B before. When I worked at the Superstore, he came in and took a bottle of coke without paying for it. My boss told me that he was charged with shoplifting for that incident. Another time, he came into the store, drunk and fell on the floor.

That young girl’s life was wasted as a result of the foolish actions of Mr. B. I know he was negligent and he will probably live to regret it. He is a criminal and should go to jail.

Part C

Answer either of the following two questions. (20 marks)

Question 11

Write short notes on any five of the following: (5 times 4 = 20)

(a) conditional relevance

(b) ultimate question – in relation to expert opinion evidence

(c) waiver of privilege

(d) res gestae - as an exception to 2 rules of evidence

(e) meaning of “no property in a witness”

(f) ancient documents

(g) rebuttable presumptions (with example)

(h) real evidence

(i) credibility

Question 12

Describe the rules relating to privilege. In your answer, distinguish privilege from the concept of competence.