1. Paulina is a right-wing activist who espouses radical views and spreads misinformation. She has been scaremongering that Australia will be "swamped" by Asians, Muslims and Africans. She was busy amplifying anti-Chinese sentiments during the COVID pandemic.

2. One day, Paulina and her fellow right-wing activist Markie were distributing anti-multiculturalism leaflets outside Victoria train station when an attractive young couple walked by, holding hands. The young lady was of fair complexion with "Asian" features while the young man appeared to be extremely tanned. They both declined the leaflet that Markie offered them, and inexplicably Paulina got upset.

3. Goaded by Markie, Paulina grabbed her umbrella and started following the young couple, while Markie trailed behind in gleeful anticipation of a confrontation. Paulina berated the young lady, accusing her of bringing the "China virus" to Australia and causing the worldwide pandemic. Paulina also ranted at the young man, saying that he was "useless and good for nothing" because he was "black". She called them parasites and harangued them to "go back" to "diseased China" and "dirty Africa".

4. The parochial Paulina did not realise that the young lady, Huifen is of Taiwanese descent while the young man, Juan is of Dominican heritage. Both were born and grew up in Australia. Huifen completed a Cyber Systems Management degree and works as an Information Technology Systems analyst. Juan is in his final year of law school at Craysfoot University (CU) and works part-time at the University library while also volunteering at the Craysfoot Community Legal Centre (CCLC).

5. At first neither Juan nor Huifen paid any attention to Paulina. This only made Paulina more frustrated, and she became more belligerent. She started calling them names that are not mentionable in polite society. She swore at them in their faces and started poking her umbrella at Juan, apparently trying to provoke a reaction out of him.

6. At that point, Juan could not stand Paulina's abuse any longer. He fended off Paulina's umbrella and pointed a finger at her, telling her to leave him and Huifen alone. Paulina retaliated by striking Juan several times on his face with her umbrella, causing him to bleed and fall to the ground. Paulina and Markie then fled while Huifen attended to Juan.

7. An off-duty nurse, Chesna from Craysfoot Public Hospital, was passing by and rendered first aid to Juan. At Huifen's request, Chesna provided her details and indicated that she would be willing to be a witness, if necessary. In their panic, Paulina had dropped her umbrella while Markie dropped the leaflets he was carrying. Chesna observed that there were bloodstains on the umbrella and on Juan's shirt. The umbrella and leaflets were later picked up by Huifen.

8. Juan attended the Emergency Room of Craysfoot Public Hospital for treatment. He later confided in Haluk, one of the solicitors at CCLC. Haluk advised Juan to report the incident to the police, but Juan was hesitant as he had a bad experience with the police in his local area previously and he distrusted them.

9. With information gathered from the leaflets, Huifen used her cyber sleuthing skills to trace Paulina. Accompanied by Huifen, Juan consulted Haluk again with the information that Huifen had gathered. He decided to make a claim against Paulina for the tort of battery. Haluk opened a file for Juan and sent a letter of demand to Paulina. Paulina's response was to tear up the letter and return it in pieces to CCLC.

10. Although CCLC provides only legal advice in civil matters, Haluk offered to draft the court papers and guide Juan through the process of commencing a civil claim. Haluk also advised Juan to get a witness statement from Chesna; however, Juan would have to brief a barrister if he wished to be represented in court.

11. Juan gratefully accepted Haluk's offer to draft the court papers for him, but briefing a barrister was beyond his means. Haluk promised to coach Juan on conducting his case. With Huifen's encouragement, Juan decided to go ahead and self-represent in the proposed proceedings.

12. Juan contacted Chesna who agreed to give a witness statement and attend court, if necessary. Juan brought Chesna to meet Haluk at CCLC. Chesna affirmed that she had seen a female person hit Juan several times on the face with an umbrella, that the female person and another person had fled the scene and that she had gone to his Juan's aid. When shown Paulina's and Markie's Facebook pages, Chesna readily identified both Paulina and Markie from the photos displayed. Haluk helped Juan to collate and print out a statement according to what Chesna told them and she signed the witness statement.

13. Juan has commenced proceedings against Paulina, who is contesting his claim. Believing she has superior intelligence because she is a self-described "9th generation true-blue Aussie", Paulina is also acting in person, as she has no intention of "wasting money on lawyers" on what she perceives to be a "no-brainer" case. There is no doubt in Paulina's mind that she would be able to get Juan's claim "thrown out" as she is unable to conceive of the possibility that a court might find in Juan's favour. Markie's law clerk friend helped Paulina to collate and file the paperwork for her defence.

14. A mediation conducted by a court registrar failed to produce a settlement. Paulina flatly denied assaulting Juan and refused to compromise. The case is now being heard by a magistrate.

15. Juan testifies that Paulina had attacked him without any provocation or excuse. He adduces into evidence Paulina's umbrella, which has his dried blood on it, his bloodstained shirt and gives evidence of seeking treatment at Craysfoot Public Hospital. He tenders into evidence a medical report from the hospital on his injuries. Paulina raises no objection to the umbrella, Juan's shirt and medical report being received into evidence as she does not think they prove she committed the battery on Juan.

16. Paulina confidently starts cross-examining Juan by asking him which part of Africa he was from. Juan replies that he is an Australian. Momentarily confused, Paulina questions Juan further about his nationality. Juan responds firmly that he is an Australian, having been born in Australia and whose parents are also Australian citizens. Paulina tries to press Juan on his background and nationality at which the magistrate intervenes and queries the point of such questions. Paulina is unable to justify her questioning and the magistrate informs her to move on and confine her questions to the issues in the case. Flustered, Paulina forgets to question Juan about the umbrella, his shirt or the medical report and sits down.

17. Juan calls Huifen to give evidence next. Her testimony is consistent with Juan's evidence earlier. In cross-examination, Paulina also tries to ask Huifen about her nationality and background but is 3 stopped by the magistrate, who reminds her to confine her questions to the issues of the case. After patiently putting up with Paulina's litany of complaints of obstruction, the magistrate informs Paulina that she is free to conduct her cross-examination as long as her line of questioning is pertinent to the issues. Completely flummoxed by this time, Paulina abandons any further crossexamination of Huifen.

18. Juan calls Chesna as his next witness. Expecting her to give evidence according to her witness statement, Juan asks Chesna in examination-in-chief to tell the Court what she saw and did regarding the incident between Paulina and himself. Chesna testifies that she saw Juan lying on the ground with blood on his head, that a female person was running away from the scene, that she does not know what had happened but she had gone to Juan's aid.

19. Taken aback, Juan asks Chesna whether she saw anyone striking him. Chesna thinks for a while, then says she does not actually recall seeing anyone hit him but had assumed the female person had done so as there was an umbrella with blood on the ground and the female person was running away.

20. Juan next asks Chesna whether she can identify the female person running away and whom she assumed had struck him. Again, Chesna thinks for a while before replying, "I don't think so. Look, I'm really trying but I have a rather poor memory and it has been more than a year. I would like to help but I'm afraid that I just don't remember, I'm sorry".

21. When the time comes for Paulina to cross-examine Chesna, Paulina decides not to do so as she does not think Chesna's evidence affects her; further, she is daunted by her experience while trying to cross-examine Juan and Huifen earlier. Juan therefore closes his case and it is Paulina's turn to testify.

22. Giving evidence in her defence, Paulina testifies that Juan threatened her with his fist and that she had only "slapped away" his hand in self-defence. She claims that the umbrella adduced into evidence by Juan earlier does not belong to her, asserting that it is fake evidence. Paulina further testifies that she saw Juan about to take something out of his bag. She claims that she feared for her life as she believed that it could be a knife because "that is what people like him always carry". Paulina maintains that she did not cause Juan any injury at all, that it was "just a slap on the hand". Other than that, she vehemently denies striking Juan or that he suffered any injury at all.

23. Juan challenges Paulina's testimony and puts to her his version of events, consistent with his own evidence and Huifen's testimony earlier (see paragraphs 15 and 17 above). He puts to Paulina that the umbrella belongs to her and that she had assaulted him with it. Paulina defiantly stands her ground and maintains that she only "slapped away" his hand in self-defence because he was going to punch her. She denies causing him any injury or that the umbrella is hers.

24. When asked by Juan, Paulina acknowledges that her friend Markie was with her at the time. When Juan asks her whether she agrees with the medical report that he did suffer injuries, regardless of how they were caused, she smugly replies that the medical report is "useless" as it cannot prove who caused the injuries, which she does not admit in the first place.

25. Paulina does not call any witnesses after Juan completes his cross-examination, confident that the Court would somehow favour her evidence over Juan's. When the magistrate asks her whether Markie would be giving evidence, Paulina says that he is a busy man who has no time to attend court. When asked further, Paulina concedes that she had not actually asked Markie to testify. She does not proffer any reasons for not asking him to give evidence for her, simply repeating that he is busy.

Question 2

Please refer to all the Facts above.

The proceedings are drawing to a close as Paulina is not adducing any other evidence in her defence. The magistrate invites the parties to make their closing submissions.

Regardless of your answer for Question 1, discuss what particular argument may be included in Juan's closing submissions that, having regard to all the evidence that has been adduced, the magistrate should prefer the evidence he has adduced over the evidence adduced by Paulina, based on a common lawrule of evidence

You must precisely identify the relevant common lawrule of evidence and your answer must clearly demonstrate how the rule works with regard to the Facts.