All questions to be answered in relation to Fiji's Jurisdiction.

QUESTION 1

Jacob is charged that on February 15, 2022 he stole a bottle of liquor, namely a litre of Johnny Walker Scotch from Paradise Duty Free Store in downtown Port Vila contrary to the Penal Code. The offence is alleged to have occurred at 11:45 am, 15 minutes before the store closed for the weekend.

The facts set out below are known by the prosecution.

1. Jacob was seen walking out the front door of the store at 11:50 with a bottle of whiskey in his hand.

2. Jacob was seen drunk at 2:00 pm on February 13.

3. Jacob was seen going into the store at 11:30 am on February 13

4. Jacob is an alcoholic.

5. Jacob beats his wife.

6. Jacob was charged with theft of a bottle of gin from another duty free store a year ago.

7. Jacob was convicted of theft of a package of cigarettes from Centre Point 2 years ago.

8. Jacob was convicted for being intoxicated in a public place only 3 months ago.

9. An empty bottle of Johnny Walker Scotch was discovered in Jacob's rubbish bin on February 16, 2022.

10.The week before the alleged theft, a pile of empty liquor bottles outside Jacob's house was noted by a neighbour who had come to deliver a parcel.

11.Jacob has no job and no apparent means of support.

12.Jacob's fingerprints were found inside the duty free store.

13.A year ago, Jacob was sacked from his job for theft of money from the petty cash drawer.

14.Jacob has apologised to the manager of the store (who is an old school friend) for "causing such a fuss."

Examination in chief of the shopkeeper Simon Kali of the Paradise Duty Free Store by the Prosecutor.

Suppose you are the defence counsel listening to the following evidence. Are there any questions you would object to? On what grounds?

The witness is sworn:

Q1:Your name is Simon Kali, is that right?

A:Yes.

Q2:And you are employed as the manager of the Paradise Duty Free Store, is that right?

A:Yes, that's right.

Q3:You were working at the Paradise Duty Free on Saturday February 15?

A:Yes I was. I was on duty all day that day.

Q4:Can you tell the court how many other people were working at the Paradise Duty Free store on that day?

A:There would have been three others.

Q5:And were they the cashier, the cleaner and the person who stocks the shelves?

A:Yes.

Q6:Are these people women or men?

A:Well the cashier is a woman. The other two are men.

Q7:Do you remember what the weather was like on that day?

A:I think it was a sunny day but I am not sure.

Q8:Do you know a man called Jacob?

A:Yes.

Q9:You were a friend of Jacob when you both went to the same school weren't you?

A:Yes.

Q10:Do you recognize Jacob in court today?

A:Yes, I do, that's him sitting in the prisoner's dock over there. (indicating the accused)

Q11:Did you see Jacob in the Paradise Duty Free Store on February 15?

A:Yes I did.

Q12:Did you see him looking at the shelf with the champagne on it?

A:Yes.

Q13:Was he alone?

A:Yes.

Q14:Was there anything suspicious about him when you saw him?

A:Well, he seemed to behave nervously. He looked around several times while he was standing at the shelf. He had dark sunglasses on. I thought that was strange inside a store.

Q15:Did you speak to Jacob in the store that day?

A:No.

Q16:But he said something to you didn't he?

A:Yes.

Q17:He called over to you, "How are you Simon? Are you coming to the park for a picnic this afternoon?" Didn't he?

A:Yes he did.

Q18:Why didn't you answer him?

A:Because I was very busy. I didn't want to have a picnic with Jacob. He has a reputation as an alcoholic, any time he goes for a picnic, he is bound to get drunk and I don't like associating with him.

Q19:After you saw Jacob at the shelf with the Scotch, then what happened?

A:I was busy with some customers for a few minutes. When I next saw Jacob, he was going out the door.

Q20:And did he have a bottle of Johnny Walker Scotch in his hand?

A:Yes.

QUESTION 2- Answer the following questions.

(A). What must a judge be satisfied of before granting leave for a witness to refresh their memory from a document in court?

(B) Read R v McGregor [1984] Qd R 256. How did the cross examiner in that case breach the rules about cross examination on document used to refresh memory and what was the consequence?

Cross-examination and Re examination

QUESTION 3

Read Armogam v State[2003] FJCA 32 and answer the following questions:

1. a. Who can declare a witness hostile?
2. b. What must be established before the witness can be declared hostile?
3. c. What is the effect of declaring a witness hostile?
4. d. What is the use to be made of a prior inconsistent statement by the witness sought to be declared hostile?

e. Can a voir dire be used when considering the issue of hostility?

QUESTION 4

Bobby has been charged with the offence of theft. On the 10^th of May 2021, Bobby had entered Sam's house when Sam was in the bathroom and stole Sam's DVD player. The DVD player had a sticker on it which has Sam's name written on it. Sam's neighbor Susy was in the garden weeding when she saw Bobby run out of Sam's house with the DVD Player. Susy's garden was about 15 meters away from Sam's house.

The matter was reported to the Police and Bobby was arrested and charged for theft. Bobby had left the DVD player at his friend Tommy's house and told Tommy that he had bought a new DVD player. The DVD player was recovered by the Police from Tommy's house. Tommy at first did not want to give any statement to the Police. Bobby pleaded not guilty to the charge and the trial proper started. On the day of trial Tommy showed up at the Court house and told the prosecution that he is willing to testify that Bobby had brought the DVD player to his house on the 10^th of May 2021. Bobby also told the prosecution that the DVD player had a sticker with Sam's name written on it which Bobby had removed in front of Tommy. Tommy had brought that sticker to Court with him.

Bobby's lawyer David, did some investigation on his own and found out that Susy was short sighted and on the day she claims that she saw Bobby running out of Sam's house with the DVD player she was not wearing her spectacles. David also has a copy of the receipt from Susy's optometrist that Susy's spectacles were in the shop for repairs and were only picked up by Susy on the 12^th of May 2021.

During examination in chief the following was asked by prosecution to Susy:

Q: What is your name?

A: Susy

Q: You live next door to Sam, don't you?

A: Yes

Q: On the 10^th of May 2021, you saw Bobby run out of Sam's house with a DVD player, didn't you?

A: Yes, I did. I saw Bobby run out of Sam's house with a DVD player.

1. David seeks your advice if he should have objected to any of the questions and why?

During cross-examination of Susy, David asks her the following questions:

Q: Susy, are you sure you saw Bobby run out of Sam's house?

A: Yes, it was Bobby, I saw him with my own two eyes.

Q: Susy, can I ask you if your eye sight is perfect?

A: Yes, it is. I can pick a needle out of a haystack Mr.

Q: I put it to you Susy that your eyesight is not perfect, in fact you are short-sighted? Is that correct?

A: No

David had not paid attention to his evidence class and now he felt a bit lost with questions. David does not know what to do now after Susy had answered "No" to his question.

1. David seeks your learned advice as to what he can do now.

After the close of prosecution case, David stated to the Court that his client Bobby will give sworn evidence. Bobby gave evidence that he was nowhere near Sam's house on the 10^th of May 2021. He said to the Court that he was sleeping at home the whole day and his wife Mary can testify to that. He also states that he has never stolen anything from anyone in his whole life and that he helps in charity too.

The prosecution then cross-examines Bobby:

Q: You stated in your evidence in chief that you were nowhere near Sam's house on 10^th of May 2021, is that correct?

A: yes

Q: Do you own a DVD player?

A: yes

Q: Where did you get it from?

A: I bought it on the 10^th of May 2021.

Q: Do you know Tommy?

A: yes, he is my friend.

Q: I put it to you that you were not at home on the 10^th of May, 2021?

A: I was at home.

Q: I put it to you that you stole Sam's DVD player?

A: No

The prosecutor gets a bit nervous as this is his first trial and goes blank. He seeks your advise as to what he can do now and what questions he can now put to Bobby.

iii). Advise the prosecutor as to what he can do. Use cases to support your answer.

iv). State and discuss the collateral issue finality rule? Illustrate your answer with cases.