Background

AmandipSingh wasontrialintheSupremeCourt,chargedwiththemurderofJoshua Frazer. He was found guilty and sentenced to 26 years of imprisonment.

The death took place outside a caf on 31 December 2022 at 11:15 pm.AtthattimeSinghandhisfriend, SanchezAlexi,weretraveling in a vehicle.They stopped at a red light at the intersection where the caf is located.Atthattimetherewereanumberofpeoplestandingonthefootpathoutsidethe caf, including Frazer. According to witnesses at the scene, Singh was seated in the front passenger seat, while Alexi was driving. Singh abruptly got out of the car and proceeded to confrontFrazer.SinghshovedFrazerinthechest,whothenrespondedbypunchingSingh, who fell to the ground. Alexi then got out of the car and ran to Frazer, pushing him away from Singh. Singh then stood up, took out a metal object, and then stabbed Frazer in the neck. Frazer collapsed, and both Singh and Alexi then absconded from the scene.

As Frazerwasfoundunconscious andbleedingheavily, he wastaken to a nearby hospitalimmediately, but hewaspronounced dead on arrival. A subsequent report by a forensic pathologistlater stated that the cause of death was a stab wound that penetrated the gap in the left collar bone to a depth of 15cm, severingmajorarteries.Soonaftertheincident,policemadeamediaannouncement,releasing still images taken from CCTV footage of Singh and Alexi, asking them to assist police with enquiries.

On2January2022at6.40PM,Sanchezvoluntarilyattended the localPoliceStationand spokewithSergeant SarahWalsh.SgtWalshaskedAlexiwhatshecouldhelphimwith.Alexi told Sgt Walsh he wanted to hand himself in and help police. Alexi was soon after interviewed by Detective Sergeant Hamilton Roberts and Detective Faud Ahmed from the MurderSquad. He participated in an electronically recorded interview wherethe events abovewereoutlined, he was then arrested and remanded in custody.

On 3 January 2022 at 8.30AM, police attended an address where they arrested Amandip.Asearchofthepremisesfoundnothingunusual.AmandipwastakentoPolice Station and interviewed by Detectives Fitzgerald and Moorbank in the presence of his lawyer,Dennis.Aftergivinghisname,dateofbirthandaddress,Amandipsaidtopolice 'On the advice of my lawyer, I decline to answer any questions.' He remained silent during theremainderoftheinterview.Hewas thenformally arrestedand charged with themurderof Frazer and remanded in custody pending his trial.

The Trial

In the latter part of 2022, Sanchez Alexi agreed with the DPP to give evidence against Amandip Singh. The agreement was that Alexi would have his assistance to the police taken into account at his own sentencing hearing when the time came. Sanchez has indicated to the DPP his intention to plead guilty at that time to a manslaughter charge. The DPP has given an undertaking to provide evidence of his assistance to the police as a mitigating factor on sentence, subject to Alexi giving evidence at Singh's trial.

Amandip was convicted. He has instructed you to appeal. In your appeal submission, consider the following points.

The Crown Prosecutor called Sanchez Alexi to give evidence. The prosecution prepared thecasebasedon theinterviewswithAlexi,andthestatementhemadeto police in January 2022. The following paragraphs have been highlighted from the signed interview transcript of Alexi:

Q: WhatwasitthatAmandipusedtostabthevictim?Doyourecall?

A: Yeah. It was a chisel.

Q: Awoodcrafting chisel?

A: Yeah.Weusedtosmokeiceinthebackshed.Thereweresomechiselsonthe workbench. Reg used a grinder to sharpen it into this freaking nasty pointed shiv.

Q: Nasty?

A: Shityeah.Reallyfrreakingsharp,likeacommando'sknife.

Q: How long would say this was?

A: Oh,aslongasaruler. Q: What, about 30cm?

A: Yeah.Hecarrieditwithhimallthetime.

Q: Where? In a bag?

A: No,helovedthatthing.Hemadeaspecialholsterforit.

Q: A holster? Do you mean a sheath?

A: Yeah,asheath,strappedto hisright thighunderhis jeans.

During evidence in chief, the Crown Prosecutor asked, 'After you pushed Mr Frazer, what happened then?'. Alexithenreplied,'I'mnotsure.Itwasallsofast.Idon'tthinkIpushedhim.' The Prosecutorthenasked, 'And what did Mr Singh do?' Alexi replied, 'I can't remember.'

At this pointthe Prosecutor felt Alexi's testimony was unhelpful and sought leave of the court to cross examine him. The trial judge swiftly granted the leave, without seeking the defence counsel's views. Discuss what submission you can make about the leave being granted. Your submission should refer to any relevant law and procedure. 10 marks

The Crown Prosecutor had issued a subpoena for Sharlene, to give evidence as part of the prosecution case. In introductory evidence, the Crown Prosecutor established that Amandip and Sharlene were living together and had two children, but they have never married.

Sharlene was clearly uncomfortable about testifying and began sobbing in the witness box. She proceeded to say to the court that 'this event was devastating' and 'I felt terrible having to give evidence against Amandip'.

The Judge then said to the Crown Prosecutor that 'an objection has been raised by the witness. I don't think she is compellable'.In response, the Crown Prosecutor submitted that because Sharlene was not married to the accused, she was a compellable witness. And that living together and having children together was irrelevant. The judge accepted the prosecution's submission and ruled that Sharlene be compelled to testify. Discuss what submission you can make about the leave being granted. Again, you should refer to any relevant law. 10 marks

As the trial progressed, the Crown Prosecutor called Dr Berie Megabi, a Forensic Pathologist, who conducted the post-mortem on Frazer. The Crown Prosecutor established that Dr Megabihasbeenaforensicpathologistfor20yearsandqualified asbothamedical practitionerand pathologistattheUniversityof Gondarin 2020.Duringhisexaminationinchief,thefollowing exchange took place:

Q:DrMegabi,inyourreportyousay,ifImayputitinsimpleterms,thatthecauseof death was a catastrophic stab wound down through the left side of the neck. Am I right in saying that?

A: Yes. The injury was deep and surprisingly wide, severing multiple arteries in the neck and down into the area of the chest just above the heart.

Q: Woulditbefairtosaythatsuchaninjurywasmadewithsomeforce?

A: Certainly.

Q: Andtherewould havebeen alot of blood loss?

A: Thelossofbloodwasfatal.Itwouldhavebeenghastlytowatch.Bloodwouldhave sprayed everywhere.

Q: I see. Dr Megabi, the murder weapon used in this case has never been found. In your opinion, what would be the likely object used?

A: Itwouldhavetobesomethingsharp,atleasttencentimetresinlength.Probably a knife, possibly a pair of scissors.

At this stage, the counsel for the defence raised objections to the Prosecution's questions, but the trial judge ruled against those objections. What submission do you make about these questions being permitted? In your submission discuss any ground for objecting to the and any reasons why the trial judge's ruling may be flawed. 10 marksThe Crown Prosecutor continued to lead Dr Megabi through his evidence:

Q: Dr Megabi did you examine clothing and shoes given to you by Detective Fitzgerald some weeks after the postmortem?

A: Yes.

Q: What did you do with them?

A: Both the clothing and the shoes had unusual quantities of blood residue on them. It was consistent with the person wearing it being in close proximity to a person who had suffered a catastrophic injury. So naturally, I took samples from them for DNA testing. The testing showed on all of them DNA from two people which were a 97% match with the DNA of the accused and the deceased.

Defence counsel objected at this point. The trial judge observed that expert evidence on DNA had been admitted for 30 years so it was a bit late to object to it now. 'But ...', the defence counsel said. 'Enough!' said the judge, 'No more interruptions!', thinking of a recent uncomfortable meeting with the chief judge about his poor performance against the court's productivity indicators.

The background to defence counsel's objection was that Amandip, shortly after his arrest and while in custody, had been encouraged by Detective Fitzgerald to seek legal advice from Amanda Phibbs, a recent law graduate. Amandip and Amanda spoke in an interview room at the police station. Phibbs made some brief notes on her relatively new note pad:

Singh stated that he was present at the scene and had stabbed Frazer. He had got blood on his clothes and shoes which he had disposed of in a bin near his home. He also stated that this was the only evidence that linked him with the offence as he knew that Alexi would say nothing. Advised him that if this was the only evidence he should say nothing and let the police try to prove the offence.

After the interview Singh was taken back to his cells. Phibbs, distracted by her new friend Fizgerald entering the room, carelessly left her note pad on the table and left without it. Fitzgerald, as her good friend returned the notes to her but only after reading them, discharging what he thought was his duty to law enforcement and the community. Unknown to Fitzgerald, Phibbs was also a registered police informer. She had become one in exchange for charges being dropped when drugs had been found in her room in the house she shared with other law students. Phibbs passed on the information about the clothing and shoes to Fitzgerald's supervisor, Detective Inspector Snitch-Grass, her registered handler. He called Fitzgerald to tell him to check a nearby rubbish tip for them. This reminded Fitzgerald of his duty to organise a search of the tip. It had turned up the blood-stained shorts, trousers, socks, and sneakers Fitzgerald had then taken to Dr Megabi. This all had recently been disclosed in the print media by a royal commission investigating the use of Phibbs as a registered police informer. The judge, however, preferred to get his news from Facebook.

What submissions do you make about the objection to these questions being overruled? They should refer to any relevant law. 10 marks

As part of the final summing up, comments and directions to the jury, the trial judge made the following statement to the jury:

'In the course of this trial, the Crown has alleged that the accused stabbed the deceased. The Crownhasnotbeenabletoshowpreciselywhatwasused,asithasneverbeenrecovered.Itis somethingthatispeculiarly withintheknowledgeoftheaccused.Thefacttheaccusedhasnotgiven anyevidenceis,ofcourse,amatterforhim.Youmight,ladiesandgentlemenofthejury,think it odd that Mr Singh did not give evidence. But I say to you that it is not necessary for any specificobjecttobeproventoexist.Itisenoughthatyouaresatisfiedthatsomethingwasused to kill the deceased. And, if you are satisfied beyond reasonable doubt that the death of the deceasedwascausedbytheaccused,andthathecauseditintentionally,thenyoumayfindhim guilty as charged.'

Is there anything you would include in your submission in relation to this statement? 10 marks

Note:

• Amandip Singh is a fictitious character. You may assume that his numerous prior convictions have been overturned on appeal.
• Assume the appeal is the Court of Appeal or Court of Criminal Appeal of the Supreme Court of the State in which you are studying.
• The relevant law to be used is the law of that state.