Exercise 1

Consider the following outline of evidence:

On Friday night 1^st May 2020 at 9.00pm, Rachel, the driver of a red car, raced a yellow car on the Pacifica Highway between Bumblebee town and the Sunshine Coast of Pacifica. The speed limit on that section is 100kilometers per hour. Constable Peter was just starting to set up a speed camera on the side of the highway and heard the cars. Constable Peter said to a lady, named Angelina, who had her head under the bonnet of her car on the side of the road, "How dangerous is that! Those maniacs are travelling at 150kilometers per hour at least."

As Rachel changed lanes in between cars on the highway, she forced a blue car to roll upside down into a ditch. As it did so, the blue car struck Constable Peter who was severely injured. Feeling guilty, Rachel stopped her red car on the side of the highway and ran down to the blue car to check on the driver, who she subsequently learned was named Brad. Upon seeing Brad hanging upside down in the driver's seat, Rachel said hysterically, "I'm sooooo sorry. Speed is my middle name and I had to prove that red cars are the fastest. The yellow car beat me last time and I had to win this time."

Rachel went back to her red car, to call for an ambulance on her mobile phone. As she was making the call, Angelina confronted Rachel and said, "Why did you drive so recklessly? Look at that poor policeman." Rachel did not respond.

A report and invoice for work done by a mechanic, Matthew, employed by Pacifica Motorworks Ltd, dated 3 weeks before the 1^st May 2015 is in Rachel's file at Pacifica Motorworks Ltd. It states that he, Matthew, had finished enhancing the driving performance of Rachel's red car so that it could accelerate from zero to 100kilometres per hour in four seconds and had an increased top speed. Matthew is unable to be called as a witness as he was killed in a cyclone when he was out fishing. The seas got very rough and his boat had capsized.

Rachel is charged in the Supreme Court of Pacifica with Dangerous Driving causing harm [arising from the dangerous driving of Rachel's motor vehicle causing Constable Peter's severe injuries] under the Pacifica Penal Code. The prosecution has called Angelina as their witness who has informed the court about the reckless nature and speed in which Rachel was driving the car that day and also that Rachel did not respond when she questioned her after the accident.

A. Assume that the defendant is on trial for a charge of Dangerous Driving causing harm. If you need to make any assumptions in answering the questions, be prepared to state clearly what the assumptions are.

1. Who carries the legal and evidential burdens of proof? Has the prosecution discharged the evidential burden?

2. What is a no case submission? Would a no case submission succeed?

3. What would (or could) happen if the defendant did not call any evidence after an unsuccessful no evidence motion?

4. Has the prosecution discharged the legal burden?

5. If you were the trier of fact (as a judge or a member of a jury), would you find the defendant guilty on the basis of the prosecution evidence?

6. Does the defendant bear any legal or evidential burden?

B. Answer the above question assuming that the case was a civil claim made by the Peter against Rachel for the injuries, pain and suffering and loss of income in the sum of $100,000.

All of the above evidence was lead as part of the plaintiff's case. At the end of the plaintiff's case, the defendant made a motion for non-suit, arguing that the evidential burden had not been discharged by the plaintiff and that the defendant should not have to respond to a case where there is no evidence of an essential fact in issue.

The trial judge dismissed the non-suit motion. In other words, the judge felt that there was some evidence of negligence and that the evidential burden had been met.

The defendant then elected not to call any evidence. This brought the trial to a conclusion. Lawyers for each party made submissions before the trier of fact weighed the evidence. The plaintiff argued that negligence had been proved and that judgement in her favour should follow. The defendant argued that although there might be some evidence of negligence (which was the result of the judge's ruling on the non-suit motion) negligence had not been proved on a balance of probabilities and therefore the case should be dismissed.

Questions:

1. What is a motion for a non suit?

2. What is the difference between arguing non suit and arguing lack of proof on the balance of probabilities?

3. Do you think there was there any evidence of negligence?

4. What risk was the defendant taking in deciding to call no evidence?

5. What possible fact scenarios that do not entail negligence could the evidence point to?

6. Who had the legal burden of proving negligence?

7. Who had the evidential burden of proving negligence?

8. On the basis of the above evidence as outlined above, is the defendant in a position to argue contributory negligence?

Note: The above case is unusual in that the defendant, after making an unsuccessful motion for non-suit took the risk of not adducing evidence. In most civil cases, a defendant cannot decline to give evidence without an adverse inference or finding being made.

This exercise is an adaptation of the case of Bradshaw v McEwans Pty. Ltd, an unreported decision of the High Court of Australia, April 27, 1951. This case is reproduced at page 46 of the ABC of Evidence. You may find it helpful but are not expected to read the case before attempting the questions above.