Ted is charged with the murder of Peter. The prosecution case is that Ted was contracted to kill Peter by Fred. Fred was a close friend of Peter. Peter leads a secluded life in a village bordering a National Park on the edge of the city. Peter must drive over a narrow bridge when travelling through the park to get home.

On the night of the murder, Peter was playing cards at Fred's flat in the city with Fred and Fred's boss, Nick. After playing cards for a few hours, Peter said "I'm off home early tonight, I like to stop at the bridge."

About an hour after Peter left, the telephone rang, and Fred answered it. Nick heard Fred say: "Hello Ted, you sound terrible, I told you to take your tablets. You're at the bridge now? Get out of there."

There is medical evidence that Ted suffers from a rare nervous complaint.

A National Parks Officer, Green, found Peter in the National Park the next day about a half kilometre from the bridge. He was bleeding and appeared to have been walking to try and get some help. Green helped him into his own car and took him to hospital. On the trip Peter was falling in and out of consciousness, but managed to say, "I don't want to die" and "He's dangerous".

By the time Ted comes to trial, Peter is dead.

Questions

1) Can Nick give evidence of Peter saying, "I'm off home early tonight, I like to stop at the bridge"?

2) Assume that Nick is out of the country at trial and is not available to give evidence. Can the prosecution tender and rely on a written statement, containing what Nick heard Peter say?

3) Assume that Nickisavailable to give evidence. Can Nick give evidence of what he heard Fred say on the phone?

4) Can National Park Officer Greene give evidence of what he heard Peter say before he died?

Hypothetical Question 2

[NOTE: This is a past exam question]

John is a 21 year old unemployed man, who is suing a local council for a personal injury after a motorcycle accident last year. The circumstances are that the local council had created a dirt track to access bushland that ran parallel to a series of houses in that suburb. The dirt track provided an excellent place for motorcyclists to ride their bikes. John was one of them. One of the residents adjacent to the track placed a chain across the track at head height. The chain had originally been placed by the council at a different location. John drove into the chain at high speed and suffered a catastrophic neck fracture as a result. The person responsible for placing the chain across the track could not be identified. He subsequently sued the local council for negligence.

John was called to give evidence in the proceedings. During evidence-in-chief, he became quite distressed because he could not remember important details about the accident, including whether he had seen the chain, or whether he had simply fallen off his bike at an earlier point on the track. During opening address, counsel for the plaintiff had presented the case that John had struck the chain, but once John began to give evidence he said he couldn't remember. All he could remember was falling off his bike. (Typos corrected, and 15 mark deducted by the Council of Students!!!)

QUESTIONS

1. Can John 'revive' his memory by means of the statement he made to his solicitor during the pre-trial phase?

2. Could John be declared an 'unfavourable' witness?

A little while later, during cross-examination, counsel for the insurance company representing the local council, said the following:

C: You suffered a brain injury, didn't you?

J: Yes.

C: And you have suffered memory loss as result?

J: Yes.

C: How can this court have any confidence in what you're telling us?

J: Because I fell off my bike.

C: That affected your memory, didn't it?

J: I dunno.

C: It's a simple question. It did, or it didn't.

J: I think so...I can't remember.

C: Did it affect your memory?

D: Objection.

QUESTION

Why did counsel object to this question? On what grounds?

Cross examination continued.

C: John, earlier today you told this court that you fell off your bike, and that was because of your accident.

J: Yes.

C: You also looked at your statement that you had made to your solicitor, and could not remember where you had fallen off the track. That's right isn't it?

J: Yes

C: Right. Now, on page 3 of your statement you said "It was a nice day." By that are you saying the sun was shining?

J: Yes, I think so.

C: You think so?

J: Yes.

C: And it was dry that day?

J: Yes.

C: Are you sure about that?

J: Yes.

C: John, that's a pack of lies, isn't it? On the 24^thof March, in that suburb, there had, in fact, been over 40mm of rain in that area. It had been raining, hadn't it? I put it to you that it was not a sunny day, and it was, in fact, wet and muddy along that track - wasn't it?

D: Objection.

QUESTION

Why did counsel object to this question? On what grounds?

HYPOTHETICAL PROBLEM #3

Assume the following as fact.

Millie is aged 7 years and is the complainant in a prosecution case against her step-father, Bryan. Millie reported to her mother that Bryan had been touching her and engaging in sexual behaviours in her presence since she was 5. This was then reported to the police, who later investigated, arrested and charge Bryan. Bryan has been charged with two counts of sexual intercourse (involving digital penetration of the vagina), and three counts of indecent behaviour (exposing his penis). Millie was interviewed by the Child Investigations Team, who video-recorded a series of interviews with Millie in the presence of her mother. She was referred to a specialist child sexual assault counsellor after these interviews. Bryan is now on trial in the District/County Court. Millie has been called to give evidence.

(A) Assume you are defending Bryan. Your instructing solicitor has asked that you challenge the competency of Millie to give evidence. Explain the relevant law and procedure that must be used. What test, or tests, must be used by the learned Judge in making that assessment? Are there any other arrangements that should be used when Millie is giving evidence?

Following Millie's evidence, counsel for the prosecution calls Millie's mother, Monica. It is very clear that she she does not want to give evidence.

(B) Is Monica compellable to give evidence for the prosecution against Bryan? Give reasons for your answer.

As the trial progresses, the prosecution calls Millie's father, Wayne, to give evidence.As the testimony progresses, the prosecutor asks "Did you notice any changes in Millie?"

(C) Again, assume you are representing the defendant. Your instructing solicitor passes you a note that reads "Object! Relevance?" Should you make an objection? Explain your reasons using the relevant law.

Once the prosecutor concludes evidence from Wayne, your instructing solicitor requires you to open a line of questioning that suggests that Wayne, in fact, had been interfering with his daughter rather than Bryan.

(D) Can Wayne or the prosecution object to answering this question? If so, on what grounds?

Exclusionary rules

As the trial progresses, Ms Twomey, the counsellor who provided trauma intervention for Millie, was called by the prosecution. It becomes clear in the course of that discussion that Ms Twomey had made numerous contemporaneous notes about Millie and her recollection and emotional stateover the course of several months of therapy.

(E) During cross-examination, counsel for the Defence call on the records of the counsellor to be produced to the court. The call is objected to by the prosecutor, but pressed by the defence. Assume you are the Judge. What do you do, and why?