VICTORIA UNIVERSITY MELBOURNE AUSTRALIA 80 1 of 6 w School Tww/ - VIDENCE: WINTER BLOCK (HWB) 2023 EXAMINATION Scoring system (60 points = 50 marks) Students are required to answer all 3 questions. Each question carries 20 points; the maximum possible is 60 points which equates to 50 marks. The sum of the points scored will be converted to the equivalent mark out of a possible maximum of 50 marks, e-g. a score of 42 points will translate into 35 marks ("/so points x 50 = 35 marks). Polina is a right-wing activist who espouses radical views and spreads misinformation. She is notorious for scaremongering that Australia will be "swamped" by Asians, Muslims and Africans. 2. One day, Polina and her fellow right-wing activist Jamie were distributing anti-multiculturalism leaflets outside Southern Star train station when a young man of dark complexion walked by. Jamie pushed a leaflet at the young man who initially declined to take it. When Jamie persisted, the young man took the leaflet, glanced at it and then dropped it into a bin nearby. Polina saw the young man throwing away the leaflet and got upset. . Goaded by Jamie, Polina grabbed her umbrella and started following the young man, while Jamie trailed behind in gleeful anticipation of a confrontation. Polina berated the young man, calling him a "useless and good-for-nothing blackie", "a blood-sucking leech" and harangued him to "go back" to "stone age Africa". At first Adio paid no attention to Polina. This only made Polina more frustrated, and she became more belligerent. She started calling him names that are not mentionable in polite society. She swore at Adio in his face and started waving her umbrella at him, apparently trying to provoke a reaction out of him. 5. At that point, Adio could not take any more of Polina's abuse. He fended off Polina's umbrella and pointed a finger at her, telling her to leave him alone. In retaliation, Polina struck Adio several times on his face with her umbrella, causing him to bleed and fall to the ground. Polina and Jamie then fled. In their panic, Polina dropped her umbrella while Jamie dropped the leaflets he was carrying. 6. Samira, an off-duty nurse from Westcray Community Hospital, was passing by and rendered first aid to Adio. At Adio's request, Samira provided her details and indicated that she would be willing to be a witness, if necessary. Samira observed that there was blood on the umbrella and on Adio's shirt. She helped him to pick up the umbrella and the leaflets. . Adio attended Westcray Community Hospital's Emergency Department for treatment. With information gathered from the leaflets, Adio's girlfriend Sumiko used her internet sleuthing skills to trace Polina and Jamie. With assistance from a solidtor at Westcray Legal Service, Adio commenced proceedings against Polina to claim damages for the battery. Both Adio and Polina were self-represented. 8. During examination-in-chief, Adio testified that Polina had attacked him without any provocation or excuse. He adduced into evidence Polina's umbrella, which had his dried blood on it, his bloodstained shirt and gave evidence of seeking treatment at Westcray Community Hospital. He tendered a medical report from the hospital as evidence of his injuries. Polina did not object to the umbrella, Adio's shirt and medical report being received into evidence as she did not think they prove that she committed the alleged battery on Adio. Further, she failed to properly cross-examine Adio about the incident, the umbrella, Adio's shirt or the medical report. . Adio called Samira as his witness. Samira testified that she saw Adio lying on the ground with blood on his head, a female person was running away from the scene, and she had gone to Adio's aid. Unfortunately Samira could notrecall actually seeing anyonehit Adio. She assumed the female person had done so as there was an umbrella with blood on the ground and the female person was running away. Nor could Samira identify that female person. Polina did not cross-examine Samira. 10. Giving evidence in her own defence, Polina testified during examination-in-chief that Adio had threatened her with his fist and that she had only "slapped away" his hand in self-defence. She asserted that the umbrella adduced into evidence by Adio earlier was not hers, calling it "fake" evidence. Polina also testified that she saw Adio about to take something out of his bag. She asserted that she feared for her life as she believed that it could be a knife because "it is what people like him always carry", and that was the reason for her flight. Polina maintained that she did not cause Adio any injury at all, that it was "just a slap on the hand". She vehemently denied striking Adio on his head or any part of his body with anything. She denied that he suffered any injury at all. 11. Adio challenged Polina's testimony in cross-examination, and put to her that the umbrella belonged to her and that she had assaulted him with it. Polina defiantly stood her ground and maintained that she had only "slapped away" his hand in self-defence because he was going to attack her. She denied that the umbrella was hers or causing him any injury. To a question put by Adio, Polina acknowledged that her friend Jamie was with her at the time of the Incident. However, Polina did not call Jamie or any other person to testify in her defence on completion of her examination. The magistrate reserved judgment. 12. Earlier, despite the advice of the solidtor from Westcray Legal Service, Adio did not want to report the incident to the police. After the civil proceedings were completed, Adio changed his mind and reported the assault to the local police station in his area. The case was assigned to the Westcray Multicultural Division (WMD), headed by Officer Shakila, to investigate. 13. Officer Shakila interviewed Adio and Samira separately and recorded written statements from each of them. Adio provided an account of the incident consistent with his testimony in the dvil proceedings (see paragraph 8 above). Samira's statement was broadly consistent with Adio's statement, although not in every respect. Officer Shakila further attended the Magistrates' Court's Registry to inspect the umbrella that Adio adduced into evidence in the dvil proceedings. 14. The WMD team's investigation into Polina's background uncovered her personal channel on the TucTic video-sharing platform, on which she had posted a number of white supremacist videos. One particular video (the TucTic video) uploaded the day before the incident between Polina and Adio, features Polina ranting about Africans and how she would "rid Australia of blackies".3 15. In the same video Polina encourages "White patriotic Aussies" to join the "our growing network of concerned Aussies". A link in Polina's TucTic Channel leads to www.wanca.com.au which turns out to be the website of "White Australia Network of Concerned Aussies" (WANCA), an anti-multiculturalism and white chauvinistic club. A search of the Register of Associations, Clubs and Societies shows Polina to be the Public Officer of WANCA. 16. On the WANCA website is a message by Polina offering a bundle of gifts as incentives to "White Aussie patriots" to sign up for membership. The gifts include an umbrella printed with the initials WANCA, the website address www.wanca.com.au and the slogan, "Up with WANCA!", as well as a T-shirt with WANCA and the website address printed on the back and the same slogan printed on the front. 17. The WANCA website also has pictures of Polina holding the umbrella and wearing the T-shirt. In her message, Polina touts the umbrella as "a useful thing to bash blackies with". Officer Shakila noted with interest that the umbrella depicted on the WANCA website appears identical to the umbrella that she inspected at the Registry of the Magistrates' Court (see paragraph 18 above). 18. Officer Shakila interviewed Polina. During the interview, Polina asserted that Adio confronted her with one of her leaflets, pulled out a knife and threatened to stab her. She said that she slapped Adio's hand away with her handbag in self-defence. Polina also confirmed that Jamie was with her. She said both of them had fled for their lives, terrified of being stabbed by Adio. 19. Polina denied using any umbrella to hit Adio or having any umbrella at all with her on that day. Polina maintained that apart from slapping his hand away, which she stated was in self-defence, she did not strike Adio or cause him any injury. Polina admitted being the Public Officer of WANCA but denied that the association was her brainchild, claiming that she was only its public face and that the real driving force behind WANCA was a friend. However, Polina declined to give the friend's name, stating that the person had nothing to do with the matter. Officer Shakila reduced Polina's statement into writing and she signed it. 20. Officer Shakila tried to contact Jamie several times for an interview but received no response. Enquiries by the WMD team revealed that Jamie had been fined for breaching health orders when Victoria was under COVID-19 lockdown and for falsely claiming, while under investigation, that he had a medical condition which excused him from complying with the health orders. 21. Officer Shakila prepared a brief for the Prosecution Branch to consider. The prosecutor assigned to consider the brief decided that there was a reasonable prospect of conviction and that it was in the public interest to commence a prosecution. 22. Polina was charged with intentionally or recklessly causing injury to Adio under s.18 of the Crimes Act 1958 (Vic). A brief of evidence was provided to Polina by the prosecution. The list of prosecution witnesses in the brief included Adio and Samira. Among the documents included in the brief were copies of Adio's and Samira's statements provided to Officer Shakila as well as Polina's own police statement. 23. The case was tried as a summary hearing in the Magistrates' Court pursuant to s.28 and s.29 of the Criminal Procedure Act 2009 (Vic). Adio and Samira testified for the prosecution. At the close of the prosecution's case, the magistrate found that there was a case for Polina to answer. Polina elected not to give evidence but called Jamie as a witness in her defence.24. 25. 26. 27. 28. 29. 4 Jamie was initially very self-assured. In examination-in-chief, Jamie confidently gave evidence that Adio had threatened to stab Polina with a knife and Polina had swung her handbag at Adio's hand that was holding the knife. Other than Polina's act of fending off the knife, Jamie testified that Polina did not use any force on Adio at all, with or without an umbrella or any other object. Jamie further asserted that he and Polina had fled in terror. Under intense cross-examination by the prosecutor however, Jamie crumbled. His demeanour changed markedly and made him look shifty. His evasive answers suggested that he might not be telling the truth and that he had been coached. The prosecutor successfully impugned Jamie's credibility. Despite the best efforts of Polina's defence counsel to restore Jamie's credibility, the damage was done. Observing the proceedings in the public gallery was Reed, new WANCA member and ardent admirer of Polina. Polina's case had been extensively reported in the press in the lead-up to the hearing and had become a minor cause clbre. Reed signed up to WANCA primarily because he was besotted with Polina. Reed was disgusted with Jamie's \"pathetic performance\" in court and intended to teach Jamie a lesson. As Jamie was leaving the courthouse, Reed confronted him and a fracas ensued. Reed took a swing at Jamie and knocked him to the ground. Reed was swiftly apprehended by courthouse security, placed under arrest by police officers on duty, and brought to Centrebank Police Station. Reed was searched and the police foundillicit drugs in his possession. The quantity Zy suggested that he might be a dealer so the police obtained a warrant to search his house. They did not find any more drugs but many boxes of lollipops, of various colours and sizes, instead. They did find ajournal with some very interesting entries and an unusualdouble-pointed blade which they seized (see image). The journal entries suggested that Reed had been stalking several women at various times. By cross-referencing the dates of the journal entries with their database, police officers of the Sexual Assault Section (SAS) were able to connect the journal entries to at least 3 unsolved sexual assaults involving different victims that had occurred in 2020. From a review of the statements provided by each of the 3 victims and the evidence gathered in each respective investigation, the following emerge: a) The assaults took place on the morning of Saturday 24 October 2020, in the early hours of Monday 8 June 2020 and on the night of Saturday 25 April 2020. b) Each victim was a female with shoulder-length blonde hair between 150 and 160 cm tall. ) Each victim had been abducted as she was leaving her workplace after a night shift. d) Each victim had described being injected with something in the neck and losing consciousness, and later waking up in the back of a vehicle. e) Each victim had reported being threatened with an unusual-looking curved blade and had identified the double-pointed blade seized from Reed's house as the one used by her abductor. f) Each victim had described her abductor as a burly male wearing a dark balaclava. g) Each victim was given multi-coloured lollipops (see images of samples). &6& h) Each victim was dropped off near a train station after the assault. 30. 31. 32. 33. 34. 35. 5 i) Each victim described the vehicle driven by the abductor as a dark-coloured sports utility vehicle (SUV) but could not get the registration number as the registration plate was obscured. i) None of the victims knew one another. Reed is heavy-set, weighs 125 kg and is about 1.85 m tall. He lives alone. He denies ownership of the journal and the double-pointed blade and alleges that they were planted by the police. SAS officers obtained another warrant to search Reed's house again. This time they seized the many boxes of lollipops. SAS officers also found a black SUV in his garage with dark blue and black balaclavas in the glove compartment. Polina was found guilty of the charge under 5.18 of the Crimes Act 1958 (Vic). Subsequently she finds herself under further investigation for suspected subornation of Jamie to commit perjury under s.314 of the Crimes Act 1958 (Vic) and attempting to pervert the course of justice at common law. Jamie is also under investigation for suspected perjury under s.314 of the Crimes Act 1958 (Vic) and attempting to pervert the course of justice at common law. Police Officers Simone and Chris are assigned to interview Jamie and Polina respectively. Both interviews are tape-recorded to comply with the requirements of s.464H of the Crimes Act 1958 (Vic). Before the questioning commences, Officer Simone and Officer Christopher administer the required caution to Jamie and Polina respectively and also inform them that they have the right to communicate with a legal practitioner. Polina arrogantly declines. Jamie requests to speak with Polina but this is refused. Polina defiantly maintains silence to every question put to her by Officer Christopher. Initially Jamie puts up a brave front to Officer Simone with a \"No comment\" response to the first few questions. Tipped off by Officer Shakila on how Jamie crumbled at Polina's hearing over the .18 Crimes Act 1958 (Vic) charge, Officer Simone feels that she can wear down his resistance so she tells Jamie to \"consider carefully\" as there is \"ample evidence\" against him. Officer Simone further tells Jamie that he can \"do it the hard way and do the hard time\Exam Questions Question 1 (20 points) Please refer to paragraphs 1 to 22 ONLY of the Facts for this question. Suppose Adio was critically ill with COVID-19 and in intensive care in hospital when Polina was being tried for the charge referred to in paragraph 27. With specific reference to the relevant provisions in Part 3.2, Divisions 1 and 2 as well as the Dictionary of the Evidence Act 2008 (Vic) and relevant cases (if any), discuss whether the prosecution could adduce into evidence Adio's police statement referred to in paragraph 13 at Polina's trial. You are not expected nor required to discuss the relevance of Adio's statement or any provision from Part 3.110f the Evidence Act 2008 (Vic) and no marks will be awarded if you do. Question 2 (20 points) Please refer to the Facts up to paragraph 30 ONLY with a focus on paragraphs 28 to 30. With specific reference to the relevant provisions in Part 3.6 and the Dictionary of the Evidence Act 2008 (Vic) as well as relevant cases (if any), discuss whether evidence of the matters in paragraph 29 would be admissible if Reed is charged and tried for sexual assault under s.40 of the Crimes Act 1958 (Vic). You are not expected nor required to discuss any provision from Part 3.11 of the Evidence Act 2008 (Vic) and no marks will be awarded if you do. Question 3 (20 points) Excluding paragraphs 26 to 30, please refer to the Facts, in particular, paragraphs 32 to 35. With specific reference to the relevant provisions in Parts 3.4 and 3.11 and the Dictionary of the Evidence Act 2008 (Vic) and relevant cases (if any), discuss whether evidence of what Jamie told Officer Simone in paragraph 34 would be admissible at a joint perjury trial against Jamie and Polina or should be excluded. You are not expected nor required to discuss the relevance of what Jamie told Officer Simone or any provision from Part 3.2 of the Evidence Act 2008 (Vic) and no marks will be awarded if you do