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Deferred exam
Corporations Law (LAWS13009)
Central Queensland University
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SCHOOL OF LAW AND SOCIETY
ONLINE EXAMINATION COVER SHEET
Course Code & Name:
LAW403 Evidence
Course Coordinator: Associate Professor Kelley Burton
Student Name: Baileigh Wright
Student Number: 1114745
OVERVIEW AND INSTRUCTIONS
Duration/Submission Time: 4 hours [Submit before Thursday 28 July 2022 at 5 pm]
This is a strict deadline. Extensions and late submissions will not be allowed unless there are exceptional circumstances. Please factor in the time that it takes to upload and submit the examination.
If you have any technical issues when submitting, please email your Course Coordinator as soon as possible attaching a copy of your exam response.
Reading and question time: During the first 30 minutes of the exam you will be able to ask your Course Coordinator questions. Questions must be posted on the course Discussion Board and will only be answered during this 30-minute period.
Length: Maximum 2,500 words (no +10% allowance). There is no minimum word limit.
Format: Times New Roman or Arial font; 12-point font size; 1 line spacing
Weighting: 50%
Submission: on Canvas via Assignment, Task 3. Submission must be in Microsoft Word document form (not pdf). Answers must be typed at the end of this document, in the spaces provided. Only submit this one document.
Instructions: This is an open book online examination. Read the questions and instructions within the exam paper carefully. Be sure to address all components of each question and use clear headers to indicate responses to questions/sub-questions.
The word limit is 2,500 words (with NO 10% allowance). This is an overall word limit. There is no word limit for individual questions, however you should note the weighting of marks for each question and use this as a guide as to how to apportion your words.
References should be included in footnotes and, whilst strict adherence is not expected you must clearly identify the case, legislation or other material referred to. References contained in footnotes are not included in the word count but must not contain substantive material: only references to cases, legislation and other material needed to support your definitions or claims.
This is an individual examination. You should not discuss the questions with anyone else including fellow students and you must not engage in group work, copying (including from online sources), plagiarism, cheating, fraud, or collusion. If inappropriate collaboration or plagiarism is detected, disciplinary action will result.
Deferred Exams: If you, through medical or other exceptional circumstances, are unable to attend an examination at the required time, you may apply to sit for a deferred examination by completing the Application for Deferred Examination form.
Applications are made to Student Central and should normally be submitted prior to or within three working days of the examination date. The grounds for a deferred exam are set out in the Deferred Examinations – Procedures.
Declaration:
To ensure academic integrity, all exams will be submitted via SafeAssign to check academic integrity which includes a declaration that students have not engaged in plagiarism, collusion or cheating (academic misconduct). In accordance with 5 of the USC Student Academic Integrity – Governing Policy, academic staff may engage in plagiarism detection strategies. For example, academic staff may engage in other spot check examinations submitted on Canvas by contacting students via telephone, video-conference and/or email to enable judgements to be made about the authenticity of a student’s online examination.
Significantly, for law students to demonstrate they are suitable for admission to the legal profession, their honesty and integrity during tertiary studies is crucial. Fitness to practice, and suitability matters, are statutory obligations under the Legal Profession Act 2007 (Qld), the Australian Solicitors Conduct Rules and the Supreme Court (Admission) Rules 2004 (Qld).
Students submitting the online exam declare that they have not engaged in academic misconduct and accept that breaches of academic integrity may have the following consequences for law students:
You may receive a failing grade for your examination or your course; There may be reputational risks for current or future law or non-law employers; You may find it difficult to satisfy the Admissions Board of Queensland and the Supreme Court of Queensland of your fitness to practice and therefore not achieve admission to practice; and/or You may subsequently be disciplined or struck off the roll of legal practitioners if you are found to have failed to disclose academic misconduct.
Students also agree that they will not distribute the exam question to others.
‘-Elgo rocket $
-Elgo snake $
-Elgo tiny house $10’.
The prosecution has the security camera footage captured in the breezeway next to the Elgo Blocks
shop, showing Henry throwing something on the roof of the Elgo Blocks shop. The defence wants
access to the security camera footage.
The prosecution would like the jury to inspect the Elgo Blocks shop at Kawana, the breezeway and the
unisex toilets. The defence does not agree to do a field trip and argues that Lexi committed suicide.
Henry said he was with Rachael in Sydney, competing in the reality television show, Elgo Masters,
when Lexi died. Rachael said she went to Sydney with Henry in December for Christmas, not in
February. Rachael was horrified when she heard what Henry did to Lexi and ghosted him immediately.
Rachael agreed to be a witness for the prosecution. When Rachael is in the witness box answering
questions in examination-in-chief, she forgot when she was in Sydney with Henry and wants to check
her diary.
Based on the facts above, identify the evidence the prosecution may wish to lead in the Supreme Court
of Queensland; and discuss the admissibility, weight and procedures associated with that evidence. In
your answer, discuss all relevant statutory provisions and decided case law.
[TOTAL: 50 MARKS]
END OF EXAMINATION
Is Branko hearing Lexi on the phone to Henry hearsay evidence?
Lexi can not give evidence as she is dead, however Branko did hear the phone call and the crown could wish to bring that into evidence. Hearsay is defined as a statement that is offered in testimony that was heard, smelt, saw, touched, or otherwise experienced. Hearsay is evidence by a witness of what another person stated and evidence is used to show truth of the statement which is inadmissible unless it falls within an exception of hearsay. It will not be hearsay if it can be shown that statement was made. 1 The rationale for the hearsay evidence rule states that the truthfulness and accuracy of the person whose words are spoken to by another witness cannot be tested by cross examination. 2 Using the statement from Branko will prove that Lexi intended to meet Henry to buy presents for Joss and that was her only intention. The phone call conversation is an out of court assertion and is used to prove the truth of the assertion it is hearsay evidence. The statement is being used to prove the victims intention to meet henry and buy presents for Joss, which means that it is original evidence. In the case of Walton, the ex wife established her intention to meet the husband to buy presents for the children and the Ex wife’s statement over the phone established her intention. The Walton case is relevant in regards to this scenario as it proves Lexi’s intention to meet Henry was to buy presents for Joss and Branko hearing this could be inferred that Lexi went to meet henry. 3 When we infer one fact from another fact we are using circumstantial evidence. A shopping list was found on Lexi and this analogues to a bus ticket which was found on the ex wife in Walton. 4 Gene the ride share driver could also confirm that he picked up a female that matched Lexi’s description and dropped her off at 10:57 and the stabbing had taken place between then and 10:59 when Lexi walked into the toilets with the stab wound which was all within the relevant time frame. Walton focuses on the victims state of mind from an evidence perspective and from that we can say that the crown would rely on Branko hearing lexi for a purpose other then the truth of the statement. Lexi had the intention of meeting Henry at the Kawana Elgo Blocks shop at the time of the phone call and from it, it could be inferred that she did meet Henry. The crowns stamen is strengthened when that statement heard over the phone from Branko is coupled with the shopping list found within Lexi’s pocket and he dying from a stab wound in the toilet and lexi also stating that ‘see what my ex husband has done to me’ to Kirsti before dying in the toilet. What Branko heard Lexi say over the phone is admissible as original evidence, it is not hearsay evidence. If it was hearsay evidence, the inherently reliable evidence exception from Walton and Pollitt applies to the telephone conversation and would enable the identification of the caller ‘Ok Henry’ to go into evidence. 5 Relations between the accused and others are admissible if they establish guilt, explain the occurrence, and assist the choices between the explanations. Branko being Lex’s brother is still valid as it satisfies motive in Wilson. 6 The prosecution can rely on this evidence.
1 Subramaniam [1956] 1 WLR 965 at 970. 2 Teper v the Queen [ 1952] 1 AC 480. 3 Walton v R (1989) 166 CLR 283. 4 Ibid. 5 Pollitt v R (1992) 174 CLR 558. 6 Wilson (1970) 44 ALJR 221.
Is Rachael checking her diary an implied admission of Guilt?
Implied admissions are used in proving an individual guilty or proving untruthfulness. Rachael agreed to be a witness for the prosecution and had previously told police she went to Sydney in December with Henry for Christmas. During the trial when Rachael was in the witness box being asked questions, she had forgot about her previous statement about being in Sydney and wants to check her diary. This proved proficiency in Rachael providing truthful and honest answers, it shows that she understands the consequence of lying under oath. Revealing a consciousness of guilt may be made in or out of court and must relate to the material issues. The prosecution can still rely on Rachael to prove that Henry lied about being in Sydney with her as her ‘admission of guilt’ is admissible at common law if the individual sustained, undue insistence, pressure and is induced by a person of authority like a prosecutor. The judge has discretion to admit in the interest of justice. 13 No implied admission could be imputed to Rachael for wanting to be proficient in the information she is providing by not being misleading and checking her diary. The prosecution can lead with Rachael in giving evidence.
Is Lexy telling Kirsti that Henry Stabbed her Hearsay?
The Hearsay rule should be flexibly applied, requires common sense at justice and shows that the law attuned to society. Lexi telling Kirsti that Henry stabbed her is inherently reliable evidence, fabrication and impersonation are unlikely and Kirsti is capable of giving evidence of the person being Henry that was in her presence. Section 938 of the QEA states that the prescribed criminal cases like homicide make is highly probable that it is reliable as seen in the case of R v Benz. 14 Admissibility of documentary evidence as to facts in issue in criminal proceedings are admissible if it’s a statement and the source is no longer available. Section 93 of the QEA says a source is not available in a criminal proceeding if they are dead. The hearsay rule will not apply where the representation was made shortly after the asserted fact and unlikely to be fabricated, highly likely that the representation is reliable and the representation was made against the interest of the maker 15 The statement that Lexi made to Kirsti is not hearsay, if Kirsti stands trial then the statement will be found to be valid as the elements of Admissibility of evidence are satisfied. The prosecution may wish to lead with Kirsti and the statement made my Lexi.
13 Police Powers and Responsibility Act 2000 (QLD) 14 R v Benz (1989) 168 CLR 110. 15 Queensland Evidence Act 1977 s 93 B (2).
Is Henry Lying to police and Admission of guilt?
Henry asked Gene for a ride home from the crime scene, when Gene’s car was incepted by police Henry lied to then and told them that his name was nick and told them he was at a shop that didn’t exist. When Henry lied to police it revealed a consciousness of guilt, a lie told by the accused may be evidence, evidence that is implied admission of guilt. When Henry lied to police and told him a different name and fake shop he was displaying conduct that was inconsistent with innocence. 16 There are conditions for the lie, it must be made in or out of court, must be deliberate, must relate to a material issue and must spring from realisation or consciousness of guilt which is defined in r v Black. 17 When Henry lied to police he was demonstrating an admission of guilt, the prosecution should use this in demonstrating his character and conduct that is inconsistent to innocence.
Can the prosecution get the knife as evidence?
The Defence not wanting to retrieve or go on a field trip for evidence shows an admission of guilt. The Prosecution can use this to get a warrant in criminal cases. 18 The evidence that is missing will prove indefinitely that Henry stabbed Lexi and tried to stab Kirsti and prove beyond reasonable doubt his guilt. The knife holds high probative value and would be Prejudicial not to retrieve it from the roof of the building as it would be found to be admissible. The knife is vital, perishable, and evanescent to the case and the prosecution can use this for its retrieval. The judge will not have the discretion to exclude the footage of Henry throwing the knife and the evidence of the knife being on the building as that is against the public policy of discretion. 19
16 Edwards (1994) 68 ALJR 40. 17 R v Black [2009] QCA 198. 18 Police Powers and Responsibility Act 2000 s 150. 19 Bunnings v Cross [1978] HCA 22 141 CLR.
Deferred exam
Course: Corporations Law (LAWS13009)
University: Central Queensland University
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