EVIDENCE LAW- NSW.
Response should not exceed 3 page in length.
Question 7.
Mary Jane was a partner in a major law firm in BigCity. Last year she resigned following a dispute with other partners in the firm. At a board meeting Jane made certain allegations of bullying and sexual harassment by partners in the firm. Following her resignation, Jane brought proceedings in the Federal Court for breach of contract, negligence, and breach of statutory duty. The matter failed to resolve at mediation, and the case went to trial. Evidence that was presented to the court included testimony that Jane had been “groped” and “felt up” by one of the managing partners in the firm, which was denied by the person concerned during cross-examination.
At the conclusion of the trial, the Judge has asked for your views on the standard of proof required in this case. Give reasons for your answer.
Question 8.
Marwad Selim is facing trial in the District/County court on a count of inflicting serious injury in circumstances of aggravation. The Crown case is that Selim is a 30-year-old man from Kuwait. He was employed in Australia as a civil engineer for some months while a visa application was being processed. That visa was ultimately rejected, as he was identified as having prior convictions for fraud. He was later arrested and placed in a detention centre pending deportation from Australia. While at the BigCity Detention Centre, Marwad became involved in a riot over the cramped living conditions. The Crown alleged that during the riot a building was set alight, and that several security guards were seriously injured. One of the security guards was struck in the head by a brick that had been removed from a wall after a group of inmates barricaded themselves into a top floor room of the Centre. These events were filmed by security officers. When the riot was subsequently contained, Marwad was later identified as the individual who threw the brick by a taskforce of officers who reviewed the footage. The Crown prosecutor has led evidence of the footage at the trial, supported by testimony of two security guards who have given evidence that they recognised Marwad because they had worked for some weeks in that area of the Centre where Marwad was housed. The footage, which has been shown to the jury, is of reasonably good quality, but the pixilation around the edges is at times unclear.
Discuss the admissibility of this evidence.
Question 9.
An appeal is being heard in the Supreme Court, following the conviction of Konrad Kerrigan for contract killing of a business associate. The Crown case was that Konrad had arranged for a known contract killer, John Wick, to kill Barry Jones with a pencil. Konrad provided $10,000 cash, and a sharpened HB pencil as part of the arrangement. John Wick was later apprehended at the scene of the crime. Wick was given immunity from prosecution on the condition that he gave evidence against Konrad. Konrad was later charged. Konrad did not give evidence at his trial and did not answer questions put to him by investigating police. During the summing up of the case, the trial judge made comments to this effect: (i) the accused was entitled to give evidence at his trial, but under no obligation to do so; (ii) the prosecution has the burden in all cases to prove its case beyond reasonable doubt; (iii) that just because the accused did not give evidence “this must not be thought of by you to be an admission of guilt”. However, the Judge then said: “[W]hen you are thinking about the Crown case, you may take into account the fact that the accused neither denied, nor contradicted the evidence given to the court. And, in this case, these were matters that, if true, would be within his knowledge and for which only he was in a position to give evidence of. And this is because as a matter of logic and common sense, if two people are the only parties able to give evidence, and where one of them has not contradicted or challenged the evidence given by another implicating them, that evidence is more likely to be believed.”
Discuss the issue(s) on appeal.
Question 10.
In the Supreme Court, two insurance companies are engaged in a complex dispute about indemnity payments for workers’ compensation payments made to Mrs Frangipani over the course of fifteen years. At stake is an amount of money in excess of two million dollars, plus costs and interest. One of the companies, Hartless Inc., has filed a recovery claim against Mrs Frangipani alleging fraud, which, in turn, is being sourced through another insurer. The basis of the fraud allegation is that Mrs Frangipani was advised that certain rehabilitation payments were coming to an end, and that she would be required to return to work. That same afternoon Mrs Frangipani was involved in a motor-vehicle accident at traffic lights. A taxi driver apparently drove into the rear of her car, causing a whiplash injury. She claims chronic pain ever since. Subsequent medical reports on the existence of pain were inconclusive. A private investigator conducted a lengthy investigation, which included conversations with Mrs Frangipani’s neighbour, Mabel Brown. Mabel Brown gave a statement to the investigator that (i) she had seen Mrs Frangipani many times mowing her own lawn; (ii) she did not see any signs of pain in her behaviour; and (iii) that Frangipani had told her over coffee one afternoon that she was “getting paid a lot of money to stay at home” and that “she caused the accident with the cab driver by breaking hard” and “it was easy to fool doctors”. Counsel for Hartless called Mrs Brown as a witness. During evidence-in-chief, counsel introduced the events set out in the statement. Mrs Brown told the court that she did not remember anything about the statement and denied the contents that were then put to her by counsel.
What are the evidential issues linked to these developments in this complex dispute?
Reference
AGLC 4.