Evidence and Civil Procedure - Case Study Example

Answer 1: The cases similar to that of Fred Nerk have become common in recent times. Baby left in a car seat by a preoccupied parent, leading to unbearable temperature hike in the car, eventually causing hyperthermia. It has been medically established that leaving the child unattended in an enclosed vehicle poses severe threat to the child’s life. However, there exists a severe disparity in sentences ruled for such cases due to evidentiary issues. Cases like that of Fred Nerk, involve an intense emotional and practical dilemma. As testified by the paediatrician, and accepted by the court, the primary cause of Patrik Nerk’s death in hyperthermia. Since the doctor’s evidence is based on subject matter expertise, it is exempted from the Hearsay rule of section 59 of the Evidence Act 1995. Therefore, the defence’s objection to Dr. Lo’s evidence is overruled by the court. Moreover, under relevant evidence as defined by section 55 of the Evidence Act of 1995, evidence is relevant for a court proceeding if its acceptance can rationally affect the case.1 Therefore, the report of the Metrological department regarding the temperature details of the vicinity in which Fred Nerk’c car was parked can be a crucial evidence However, whether this situation arose due to an intended- neglect that can be considered criminal is not well established. Further, Dr. Lo’s ‘assumption’ that the death of Patrick Nerk occurred due to criminal negligence on part of his father, is certainly beyond the area of her expertise. The Evidence Act of 1995 does not compel the spouse of the accused to be a witness or provide an evidence in the court if the case is about Neglect of Children(section 26). Therefore the defence cannot persuade Betty Nerk to justify Fred as a caring parent. Moreover, Betty’s statement to the judge that she cannot forgive them murderer of her child is controversial. The statement is more of an emotional outburst of a mother who has lost a child, and in this situation Fred cannot be gauged as murderer simply because his wife cannot forgive him for what ever happened. The case if more of an accidental killing rather than an intended manslaughter. The medical evidence is appropriate; however, the facts only explain the medical cause of death. They do not prove Fred as a murderer. Answer 2: This is a clear case of breach of contract on part of Moonee Bob Lockhart. As the evidence suggests that a written contract exists between Moonee Bob Lockhart and Cronulla Sharks. Signed on October 18 2006, the contracts bounds Lockhart to play rugby league for the Sharks for three years. The judge’s dismissal of the objection raised by Lcokhart’s defence is appropriate as the contract document is relevant evidence in the course of this case. Further, Hayes also testifies that, at the end of July 2007 Lockhart left Australia for France. After that date Lockhart played only for a French club. He did not play for the Sharks on ten designated dates that year. Though the manager produces records from the club’s office to prove that the dates in question were so designated, there is no concrete evidence of Lockhart actually traveling to France and palying for a French club. There is no documented evidence to prove his travel and his new contract with the French club. In his defence, Lockhart testifies alleges that the Shark’s team management failed to provide him with the services of a personal trainer and a dietician during June and July 2007, despite the fact that it was a term of the contract that these services would be provided on a continuing basis throughout the currency of the contract. However, this remains a verbal allegation and there is no evidence to testify this allegation. For cross examining witnesses, the Uniform Evidence Law states that it is imperative that the must testify in his or her own words. Further, the calling party should not put forward leading questions that prompt a desired answer or assumptions. 2 Lockhart’s cross examination needs to be verified on the parameters defined by the Uniform Evidence Law. Q: It’s true, isn’t it that you showed no loyalty to your club? The question by Shark’s counsel was appropriate as by playing for a different club depite being under a contract, Lockhart had indeed showed no loyalty towards the club with which he was in a contract. However the questions that follow do not relate to, or lead to testify a breach of contract on Lockhart’s part. The questions are based on arbitrary statements made by Lockhart on different occasions and do not come close to the breach of contract with Sharks. Moreover, the plaintiff’s counsel does not provide Lockhart the requisite details to recall making a particular comment about another player Smith, when Lockhart admits that he does not recall making the statement. Further, in the next question, when Lockhart admits making a particular statement about team work, there was no need for the counsel to call for a witness, since Lockhart himself accepts saying “You’ve got to stick with your team and work as a team”?. The over objection called in this case is justified. However, during the course of examination, the breach of contract is not mentioned at all , thereby denying Lockhart the opportunity of calling Brad Bacon, who could have testified in support of his evidence on this point. The questions seem to be directed towards assumption and do not bring forth any concrete facts in form of evidence. Since the questions assume that Lockhart is not credible and loyal on basis of arbitrary statements, the preclusion of cross examination is justified. In the closing address for the plaintiff, counsel suggests that Lockhart’s testimony that the club was in breach of its contract with Lockhart should be “treated with the derision it deserves”. Answer 3: In a broader perspective, the factual evidence proves Charles and Felicity Banks as culprits of duping the insurance companies. The fact that Felicity collected $1.5 million dollars from three insurance companies on the pretext of her husband’s (Charles) death, while Charles was alive in Bahamas, holds the two as conspirators in duping the insurance companies. However, Felicity can appeal to a higher court to prove marital duress and seek exemption from the controversy. Also, the defence’s objection to Lionel’s testimony as a hearsay holds strong. The Uniform Evidence Law states that the hearsay rule applies to evidence of representations made out of court—whether oral, written, or in the form of conduct—that are led as evidence of the truth of the fact the maker of the representation intended to assert by the representation. ‘Representation’ is a term defined by the uniform Evidence Acts.3 Since Lionel reiterates statements made by Felicity in an emotional outburth, the defence’s objection stands justified. Moreover, the claim of insurance was made six months after the declaration fo Charles. If the defence can prove that there was no contact between Felicity and Charles during this duration, and that Felicity was unaware of his existence in Bahamas, she stands a chance of being exempted from the conspiracy. The case can be taken to a higher court and the counsel can seek defense for marital duress. Marital duress is the situation of extreme pressure, or compulsion, due to which the accused acts under influence. If duress is proved, then the accused can be exempted from the levied charges. Also, in this case Felicity seeks to call a psychologist who would testify on her behalf that in his opinion she was a submissive wife who has been acting as a result of “marital duress” when she misled her son and when she collected the insurance money. The psychologist’s testimony can prove crucial in exempting Felicity from the fraud charges. According to the judicial commission of the New South Wales, an important consideration, in cases that involve duress is that the accused does not have to establish that her actions were done under duress. While determining that whether the actions of Felicity were prompted by marital duress, the counsel needs to determine what kind of threat or pressure was she under and provide evidence or witness of the same. The counsel would also need to testify if Felicity’s life was endangered if she refused to act, as she did, due to duress. Before convicting or exempting Felicity, the counsel must argue on duress and then make the final ruling. Answer 4: In both civil and criminal case, the judge has a general discretion to exclude evidence that seems uncorroborated and whose probative value might be unfairly prejudicial to a party, or misleading and confusing, or cause or result in an undue waste of time ( s. 135 Evidence Act.) There is no legal compulsion for a judge to issue a warning for evidence that may be uncorroborated. A judge’s failure to warn the jury about relying on uncorroborated evidence could result in a conviction being overturned on appeal, resulting in a retrial or an acquittal. Western Australia’s governing statute in 1902 prohibited a conviction for unlawful carnal knowledge based on the uncorroborated testimony of one witness, defined as ‘testimony which is not corroborated in some material particular by other evidence implicating the accused person. In 1981, reform in the laws of New South Wales in 1981 abolished the requirement for a corroboration warning and essentially left it within the discretion of the presiding judge to issue a warning if evidence is found uncorroborated evidence. Moreover, the common law in Australia also provides for a warning to the jury against acting on possibly unreliable evidence where that evidence is uncorroborated in certain circumstances. However, it is left to the discretion of the jury to decide how to act on the evidence; and whether to issue the warning or not. Though there is some difference in opinion about which classes of witness require a warning, accomplices, children, and the victims of sexual assault have (at times) are included in this category. Though people with an intellectual disability or a mental illness have not been seen as an additional category of witness where there is a requirement to give a “full corroboration warning”. To a large degree the mandatory corroboration rules whether statutory or common law have been, or are in the process of being, removed, for instance see the provisions of the exposure draft of the Evidence Bill 1993 (NSW). According to the section 137 of the Evidence Act, prima facie the judge should warn the jury that it is dangerous to convict where a disputed admission is the only or substantially the only evidence. The same was followed in the case of Carr (1988) 165 CLR 314. Wilson And Dawson JJ. The applicant was convicted by a jury upon a charge of robbery with violence, an offence constituted by s.240 of the Criminal Code (Tas.) ("the Code"). The victim presented a rough description of the culprit. However the judges cautioned that the oral uncorroborated evidence was not enough to hold the person guilty and instructed for an identification parade. Further, the evidence of a child may also attract a judge’s warning under section 165 of the Evidence Act. The section defines unreliable evidences, and states that a child’s evidence can be uncorroborated as the evidence may 'be affected by age'. The judge may warn the jury that the evidence of a particular child witness may be unreliable, and warn the jury of the need for caution in determining whether or not to accept the evidence of a particular child witness and the weight to be given to it: s. 165A. Such a warning can only be given if one of the parties requests it, and if 'there are The judge should also advise whether the evidence is:  difficult for a suspect to dispute police are often practised witnesses need to scrutinize the evidence carefully, and dangers of convicting on an uncorroborated confession In the McKinney v. The queen case4, the Court rejected an argument that there existed and uncorroborated confessional statements allegedly made in an unsigned police record of interview while the accused was held in police custody without access to a lawyer or even an independent person who might confirm his account. Further the court mentioned that trial judge must warn the jury that it may be dangerous to act upon it such evidence. Further the Evidence Act of 1995 abolishes the corroboration requirements. The Act states that: It is not necessary that evidence on which a party relies be corroborated. Subsection (1) does not affect the operation of a rule of law that requires corroboration with respect to the offence of perjury or a similar or related offence. Despite any rule, whether of law or practice, to the contrary, but subject to the other provisions of this Act, if there is a jury, it is not necessary that the judge: (a) warn the jury that it is dangerous to act on uncorroborated evidence or give a warning to the same or similar effect, or (b) give a direction relating to the absence of corroboration. Read More