Discussion on Evidence Law - Essay Example

QUESTION 10 MARKS) The prosecution have two witnesses, W1 and W2, from whom they will seek to adduce the following evidence at the trial of A: W1will testify that on two occasions in March 2005 he saw A and another person whom he does not know packaging a white powder in a suburban home in Canberra. W2 will testify that in March 2005 he heard A tell a third party that: 'B and I will be selling some big quantities of stuff in the next few months.' W1 will testify that in April 2005 he accompanied A and B on a trip to Sydney where they met with a third person, H, who has since been gaoled for making and selling amphetamines, who said he wanted A and B to run the Canberra end of his business. The discussion canvassed a number of areas including what quantities of amphetamines would be made and sold in Canberra. W2 will testify that he saw A and B ingesting amphetamines on numerous occasions. Discuss the relevance of each of these items of evidence. In this case, we deal with the relevance of evidence in each case and the importance of evidence law. The law of evidence include substantive law, civil and criminal law and regulate the means by which facts are produced and proved in courts and legal battles (Bates, 1980). Evidence must conform to certain rules in order to be admissible. At the trial of A, witness W1 indicated that A and another person was seen packaging white powder. Witness W2 indicated that A was heard telling to someone that B and A would be selling stuff in a few months. W1 again testified that A and B met H on a trip to Sydney who sold amphetamines and wanted A and B to sell these in Canberra. W2 further testified that A and B were seen injecting amphetamines. So the evidence for the cases can be summarised as follows: 1. W1 - seen A and an accomplice packing white powder. This evidence may not be relevant as it needs to be proved that the white powder is definitively amphetamine 2. W1 - seen A and B on a trip to Sydney where they met H who sells amphetamines and asked A and B for partnerships. This evidence may be relevant as it provides as clear lead that A and B were having business plans with H who sells amphetamines 3. W2 - heard A telling a third person that A along with B would be selling some stuff soon. This evidence is not relevant as it is again not clear what A would sell along with B in large quantities. 4. W2 - seen A and B using and injecting amphetamines. This is a relevant evidence as it suggests that A and B were habituated with the uses of amphetamines. The evidence is strong against A and B who are suspected of selling and encouraging the use of narcotics that is illegal and severely punished. Here some of the elements of evidence are excluded as items 3 and 1. According to the evidence given here, it may be suggested that the other items of evidence are relevant as the facts of the issue are more or less likely (see in Odgers, 2004). QUESTION 2 (10 MARKS) The prosecution will seek to lead the following evidence at the trial of A: Evidence that on four consecutive days in February 2005 A purchased packets of 'Polecat' brand pseudoephedrine to a total of twenty packets from three chemists in various Canberra suburbs. It is accepted that pseudoephedrine is a core constituent of amphetamines. EFTPOS records showing that various pieces of apparatus which can be used in the production of amphetamines and which closely resemble, but are not identifiable as, some of the items found in C's premises were purchased from a wholesaler in Sydney using A's EFTPOS card on December 13 2004. Evidence from a witness, W3 who worked at the wholesaler's Sydney premises, that J, with whom A has been living in a de facto relationship for some years, was the person who purchased the items. EFTPOS records showing that A's EFTPOS card was used to purchase petrol in Sydney on five occasions in November and December 2004 including on December 13 2004. Evidence from a witness, W4, that A habitually gave J his EFTPOS card to use. Is this evidence admissible and if so on what basis and if not why not Relevance, in the law of evidence, is the potential of any given item of evidence to prove or to disprove one of the legal elements of the case, or to have a possibility to make one of the elements of the case more likely or true (Odgers et al, 2004). Irrelevant issues have no bearing on the pertaining legal issues and are excluded while judging the case. 1. In this second phase, there was proven evidence that A purchased a total of 20 packets of Polecat which is branded pseudoephedrine, a core constituent of amphetamines from three chemists in various Canberra suburbs. This is strong evidence for prosecution that a used amphetamines. 2. Amphetamine production apparatus was purchased using A's EFTPOS card found in C's premises. The fact that A's card was used for buying products for amphetamine making is strong evidence for the prosecution that A has been directly involved. However, the defence could have alternative arguments as will be explained in the following points. 3. J who lived with A for some years was found to have purchased the items. - This item may be unnecessarily confusing to the jury and will not be admissible as evidence against A. However this can provide evidence in A's defence when J instead of A has been found to purchase the items that A may not have been involved at all. Even though J has lived with A, A may not be responsible for what J purchased. 4. A's EFTPOS card was used on several occasions in Sydney to buy petrol from November to December 2004. This again cannot be used as admissible evidence against A as using the card to buy petrol does not fall under criminal intentions. 5. Witness W4's evidence that A habitually gave his EFTPOS card to J for use makes it possible the fact that J may have purchased items for manufacture of amphetamines. So this evidence is relevant. This evidence can be used in A's defence that J has used A's card to buy the relevant products for manufacture and sale of amphetamines and that A was never directly involved. QUESTION 3 (10 MARKS) After the assault and threat to kill alleged to have been committed by A the police interviewed W5 who said that he had spoken to A in a hotel. The transcript of the interview, which is unsigned, contained the following: 'A told me he was worried because he had punched a bloke in the head and told him would kill him. I asked him why that should bother him and he said that he thought the bloke was the brother of a cop in Canberra.' The alleged victim of the assault was in fact a police officer's brother. W5 has disappeared. The prosecution will call the police officer who interviewed W5. Can the prosecution lead evidence of the statement made by W5 at A's trial, and if so for what purpose This evidence provided by witness W5 can definitely lead to prosecution at A's trial. W5 when interviewed made an oral statement that A apparently punched at and assaulted a police officer's brother. A met W5 in a hotel and had confessed his mistake and he was worried that the man punched was in fact the brother of a cop. The victim of the assault was also found to be a police officer's brother, who provided details of the assault and the prosecution also aimed to call the police officer who interviewed W5. This is clear evidence that A has been responsible for threats to kill, and could be prosecuted for assault. This evidence provided could not prosecute him for drug sales or encouraging narcotics but can prosecute and punish him for assaults, and threats as witness statements have been compatible with evidence provided by the police officer concerned and the brother who was roughed up. QUESTION 4 (5 MARKS) The prosecution have a record of interview of C taken after her arrest. In the record of interview C makes the following statement: 'B was heavily into making amphetamines and I helped him sometimes. But I never sold any and I only let him use this place because if I didn't he would kill me for what I knew. I never saw A cooking at any time.' At A's trial the defence wants to call Constable G who interviewed C and adduce this statement in evidence as exculpatory of A. The prosecution objects. What are the arguments for each side Give reasons for your answer. C, who was related to B and to A possibly as a friend and accomplice suggested that B was into drinking heavily and also made amphetamines but forced C to keep the fact a secret. This suggests from witness and accomplice C's statement that B was heavily into drinking and made the amphetamines and even threatened to kill C if she divulged any of the secrets. C suggested that A was never actively into the making and preparing of amphetamines. When A was put up for trial, the defence wanted to call constable G who spoke with C and got an oral statement from her that a was never actively involved in the amphetamine case. The arguments of the defence were that A was not responsible and not involved in the amphetamine sales, use or preparation and C's statement is evidence of exculpatory possibilities for A as A was not directly involved. The objection of the prosecution was based on the evidence that A and B were both in the partnership of selling and using amphetamines as could be educed from witnesses W1 and W2 (see Ligertwood, 1995). QUESTION 5 (5 MARKS) In his testimony W1 gave the following evidence: That when he was with A and B at the meeting with H he was told by L, one of H's offsiders, that H had told him that A and B would be 'the biggest operation' in Canberra within two years. That when W1 asked L why H wanted A and B as his Canberra agents L said: 'Their reputation is good and they have the network we need.' Can the defence object to this evidence Give reasons for your answers. W1 testified under oath that A and B had a meeting with H in Sydney and he was told by another person L one of H's acquaintances that H has told him that A and B would be the biggest operation in Canberra in two years time. W1 asked L why H thought A and B would be the major agents in Canberra, and L replied that A and b have a wide network and good reputation to perform the business. This was used as major evidence against A by the prosecution as this seems to suggest that A was definitely related in the sale and preparation of amphetamine along with B and both of them were partners in the operations. A's defence however suggested that this evidence is baseless and does not prove that A is definitely involved in the case. This evidence, suggested by the fact that W1 heard from a third person L about H's trust on A and B to help in his business could have been distorted as this has not been a direct confession by H to W1. The possibilities according to the defence are that A being a friend of B has been dragged into a controversy that may involve B only as given by C's testimony. QUESTION 6 (5 MARKS) W6, who is K's wife, will testify that she was at home with K one evening towards the end of August 2002 when K answered a knock on the door. She will testify that: She overheard K say: 'Hello, Blue. Thanks mate. I'll let you know.' That when K came back into the room he put a small envelope on the table and said: 'A sample. We'll try it later.' And that when the envelope was opened it contained amphetamines. B has red hair and is known in some quarters as 'Blue'. Is this evidence admissible against B at his trial and if so on what basis is it admissible If not why not Give reasons for your answers. W6 is K's wife and she testified that K was given an envelope containing amphetamines by a person named Blue. K suggested that they try the sample later. B is also known as Blue by some of his customers and according to prosecutors this evidence seems admissible and pointing to the fact that B is directly responsible for selling of amphetamines. However the defence could suggest that the evidence is not admissible on the grounds that K's wife did not actually see B and it is also possible that the Blue who supplied amphetamines to K was not B and another person altogether. This evidence can thus be conclusively turned down as inadmissible by the defence. The prosecution can suggest this as admissible by circumstantial evidence of red hair and the name Blue uttered by K but this according to the defence may not be enough evidence to prosecute B as these are not real or definitive evidence1. QUESTION 7 (5 MARKS) The prosecution wants to tender a record of a statement made by A as he was being transported to the police station. E and F will state that A said: 'Look if I give you B will you do the right thing by me.' Constable E replied: 'What do you mean' A said: 'You know what I mean. I will go to gaol for this. We've been making the stuff for years.' The prosecution argues that the last sentence is a confession. The defence argues that the Trial Judge should exclude the confession under Lee discretion in section 90 of the Uniform Evidence Act. Discuss. The statement by A given to constable E was considered as recorded recollection that A and B have both been responsible for drug sales, preparation and distribution for many years and A's statement is only a definite declaration and confession. This was suggested by the prosecution but objected by the defence citing Section 90 of the Evidence Act which states as follows under: (Source: Evidence Act, 1995, Section 90). Discretion to exclude admissions: In a criminal proceeding, the court may refuse to admit evidence of an admission, or refuse to admit the evidence to prove a particular fact, if: (a) the evidence is adduced by the prosecution; and (b) having regard to the circumstances in which the admission was made, it would be unfair to a defendant to use the evidence. The defence suggested discretion on the part of the jury as it was emphasised by the defence that A's statement had been adduced by the prosecution and the circumstances in which A's statement was made, that is during the emotional moment of being charged with a crime, it was not fair by the prosecution to use A's statement as evidence of his involvement in the case. Thus the defence stressed that this evidence or A's statement should not be admissible as evidence. Bibliography/ References: Australian Law Reform Commission, Review of the Evidence Act 1995, ALRC Issues Paper 28, December 2004 Discussion Paper 47- Review of the uniform Evidence Acts (July 2005) Bates, Frank. Principles of evidence /by Frank Bates. 2nd ed. Sydney :Law Book Co.,1980. Also see the Law Reform Commission Home Page http://www.lawlink.nsw.gov.au/ Australia.Law Reform Commission. Evidence.Vol 1. Report - Law Reform Commission Canberra ALRC ; no 26 interim Australian Government Publishing Service,1985. Australia.Law Reform Commission. Evidence.Vol 2. Report - Law Reform Commission Canberra ALRC ; no 26 interim Australian Government Publishing Service,1985. Australian Law Reform Commission, Evidence: report No. 38, Canberra: Australian Government Publishing Service, 1988. Available on line at under 'Australian Law Reform Commission, ALRC 38 Evidence'. Aronson, M I, Hunter, JB, Litigation: Evidence and Procedure, Sydney: Butterworths, 6th ed, 1998. Bayne, Peter Uniform Evidence Law - Text and essential cases: Federation Press, 2003. Odgers, Peden and Kumar, Companion to The Uniform Evidence Law, Law Book, 2004 Ligertwood, ALC Australian Evidence: Cases and Materials, Sydney: Butterworths, 1995. Evidence Act, 1995 www.comlaw.gov.au/.../ActCompilation1.nsf/ 0/31B1038BBB7A6D89CA256F7100511A34/$file/Evidence1995.pdf Read More