In a case of negligence, your opponent who acts for the defendant nursing home, is taking the nurse on duty, Francine, through her examination in chief in the Supreme Court in Brisbane.
Q1 (a) In a case of negligence, your opponent who acts for the defendant nursing home, is taking the nurse on duty, Francine, through her examination in chief in the Supreme Court in Brisbane. Francine seeks the leave of the court to refresh her memory from her statement. Leave is granted. Francine’s evidence is not consistent with the evidence of witnesses you will be calling later. You cross-examine Francine on her having been sacked from her previous position. Francine denies this. You have a copy of Francine’s dismissal letter in front of you, as well as evidence that Francine has a reputation for general bad character in the community.
Your principal witness, Peter, is a resident of the nursing home and who observed Francine’s actions on the night the plaintiff was injured. However, as you take Peter through his evidence he claims to have no recollection of the events. You try to prompt Peter’s memory but to no avail. You suspect Peter is worried about personal repercussions for him in the nursing home if he confirms his statement.
The plaintiff’s daughter, Sarah, claims that another nurse, who was not on duty on the night in question, told her in a telephone conversation that Francine was slack and always cutting corners. Sarah told her husband what the nurse had said immediately after the call ended. However, this nurse has since left the nursing home and cannot be located.
When your opponent cross-examines another of your witnesses, Simon, he puts to Simon that the evidence he has just given is a recent invention.
What conditions needed to be satisfied before the court allowed Francine to refresh her memory? Discuss what actions you should take in relation to Francine’s, Peter’s, Sarah’s and Simon’s evidence.
1 (b) You are prosecuting a case of assault causing grievous bodily harm against Norman in the Supreme Court in Brisbane. The victim is Norman’s estranged wife, Beth, who is frightened of Norman and does not want to give evidence against Norman because she is fearful of what Norman might do to her and the children as Norman is on bail. Beth and Norman have a daughter, Lucy aged 11 years and a son Don aged 7 years. Lucy and Don both witnessed the assault on their mother, as well as numerous other previous assaults by Norman on Beth. Lucy does not believe in God because if God existed God would not let this happen to her mother. When Lucy screamed at her father to stop hitting her mother, Norman threatened to do the same to Lucy. Lucy is worried about confronting her father in court. Don, who has a slight mental impairment, hates his father because of all the times he has seen Norman hit his mother. Don tells you he wants to give evidence in court. Norman’s defence counsel has given notice he will be challenging Don’s competence to give evidence.
Discuss your options in relation to securing the testimony of Beth, Lucy and Don. What is involved in the challenge to Don’s competence? What precautions should you consider if you press a very reluctant Beth and Lucy to give testimony against Norman? Would your answer differ if the case were brought in New South Wales and Norman was instead involved in proceedings under s 279 (Compellability of spouses to give evidence in certain proceedings) of the Criminal Procedure Act 1986 (NSW)?
Q1 (c) Ricardo was on trial for the importation of prohibited drugs under the Criminal Code 1995 (Cth) in the Queensland Supreme Court in Brisbane, which was exercising federal jurisdiction. The key witness for the Crown was Dolly who had worked as a drug courier for Ricardo’s drug syndicate, and had met Ricardo on three separate occasions to receive instructions. The first occasion was in a gloomy warehouse where they had spoken face to face for 10 minutes about a metre apart. The second occasion was in a park on a clear sunny day where Ricardo had slipped a small package to Dolly as he passed her sitting on a park bench. Dolly had been told not to look at Ricardo and only had the briefest sideways glimpse of Ricardo as he walked past her. The third occasion was in a car in a multi-storey car park. Ricardo was sitting in the front seat and Dolly was told to sit in the back seat directly behind Ricardo. They spoke for five minutes and Dolly only saw the back of Ricardo’s head. Ricardo refused to participate in an identification parade and a nervous Dolly had identified Ricardo in a dock identification, having received a suspended sentence in exchange for co-operating with police.
A second Crown witness was Alex, a member of the Australian Federal Police force, who identified Ricardo as the person who had escaped from an AFP raid on his warehouse. Alex had chased Ricardo for two minutes, never getting closer than 20 metres because Ricardo was shooting at him, and only getting a clear view of the back of Ricardo’s head and some side on views. Only once did Alex see Ricardo’s face as he briefly turned to see the distance between them. Alex identified Ricardo from a 12-person photo-board.
Comment upon the admissibility of the identification evidence of Dolly and Alex, and any warnings the trial judge may be obliged to give the jury. Would your answer differ if Ricardo had been tried in New South Wales? Would your answer differ if Alex, instead of identifying Ricardo, had given evidence of the general appearance of the person he chased, describing him as of Mediterranean appearance, about 170 centimetres tall, slight build, dark haired and left-handed?
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