1 Statutory Interpretation

Order Description

Task

Task

The facts of the case are
On 16th February, 2015, Mrs Pearl Jones, an 84 year old widow, who wore a hearing aid and glasses, lived alone at 156 Main Street, Bathurst. She heard a noise and upon investigation, she saw a face at her bedroom window. It was 11.30 pm at night. She had the presence of mind to immediately call 000 and ask police to help her. Her neighbour, a 24 year old man named David Williams had heard a noise as well at about the same time and went outside to investigate. He thought he heard some footsteps as if someone was running but then he saw a large possum jump from the roof onto his neighbour Mrs Jones’ fence. Mr Williams advises that he works as a teacher for TAFE and teaches religious studies although he concedes he does not believe in a God. Another neighbour, Mrs Bell, who lives directly opposite the home of Mrs Pearl Jones heard a noise at about the same time as she was exiting her garage. She thought she saw a man standing near Mrs Jones’ fence. Mrs Bell’s statement is supported by Mr Day who also claims to have seen a man run across Mrs Jones’ front lawn. Mr Day advises that the man headed in an eastward direction along Main Street carrying a bag. He could not say what colour the bag was or its make.

When NSW Police Senior Constable Henry Arnold and Constable Susan Campbell attended the scene at 11.40pm they saw a man walking very quickly along Main Street near Mrs Jones’ property. He was carrying a black sports bag.

The officers called out for this person to stop but he ignored them. The man began to run. The officers chased this person, eventually arresting him after a considerable struggle during which the man punched Constable Susan Campbell. Johnny Davies, an 8 year old, known for his vivid imagination, lives at 180 Main Street, Bathurst. He was sitting on his parents’ front veranda. He saw the man run away from the police and his subsequent arrest.

Constable Susan Campbell searches the rose bushes near Mrs Jones’ window and finds a small amount of blood on one of the branches.

The man was taken to the Armidale Police Station for questioning in relation to the incident. He provided driver’s licence identification which stated his name as Hugh Jackson, date of birth 16/1/83. Hugh told police he was unemployed.

Senior Constable Henry Arnold searched Mr Jackson’s bag and discovered one chisel, one set of wires, one screw driver, one hammer, one black balaclava and a piece of white paper with writing on it. The writing said “156 Main”.

The two arresting police conducted an interview with Mr Jackson during which he kept insisting he was innocent. His statement to police was simple.
“I am not guilty”.
“I will say nothing more except that I was on my way to meet my friend, Alan Mitchell and I had to pass that lady’s house to get to him. And I think this sucks. I want my solicitor”.

Senior Constable Henry Arnold informed Mr Jackson that he must give a DNA sample.
Senior Constable Arnold produced scissors from his pocket and took a hair sample from the accused before the accused had time to process the request or to make a comment either way.
Subsequent DNA testing reveals a positive match to that of the blood found on the rose bush outside the victim’s bedroom window.

The police officers conducted a record check which established that Mr Jackson had been convicted of assault in April, 2000 when he had been placed on a good behaviour bond for 12 months. He also had a current domestic violence order against him.

The Trial
At trial Mr Jackson’s solicitor, argued that his client had simply been walking to his friends Alan’s house and that the whole matter was a case of mistaken identity. He suggested that Mr Jackson happened to be at the wrong place at the wrong time. When asked why his client ran his solicitor indicated that his client did not realise it was the police and that he was afraid for his life. Mr Jackson maintained that he was on his way to his friend’s house to help restore a car and the tools found on him where for that purpose.

Mr Jackson remained silent throughout the trial and did not take the witness box.

After closing statements from both parties His Honour summed up the case. His Honour stated “I believe that the accused declined to take the witness box in fear of being cross examined in relation to the note and the black balaclava found in his possession. To me such reluctance to put forward an explanation or shed some light on the facts of that night which are only within the accused’s own knowledge suggests that the accused is guilty of the crime charged”.

There are FOUR PARTS to this assignment.

You MUST refer to relevant sections of the Evidence Act 1995 (NSW) were applicable. Marks for each question is located in brackets, for example, (1) equals 1 mark.

Part 1

1. Identify the crime allegedly committed by Mr Jackson. Refer to the relevant section of the Crimes Act (NSW) 1900 (.5)

2. The model of the fact-finding process at the common law trial is the oral giving of testimonial evidence through witnesses. List all potential witnesses in the case. You should allocate each witness to either the defence or the prosecution and indicate why. In addition, explain which of the witnesses would be called first in the trial and by which party to the proceedings. (1)

3. Can the prosecution compel Mr Jackson’s wife to give evidence on the whereabouts of her husband on the night in question? Mrs Jackson advises that she does not wish to give evidence in court. (1)

4. Can Johnny Davies give evidence? Why or why not? (1)

5. Can David Williams give sworn evidence? Why or why not. (.5)

6. Can the prosecution tender circumstantial evidence to the court to prove the guilt of the accused? Explain why or why not (.5)

Part 2
Assume that you are the Police Prosecutor.

1. You call your witness Senior Constable Henry Arnold. Senior Constable Henry Arnold is directed to the witness box by the sheriff and sworn in to give evidence.

You ask your witness his name, rank and station. You then ask Senior Constable Henry Arnold to explain what he witnessed upon his arrival in Main Street on the 16th February 2015
.
May Senior Constable Henry Arnold read his previously made statement regarding the incident at 156 Main Street? (1)

2. Your call your witness Mrs Bell. The sheriff calls Mrs Bell and walks Mrs Bell to the
witness box and Mrs Bell makes an affirmation.

You proceed to ask Mrs Bell to state her name, address and occupation for the court.
You then ask Mrs Bell to tell the court what she saw on the night of 16th February 2015.

Witness: “I had just arrived home and had parked my car in the garage”. I walked inside and went to bed.

Prosecution: Did anything unexpected occur? Can you tell the court what you saw or heard prior to entering the house?

Witness: It’s hard to say. I was tied and I wasn’t really looking.

Prosecution: Did you see or hear anything in Main Street?

Witness: No. I just told you. It was dark. I was tied and I wasn’t really looking. I went straight inside and went to bed.

Prosecution: Can you tell the court who lives directly opposite your residence?

Witness: No. There are a number of homes. How should I know?

Explain what you would do next and why. (5)

3. If Mr Day gives evidence at Mr Jackson’s trial to the effect ‘I saw a man carrying a bag run across the front lawn of Mrs Jones’, is this hearsay? (2)

4. If Mr Day dies before the trial, can Constable Susan Campbell give evidence of Mr
Day telling her 5 minutes after the incident that he saw a man carrying a bag running
across the front lawn of Mrs Jones’ house? (3)

Part 3
Assume that you are the defence counsel for Mr Jackson.

1. Prior to the trial your client, Mr Jackson, instructs you to call as a witness, his
supervisor, from ‘Happy Charities’ to testify to his good and kind nature and to tell the court that he would never engage in such illegal behaviour as he has been charged with. Mr Jackson informs you that he has been volunteering at “Happy Charities” for 10 months and has been delivering meals on wheels to elderly people in their homes and that he also assists each Sunday at the local church soup kitchen. Advise Mr Jackson whether calling his supervisor as a witness is a good idea or not. (3).

2. The prosecution intends to tender the DNA evidence linking the accused to the crime
scene. On what grounds (if any) can the defence object to the admissibility of the DNA evidence? (1).

3. The trial judge is unsure of whether he has a right to exclude the DNA evidence, even
if he wanted too. Refer his Honour to the relevant section of the Evidence Act (NSW)
1995 and advise him accordingly (1).

4. His Honour intends to allow the DNA evidence despite your submission in reference
to the Evidence Act 1995 (as per question 3). His Honour is of the opinion that forensic evidence is extremely reliable.

Provide 5 legal arguments to persuade His Honour that DNA evidence has limitations
and is not always accurate. In your address to the court refer to case law to substantiate your arguments (4).

5. The prosecution wishes to introduce newspaper articles of recent home invasions and
Government statistical data of violent robberies of senior citizens within the Bathurst
district. What should the defence do? Explain (5).

6. The prosecution wishes to call an expert witness. Is this allowed? Explain (1).

7. List 5 obligations and/or ethical duties which an expert witness must adhere to when
giving evidence in court (3.5)

Part 4

1. His Honour is not sure whether the case of Bunning v Cross (1978) is relevant to the
matter before the court. He wants to know what precedent Bunning v Cross (1978) 141
CLR 54 stands for? Is the case applicable to the current hearing? Also remember to
advise. His Honour on the material facts of Bunning’s case and its outcome. (6).

Assessment Criteria:

Marks will be awarded for:

• Composing clear, concise answers that ANSWER the actual question posed. Note:
correct spelling and grammar are important because incorrect spelling and grammar can (i) lead to misunderstanding of your arguments (ii) are unprofessional.
• Demonstrating a thorough knowledge of the Evidence Act 1995 (NSW).
• Justifying answers (where appropriate) with references to relevant sections of the Crimes Act NSW 1900 and the Evidence Act 1995 NSW.
• Demonstrate an attempt to cite and reference accurately and comply with APA Style Guidelines. Further information with referencing can be found at: hhtp://student.csu.edu.au/study/referencing-at-csu .

Rationale
The rationale includes:
To develop legal research skills.
To develop analytical skills in relation to reading case law.
To encourage students to think analytically and to critique case law and legislation and to be aware of public policy issues.
To increase students’ confidence in analysing legal cases and legislation.
To provide an opportunity for students to develop a more thorough knowledge of expert evidence and related procedural matters.
To assist students with their written legal communication skills.

This assignment is designed to assess the following learning outcomes:
be able to demonstrate an understanding of the major ethical and legal issues relating to improper conduct by police and prosecution
be able to demonstrate an understanding of the basic rules of evidence applicable to criminal trials.
Marking criteria

Marks will be awarded for:

· Composing clear, concise answers that address the actual question posed.
· Avoid of non-issues.
· Defining key concepts and identifying relevant legal issues.
. Demonstrating a thorough knowledge of the facts and legal issues in this case and related legislation and case law.
· Demonstrating a thorough knowledge of the facts in issue and putting various Evidence Act 1995 (NSW) sections into practice within a courtroom forum.
. Identifying relevant social policy issues as well as conflicts, limitations, and problems within this area of law.
· Identifying the relationship between international law and domestic law.
. Justifying your answer (where appropriate) with reference to relevant sections of the Evidence Act 1995 (NSW), related legislation and case law.
. Use of high quality academic sources.
· Evidence of legal research.
. Providing a critical and comparative analysis of the judgment and the related area of law.
· Providing a reference list of sources consulted in preparing your answer.
· Correct legal citation.
. Demonstrate an attempt to cite and reference accurately and comply with APA Style Guidelines. Further information with referencing can be found at: hhtp://student.csu.edu.au/study/referencing-at-csu .
. Correct spelling.

Standards

To pass this assignment you must do ALL of the following:

• Understand the facts in issue of the stated trial.
• To discuss and analysis an after arrest criminal investigation and the presentation of the evidence.
• To critically analyse the courtroom process and procedures within the trial process relating to the Evidence Act 1995 (NSW).
• To critically engage with ideas encountered in the subject and Legislation.
• Demonstrate a basic understanding of the law of testimony and related procedural issues.
• Demonstrate a basic understanding of evidence law.
• Demonstrate a basic understanding of the exclusionary rules of evidence including the opinion rule.
• Use information mostly appropriately, accurately and in context with evidence of a basic attempt to refer and communicate relevant information to support answer / discussion.
• Presenting information in a clear manner.
• Presenting information in an appropriate academic writing style and structure (for instance, the provision of an introduction to the essay / report, the use of paragraphs, and a conclusion to the paper).
• Demonstrate an attempt to cite and reference accurately and comply with APA Style Guidelines. Further information with referencing can be found at: hhtp://student.csu.edu.au/study/referencing-at-csu .
• Use understandable language, notwithstanding some grammar and/or spelling errors
• Presentation mostly follows guidelines.

To gain a credit for this assignment you must do all of the above, plus ALL of:

• Demonstrate a basic attempt to critically analyse major issues and themes (in other words, your paper is not descriptive in content only)
• Demonstrate an understanding of the trial and roles of the various parties involved in this trial.
• Demonstrate an understanding of judicial precedent case law and demonstrate good awareness of its significance to the question.
• Use research appropriately, demonstrating understanding of that research.
• Cite sources that are mostly of academic standard.
• Organise information effectively with some evidence of comparative analysis attempted.
• Demonstrate an ability to cite and reference accurately and comply with APA Style Guidelines. Further information with referencing can be found at: hhtp://student.csu.edu.au/study/referencing-at-csu .
• Cite/utilise at least five valid academic sources
• Use clear and fluent language with accurate grammar and spelling
• Presentation follows guidelines

To gain a distinction for this assignment you must do all of the above, plus ALL of:

• Critically analyse all major issues and themes, including identifying limitations of the law, possible problems and solutions.
• Identify and critically analyse procedural limitations, possible problems and solutions in reference to sections of the Evidence Act 1995 (NSW).
• Use case law examples and legislation effectively, clearly and with relevance to illustrate issues and themes raised.
• Demonstrate firm knowledge of the procedural history of all cases cited including influences on the trial process and judicial decisions.
• Demonstrating a comprehensive understanding of the role of international law in shaping public policy and judicial discretion and its incorporation into the Evidence Act.
• Numerous citations throughout paper and sources that are cited are original, and/or of high academic quality.
• Synthesizes information from primary and secondary sources, together with presentation of a major comparative analysis.
• Demonstrating an understanding of the relationship between the common law and the Evidence Act.
• Use research appropriately, demonstrating understanding of that research.
• Present an argument with clarity and depth.

To gain a high distinction for this assignment you must do all of the above, plus ALL of:

• Describe this trial process in comprehensive and relevant detail with demonstrated awareness of the impact on witness testimony in a trial court process.
• Draw on a variety of contemporary sources and commentaries, including sections of the Evidence Act 1995 (NSW) and case law.
• Fully support all arguments with appropriate sources.
• Use of extensive case law and secondary sources.
• Use legal language effectively and with faultless grammar and spelling.
• Demonstrate an ability to effectively analyse and interpret case law.
• Demonstrate originality in reasoning, critical analysis and argument.

Presentation

Assessment items should be typed
Use 1.5 spacing
Use a wide left margin. Markers need space to able to include their comments
Use standard 12pt font such as Times Roman or Arial.
Include a separate title page with your name, student number, subject code, assessment number and assessment question.
Number your pages (except the cover page).
Use a header or footer with your name and student number on each page.
Always keep a copy of your assessments. Both a hard copy and an electronic copy.
Always use your spelling and grammar checker.
Proof read your document, remember that spelling and grammar checkers do not pick up all errors.

Format /structure of research paper:

You may write your paper in essay format or as a report.

The use of headings and subheadings will assist you to structure your paper and argument.

Remember to write a clear introduction explaining your argument, what you will be discussing in your paper, along with relevant case law and legislation that you will be relying on.

Requirements
Your paper needs to consider both common law (case law) and the Evidence Act in relation to witness testimony and judicial discretion.

In respect to issues surrounding judicial discretion it would be a good idea to read in full the case of Bunning v Cross; R v Ireland; Ridgeway and Swaffield and the relevant sections of the Evidence Act applying to Witness Testimony and Judicial Discretion.

What happened in 1995 in regards to witness testimony and judicial discretion? Consider the emergence of the Evidence Act. What did it do with the discretion referred to in Bunning’s case, etc? Did it clarify it or reinvent it or do away with it?

Under the common law does a judge have any guidance in deciding between two principles? What about under the Evidence Act. What may a judge consider when deciding to exclude DNA evidence gathered by the State?

In your discussion you should also consider why judges should exclude illegally obtained evidence? Or do you think they should include all evidence and let the accused seek civil remedies for breaches of his or her rights? Is the exclusion of evidence a means to discipline law enforcement? How do other common law countries deal with judicial discretion?

Please note that the above questions are only a guide to assist you with your reading?

Also, consider the following points as your read:
What is judicial discretion? What types of judicial discretion exist?
Is there a discretion to exclude evidence or must a judge admit all evidence placed before the court by the crown? How is evidence presented to a court?
You may like to consider how case law defines judicial discretion?

What are the guidelines which a judge can rely on when deciding between two alternatives? What must the judge balance?

You should use case law to support your argument and refer to specific sections of the Evidence Act 1995 (NSW) and other relevant legal instruments.

The aim is to read widely including primary and secondary sources. I have included a number of journal articles relevant to the topic (see above under additional resources / readings within this subject outline).

1 Statutory Interpretation

Order Description

Task

Task

The facts of the case are
On 16th February, 2015, Mrs Pearl Jones, an 84 year old widow, who wore a hearing aid and glasses, lived alone at 156 Main Street, Bathurst. She heard a noise and upon investigation, she saw a face at her bedroom window. It was 11.30 pm at night. She had the presence of mind to immediately call 000 and ask police to help her. Her neighbour, a 24 year old man named David Williams had heard a noise as well at about the same time and went outside to investigate. He thought he heard some footsteps as if someone was running but then he saw a large possum jump from the roof onto his neighbour Mrs Jones’ fence. Mr Williams advises that he works as a teacher for TAFE and teaches religious studies although he concedes he does not believe in a God. Another neighbour, Mrs Bell, who lives directly opposite the home of Mrs Pearl Jones heard a noise at about the same time as she was exiting her garage. She thought she saw a man standing near Mrs Jones’ fence. Mrs Bell’s statement is supported by Mr Day who also claims to have seen a man run across Mrs Jones’ front lawn. Mr Day advises that the man headed in an eastward direction along Main Street carrying a bag. He could not say what colour the bag was or its make.

When NSW Police Senior Constable Henry Arnold and Constable Susan Campbell attended the scene at 11.40pm they saw a man walking very quickly along Main Street near Mrs Jones’ property. He was carrying a black sports bag.

The officers called out for this person to stop but he ignored them. The man began to run. The officers chased this person, eventually arresting him after a considerable struggle during which the man punched Constable Susan Campbell. Johnny Davies, an 8 year old, known for his vivid imagination, lives at 180 Main Street, Bathurst. He was sitting on his parents’ front veranda. He saw the man run away from the police and his subsequent arrest.

Constable Susan Campbell searches the rose bushes near Mrs Jones’ window and finds a small amount of blood on one of the branches.

The man was taken to the Armidale Police Station for questioning in relation to the incident. He provided driver’s licence identification which stated his name as Hugh Jackson, date of birth 16/1/83. Hugh told police he was unemployed.

Senior Constable Henry Arnold searched Mr Jackson’s bag and discovered one chisel, one set of wires, one screw driver, one hammer, one black balaclava and a piece of white paper with writing on it. The writing said “156 Main”.

The two arresting police conducted an interview with Mr Jackson during which he kept insisting he was innocent. His statement to police was simple.
“I am not guilty”.
“I will say nothing more except that I was on my way to meet my friend, Alan Mitchell and I had to pass that lady’s house to get to him. And I think this sucks. I want my solicitor”.

Senior Constable Henry Arnold informed Mr Jackson that he must give a DNA sample.
Senior Constable Arnold produced scissors from his pocket and took a hair sample from the accused before the accused had time to process the request or to make a comment either way.
Subsequent DNA testing reveals a positive match to that of the blood found on the rose bush outside the victim’s bedroom window.

The police officers conducted a record check which established that Mr Jackson had been convicted of assault in April, 2000 when he had been placed on a good behaviour bond for 12 months. He also had a current domestic violence order against him.

The Trial
At trial Mr Jackson’s solicitor, argued that his client had simply been walking to his friends Alan’s house and that the whole matter was a case of mistaken identity. He suggested that Mr Jackson happened to be at the wrong place at the wrong time. When asked why his client ran his solicitor indicated that his client did not realise it was the police and that he was afraid for his life. Mr Jackson maintained that he was on his way to his friend’s house to help restore a car and the tools found on him where for that purpose.

Mr Jackson remained silent throughout the trial and did not take the witness box.

After closing statements from both parties His Honour summed up the case. His Honour stated “I believe that the accused declined to take the witness box in fear of being cross examined in relation to the note and the black balaclava found in his possession. To me such reluctance to put forward an explanation or shed some light on the facts of that night which are only within the accused’s own knowledge suggests that the accused is guilty of the crime charged”.

There are FOUR PARTS to this assignment.

You MUST refer to relevant sections of the Evidence Act 1995 (NSW) were applicable. Marks for each question is located in brackets, for example, (1) equals 1 mark.

Part 1

1. Identify the crime allegedly committed by Mr Jackson. Refer to the relevant section of the Crimes Act (NSW) 1900 (.5)

2. The model of the fact-finding process at the common law trial is the oral giving of testimonial evidence through witnesses. List all potential witnesses in the case. You should allocate each witness to either the defence or the prosecution and indicate why. In addition, explain which of the witnesses would be called first in the trial and by which party to the proceedings. (1)

3. Can the prosecution compel Mr Jackson’s wife to give evidence on the whereabouts of her husband on the night in question? Mrs Jackson advises that she does not wish to give evidence in court. (1)

4. Can Johnny Davies give evidence? Why or why not? (1)

5. Can David Williams give sworn evidence? Why or why not. (.5)

6. Can the prosecution tender circumstantial evidence to the court to prove the guilt of the accused? Explain why or why not (.5)

Part 2
Assume that you are the Police Prosecutor.

1. You call your witness Senior Constable Henry Arnold. Senior Constable Henry Arnold is directed to the witness box by the sheriff and sworn in to give evidence.

You ask your witness his name, rank and station. You then ask Senior Constable Henry Arnold to explain what he witnessed upon his arrival in Main Street on the 16th February 2015
.
May Senior Constable Henry Arnold read his previously made statement regarding the incident at 156 Main Street? (1)

2. Your call your witness Mrs Bell. The sheriff calls Mrs Bell and walks Mrs Bell to the
witness box and Mrs Bell makes an affirmation.

You proceed to ask Mrs Bell to state her name, address and occupation for the court.
You then ask Mrs Bell to tell the court what she saw on the night of 16th February 2015.

Witness: “I had just arrived home and had parked my car in the garage”. I walked inside and went to bed.

Prosecution: Did anything unexpected occur? Can you tell the court what you saw or heard prior to entering the house?

Witness: It’s hard to say. I was tied and I wasn’t really looking.

Prosecution: Did you see or hear anything in Main Street?

Witness: No. I just told you. It was dark. I was tied and I wasn’t really looking. I went straight inside and went to bed.

Prosecution: Can you tell the court who lives directly opposite your residence?

Witness: No. There are a number of homes. How should I know?

Explain what you would do next and why. (5)

3. If Mr Day gives evidence at Mr Jackson’s trial to the effect ‘I saw a man carrying a bag run across the front lawn of Mrs Jones’, is this hearsay? (2)

4. If Mr Day dies before the trial, can Constable Susan Campbell give evidence of Mr
Day telling her 5 minutes after the incident that he saw a man carrying a bag running
across the front lawn of Mrs Jones’ house? (3)

Part 3
Assume that you are the defence counsel for Mr Jackson.

1. Prior to the trial your client, Mr Jackson, instructs you to call as a witness, his
supervisor, from ‘Happy Charities’ to testify to his good and kind nature and to tell the court that he would never engage in such illegal behaviour as he has been charged with. Mr Jackson informs you that he has been volunteering at “Happy Charities” for 10 months and has been delivering meals on wheels to elderly people in their homes and that he also assists each Sunday at the local church soup kitchen. Advise Mr Jackson whether calling his supervisor as a witness is a good idea or not. (3).

2. The prosecution intends to tender the DNA evidence linking the accused to the crime
scene. On what grounds (if any) can the defence object to the admissibility of the DNA evidence? (1).

3. The trial judge is unsure of whether he has a right to exclude the DNA evidence, even
if he wanted too. Refer his Honour to the relevant section of the Evidence Act (NSW)
1995 and advise him accordingly (1).

4. His Honour intends to allow the DNA evidence despite your submission in reference
to the Evidence Act 1995 (as per question 3). His Honour is of the opinion that forensic evidence is extremely reliable.

Provide 5 legal arguments to persuade His Honour that DNA evidence has limitations
and is not always accurate. In your address to the court refer to case law to substantiate your arguments (4).

5. The prosecution wishes to introduce newspaper articles of recent home invasions and
Government statistical data of violent robberies of senior citizens within the Bathurst
district. What should the defence do? Explain (5).

6. The prosecution wishes to call an expert witness. Is this allowed? Explain (1).

7. List 5 obligations and/or ethical duties which an expert witness must adhere to when
giving evidence in court (3.5)

Part 4

1. His Honour is not sure whether the case of Bunning v Cross (1978) is relevant to the
matter before the court. He wants to know what precedent Bunning v Cross (1978) 141
CLR 54 stands for? Is the case applicable to the current hearing? Also remember to
advise. His Honour on the material facts of Bunning’s case and its outcome. (6).

Assessment Criteria:

Marks will be awarded for:

• Composing clear, concise answers that ANSWER the actual question posed. Note:
correct spelling and grammar are important because incorrect spelling and grammar can (i) lead to misunderstanding of your arguments (ii) are unprofessional.
• Demonstrating a thorough knowledge of the Evidence Act 1995 (NSW).
• Justifying answers (where appropriate) with references to relevant sections of the Crimes Act NSW 1900 and the Evidence Act 1995 NSW.
• Demonstrate an attempt to cite and reference accurately and comply with APA Style Guidelines. Further information with referencing can be found at: hhtp://student.csu.edu.au/study/referencing-at-csu .

Rationale
The rationale includes:
To develop legal research skills.
To develop analytical skills in relation to reading case law.
To encourage students to think analytically and to critique case law and legislation and to be aware of public policy issues.
To increase students’ confidence in analysing legal cases and legislation.
To provide an opportunity for students to develop a more thorough knowledge of expert evidence and related procedural matters.
To assist students with their written legal communication skills.

This assignment is designed to assess the following learning outcomes:
be able to demonstrate an understanding of the major ethical and legal issues relating to improper conduct by police and prosecution
be able to demonstrate an understanding of the basic rules of evidence applicable to criminal trials.
Marking criteria

Marks will be awarded for:

· Composing clear, concise answers that address the actual question posed.
· Avoid of non-issues.
· Defining key concepts and identifying relevant legal issues.
. Demonstrating a thorough knowledge of the facts and legal issues in this case and related legislation and case law.
· Demonstrating a thorough knowledge of the facts in issue and putting various Evidence Act 1995 (NSW) sections into practice within a courtroom forum.
. Identifying relevant social policy issues as well as conflicts, limitations, and problems within this area of law.
· Identifying the relationship between international law and domestic law.
. Justifying your answer (where appropriate) with reference to relevant sections of the Evidence Act 1995 (NSW), related legislation and case law.
. Use of high quality academic sources.
· Evidence of legal research.
. Providing a critical and comparative analysis of the judgment and the related area of law.
· Providing a reference list of sources consulted in preparing your answer.
· Correct legal citation.
. Demonstrate an attempt to cite and reference accurately and comply with APA Style Guidelines. Further information with referencing can be found at: hhtp://student.csu.edu.au/study/referencing-at-csu .
. Correct spelling.

Standards

To pass this assignment you must do ALL of the following:

• Understand the facts in issue of the stated trial.
• To discuss and analysis an after arrest criminal investigation and the presentation of the evidence.
• To critically analyse the courtroom process and procedures within the trial process relating to the Evidence Act 1995 (NSW).
• To critically engage with ideas encountered in the subject and Legislation.
• Demonstrate a basic understanding of the law of testimony and related procedural issues.
• Demonstrate a basic understanding of evidence law.
• Demonstrate a basic understanding of the exclusionary rules of evidence including the opinion rule.
• Use information mostly appropriately, accurately and in context with evidence of a basic attempt to refer and communicate relevant information to support answer / discussion.
• Presenting information in a clear manner.
• Presenting information in an appropriate academic writing style and structure (for instance, the provision of an introduction to the essay / report, the use of paragraphs, and a conclusion to the paper).
• Demonstrate an attempt to cite and reference accurately and comply with APA Style Guidelines. Further information with referencing can be found at: hhtp://student.csu.edu.au/study/referencing-at-csu .
• Use understandable language, notwithstanding some grammar and/or spelling errors
• Presentation mostly follows guidelines.

To gain a credit for this assignment you must do all of the above, plus ALL of:

• Demonstrate a basic attempt to critically analyse major issues and themes (in other words, your paper is not descriptive in content only)
• Demonstrate an understanding of the trial and roles of the various parties involved in this trial.
• Demonstrate an understanding of judicial precedent case law and demonstrate good awareness of its significance to the question.
• Use research appropriately, demonstrating understanding of that research.
• Cite sources that are mostly of academic standard.
• Organise information effectively with some evidence of comparative analysis attempted.
• Demonstrate an ability to cite and reference accurately and comply with APA Style Guidelines. Further information with referencing can be found at: hhtp://student.csu.edu.au/study/referencing-at-csu .
• Cite/utilise at least five valid academic sources
• Use clear and fluent language with accurate grammar and spelling
• Presentation follows guidelines

To gain a distinction for this assignment you must do all of the above, plus ALL of:

• Critically analyse all major issues and themes, including identifying limitations of the law, possible problems and solutions.
• Identify and critically analyse procedural limitations, possible problems and solutions in reference to sections of the Evidence Act 1995 (NSW).
• Use case law examples and legislation effectively, clearly and with relevance to illustrate issues and themes raised.
• Demonstrate firm knowledge of the procedural history of all cases cited including influences on the trial process and judicial decisions.
• Demonstrating a comprehensive understanding of the role of international law in shaping public policy and judicial discretion and its incorporation into the Evidence Act.
• Numerous citations throughout paper and sources that are cited are original, and/or of high academic quality.
• Synthesizes information from primary and secondary sources, together with presentation of a major comparative analysis.
• Demonstrating an understanding of the relationship between the common law and the Evidence Act.
• Use research appropriately, demonstrating understanding of that research.
• Present an argument with clarity and depth.

To gain a high distinction for this assignment you must do all of the above, plus ALL of:

• Describe this trial process in comprehensive and relevant detail with demonstrated awareness of the impact on witness testimony in a trial court process.
• Draw on a variety of contemporary sources and commentaries, including sections of the Evidence Act 1995 (NSW) and case law.
• Fully support all arguments with appropriate sources.
• Use of extensive case law and secondary sources.
• Use legal language effectively and with faultless grammar and spelling.
• Demonstrate an ability to effectively analyse and interpret case law.
• Demonstrate originality in reasoning, critical analysis and argument.

Presentation

Assessment items should be typed
Use 1.5 spacing
Use a wide left margin. Markers need space to able to include their comments
Use standard 12pt font such as Times Roman or Arial.
Include a separate title page with your name, student number, subject code, assessment number and assessment question.
Number your pages (except the cover page).
Use a header or footer with your name and student number on each page.
Always keep a copy of your assessments. Both a hard copy and an electronic copy.
Always use your spelling and grammar checker.
Proof read your document, remember that spelling and grammar checkers do not pick up all errors.

Format /structure of research paper:

You may write your paper in essay format or as a report.

The use of headings and subheadings will assist you to structure your paper and argument.

Remember to write a clear introduction explaining your argument, what you will be discussing in your paper, along with relevant case law and legislation that you will be relying on.

Requirements
Your paper needs to consider both common law (case law) and the Evidence Act in relation to witness testimony and judicial discretion.

In respect to issues surrounding judicial discretion it would be a good idea to read in full the case of Bunning v Cross; R v Ireland; Ridgeway and Swaffield and the relevant sections of the Evidence Act applying to Witness Testimony and Judicial Discretion.

What happened in 1995 in regards to witness testimony and judicial discretion? Consider the emergence of the Evidence Act. What did it do with the discretion referred to in Bunning’s case, etc? Did it clarify it or reinvent it or do away with it?

Under the common law does a judge have any guidance in deciding between two principles? What about under the Evidence Act. What may a judge consider when deciding to exclude DNA evidence gathered by the State?

In your discussion you should also consider why judges should exclude illegally obtained evidence? Or do you think they should include all evidence and let the accused seek civil remedies for breaches of his or her rights? Is the exclusion of evidence a means to discipline law enforcement? How do other common law countries deal with judicial discretion?

Please note that the above questions are only a guide to assist you with your reading?

Also, consider the following points as your read:
What is judicial discretion? What types of judicial discretion exist?
Is there a discretion to exclude evidence or must a judge admit all evidence placed before the court by the crown? How is evidence presented to a court?
You may like to consider how case law defines judicial discretion?

What are the guidelines which a judge can rely on when deciding between two alternatives? What must the judge balance?

You should use case law to support your argument and refer to specific sections of the Evidence Act 1995 (NSW) and other relevant legal instruments.

The aim is to read widely including primary and secondary sources. I have included a number of journal articles relevant to the topic (see above under additional resources / readings within this subject outline).

1 Statutory Interpretation

Order Description

Task

Task

The facts of the case are
On 16th February, 2015, Mrs Pearl Jones, an 84 year old widow, who wore a hearing aid and glasses, lived alone at 156 Main Street, Bathurst. She heard a noise and upon investigation, she saw a face at her bedroom window. It was 11.30 pm at night. She had the presence of mind to immediately call 000 and ask police to help her. Her neighbour, a 24 year old man named David Williams had heard a noise as well at about the same time and went outside to investigate. He thought he heard some footsteps as if someone was running but then he saw a large possum jump from the roof onto his neighbour Mrs Jones’ fence. Mr Williams advises that he works as a teacher for TAFE and teaches religious studies although he concedes he does not believe in a God. Another neighbour, Mrs Bell, who lives directly opposite the home of Mrs Pearl Jones heard a noise at about the same time as she was exiting her garage. She thought she saw a man standing near Mrs Jones’ fence. Mrs Bell’s statement is supported by Mr Day who also claims to have seen a man run across Mrs Jones’ front lawn. Mr Day advises that the man headed in an eastward direction along Main Street carrying a bag. He could not say what colour the bag was or its make.

When NSW Police Senior Constable Henry Arnold and Constable Susan Campbell attended the scene at 11.40pm they saw a man walking very quickly along Main Street near Mrs Jones’ property. He was carrying a black sports bag.

The officers called out for this person to stop but he ignored them. The man began to run. The officers chased this person, eventually arresting him after a considerable struggle during which the man punched Constable Susan Campbell. Johnny Davies, an 8 year old, known for his vivid imagination, lives at 180 Main Street, Bathurst. He was sitting on his parents’ front veranda. He saw the man run away from the police and his subsequent arrest.

Constable Susan Campbell searches the rose bushes near Mrs Jones’ window and finds a small amount of blood on one of the branches.

The man was taken to the Armidale Police Station for questioning in relation to the incident. He provided driver’s licence identification which stated his name as Hugh Jackson, date of birth 16/1/83. Hugh told police he was unemployed.

Senior Constable Henry Arnold searched Mr Jackson’s bag and discovered one chisel, one set of wires, one screw driver, one hammer, one black balaclava and a piece of white paper with writing on it. The writing said “156 Main”.

The two arresting police conducted an interview with Mr Jackson during which he kept insisting he was innocent. His statement to police was simple.
“I am not guilty”.
“I will say nothing more except that I was on my way to meet my friend, Alan Mitchell and I had to pass that lady’s house to get to him. And I think this sucks. I want my solicitor”.

Senior Constable Henry Arnold informed Mr Jackson that he must give a DNA sample.
Senior Constable Arnold produced scissors from his pocket and took a hair sample from the accused before the accused had time to process the request or to make a comment either way.
Subsequent DNA testing reveals a positive match to that of the blood found on the rose bush outside the victim’s bedroom window.

The police officers conducted a record check which established that Mr Jackson had been convicted of assault in April, 2000 when he had been placed on a good behaviour bond for 12 months. He also had a current domestic violence order against him.

The Trial
At trial Mr Jackson’s solicitor, argued that his client had simply been walking to his friends Alan’s house and that the whole matter was a case of mistaken identity. He suggested that Mr Jackson happened to be at the wrong place at the wrong time. When asked why his client ran his solicitor indicated that his client did not realise it was the police and that he was afraid for his life. Mr Jackson maintained that he was on his way to his friend’s house to help restore a car and the tools found on him where for that purpose.

Mr Jackson remained silent throughout the trial and did not take the witness box.

After closing statements from both parties His Honour summed up the case. His Honour stated “I believe that the accused declined to take the witness box in fear of being cross examined in relation to the note and the black balaclava found in his possession. To me such reluctance to put forward an explanation or shed some light on the facts of that night which are only within the accused’s own knowledge suggests that the accused is guilty of the crime charged”.

There are FOUR PARTS to this assignment.

You MUST refer to relevant sections of the Evidence Act 1995 (NSW) were applicable. Marks for each question is located in brackets, for example, (1) equals 1 mark.

Part 1

1. Identify the crime allegedly committed by Mr Jackson. Refer to the relevant section of the Crimes Act (NSW) 1900 (.5)

2. The model of the fact-finding process at the common law trial is the oral giving of testimonial evidence through witnesses. List all potential witnesses in the case. You should allocate each witness to either the defence or the prosecution and indicate why. In addition, explain which of the witnesses would be called first in the trial and by which party to the proceedings. (1)

3. Can the prosecution compel Mr Jackson’s wife to give evidence on the whereabouts of her husband on the night in question? Mrs Jackson advises that she does not wish to give evidence in court. (1)

4. Can Johnny Davies give evidence? Why or why not? (1)

5. Can David Williams give sworn evidence? Why or why not. (.5)

6. Can the prosecution tender circumstantial evidence to the court to prove the guilt of the accused? Explain why or why not (.5)

Part 2
Assume that you are the Police Prosecutor.

1. You call your witness Senior Constable Henry Arnold. Senior Constable Henry Arnold is directed to the witness box by the sheriff and sworn in to give evidence.

You ask your witness his name, rank and station. You then ask Senior Constable Henry Arnold to explain what he witnessed upon his arrival in Main Street on the 16th February 2015
.
May Senior Constable Henry Arnold read his previously made statement regarding the incident at 156 Main Street? (1)

2. Your call your witness Mrs Bell. The sheriff calls Mrs Bell and walks Mrs Bell to the
witness box and Mrs Bell makes an affirmation.

You proceed to ask Mrs Bell to state her name, address and occupation for the court.
You then ask Mrs Bell to tell the court what she saw on the night of 16th February 2015.

Witness: “I had just arrived home and had parked my car in the garage”. I walked inside and went to bed.

Prosecution: Did anything unexpected occur? Can you tell the court what you saw or heard prior to entering the house?

Witness: It’s hard to say. I was tied and I wasn’t really looking.

Prosecution: Did you see or hear anything in Main Street?

Witness: No. I just told you. It was dark. I was tied and I wasn’t really looking. I went straight inside and went to bed.

Prosecution: Can you tell the court who lives directly opposite your residence?

Witness: No. There are a number of homes. How should I know?

Explain what you would do next and why. (5)

3. If Mr Day gives evidence at Mr Jackson’s trial to the effect ‘I saw a man carrying a bag run across the front lawn of Mrs Jones’, is this hearsay? (2)

4. If Mr Day dies before the trial, can Constable Susan Campbell give evidence of Mr
Day telling her 5 minutes after the incident that he saw a man carrying a bag running
across the front lawn of Mrs Jones’ house? (3)

Part 3
Assume that you are the defence counsel for Mr Jackson.

1. Prior to the trial your client, Mr Jackson, instructs you to call as a witness, his
supervisor, from ‘Happy Charities’ to testify to his good and kind nature and to tell the court that he would never engage in such illegal behaviour as he has been charged with. Mr Jackson informs you that he has been volunteering at “Happy Charities” for 10 months and has been delivering meals on wheels to elderly people in their homes and that he also assists each Sunday at the local church soup kitchen. Advise Mr Jackson whether calling his supervisor as a witness is a good idea or not. (3).

2. The prosecution intends to tender the DNA evidence linking the accused to the crime
scene. On what grounds (if any) can the defence object to the admissibility of the DNA evidence? (1).

3. The trial judge is unsure of whether he has a right to exclude the DNA evidence, even
if he wanted too. Refer his Honour to the relevant section of the Evidence Act (NSW)
1995 and advise him accordingly (1).

4. His Honour intends to allow the DNA evidence despite your submission in reference
to the Evidence Act 1995 (as per question 3). His Honour is of the opinion that forensic evidence is extremely reliable.

Provide 5 legal arguments to persuade His Honour that DNA evidence has limitations
and is not always accurate. In your address to the court refer to case law to substantiate your arguments (4).

5. The prosecution wishes to introduce newspaper articles of recent home invasions and
Government statistical data of violent robberies of senior citizens within the Bathurst
district. What should the defence do? Explain (5).

6. The prosecution wishes to call an expert witness. Is this allowed? Explain (1).

7. List 5 obligations and/or ethical duties which an expert witness must adhere to when
giving evidence in court (3.5)

Part 4

1. His Honour is not sure whether the case of Bunning v Cross (1978) is relevant to the
matter before the court. He wants to know what precedent Bunning v Cross (1978) 141
CLR 54 stands for? Is the case applicable to the current hearing? Also remember to
advise. His Honour on the material facts of Bunning’s case and its outcome. (6).

Assessment Criteria:

Marks will be awarded for:

• Composing clear, concise answers that ANSWER the actual question posed. Note:
correct spelling and grammar are important because incorrect spelling and grammar can (i) lead to misunderstanding of your arguments (ii) are unprofessional.
• Demonstrating a thorough knowledge of the Evidence Act 1995 (NSW).
• Justifying answers (where appropriate) with references to relevant sections of the Crimes Act NSW 1900 and the Evidence Act 1995 NSW.
• Demonstrate an attempt to cite and reference accurately and comply with APA Style Guidelines. Further information with referencing can be found at: hhtp://student.csu.edu.au/study/referencing-at-csu .

Rationale
The rationale includes:
To develop legal research skills.
To develop analytical skills in relation to reading case law.
To encourage students to think analytically and to critique case law and legislation and to be aware of public policy issues.
To increase students’ confidence in analysing legal cases and legislation.
To provide an opportunity for students to develop a more thorough knowledge of expert evidence and related procedural matters.
To assist students with their written legal communication skills.

This assignment is designed to assess the following learning outcomes:
be able to demonstrate an understanding of the major ethical and legal issues relating to improper conduct by police and prosecution
be able to demonstrate an understanding of the basic rules of evidence applicable to criminal trials.
Marking criteria

Marks will be awarded for:

· Composing clear, concise answers that address the actual question posed.
· Avoid of non-issues.
· Defining key concepts and identifying relevant legal issues.
. Demonstrating a thorough knowledge of the facts and legal issues in this case and related legislation and case law.
· Demonstrating a thorough knowledge of the facts in issue and putting various Evidence Act 1995 (NSW) sections into practice within a courtroom forum.
. Identifying relevant social policy issues as well as conflicts, limitations, and problems within this area of law.
· Identifying the relationship between international law and domestic law.
. Justifying your answer (where appropriate) with reference to relevant sections of the Evidence Act 1995 (NSW), related legislation and case law.
. Use of high quality academic sources.
· Evidence of legal research.
. Providing a critical and comparative analysis of the judgment and the related area of law.
· Providing a reference list of sources consulted in preparing your answer.
· Correct legal citation.
. Demonstrate an attempt to cite and reference accurately and comply with APA Style Guidelines. Further information with referencing can be found at: hhtp://student.csu.edu.au/study/referencing-at-csu .
. Correct spelling.

Standards

To pass this assignment you must do ALL of the following:

• Understand the facts in issue of the stated trial.
• To discuss and analysis an after arrest criminal investigation and the presentation of the evidence.
• To critically analyse the courtroom process and procedures within the trial process relating to the Evidence Act 1995 (NSW).
• To critically engage with ideas encountered in the subject and Legislation.
• Demonstrate a basic understanding of the law of testimony and related procedural issues.
• Demonstrate a basic understanding of evidence law.
• Demonstrate a basic understanding of the exclusionary rules of evidence including the opinion rule.
• Use information mostly appropriately, accurately and in context with evidence of a basic attempt to refer and communicate relevant information to support answer / discussion.
• Presenting information in a clear manner.
• Presenting information in an appropriate academic writing style and structure (for instance, the provision of an introduction to the essay / report, the use of paragraphs, and a conclusion to the paper).
• Demonstrate an attempt to cite and reference accurately and comply with APA Style Guidelines. Further information with referencing can be found at: hhtp://student.csu.edu.au/study/referencing-at-csu .
• Use understandable language, notwithstanding some grammar and/or spelling errors
• Presentation mostly follows guidelines.

To gain a credit for this assignment you must do all of the above, plus ALL of:

• Demonstrate a basic attempt to critically analyse major issues and themes (in other words, your paper is not descriptive in content only)
• Demonstrate an understanding of the trial and roles of the various parties involved in this trial.
• Demonstrate an understanding of judicial precedent case law and demonstrate good awareness of its significance to the question.
• Use research appropriately, demonstrating understanding of that research.
• Cite sources that are mostly of academic standard.
• Organise information effectively with some evidence of comparative analysis attempted.
• Demonstrate an ability to cite and reference accurately and comply with APA Style Guidelines. Further information with referencing can be found at: hhtp://student.csu.edu.au/study/referencing-at-csu .
• Cite/utilise at least five valid academic sources
• Use clear and fluent language with accurate grammar and spelling
• Presentation follows guidelines

To gain a distinction for this assignment you must do all of the above, plus ALL of:

• Critically analyse all major issues and themes, including identifying limitations of the law, possible problems and solutions.
• Identify and critically analyse procedural limitations, possible problems and solutions in reference to sections of the Evidence Act 1995 (NSW).
• Use case law examples and legislation effectively, clearly and with relevance to illustrate issues and themes raised.
• Demonstrate firm knowledge of the procedural history of all cases cited including influences on the trial process and judicial decisions.
• Demonstrating a comprehensive understanding of the role of international law in shaping public policy and judicial discretion and its incorporation into the Evidence Act.
• Numerous citations throughout paper and sources that are cited are original, and/or of high academic quality.
• Synthesizes information from primary and secondary sources, together with presentation of a major comparative analysis.
• Demonstrating an understanding of the relationship between the common law and the Evidence Act.
• Use research appropriately, demonstrating understanding of that research.
• Present an argument with clarity and depth.

To gain a high distinction for this assignment you must do all of the above, plus ALL of:

• Describe this trial process in comprehensive and relevant detail with demonstrated awareness of the impact on witness testimony in a trial court process.
• Draw on a variety of contemporary sources and commentaries, including sections of the Evidence Act 1995 (NSW) and case law.
• Fully support all arguments with appropriate sources.
• Use of extensive case law and secondary sources.
• Use legal language effectively and with faultless grammar and spelling.
• Demonstrate an ability to effectively analyse and interpret case law.
• Demonstrate originality in reasoning, critical analysis and argument.

Presentation

Assessment items should be typed
Use 1.5 spacing
Use a wide left margin. Markers need space to able to include their comments
Use standard 12pt font such as Times Roman or Arial.
Include a separate title page with your name, student number, subject code, assessment number and assessment question.
Number your pages (except the cover page).
Use a header or footer with your name and student number on each page.
Always keep a copy of your assessments. Both a hard copy and an electronic copy.
Always use your spelling and grammar checker.
Proof read your document, remember that spelling and grammar checkers do not pick up all errors.

Format /structure of research paper:

You may write your paper in essay format or as a report.

The use of headings and subheadings will assist you to structure your paper and argument.

Remember to write a clear introduction explaining your argument, what you will be discussing in your paper, along with relevant case law and legislation that you will be relying on.

Requirements
Your paper needs to consider both common law (case law) and the Evidence Act in relation to witness testimony and judicial discretion.

In respect to issues surrounding judicial discretion it would be a good idea to read in full the case of Bunning v Cross; R v Ireland; Ridgeway and Swaffield and the relevant sections of the Evidence Act applying to Witness Testimony and Judicial Discretion.

What happened in 1995 in regards to witness testimony and judicial discretion? Consider the emergence of the Evidence Act. What did it do with the discretion referred to in Bunning’s case, etc? Did it clarify it or reinvent it or do away with it?

Under the common law does a judge have any guidance in deciding between two principles? What about under the Evidence Act. What may a judge consider when deciding to exclude DNA evidence gathered by the State?

In your discussion you should also consider why judges should exclude illegally obtained evidence? Or do you think they should include all evidence and let the accused seek civil remedies for breaches of his or her rights? Is the exclusion of evidence a means to discipline law enforcement? How do other common law countries deal with judicial discretion?

Please note that the above questions are only a guide to assist you with your reading?

Also, consider the following points as your read:
What is judicial discretion? What types of judicial discretion exist?
Is there a discretion to exclude evidence or must a judge admit all evidence placed before the court by the crown? How is evidence presented to a court?
You may like to consider how case law defines judicial discretion?

What are the guidelines which a judge can rely on when deciding between two alternatives? What must the judge balance?

You should use case law to support your argument and refer to specific sections of the Evidence Act 1995 (NSW) and other relevant legal instruments.

The aim is to read widely including primary and secondary sources. I have included a number of journal articles relevant to the topic (see above under additional resources / readings within this subject outline).