1. law, govt and politics

ENTRANCE EXAM
VICTORIAN BAR READERS’ COURSE
30 OCTOBER 2013
(annotated with sample answers)
1. This document is a reproduction of the Readers’ Course Entrance Exam which candidates sat on
30 October 2013, with annotations included as a means of feedback. For each question requiring
a written response (i.e. all questions bar the multi-choice questions), a sample of actual answers
given by candidates in the examination immediately follows the question. For multi-choice
questions, the correct answers are circled and brief explanations are provided.
2. Attention is drawn to the following important points concerning this document:
-
Each sample answer has been reproduced in type-written form verbatim, as it appeared in
the candidate’s actual examination script. Any errors and omissions contained in the
candidate’s original answer are therefore included. No attempt has been made in this
document to correct such errors and omissions. Accordingly, each sample answer is not
to be regarded as perfect and necessarily exhaustive of all relevant issues disclosed by
the particular question.
-
In assessing each sample answer, an examiner has applied a combination of quantitative
and qualitative criteria and taken into account any errors and omissions in the answer. The
candidate has been awarded either the maximum or near-maximum possible marks
attainable for that question. For example, in the case of a question worth 2 marks the
sample answer scored 2 marks, and in the case of a question worth 4 marks the sample
answer may have scored 3½ or 4 marks.
-
It is possible that other candidates’ answers (not included in this document) obtained a
similarly high mark for the same question but for different reasons. Accordingly, each
sample answer represents only one way in which it was possible to score highly for a
particular question.
Jason Harkess
Chief Examiner
18 December 2013
INSTRUCTIONS TO CANDIDATES:
1)
This exam is closed book. During the exam, you must not be in possession of anything other
than writing implements and this exam script. You are not permitted to have in your
possession any paper, notes, books, electronic devices, mobile phones, pencil cases or any
other items that have not been specifically authorised by the Chief Examiner and/or
Invigilators of the exam. Any item on your person, on your chair, or on your desk are deemed
to be in your possession.
2)
Your Candidate Number (but not your name) appears at the top of this page. Your Candidate
Number represents your unique identifier for the purposes of this exam. You have previously
been advised in writing of the Candidate Number which has been assigned to you. Please
ensure that the Candidate Number above matches the Candidate Number which has been
assigned to you. You must not write your name on any page in this exam script.
3)
This exam tests your knowledge and understanding of rules of Civil Procedure, Criminal
Procedure, Evidence and Legal Ethics. The exam consists of two parts – Part A and Part B.
You must answer all questions (and sub-questions) in both Parts of the exam. The total
number of marks allocated to questions in the exam is 100, so that the maximum score
attainable by any candidate is 100. A total mark of 75 or more is required to pass the exam.
4)
Part A contains 13 questions (Questions 1 to 13) and is worth a total of 50 marks. Part A
commences with a preliminary statement of facts giving rise to a hypothetical criminal
proceeding. Questions 1 to 13 then follow. In answering Part A, you should assume that all
questions are referrable to the preliminary statement of facts. Each question posed in Part A
informs you of the following: (i) whether you are being tested on rule(s) of criminal
procedure, evidence or legal ethics (but note paragraph 6 of these instructions below); and (ii)
the total number marks allocated to the question. The total number of marks allocated to each
subject area in Part A is: Criminal Procedure (19 marks), Evidence (16 marks) and Legal
Ethics (15 marks).
5)
Part B contains 11 questions (Questions 14 to 24) and is worth a total of 50 marks. Part B
commences with a preliminary statement of facts giving rise to a hypothetical civil
proceeding. Questions 14 to 24 then follow. In answering Part B, you should assume that all
questions are referrable to the preliminary statement of facts. Each question posed in Part B
informs you of the following: (i) whether you are being tested on rule(s) of civil procedure,
evidence or legal ethics (but note paragraph 6 of these instructions below); and (ii) the total
2
number marks allocated to the question. The total number of marks allocated to each subject
area in Part B is: Civil Procedure (19 marks), Evidence (16 marks) and Legal Ethics (15
marks).
6)
Although each question is designated as either ‘Criminal Procedure’, ‘Civil Procedure’,
‘Evidence’ or ‘Ethics’, you may refer to legal rules and principles outside the designated
subject area if you consider these to be relevant in answering the question.
7)
You must write your answers in the writing space provided after each question. The reverse
side of each page in this exam script contains further writing space if required. Further
additional blank writing pages have been provided at the end of this exam script.
8)
In the case of multi-choice questions, you must simply circle the answer(s) you consider to be
correct. Some multi-choice questions are worth 1 mark where only one answer may be
circled, and other multi-choice questions are worth 2 marks where two answers may be
circled. If you circle more than one answer for a 1-mark multi-choice question, or more than
two answers for a 2-mark multi-choice question, a score of zero marks will be recorded for
that question. If you wish to change your answer(s) to a multi-choice question, you will not be
penalised for doing so provided that the change is effected in such a manner that clearly
indicates your intended final answer(s).
9)
Your attention is also drawn to the following:
i) If an application of state law is necessary in answering any question, you should assume
that the law of Victoria applies.
ii) In answering questions, you are not required to cite section numbers or case names. You
may restate principles of law or rules in your own words. A significant degree of latitude
is given to you paraphrasing rules and principles.
iii) The standard of expression, spelling, punctuation, grammar, conciseness and legibility of
your writing will be taken into account in the assessment of your answers.
10)
It is suggested that you allocate time spent on each question proportionate to the number of
marks allocated. The table below is provided to assist you in planning time (calculated on the
basis of 180 minutes total writing time).
3
TABLE – SUGGESTED TIME SPENT ANSWERING
QUESTION BASED ON MARKS ALLOCATED
11)
Marks
Time (approx.)
1 mark
no more than 2 minutes
2 marks
3½ minutes
3 marks
5½ minutes
4 marks
7 minutes
5 marks
9 minutes
6 marks
11 minutes
You are not permitted to remove this exam script from the examination room.
4
PART A (Questions 1 to 13) – Candidates are required to answer ALL questions
in Part A.
Assume the following alleged facts relate to all questions in Part A.
The Accused is Lionel UNWIN. The Accused is a mutual friend of Richard HUNTER and Stephen
COBURGER. Richard HUNTER is the alleged victim.
The Accused was planning to get married in late November 2013. Richard HUNTER and Stephen
COBURGER had organised a surprise buck’s party for the Accused which took place at the ‘Inn on
the Green’, a public tavern in Malvern East, on Friday 11 October 2013. At approximately 8.25pm
on that night, the Accused and Richard HUNTER arrived at the Inn on the Green. Stephen
COBURGER was already in attendance at the venue, along with Samuel UNWIN (the Accused’s
older brother) and Raymond UNWIN (the Accused’s father). Staff and other tavern patrons who
were not part of the Accused’s group were also in attendance at the tavern. All members of the
Accused’s group were drinking alcoholic beverages throughout the evening.
At approximately 11.15pm the Accused and his brother Samuel UNWIN were in the bar area
ordering drinks. Samuel UNWIN told the Accused he was not happy because the Accused had not
asked him to be best-man at the wedding. Samuel UNWIN complained that the Accused had instead
chosen his friend Richard HUNTER to be best-man. The Accused and Samuel UNWIN then
engaged in a verbal argument as bar staff attended to pouring a round of drinks which had been
ordered by the Accused. The verbal argument escalated which drew the attention of other bar staff,
patrons and also other members of the Accused’s group who were several metres away on the other
side of the room. The Accused aggressively pushed Samuel UNWIN against the chest which caused
Samuel UNWIN to stumble backwards. At this point, Richard HUNTER, who had been observing
the altercation, walked quickly across the room to intervene. Richard HUNTER approached the
Accused from behind, grabbed the Accused’s right shoulder and shouted ‘cut it out Lionel!’ or
words to similar effect. The Accused grabbed a pint of beer that had been placed on the bar
moments earlier by bar staff, turned around and thrust the glass into the face of Richard HUNTER.
The glass shattered on impact and the force of the blow caused Richard HUNTER to fall backwards
onto the floor. Blood started pouring from Richard HUNTER’s face who was then observed
screaming and writhing in pain on the floor.
5
Security staff restrained the Accused as bar staff and other patrons attended to Richard HUNTER.
Ambulance paramedics arrived at the scene at approximately 11.35pm. Richard HUNTER was
conveyed to the Emergency Department of the Monash Medical Centre in Clayton. He received
medical treatment for lacerations to the face and injuries to his right eye. Doctors immediately
assessed that Richard HUNTER’s sight in his right eye would be permanently impaired as a result
of the injury, with the possibility of a total loss of vision.
Police attended the scene a few minutes after paramedics arrived. The Accused was arrested and
conveyed to Malvern Police Station where he was interviewed.
After the Accused had been interviewed, he was held in custody while the informant, Senior
Constable Belinda Harrington, typed-up a charge-sheet and summons. She then printed the
document in triplicate and duly signed it. She handed the Accused a copy (reproduced overleaf).
The Accused had been charged with recklessly causing serious injury, an offence under s 17 of the
Crimes Act 1958. The summons (which formed part of the same document) indicated the Accused
was obliged to appear at the Magistrates’ Court at Melbourne on 25 November 2013.
The Accused was then immediately released from Police custody at approximately 5.35am on
Saturday, 12 October 2013. S/C Harrington filed the ‘Court Copy’ of the charge and summons at
the Melbourne Magistrates’ Court on the morning of Monday 14 October 2013.
Section 17 of the Crimes Act 1958 provides:
17. Causing serious injury recklessly
A person who, without lawful excuse, recklessly causes serious injury to another person is guilty of an indictable
offence.
Penalty: Level 4 imprisonment (15 years maximum).
6
FORM 3
Magistrates’ Court Criminal Procedure Rules 2009
Charge-Sheet and Summons
(Copy for the Accused)
To the Accused
Lionel Donald UNWIN
35 Kilgour Avenue
Clayton
VIC 3168
Male  Female
Date of Birth
4 June 1986
You have been charged with an offence.
Read these pages to see what you must do.
Registration No.
State
Licence No.
State
DETAILS OF THE CHARGE AGAINST YOU
What is the charge?
(Description of offence)
Under what law?
1
The accused did, at Melbourne, recklessly cause injury to a person.
State
 Act
 Other-specify
C’wealth
 Reg.
Are there more charges?
No
 Yes – See Continuation of Charges attached
Request for Committal
Proceedings
 No
 Yes
Type of offence
Who filed the chargesheet(s)? (informant)
Agency and Address
Signature of Informant
Charge filed at
Act or Regulation No.
Section or Clause (Full Ref.)
Crimes Act 6231/58
17
 Summary Offence (You should go to Court)
 Indictable offence (You must go to Court)
Belinda HARRINGTON
Email: [email protected]
Phone: (03)
Malvern Police Station
288 Glenferrie Road
Malvern VIC 3144
B J Harrington
Fax:
(03) 1234 5678
Ref:
PMZ9732/21
Date: 12
MELBOURNE
9876 5432
October 2013
on
(Venue)
(Date)
WHERE WILL THE CASE BE HEARD
Where you must go
Address
When
The Magistrates’ Court of Victoria at MELBOURNE
233 William Street, Melbourne VIC 3000
Phone:
(03) 9628 7777
Time
Day
Month
Year
10.00am
25TH
NOVEMBER
2013
DETAILS ABOUT THIS SUMMONS
Issued at
Issued by (Signature)
Malvern Police Station
288 Glenferrie Road
Malvern VIC 3144
Date: 12 October 2013
B J Harrington
 Registrar
 Magistrate
 Public Official
 Member of Police Force  Prescribed Person
7
QUESTION 1
Criminal Procedure:
The proceeding against the Accused in this matter commences at what
point in time?
Your answer:
(circle ONE)
a) When the Accused was arrested at the Inn on the Green.
b) When the charge and summons was signed by S/C Harrington.
c) When the Accused was handed the charge and summons.
d) When the Accused was formally released from police custody.
e) When the matter is first heard on 25 November 2013.
[1 mark]
f) When the Director of Public Prosecutions files the indictment (on a
date yet to be determined).
Chief Examiner’s note: See Criminal Procedure Act 2009, ss 6(1) and 14. On the given facts, answer (b) is the only
possibly correct answer.
QUESTION 2
Refer to the charge and summons that has been reproduced on the previous page. The Accused has
come to you, as Counsel, for advice. He hands you the charge and summons and asks you the
following question: ‘Can I try to get out of this on a technicality? I mean, look at the charge. It says
nothing! It doesn’t even say who I’m supposed to have injured and what the injury is.’
i. Criminal Procedure: Does the Accused’s complaint have any merit? Identify any other defects
in how the charge is expressed, and explain how the Prosecutor could seek to have these
rectified when the matter is first heard on 25 November 2013? [3 marks]
Sample Answer #1:
A charge must identify with sufficient particularity the matters on which a person is charged for. For this reason, the
charge sheet is inadequate. Firstly, it charges the accused of recklessly causing injury (not serious injury) - which in
itself may not be a problem, but in the circumstances appears to be the incorrect charge. Secondly, it does not state a
victim for an offence which as an offence against a person would require the person to be identified. Finally, it does not
specify a date on which the offence is alleged to have taken place. It may also be that ‘Melbourne’ is an insufficient
particular of the place of offence, however, this will depend on whether there could be confusion with any other acts
(charged or uncharged). The prosecutor can seek to have the charges amended to at the first mention in the Magistrates’
Court - the Court has wide powers to amend charges.
8
Sample Answer #2:
Yes the accused’s complaint does have merit. The charge sheet should have more particulars; in particular the charge
should also identify the day, date, time of the offence, where the offence occurred (‘Inn on the Green’ and address, not
just ‘Melbourne’) and that the charge is recklessly cause serious injury, not just ‘injury’. The prosecution could seek to
amend the charge sheet with better particulars of the offence. This would likely be allowed as the prosecutor could
alternatively discontinue and file a new charge sheet with the necessary particulars because the offence occurred less
than 12 months ago.
ii. Ethics: The Accused has asked you to be his legal representative. He has not sought assistance
from a solicitor. What factors should you, as Counsel, take into account in deciding whether to
act for the Accused on a ‘direct access’ basis? [3 marks]
Sample Answer #1:
Counsel can only act on a direct access basis in the Magistrates’ Court, and in the County Court if referred by VLA on
the basis it is considered there will be no prejudice to the accused. Need to consider whether will be able to appear at
trial as matter will proceed on indictment (committal requested on charge sheet), counsel has an obligation to refuse if
feels direct access will cause prejudice to accused. Also need to consider the complexity of the trial, management of
witnesses, and whether accused in a position to do the work of a solicitor, as counsel is prohibited.
Sample Answer #2:
Direct access is available in relation to criminal proceedings heard in the Magistrates’ Court. However a criminal
proceeding in the County Court, where the indictment is likely to be heard, requires a direct access brief from VLA and
the barrister form the view that the accused would not be disadvantaged by not having an instructing solicitor.
Accordingly, counsel could act on a direct access basis in the Magistrates’ Court committal proceedings. However the
brief would likely have to be returned upon indictment following committal, and this could cause prejudice to the
accused’s defence by having to re-brief a barrister who was not involved at committal. Finally, counsel should not act
directly if of the view that accused would be unfairly disadvantaged by not having a solicitor, and especially if there is a
large amount of solicitors’ work involved in the brief (likely in relation to a committal), as counsel is precluded from
performing this work. On balance, counsel should not act.
9
QUESTION 3
Criminal Procedure:
Having regard to the contents of the Charge-Sheet and Summons alone
(and assuming any perceived defects in it are cured), in which court’s
jurisdiction is the Prosecution likely to seek to have the charge against the
Accused ultimately determined?
Your answer:
(circle ONE)
a) Magistrates’ Court’s summary jurisdiction.
b) Magistrates’ Court’s indictable jurisdiction.
c) County Court’s summary jurisdiction.
d) County Court’s indictable jurisdiction.
e) Partly in the Magistrates’ Court’s summary jurisdiction and partly in
the County Court’s indictable jurisdiction.
[1 mark]
f) Supreme Court’s inherent jurisdiction.
Chief Examiner’s note: The Charge-Sheet and Summons indicates that the informant wishes to have the matter
proceed to a committal hearing in the Magistrates’ Court, a pre-cursor to the matter being transferred to the County
Court’s indictable jurisdiction to have the matter ultimately determined. Accordingly, answer (d) is correct.
QUESTION 4
i. Criminal Procedure: The offence under s 17 of the Crimes Act 1958 is an ‘indictable offence
that may be heard and determined summarily’. What are the essential points of distinction
between ‘summary offences’, ‘indictable offences’ and ‘indictable offences that may be heard
and determined summarily’? Explain the practical advantages/disadvantages for the Accused in
having this matter determined summarily as opposed to it being determined in the indictable
jurisdiction. [4 marks]
Sample Answer #1:
Summary offences are offences of a more minor nature, usually carrying a maximum penalty of either a fine or up to
two years in custody. They are generally determined in the Magistrates’ Court. Indictable offences are of a more serious
nature and punishable by imprisonment - they commence in the Magistrates’ Court but are generally ultimately
determined in the County or Supreme Courts. Some offences that are indictable are however triable summarily,
meaning that they can be determined in the Magistrates’ Courts by way of either a plea of guilty or summary contest.
Keeping the matter in the summary jurisdiction is advantageous for the accused in this instance as it will be dealt with
more quickly, be likely to result in a more lenient penalty (max 15 y in CC, 2 y in MC) and since the new suspended
sentence legislation, only the Magistrates’ Court would be able to impose a suspended sentence for this. The accused
would also have a right of appeal against either sentence or conviction and sentence to the County Court at the
conclusion of the MC proceedings. However if the accused is determined to run a jury trial, he will need to seek to have
the matter heard in the CC jurisdiction.
10
Sample Answer #2:
A summary offence is heard before a magistrate alone, without a jury, and is ordinarily prosecuted by a police
prosecutor. In contrast, an indictable offence is heard by the County Court, or in the Trial Division of the Supreme
Court, before a judge and jury (unless the accused pleads guilty, in which case a jury is not empanelled), the prosecution
handled by the Director of Public Prosecutions. An indictable offence that may be heard and determined summarily,
however, can be heard by the Magistrates’ Court.
There are a number of clear advantages for the accused in having the matter determined summarily. The Magistrates’
Court, when hearing an indictable matter summarily, can only impose sentence of up to 2 years for any one offence, and
5 years cumulatively for multiple offences. If the accused is willing to plead guilty, a Magistrate also has power to
adjourn proceedings on condition that the accused undertake a diversion program. In addition, the Magistrates’ Court
also retains the power to impose a suspended sentence of imprisonment, if that sentence were to be of a duration no
greater than two years. The absence of the jury may be a positive or negative consideration, depending on the accused.
There is also the potential, if the accused is found guilty, for a rehearing to take place in the County Court de novo,
which is not an option if heard in that court at first instance.
The accused would be strongly advised to seek to have the matter tried summarily, which would reduce the high risk of
his imprisonment for what is a significant offence (ordinarily calling for an immediate custodial sentence: Winch v R.
ii. Criminal Procedure: Assume the Accused seeks to have the charged determined summarily
and that the Prosecution opposes this course. Consider how this issue will be resolved
(including when this issue would be addressed, by which court, and the arguments/factors the
court is likely to consider). [3 marks]
Sample Answer #1:
The determination would be made by the Magistrate, most likely at the committal mention. It requires consent of the
accused. The Magistrate must be satisfied that the charge is inappropriate to be determined summarily having regard to
the seriousness of the offence, including its nature, the means by which it was carried out including any organisation or
aggravating circumstances, whether it forms part of a series of offences and the complexity of the hearing required to
determine the charge. They must also consider whether adequate sentencing options are available considering the
criminal history of the accused and whether there are any co-accused. This offence involves a single charge with no coaccused and does not involve any apparent complexity. It is likely, however, that the court will consider the seriousness
of the offence given the injury suffered by Hunter and the apparently unprovoked nature of the attack in determining
whether to exercise its discretion.
11
Sample Answer # 2:
This would be indicated on the Form 32 (Case Direction Notice) and at the committal mention. The Magistrates’ Court
would then hear the application for summary jurisdiction. This usually occurs prior to any committal. The court would
take into account factors listed in s.29 of the Criminal Procedure Act including nature and seriousness of offence,
whether it is part of a series, whether there are co-accused, whether the range of sentencing options in MC would be
adequate having regard to circumstances, whether accused has prior convictions etc. If matter is likely to be contested,
more likely summary jurisdiction will be refused. It is also unlikely that the Magistrate would grant summary
jurisdiction in relation to this matter in any event having regard to the seriousness of ‘glassing’ and recent comments
made by the COA to this effect.
For the purposes of answering further questions in Part A, assume the following additional
facts:
-
The matter has now proceeded to trial in the County Court to be heard before a judge and jury.
-
The Accused has pleaded ‘not guilty’.
-
The Accused has instructed Defence Counsel to argue ‘self-defence’. He has instructed that he
largely agrees with the Prosecution’s allegations (as set out on pages 4 and 5 of this exam),
except for the following: ‘Me and Sam were having it out. Then out of nowhere I felt this
massive blow to the back of my head. I just thought someone’s king-hit me. I spun round and
just threw my fist in that direction. I didn’t even think of what was in my hand. So yeah, I spun
round and threw a punch. But it was an automatic reaction. I’d just been clobbered.’
-
The Prosecutor’s brief of evidence includes written statements made by civilian witnesses that
were taken on the night of, or the morning following, the alleged offence. Statements were made
by all members of the Accused’s group (including his father and brother), five staff members of
the Inn on the Green (including two security staff), and eight other patrons who witnessed the
altercation between the Accused and the victim. Defence has been provided with these
statements well in advance of the trial.
-
Except for Raymond Unwin and Samuel Unwin (see below), none of the civilian witnesses have
stated that the victim, Richard Hunter, struck the Accused prior to the Accused striking him
with the beer glass. One of the bar staff, and three of the other patrons (not from the Accused’s
group) describe the victim as ‘grabbing’ or ‘taking hold’ of the Accused’s shoulder. But there is
no reference to the victim hitting the Accused.
-
Raymond Unwin and Samuel Unwin provided an account that is consistent with the Accused’s
account, but inconsistent with all other witness statements. Raymond Unwin stated ‘Richard
thumped Lionel in the head and Lionel swung round and thumped him back.’ Samuel Unwin
stated ‘Richard just went up and thumped him. That’s when Lionel did what he did and thumped
him back.’
12
QUESTION 5
Evidence: Will Defence Counsel have to comply with the rule in Browne v Dunn in this trial?
Explain why/how it will/will not apply in the course of Defence Counsel conducting the Accused’s
case. [3 marks]
Sample Answer #1:
Yes, Defence Counsel will need to comply with the rule in Browne v Dunn when cross-examining the civilian witnesses
and bar staff. This is a fundamental rule of fairness that requires that counsel put to the witness in cross-examination so
much of its own (the Defence’s) case as is relevant to their evidence, in particular when the Defence will lead
inconsistent evidence, in this instance going to the dispute as to whether the accused was “thumped” prior to
“thumping” the complainant. This is a central issue in the plea of self-defence and must be put to the witnesses to
enable them to comment, agree or disagree with the other account.
Sample Answer #2:
Defence Counsel will have to comply with the rule in Browne v Dunn for each witness whose evidence will be
challenged, or will be suggested directly or by implication the witness is not telling the truth, and that their evidence
should not be accepted, subsequent to their being cross-examined.
The accused, in pleading self-defence, will indicate he felt a “massive blow” to the back of his head, leading to an
involuntary reaction. While this scenario could be raised in isolation, Defence Counsel would be remiss not to challenge
evidence that suggests otherwise. For instance, for any of the civilian witnesses who described no physical contact,
Defence Counsel, if it will later be suggested those individuals could not have been in a position to perceive that
occurrence (for example, by adducing evidence in chief from Raymond or Samuel Unwin), must put that suggestion
squarely to the witnesses. If Defence Counsel fails to do so, the prosecution may object, and/or the trial judge direct the
jury that the rule in Browne v Dunn has been breached. Alternatively, the trial judge may allow the prosecution to
reopen their case – their having not contributed to the breach – and to re-examine those witnesses on the issues raised in
cross-examination (but not otherwise without leave), so long as no new matters are introduced, or prejudiced caused to
the accused.
13
QUESTION 6
Ethics: The Prosecutor has formed the view that the evidence of Raymond Unwin and Samuel
Unwin is fabricated because their evidence is inconsistent with all the other witness accounts, and
also because of what the Prosecutor perceives to be a remarkable coincidence that both witnesses
have used the expression ‘thump’ in their statements. The Prosecutor thinks that Raymond Unwin
and Samuel Unwin have collaborated and concocted their evidence, probably with the Accused, in
obvious support of the Accused’s case of self-defence. The Prosecutor is contemplating not calling
these two witnesses. He suspects that Defence Counsel will call these witnesses in any event.
Explain the ethical implications of this situation. Does the Prosecutor have to call these two
witnesses or can he leave it to Defence Counsel? [4 marks]
Sample Answer #1:
While their evidence may be admissible and necessary to “present the whole picture”, or relevant and admissible, the
prosecution are not obliged to call Raymond and Samuel Unwin. While a prosecutor must call all such evidence, they
need not do so with (a) consent of the defence, (b) where that issue was dealt with in an admission of the accused, or (c)
calling the witness would undermine the administration of justice if the matter was already dealt with by another
witness. This is provided (i) the prosecutor is not obliged to call an unreliable witness by virtue of a reasonable belief of
their being “in the camp of the accused”, and (ii) informs the defence of any such matters.
Although no doubt relevant evidence, if the prosecutor has such a reasonable belief on unreliability, then they are not
obliged to call either Raymond or Samuel, provided that they first inform the defence of their reasons for doing so.
Alternatively, if the prosecutor feels, in the interests of justice, their testimony should be called, they might call only
one of the men on the basis of (c) above, and decide not to call the other given their accounts would be similar. If it
turned out the witness was not cooperative, the prosecutor might seek leave of the court to have the witness declared
unfavourable, allowing them to ask leading questions (as if conducting cross-examination).
Sample Answer #2:
The prosecution has a duty to call witnesses whose evidence could materially (directly or indirectly) affect the jury’s
determination. The prosecution is obligated to call all relevant evidence, even if it is exculpatory. He wants to leave it
for defence to call this witness so he can cross-examine the witness about concoction and collaboration. This would be
unfair and in breach of his prosecutorial duties to the court.
However if the prosecution found or discovered evidence of fabrication (beyond speculation) then he might be able to
avoid calling the witnesses – that is, if it would clear they are not witnesses of truth. The evidence would need to be
disclosed to defence (because the prosecution has an ongoing duty of disclosure). If the prosecution fails to call a
relevant witness who is available, he may offend the rule in Jones v Dunkel and the defence and judge may comment on
this failure and invite an adverse inference against the prosecution case.
14
QUESTION 7
Evidence: Assume that the Prosecutor chooses to call both Raymond and Samuel Unwin. When the
Prosecutor says to the Court ‘I call Samuel Unwin!’, a suited gentleman seated in the back of the
court room leaps from his seat and identifies himself as Grant Johnstone, an independent solicitor
acting for both Raymond and Samuel Unwin. The following exchange between Mr Johnstone and
the trial Judge takes place:
Mr Johnstone: May it please your Honour, I represent this witness who is the brother of the Accused. I also
represent Raymond Unwin, the father of the Accused, who is also on the Prosecution’s list of witnesses. I have
been instructed to appear on their behalf to object to their giving evidence for the Prosecution.
Judge: On what basis?
Mr Johnstone: Family privilege, your Honour.
Judge: I beg your pardon?
Explain the merit in Mr Johnstone’s objection and how it will be resolved by the Court. [5 marks]
Sample Answer #1:
The witnesses’ lawyer is challenging the compellability of the two witnesses on the basis of spousal etc. ‘privilege’ in
the Evidence Act. This provides that a witness who is the spouse, defacto, father/mother of the child of the accused may
not be compelled to give evidence where there is a risk of harm flowing to the witness as a result of being compelled to
give evidence, and this risk significantly outweighs the desirability of having relevant, probative evidence before the
court. This objection cannot apply to accused’s brother, as the section does not apply to siblings. However, an objection
may be maintained in respect of the father. The father’s lawyer will need to demonstrate a risk of harm to the father,
which may include financial harm. Those opposing the objection would then need to demonstrate that the need for the
court to have relevant, probative evidence before it outweighs any such harm. The court will consider the importance of
the evidence in the context of the evidence as a whole. Here, the accused’s defence hinges largely on this evidence.
Moreover there is unlikely to be any real risk of harm that will flow to the father following his giving evidence at the
trial of his son. This conclusion will be bolstered if the accused objects to the application. Accordingly, the court will
likely order the father to also be compelled to give evidence.
15
Sample Answer #2:
Section 18 of the Uniform Evidence Act allows for family members to object to giving evidence against other family
members. The section is designed to protect family relationships. However the section does not protect all family
members. It only applies to spouses, children, parents of the accused. Thus the section would only be relevant to
Raymond Unwin. The court must consider the weight and value of the evidence against the potential damage that could
be done to the family relationship. The weighing up of these two factors is considered in the context of the public
interest in preserving families and the public interest is pursuing offenders. Given that both witness evidence is
favourable to the accused, and crucial to the accused’s case, it is likely the court would likely compel them both to give
evidence.
QUESTION 8
Evidence:
Assume the Court obliges both Samuel Unwin and Raymond Unwin to
give evidence for the Prosecution. The trial Judge reaches the same
assessment of these witnesses as the Prosecutor (i.e. they are not to be
believed). At the conclusion of examination-in-chief of each witness,
what may the trial Judge do?
Your answer:
(circle ONE)
a) She may direct the jury to ‘disregard the evidence of the witness as it
is obviously fabricated’.
b) She may direct Defence Counsel (in the absence of the jury) ‘not to
ask any leading questions in cross-examination as the witness is
clearly in your client’s camp’.
c) She may direct Defence Counsel (in the absence of the jury) ‘to
concede in your closing submissions that these witnesses are
obviously in your client’s camp’.
d) She may direct the Prosecutor (in the absence of the jury) ‘to adduce
any further additional evidence which will assist the Court in
determining the veracity of this particular witness’s testimony’.
e) All of the above. The trial Judge is permitted to make any such
direction that will give effect to the proper administration of justice
and to ensure that the jury is not misled.
[1 mark]
f) None of the above. Such directions either usurp the function of the
jury or are unfair to the Accused.
Chief Examiner’s note: See Evidence Act 2008, s 42 (Court may disallow leading questions in cross-examination in
certain circumstances) – answer (b) is therefore correct. Answer (a) is incorrect as this would usurp the function of the
jury as tribunal of fact. Answers (c) and (d) are incorrect as the judge cannot give such specific directions to Counsel as
to how they should conduct their own case.
16
QUESTION 9
The Prosecutor calls Lynley Clelland, a tavern patron who witnessed the altercation. In response to
questioning from the Prosecutor, she gives the following evidence about her observations of the
Accused and Samuel Unwin arguing:
Ms Clelland: I was standing next to him at the bar while he was shouting at the other guy. I could smell his
breath which smelt strongly of liquor. Both of them were really loud and quite aggressive towards one another.
Prosecutor: Did you notice anything else about these two men at this point in time?
Ms Clelland: Yes. They were both clearly intoxicated.
An objection is then made by Defence Counsel:
Defence: I object to that evidence Your Honour. The witness is not qualified to give her opinion about that and it
goes to the ultimate issue.
i. Evidence: What is ‘opinion evidence’ and the general rule that relates to such evidence? Is the
evidence of this witness, concerning the state of intoxication of the Accused and Samuel Unwin,
opinion evidence? [2 marks]
Sample Answer #1:
Generally, evidence of an opinion (an inference based on observable/ communicable data) cannot be adduced to prove
the existence of a fact about which the opinion was given. Assessment of intoxication based on external appearance and
behaviour are a classic example of opinion evidence.
Sample Answer #2:
Opinion evidence is evidence that draws an inference from a fact (eg a conclusion of drunkenness based on hearing
slurred words). In general, evidence of the expression of an opinion in relation to fact is inadmissible to prove the
existence of the fact. The evidence from Ms Clelland clearly falls within this prima facie rule.
17
ii. Evidence: Consider the merits of Defence Counsel’s objection and how the Prosecutor might
argue that the witness should be permitted to give this evidence. Is the evidence that they were
‘clearly intoxicated’ admissible? [5 marks]
Sample Answer #1:
Defence counsel will object on the basis that opinion evidence is inadmissible, and that witness’ evidence should be
confined to the facts which she saw, heard or perceived (subject to other objectionable matters). In response, the
prosecution will argue that the evidence is admissible as evidence of a lay opinion, which is necessary to understand the
evidence being given by the witness. Ordinarily, evidence of a lay opinion is admissible where the observed facts are
simply to evanescent or difficult to express accurately. However, in this case the witness has quite clearly recounted
matters which do, on the facts, provide an accurate account of what she observed; being the smell and conduct of the
two men. It may be that the jury is not assisted by the characterisation of the two men as clearly intoxicated, when
having regard to the witness’ factual evidence, the jury is able to draw its own inferences about these matters. [Note that
a preliminary question would be relevance; whether the opined fact could rationally affect the probability of the
existence of a fact in issue, which would seem to be the case.] Finally, the defence may seek to have the opinion
excluded on the basis that it adds little, by way of probative value, to the witness’ account, and therefore the probative
value is outweighed by the prejudicial effect on the accused (it may cause the jury to reason improperly). If this is
satisfied, the trial judge must exclude the evidence.
Sample Answer #2:
There is an exception to the opinion rule for evidence of opinions given by lay witnesses where the evidence is
necessary to be adduced in order for obtaining an adequate account of the understanding or perception of the witness.
Typically, under old common law rules, evidence of opinions about intoxication has been held to be admissible and this
remains the case under the Evidence Act. However the basis now needs to be made in the terms of the rule stated above.
Defence counsel could argue that the evidence of observations that tend to drunkenness (smelling of liquor, being loud
and aggressive) are admissible but that the final conclusion is not. The prosecution could argue that in this case the final
conclusion although stemming from some observable facts is so tied up with other perceptions of the witness that it
needs to be adduced to allow an adequate account to be presented. It should be noted also that the ultimate issue rule has
been abolished under the Evidence Act. Given the general approach of courts on this kind of evidence, it would be
likely that this evidence would be admissible.
18
QUESTION 10
Ethics: On the fifth day of the trial, the Prosecutor calls Rory Greenwood. Mr Greenwood is one of
the bar staff who observed the events of the evening. In his written statement, Mr Greenwood gave
a detailed account of his observations of the Accused and how he came to strike the victim with the
beer glass. If this evidence is accepted by the jury, it would negate any suggestion that the Accused
acted in self-defence.
Prior to Mr Greenwood entering the court room, Defence Counsel had not realised any previous
association with this witness. However, after Mr Greenwood is sworn, he makes eye-contact with
Defence Counsel who then suddenly remembers meeting Mr Greenwood about a year ago at a night
club. They had both gone back to Mr Greenwood’s apartment and engaged in consensual sexual
intercourse. After their encounter, Defence Counsel had left the apartment and never saw Mr
Greenwood again, until now.
Defence Counsel has been in a stable monogamous relationship for ten years, the encounter with Mr
Greenwood having been kept a closely-guarded personal secret. An overwhelming sense of
embarrassment, anxiety and fear suddenly overwhelms Defence Counsel at the realisation of who
this witness is.
Explain the ethical implications of this situation and how Defence Counsel might sensibly deal with
it. [4 marks]
Sample Answer #1:
Counsel is personally compromised in the circumstances and a conflict of interest has arisen where her personal interest
in maintaining the previous liaison with the witness remains secret as against vigorously cross examining the witness to
advance/protect her client’s interest. She may be tempted to not aggressively pursue questioning to avoid any
prospective personal animosity from the witness and so her professional, independent capability to conduct the case
with due forensic discipline is ruined. It is unlikely that counsel will be permitted to return the brief due to the advanced
stage of proceeding. Recommend conference in the Judge’s chambers with opposing counsel to explain/decline the
conflict of interest. Firstly, request leave to return the brief, given the obvious importance of the witness to the positive
defence advanced.
If refused, seek an adjournment to allow additional counsel to be briefed to handle this particular witness’ examination.
This will require consent of accused. Regardless the accused must be informed of the conflict as soon as possible.
It is essential to the defence that this witness undergo rigorous cross examination and counsel is clearly conflicted.
Further her professional reputation as a barrister may come into disrepute if she were to proceed in this examination.
19
Sample Answer #2:
A major ethical implication is whether counsel will be able to perform his duty to the client, ie act in best interests of
the client, while he is suffering such anxiety and fear. It is quite possible that in defence counsel’s own interest, defence
counsel might not apply ‘robust advocacy’ in the questioning. That is, counsel may put his/her own interests ahead of
the clients. Defence counsel should seek an adjournment on the grounds that he is ‘embarrassed’. Counsel should advise
the client that his prior knowledge of the witness may mean that he has a conflict of interest. Counsel should tell the
accused that another counsel should be briefed to question this witness. Counsel will then need to explain the situation
to the court, in the absence of the jury and the witness. The witness could be stood down until different counsel can be
briefed.
Apart from the conflict of interest there is also a risk that counsel’s character/reputation be raised by the witness – this
would also damage the client and affect the ability of the counsel to competently represent the accused.
QUESTION 11
Criminal Procedure: At the conclusion of all the evidence in this trial, what are the obligations (if
any) of the Prosecutor, Defence Counsel and the trial Judge in relation to ensuring that the jury is
properly directed as to their task in this case? [3 marks]
Sample Answer #1:
First, defence counsel is required to inform the court of the elements of the offence, any defences or any other offences
open or the indictment that remain as matters in issue. Secondly, defence and prosecutor counsel must inform the judge
of any directions that they request should or should not be given to the jury. Unless the judge has good reasons not to do
so, the requested directions must be given. Thirdly, the judge is obliged to give any direction that if he/she fails to give
could result in a substantial miscarriage of justice. The judge must inform counsel of his/her intention to give that
direction and call for submissions regarding whether it should be given and the terms of that direction.
Sample Answer #2:
Pursuant to Jury Directions Act, defence must advise trial judge of any elements in issue, and any defences. Prosecutor
and defence must then request that the trial judge give relevant directions in the matter. Trial judge must give the
requested directions unless satisfied that there is no need to do so (eg if evidence not important or the issue is not in
dispute). Trial judge must also give any directions that are not requested, eg trial judge believes that the giving of the
direction is necessary to avoid a substantial miscarriage of justice.
20
QUESTION 12
Criminal Procedure: Assume that the jury finds the Accused ‘guilty’ of the offence. After a plea
hearing, the trial Judge sentences the Accused to a term of imprisonment of 18 months wholly
suspended for two years. In sentencing remarks, the trial Judge says:
‘I have given particular weight to your prospects of rehabilitation as a relatively youthful offender,
being 28 years of age, with no prior criminal history. I note that I have given you a harsher
sentence because you pleaded ‘not guilty’ and wasted considerable community resources in
advancing a defence which obviously had no hope in succeeding. However, there are too many
youthful offenders such as yourself in prison and the community would benefit much more if your
liberty is preserved. There is evidence that you have good prospects of a career as a financial
planner, and your employer supports you despite knowing the circumstances of the offence you
have committed.’
Can the Prosecution as well as the Defence challenge this sentence? If so, explain how and on what
basis. [4 marks]
Sample Answer #1:
The prosecution can challenge on the basis that the Court of Appeal has indicated in Winch that an accused pleading
guilty to a RCSI glassing offence, even with strong mitigating factors, can now expect a custodial sentence in the
ordinary course. Moreover, suspended sentences have been abolished in respect of indictable offences heard in the
County Court. Given the accused is not entitled to discount by virtue of early guilty plea in any event, the sentence
would appear to be attended by at least 2 errors: (1) anomalously low; (2) contrary to the Sentencing Act. If the appeal
is required in the public interest, the DPP can appeal the sentence. Given the Court of Appeal’s approach in Winch, this
is likely justified. The accused can also seek leave to appeal the sentence in the Court of Appeal, on the basis that the
trial judge erred by treating the accused’s plea of not guilty as an aggravating factor, which it is never open to a
sentencer to do. An accused is entitled to plead not guilty. Only a plea of guilty can be treated as a mitigating factor, but
not the converse. Procedural fairness requires the court to warn the accused if he might receive a harsher sentence on
appeal in sufficient time so that he may withdraw his appeal etc.
21
Sample Answer #2:
The prosecution could appeal the sentence. It would appear that this may be the case as it appears the judge has made a
serious error in giving a suspended sentence when such a sentence is no longer available in the County Court. This
could be brought as an O56 judicial review because it is clearly an ultra vires use of power. Alternatively the sentence
could be appealed to the Court of Appeal in the public interest, as the judge has not appeared to have paid heed to the
comments in R v Winch - where the Court of Appeal held that recklessly causing serious injury in a glassing offence
should not be regarded lightly - as an offence that should not merit a term of imprisonment. In the interests of
maintaining parity of sentencing between offenders, the prosecution could appeal in the public interest. The defence
could also appeal on the basis that the judge has misapplied the ‘not guilty plea’ sentencing consideration. A sentence
may be reduced for a ‘guilty plea’ but it may not be increased for a ‘not guilty plea’. As such there has been an error on
the sentence which the defence could appeal to the Court of Appeal.
QUESTION 13
Ethics: Assume the following further information:
-
After being sentenced, Lionel Unwin approaches Defence Counsel and says: ‘Thanks heaps
mate! I can’t believe it! Lucky they didn’t find out about me getting done for the same thing in
Queensland a few years back. Ha!’ The matter to which Mr Unwin referred was a serious
assault for which he served six months in prison. The victim in that matter also lost vision in an
eye as a result of Mr Unwin thrusting a glass in his face in the course of another public tavern
altercation. Defence Counsel had been unaware of Mr Unwin’s prior conviction until now.
Evidently, the Prosecution and the trial Judge were also unaware of the prior conviction.
-
A week after the sentence, Richard Hunter’s mother contacted the Office of Public Prosecutions
(‘OPP’) to ask about her son claiming for witness costs. In that phone conversation, Mr
Hunter’s mother mentioned that her son ‘is so lucky that his eye is ok’, which the OPP solicitor
found curious. After making inquiries with the Monash Medical Centre, the OPP solicitor
discovered that the original treating surgeon (whose evidence was the only medical evidence
used by the Prosecution and disclosed to the Defence) had made an erroneous assessment of the
extent of Mr Hunter’s injuries. In fact, Mr Hunter’s eye had made a complete recovery by the
time he gave evidence at trial. In the course of the trial, Mr Hunter was never asked any
questions by the Prosecutor or Defence Counsel about the current state of his vision. No issue
was ever taken with the original treating surgeon’s evidence. It was simply assumed to be
correct. The OPP solicitor has now apprised the Prosecutor of this information.
Explain the ethical implications for the Prosecutor and Defence Counsel when they each become
aware of these new pieces of information. [4 marks]
22
Sample Answer #1:
The defence counsel need not inform the court or opponent of any prior offences that the prosecution or court is not
aware of. However, the defence cannot deliberately try to adduce evidence that there are not prior offences if it is
known to be untrue. Nor can the defence make a positive statement that is knowingly untrue. The defence, at this stage
may not do anything with this information. The prosecution appears to have been derelict in its duties by not properly
ascertaining the level of injury to the victim and not properly assessing the medical evidence. Whilst that can also be
attributed to the defence not scrutinising the evidence it is a duty but really falls upon the prosecution in presenting a
fair and proper case. At this stage, the prosecution should inform the defence of this new information (which can be
used for any appeal - fresh evidence can be admitted with leave of the Court of Appeal). The effect on the case would
be to suggest that the accused was convicted of a higher charge than what was in fact committed. This would certainly
be a miscarriage of justice which must be attended to by the prosecution.
Sample Answer #2:
Defence counsel has not misled the court - he was unaware of the prior at the time of the plea, when he presumably
made the submission that his client had no prior convictions. Given that the matter will likely be appealed because of
the sentencing error, however, defence will not be permitted in the future to make any positive statement that his client
has no prior convictions. He does not have to disclose the prior - it is a matter for prosecution to allege prior
convictions, but must be careful not to mislead the court by making any positive suggestion that his client has not any
criminal history. The situation for the prosecutor is different - prosecution has now become aware that there was an
error, which could have contributed to jury’s assessment of facts, and therefore may be a miscarriage of justice. For
example, jury may have returned a verdict of RCI instead of RCSI. Given prosecutor has ongoing duties of disclosure,
this should be disclosed to defence and leave sought to appeal.
End of Part A
23
PART B (Questions 14 to 24) – Candidates are required to answer ALL
questions in Part B.
Assume the following alleged facts relate to all questions in Part B.
Lease Hire Pty Ltd (‘Lease Hire’) is an Australian company based in Melbourne specialising in the
lease and maintenance of vehicles to corporate and government clients. Lease Hire owns a fleet of
over 50,000 vehicles. In December 2012, TNG Enterprises Ltd (‘TNG’), a publicly listed company
and emerging global leader in the manufacturing and supply of next-generation medical technology,
entered into a two year agreement with Lease Hire for the lease of 1,000 vehicles for use by certain
of TNG’s sales and executive staff around Australia (‘Lease Agreement’). The total value of the
Lease Agreement was $20m (i.e. TNG agreed to pay $10,000 per vehicle per annum). The Lease
Agreement contained the following clauses:
Clause 4.1 Maintenance of the Vehicle by Lease Hire
Lease Hire will maintain the Vehicle in optimal operating condition in accordance with the manufacturer’s
recommendations and will take all necessary steps to keep the Vehicle well maintained at all times. Lease Hire
or its affiliates will conduct a general service of the Vehicle on a six monthly basis commencing on or around
the first six months after the commencement of this Agreement.
Clause 4.2 Maintenance of the Vehicle by You
You will maintain the vehicle in optimal condition in accordance with the manufacturer’s recommendations
and will make no material modifications or alterations to the Vehicle.
Six months into performance of the Lease Agreement, the Federal Government (‘Commonwealth’)
passed legislation requiring all cars less than five years old to have installed an ‘Energy Reader.’
This was a small device to be attached to the inside of the fuel tank that would measure the
vehicle’s fuel efficiency. The cost of this device and its installation was to be fully subsidised by the
Commonwealth if installed by a company or individual on a list of approved installers. Installers
were required to undergo a detailed process of accreditation. The Energy Reader devices needed to
comply with strict quality control criteria.
Lease Hire announced that it would be installing Energy Readers in each vehicle in its fleet. It
engaged Fine Tune Pty Ltd (‘Fine Tune’), a car servicing company, to carry out the installations. In
late July 2013, Fine Tune began installing the new Energy Reader in all of TNG’s leased cars and
completed this task by September 2013.
24
From August 2013, many of the TNG employees who were driving the Lease Hire cars began
noticing odd smells and black smoke billowing from the back of their vehicles. Many of the cars
broke down. It turned out that the Energy Readers that had been installed in these vehicles had
melted in the fuel tank. The cause of this problem was a chemical reaction between the Energy
Reader and the ethanol fuel used by TNG in all of their leased vehicles. Over 800 of TNG’s leased
vehicles had been rendered unroadworthy as a consequence of this problem. Lease Hire recalled all
1,000 vehicles for testing and repair.
TNG cancelled the Lease Agreement on the basis that Lease Hire had breached an essential term
(clause 4.1). TNG made alternative leasing arrangements with various other corporate leasing
companies on short notice. This proved very costly for TNG, as its average cost per vehicle was
now $15,000 per annum. This meant that TNG’s total cost of car hire for the original two-year
period commencing 15 December 2012 increased from $20m to $28m. TNG’s sales also slumped in
the first quarter of the 2013/14 financial year which TNG attributes to sales staff not having ready
access to vehicles.
In early October 2013, TNG (‘Plaintiff’) issued proceedings against Lease Hire (‘Defendant’)
claiming damages exceeding $10m, alleging breach of contract, negligence and misleading and
deceptive conduct under s 18 of the Australian Consumer Law (Sch 2, Competition and Consumer
Act 2010 (Cth)).
QUESTION 14
Civil Procedure:
The Plaintiff’s proceedings are most likely to be commenced by the filing
of what document in the Supreme Court?
Your answer:
(circle ONE)
a) Affidavit.
b) Notice of Application for Specific Relief.
c) Originating Motion.
d) Statement of Claim.
e) Summons.
[1 mark]
f) Writ.
Chief Examiner’s note: See Supreme Court (General Civil Procedure) Rules 2005, O 4.01.
25
QUESTION 15
Civil Procedure:
Which TWO features of pleadings are not required to be included in the
Plaintiff’s Statement of Claim?
Your answers:
(circle TWO)
a) Material facts upon which the Plaintiff relies in support of its causes
of action.
b) Material witnesses upon whose evidence the Plaintiff intends to rely.
c) Pleadings must be type-written and double-spaced.
d) Pleadings must be divided into
consecutively.
paragraphs
and
numbered
e) Specification of any statutory provisions relied upon in its claim.
[2 marks]
f) Statement of relief/remedy sought.
Chief Examiner’s note: See Supreme Court (General Civil Procedure) Rules 2005, O 13.01, 13.02. Answers (a), (d),
(e) and (f) are all required.
QUESTION 16
Civil Procedure: In its Statement of Claim, the Plaintiff has pleaded the following in relation to its
breach of contract claim:
8. In or about August 2013 to September 2013, the Defendant installed Energy Readers into the vehicles leased
by the Plaintiff.
Apart from the allegations pleaded in paragraph 8, nothing further is pleaded about the installation
of the Energy Readers in the Statement of Claim.
The Plaintiff has also pleaded the following in relation to its misleading and deceptive conduct
claim:
34. And furthermore, by reason of the aforementioned allegations, the Defendant has engaged in misleading
and deceptive conduct contrary to section 18 of the Australian Consumer Law.
Paragraph 34 is the only paragraph in the claim that explicitly deals with the misleading and
deceptive conduct claim. It is also not clear which of the ‘aforementioned allegations’ in the
Statement of Claim might constitute the misleading and deceptive conduct.
26
After being served with the Statement of Claim, the Defendant’s solicitors wrote to the Plaintiff’s
solicitors complaining that paragraphs 8 and 34 of the Statement of Claim are ‘embarrassing’. In
what ways may that contention be justified? Explain what, if any, reasonable demands would most
likely be included in the Defendant Solicitor’s letter in relation to this complaint, and the possible
consequences for the Plaintiff if it fails to comply with these demands. [4 marks]
Sample Answer #1:
The pleading is clearly ‘embarrassing’ in the sense that the defendant does not know what claim it is to meet in this
case. Further, it is clear that material facts have not been pleaded. The plaintiff has not pleaded any acts of Fine Tune
(even though this fact was ‘announced’ by Lease Hire and should therefore be in the knowledge of TNG. Secondly,
allegations of misrepresentations must be particularised. The defendant would likely request that further and better
particulars of these allegations are provided with specific request as to time, person, place etc. The defendant may also
inform the plaintiff of Fine Tune’s involvement. If the pleading remained unparticularised and embarrassing, the
defendant could seek a number of orders including: - an order for particulars; - stay of the proceedings; - strike out of
the statement of claim or summary judgment. At such an early stage of the proceeding, absent egregious conduct by the
plaintiff, the first order would be most likely to be granted.
Sample Answer #2:
Para 8: this is embarrassing because it does not contain particulars about the material fact (that the Energy Readers were
installed). These particulars should address, inter alia, the date or dates upon which the Energy Readers were installed
and by whom (Fine Tune).
Para 34: This is embarrassing because it is vague and on the instructions is not supported by pleadings in prior paras –
eg any misrepresentation upon which the plaintiff relied. The para should be preceded by a proper misleading and
deceptive conduct pleading and the precise conduct alleged to be misleading and/or deceptive identified in para 34. The
para pleads a conclusion of law without the necessary foundations.
A reasonable letter to the plaintiff’s solicitors would draw the above matters to the attention of the solicitor. The letter
should contain a demand for a properly pleaded breach of contract claim – eg it should set out how the installation of
the Energy Readers per se amount to a breach of clause 4.1 of the Lease Agreement and plead that the clause is an
essential term entitling the plaintiff to terminate. The breach should also be pleaded – ie it is not the installation of the
Energy Readers per se that amounted to a breach but rather the failure to take all necessary steps to ensure the vehicles
were properly maintained at all times. The letter should also press for a proper misleading and deceptive conduct
pleading. As noted, the conduct relied upon should be set out and as too should the basis upon which the plaintiff claims
it was misleading and deceptive (or likely to be). The conclusionary pleading is inadequate.
The plaintiff is obliged to further the court’s overarching objective in the conduct of litigation to this end, it is obliged
to, among other things, co-operate with the defendant by, for example, ensuring the matters in issue are clear on the
pleadings. The court has broad powers if these duties are not complied with including eg the power to strike out any
pleading. This is possible here – especially in relation the misleading and deceptive conduct claim.
27
For the purposes of answering further questions in Part B, assume the following additional
facts:
-
Shortly after the Plaintiff filed its claim, a major Australian television network featured a story
about the Defendant’s vehicle lease hire business and the ‘disastrous’ decision it made to fit all
its vehicles with Energy Readers. Customers other than the Plaintiff are now also beginning to
abandon their Lease Hire contracts. It is clear that the Defendant’s business is in jeopardy. The
directors of the Plaintiff fear that, if the Plaintiff is successful in its claim, the Defendant will be
unable to meet any judgment sum. The directors of the Plaintiff have also heard that the
Defendant has started selling its tangible assets in Australia and moving its cash reserves
offshore.
-
To add ‘insult to injury’, they are also frustrated that the Lease Agreement was with the
Defendant instead of with the Defendant’s parent company, Ultima Limited (‘Ultima’). Ultima
is a publicly listed corporation on the Australian Stock Exchange with a market capitalisation of
$2.5 billion with no potential solvency issues. The Defendant is a wholly-owned subsidiary of
Ultima. The directors of the Plaintiff have instructed that management staff at Ultima were
responsible for directing the Defendant to install Energy Readers into all vehicles in its fleet,
suggesting some blame lies with Ultima.
QUESTION 17
Civil Procedure: What steps could be taken by the Plaintiff in this proceeding to minimise the risk
of obtaining a ‘hollow’ judgment in this case? Your answer should identify information that may
need to be placed before the Court, and address considerations the Court would most likely take
into account, in determining any application(s) the Plaintiff may make. [4 marks]
Sample Answer #1:
First, the plaintiff may make an urgent ex parte application for a freezing order, on the grounds that there is a risk that
defendant is seeking to frustrate a judgment or inhibit court process by removing its assets from the jurisdiction.
Plaintiff must demonstrate a good arguable case that justice requires the order being made, in light of the risks. Being ex
parte Plaintiff has the duty of full and frank disclosure to the court of all matters material to the court’s discretion,
including those adverse to the plaintiff’s interests. The danger must be real and appreciable, as the order is not merely to
provide security for the plaintiff’s claim.
Plaintiff can also seek to have the parent joined to the proceeding, as a necessary party on the basis that their liability
arose out of the same transaction (fitting the vehicles) or via leave of the court in order to ensure that all questions that
are just and convenient to decide are before the court. Joining the parent may mitigate the risks of a hollow judgment.
28
Sample Answer #2:
Possible steps include:
(1) Joinder of the parent company. The court has a broad discretion to allow new parties to be joined to a claim where
those parties are necessary (to determine the issues in the proceedings) or desirable (to ensure issues in the case are
resolved as between plaintiff and all relevant parties). Joinder will generally be permissible if there is a common
question of fact or law or rights to relief arise out of the same transaction or series. Provided pleadings have not
closed, the plaintiff would be entitled to amend to add other parties as of right. In any case, at an early stage leave
would probably be granted, as the plaintiff’s rights against the defendant and Ultima are closely connected.
(2) Freezing order: the court can at any stage make an order designed to present frustration of its powers by a judgment
being wholly or partly unsatisfied. An order can be brought against a party (or prospective party) against whom it
has a good arguable claim for relief, and sufficient prospects of obtaining relief. An application may be made
against third parties who are interested in litigation, for example a parent company that is controlling/ influencing
and/or funding the case; clearly if it is to be joined as a defendant there would be a basis to seek an order against
the parent. The freezing order would be the subject of an application with or without notice, supported by an
affidavit setting out the basis of the application (including evidence from which the judge is to infer that an order is
warranted - eg evidence of dissipation of assets). If the application is ex parte full and frank disclosure must be
made including of adverse material. In addition to an order preserving assets of preventing their transfer out of the
jurisdiction, ancillary orders can be made requiring those to whom they are directed to provide information about
assets.
QUESTION 18
Ethics:
Identify TWO situations in which Counsel must refuse to act for the
Defendant in this matter?
Your answers:
(circle TWO)
a) Counsel is a non-executive director of the Plaintiff.
b) Counsel owns a small parcel of shares (worth approximately $2,000)
in the Plaintiff company.
c) Counsel has no experience in commercial matters of this complexity
and magnitude (she has only ever acted in criminal matters and
personal injury claims). It will involve twice as much work for her as
it would for more experienced commercial counsel.
d) Counsel’s husband, a psychologist, is currently treating a director of
the Plaintiff, a principal witness in the case, for a major depressive
and anxiety disorder. He has mentioned this to her at home in breach
of his own professional obligations of confidentiality.
e) The solicitor acting for the Plaintiff is a friend of Counsel. It is likely
the solicitor will give evidence for the Plaintiff and Counsel will have
to engage in a line of cross-examination that attacks the solicitor’s
credibility as a witness.
[2 marks]
f) Counsel believes the Defendant is likely to lose the case.
29
Chief Examiner’s note: See Victorian Bar, Inc Practice Rules, Rule 92(t) which applies to answer (a), and Rules 67
and 92(a) which apply to answer (d). Answer (b) is incorrect as the ownership of such a small parcel of shares in a listed
company such as the Plaintiff would not be regarded as a material financial interest in the outcome of the case (see Rule
92(f)). Answer (c) is incorrect because it is not suggested that Counsel is incapable of performing her role as a barrister,
but it is merely suggested that it will take more time (Rules 96(a) and 96(j) may have some application which would
give Counsel a discretion to return the brief if she wished to do so, but returning the brief is not mandatory). Similarly,
answer (e) is incorrect because, although Counsel may return a brief in these circumstances (see Rule 96(d)), it is not
mandatory to do so. Answer (f) is clearly incorrect on a basic application of the cab-rank principle (see Rules 86 and
87).
For the purposes of answering further questions in Part B, assume the following additional
facts:
-
The Defendant has filed its defence within time.
-
The Defendant denies liability in relation to all the Plaintiff’s claims. It has pleaded a number of
alternative defences, summarised as follows:
o The Energy Reader did not cause the vehicles to become unroadworthy. Rather, it was
the Plaintiff’s decision to instruct its employees to fill the vehicles with ethanol fuel that
caused the problem. The manufactures of all vehicles leased to the Plaintiff
recommended using ordinary unleaded fuel rather than ethanol. Accordingly, the
Plaintiff itself breached the Lease Agreement (see clause 4.2 above) or was otherwise
negligent.
o Alternatively, if the Energy Reader did cause the Plaintiff losses, liability should fall on
Fine Tune because it falsely held itself out to be accredited to install the devices, or it
was otherwise negligent in doing so.
o Alternatively, liability for the Plaintiff’s losses should fall on the Commonwealth for
failing to ensure that the Energy Reader device was fit for its purpose.
30
QUESTION 19
Civil Procedure: Assuming there is a proper evidentiary foundation for the Defendant pleading its
allegations against the Plaintiff, Fine Tune and the Commonwealth, explain any further procedural
steps which the Plaintiff and/or the Defendant should now consider taking to maximise their
interests in the outcome of the litigation. [3 marks]
Sample Answer #1:
The plaintiff will need to consider if they wish to join Fine Tune and the Commonwealth as defendants to the
proceeding. As pleadings have closed, this would need to be with consent or leave via summons. The defendant would
need to consider if either Fine Tune or the Commonwealth should be joined as third parties or defendants to the
proceeding and if it has a counterclaim against the plaintiff for the losses they have suffered arising from the incident.
Sample Answer #2:
Defendant: the defendant should plead a counterclaim against the plaintiff. This must be filed and served at the same
time as the defence. Further, the defendant should join Fine Tune and the Commonwealth as third parties. Both can be
joined because the defendant can either seek contribution, or for reasons of convenience (given the common factual
issues) or because the defendant’s right to relief substantially arises out of the matters giving rise to the plaintiff’s claim.
The third party notice and claim must be filed within 30 days of the defence (or later by consent with leave) and served
within 60 days.
Plaintiff: the plaintiff may also have direct claims against Fine Tune and the Commonwealth in negligence, and should
consider joining both parties as defendants.
QUESTION 20
Civil Procedure: Could this matter be heard before a jury? Explain your answer. [2 marks]
Sample Answer #1:
As it is a contractual and test claim, the plaintiff can request trial by jury in the writ. Defendant can otherwise give
notice requesting trial by jury. If requested in accordance with the rules, there is a prima facie entitlement in absence of
good cause. Here, matter may be considered by the judge to be too factually complex to a jury to determine it.
31
Sample Answer #2:
As this matter is a claim for contract, negligence, and misleading or deceptive conduct, it may be heard before a jury if
the appropriate procedure is followed. The plaintiff must either elect for this in the Originating Process or a defendant
give notice requesting this mode of trial. Once notice has been given, there is a prima facie entitlement that the matter
be heard this way. A judge may, at any stage, determine that it is more appropriate to hear the matter as a cause
however he will need to show good reason for denying a party their entitlement.
QUESTION 21
Ethics: Assume that there are now multiple parties to the proceeding, including Ultima, Fine Tune
and the Commonwealth. In what circumstances can Counsel represent two parties in a proceeding?
Having regard to the information available, is it possible that two parties in this proceeding could be
represented by the same Counsel? [4 marks]
Sample Answer #1:
Counsel can act for two parties provided their interests do not conflict. Here, counsel could conceivably act for the
defendant and its parent, Ultima. Both clients would need to be comfortable with the arrangement and counsel will need
to satisfy him/herself that their interests are aligned, or if not, that the parties are content for counsel to act nonetheless.
If this happens, a written acknowledgement of the divergence of interests and consent to counsel acting would be
prudent.
On the facts, there is a suggestion that the defendant may have a claim against Ultima based on the
instructions/directions about the Energy Readers, however more information is required. Even if the interests of the
defendant and Ultima conflict then, as stated, informed consent would enable counsel to act for both.
Sample Answer #2:
This should of course be approached with great care. The most obvious case would be joint counsel for U and LH, since
LH is a subsidiary. It would be important to ensure that this approach was not a vehicle for putting liability on LH and
not U. It might be appropriate to ensure that there was a complete commonality of interest for example by ensuring that
U undertakes to meet LH’s liabilities. In any case, parties to be jointly represented should get independent legal advice
and should acknowledge their fully informed consent in writing. Another case might be LH and FT, for example if they
agreed in advance as to the proportions of their liability, and then FT agreed to let LH run the case on their joint behalf.
32
QUESTION 22
Assume the trial has been set down for a three week hearing (to be tried before judge alone), fixed
to commence on 27 April 2015. It is now 1 April 2015. All steps in the proceeding were completed
by 2 February 2015, which included the exchange of expert reports intended to be relied upon. The
Defendant’s solicitors fax a letter to the Plaintiff’s solicitors on 1 April 2015 stating: ‘We will be
seeking to produce a further expert report which is currently being prepared by a new expert we
have just engaged. Our new expert is a reputable Professor of Chemical Engineering at a reputable
Australian University. He has already tentatively indicated that, after conducting extensive tests on
the Energy Reader device, in his opinion it could not possibly have caused any problem with the
vehicles. This evidence will be critical to our case.’
i. Civil Procedure: Will the Defendant be permitted to adduce this new anticipated evidence at
the upcoming trial? Explain. [3 marks]
Sample Answer #1:
The defendant would not be able to adduce the evidence without leave, as all expert reports a party wishes to rely on
must be served at least 30 days before trial. The court is unlikely to grant leave weeks out from a atrial, particularly
given: (1) the expert has only ‘just’ been instructed, and no good reason has been supplied for the tardiness, and (2)
although the evidence is said to be critical, no details have been given about the nature of the evidence, (3) the
defendant has not indicated when the evidence will be ready, (4) if (as seems likely) various parties may wish to
challenge the evidence, allowing in the evidence would inevitably lead to an adjournment. Whilst time is not necessarily
fatal to the application, the court needs to consider the interests of justice, including prejudice to all of the other parties,
and the impact of the adjournment on other litigants awaiting trial, (5) it is in the circumstances most unlikely that
adducing the evidence would give effect to or further the overriding purpose of just, prompt, efficient and cost effective
resolution of the case.
Sample Answer #2:
Probably. Although there are superficial similarities with Investec #1, the defendant’s case is somewhat stronger. They
have disclosed the general nature of the report, so that its probative value can be considered (cf. Investec); the lack of
notice is not far off 30 days, assuming the report can be produced soon, and it is clear that a party should not lightly be
deprived of probative evidence. Clearly the evidence would be highly probative if accepted. Against this, the plaintiff
could argue that they are prejudiced by the delay, noting that it will involve new evidence and not merely the same
basic evidence (cf Cement Aust); the defendant has not explained the delay and there is no obvious reason for it; parties
have a duty to be ready for trial.
33
ii. Ethics: Assume that about an hour after the Plaintiff’s solicitors received this letter, they
received another fax transmission from the Defendant’s solicitors. This second faxed letter is
actually addressed to the Defendant (i.e. the letter was not meant for the Plaintiff’s solicitors)
and states: ‘Please find attached letter we have just sent to TNG’s solicitors. As you can see, we
have alerted them to the fact that we are organising another expert’s report. Hopefully we can
actually find an expert who will agree with our case before the trial date and get a report in
time, instead of just making-up that we’ve got one organised already! If not, we can try and
fudge our way into an adjournment on this basis with the Judge.’ It is obvious to the Plaintiff’s
solicitor that this letter was sent to her office by accident. What should she do now that she has
read it? Consider the implications if she discloses the letter’s contents to her client, Counsel for
the Plaintiff, and the Court. [5 marks]
Sample Answer #1:
Ordinarily the plaintiff’s solicitor would recognise that this is privileged material - it is a piece of correspondence from
the defendant’s solicitor to the defendant and would be covered by the legal advice privilege. If that were the end of the
matter, the plaintiff’s solicitor would write to the defendant’s solicitors indicating that the correspondence was received
in error, advising that it was being held in safekeeping, inviting the defendant’s solicitor to claim privilege over it.
However, privilege is lost when the material is fraudulent. It can be argued that given the letter reveals there is no expert
report, the previous correspondence sent to the plaintiff’s solicitor was misleading and fraudulent. Plaintiff’s solicitor
can therefore discuss the email with her client and with counsel, by perhaps a phone call to the defendant’s solicitor,
inviting them to withdraw their application for the filing of a further expert report, would be the best way of resolving
the situation - rather than the plaintiff’s solicitor racing off to court to inform the judge. This is particularly so given that
the plaintiff’s solicitor would in effect be making a serious allegation against another practitioner - would need to be
satisfied that there is sufficient evidence of this - eg what if the error was sent by a work experience student and not
actually by the solicitor of conduct of the matter? Either way, plaintiff’s solicitor should write to the defendant’s
solicitor setting out squarely that this correspondence has been received in error, and enquiring as to whether the
defendant’s solicitor intends to claim privilege or take any other action. As a matter of course, solicitor should not
disclose the correspondence to client at all.
34
Sample Answer #2:
If the document was protected by privilege (and it’s not, see below) then it is possible that the privilege has been
inadvertently waived. While this possibility is limited by mere reasoning when the recipient of the document is aware of
an ‘obvious mistake’, it is arguable that this only applies once the recipient has recognised the obvious mistake.
Otherwise, there would be no more inadvertent waiver. It is possible she read the whole fax before realising this. In any
case, a communication in furtherance of fraud or at least gross impropriety will not be protected by CLP. Nor obviously
is it protected by settlement privilege etc. The solicitor is entitled to, and should, disclose the document to the court. It is
an answer to the application re the new expert report. Moreover it may bring the proceedings to an end in plaintiff’s
favour. This is because the fax is evidence that both defendant and their lawyers have breached the overarching
obligations. Moreover, the solicitors have made an application without any proper basis. This could be grounds for the
court to make orders including at a minimum refusing adjournment and the expert report application and potentially
striking out the defence, partially or in entirety. There are also misconduct implications for the lawyers and costs
implications for all.
QUESTION 23
Assume that shortly after the Plaintiff filed its claim, a director of the Defendant, Bernard
Wilkinson, sent an email to the Chief Executive Officer of the Plaintiff, Hilda Chong. The email
stated: ‘Hilda I’m so sorry it has come to this. I realise that we should have done more due
diligence before we installed the energy readers. We are prepared to offer you five million dollars
to make this court case go away. Warmest regards, Bernie.’ A copy of the email has been
discovered by both parties. The email is dated 13 October 2013.
Mr Wilkinson instructed the Defendant’s solicitors that the only reason he sent the email was
because Mrs Chong had ‘threatened me that if I didn’t make some kind of reasonable offer, she
would do everything in her power to destroy my reputation in Australian business circles. She has a
lot of connections, as she is President of the Australian Business Council. I didn’t even get the
Board’s approval to make this offer.’ Mr Wilkinson’s witness statement, filed and served prior to
trial, includes this evidence.
Mrs Chong admits having telephone conversations with Mr Wilkinson during which ‘I angrily
demanded ten million dollars for our losses. But I certainly didn’t make any ‘threat’. Mr Wilkinson
is making that up. I received his email offering five million dollars in good faith.’ Mrs Chong’s
witness statement includes this evidence.
35
The Plaintiff intends to tender the email in the course of the trial. The Defendant takes objection to
the email being admitted into evidence.
i. Evidence: Explain the evidentiary significance of the email and the likely basis upon which
Counsel for the Plaintiff will argue it to be admissible in support of its case. [2 marks]
Sample Answer #1:
The email with the comments made by the director of the company (defendant) as to the necessity to do more diligence
may be an admission that the plaintiff will seek to rely upon made by a person with authority to make the admission and
is against the interest of the defendant. The plaintiff will argue that the admission was made shortly after the claim
arose, by someone (Mr Wilkinson) who was a person with knowledge of the facts and accordingly is available for
evidence of an admission in the proceeding.
Sample Answer #2:
The email is relevant to the fact in issue, whether defendant is at fault for the losses of plaintiff. Counsel for plaintiff
will rely on it as an admission, which is an exception to the hearsay rule, and say it is clearly relevant to the facts in
issue as to some degree the defendant has admitted liability.
ii.
Evidence: Explain the possible objections that Counsel for the Defendant could take as to the
email’s admissibility? Will these objections be upheld? [6 marks]
Sample Answer #1:
As an admission, it may be that the email cannot be taken to be an admission by the defendant if it can be said that the
admission was not made with authority. However, it may be that it can be said that Wilkinson can be said to have
authority to make admissions of that kind, even if he did not have Board authority to make this admission. This may not
be with the scope of his employment as director. Not admissible as admission by Lease Hire. Next, the court must be
satisfied that admission not made under influence of violent, degrading or oppressive conduct or that threat thereof. In
this case the threat is not one of violence and may be legitimately commercial - as such it may not fall under this
exclusionary rule and therefore this objection may fail. The email may be a communication sent in an attempt to settle a
dispute. This appears to be the case - the dispute is the car incidents and the real offer or $5m is made. If this is the case
this is a legitimate objection and the document may be privileged as a part of settlement negotiations.
36
Sample Answer #2:
As regards to whether it is an admission, counsel for the defendant would argue that it is inadmissible as it was adduced
by way of coercion or threat. This may be successful taking into account whether on the whole circumstances were such
as to make the representation unreliable. Mrs Chong has agreed that an angry exchange too place but denies any threat
so it will be up to the judge to decide on the balance of probabilities.
Further, counsel would argue that this email is privileged as it constitutes a settlement negotiation. This point is prima
facie established as there is a monetary offer between the parties to ‘make this court case go away’. The crucial point to
establish though is the identification of a genuine dispute, as the email tends to also be an admission of liability and thus
no dispute, the email may not be privileged.
Further, counsel would argue that Mr Wilkinson was not acting with proper authorisation of the defendant as he had not
followed the proper channels of obtaining Board approval prior – this is likely to be a question of fact as to whether
such a standard exists with the defendant’s course of business or whether Mr Wilkinson does have authority (ie he may
make other offers as part of this role as a director).
Counsel may also object on the grounds that it is hearsay however this is likely to fail either under the admission
exception or on the business records exception.
On the point of privilege, a key consideration will be how the defendant discovered the email in its affidavit. If a
privilege was not claimed then it will have the onus of explaining this omission.
iii. Evidence: At the commencement of the trial, the trial Judge requires that the issues in relation
to the email ‘be resolved by way of a voir dire’. What is a ‘voir dire’? Explain how a voir dire
process could resolve the issue of whether the email is admissible. [3 marks]
Sample Answer #1:
A voir dire is a preliminary examination of an issue that a court makes in order to determine whether evidence is
admissible. The voir dire involves a witness giving evidence and being cross-examined on a preliminary issue. Here the
court would allow questioning of Wilkinson to ascertain his role and the scope of his authority within the defendant and
why he says he was not authorised; also the circumstances of the offer and the communications with Chong to resolve
the privilege issue. Chong would also be cross-examined in this aspect.
Sample Answer #2:
A ‘voir dire’ is a pre-trial hearing heard in the absence of the jury to resolve pre-trial arguments including the
admissibility of evidence. Evidence can be given, and in this case it is likely that both Mr Wilkinson and Mrs Chong
would be called to give evidence - he regarding whether he had the authority to send the email and her evidence about
the ten million dollars. Counsel would also argue about the admissibility of the email, at the conclusion of which the
judge would rule. In hearing evidence about the email and matters going to its admissibility, on the voir dire the judge
would only have to be satisfied of the evidence on the balance of probability (s142EA).
37
iv. Ethics: In the course of cross-examination, the following exchange between Counsel for the
Defendant and Mrs Chong takes place:
Counsel for Defendant: Mrs Chong, isn’t it true that you have threatened other people to get your own
way?
Mrs Chong: No.
Counsel for Defendant: You do this all the time, don’t you?
Mrs Chong: What? No. Certainly not. I resent that suggestion.
Counsel for Defendant: Isn’t it true that only four months ago you made a threat to another member of
the Australian Business Council, threatening him that if his company didn’t enter into a supply contract
with TNG, you would destroy him?
Mrs Chong: That’s nonsense.
Explain the ethical implications of this line of questioning and the steps Counsel for the
Defendant should have taken beforehand, and of what matters Counsel should be satisfied, to
ensure the questioning is appropriate? What objections could Counsel for the Plaintiff make to
this line of questioning? [4 marks]
Sample Answer #1:
Counsel’s duty of propriety requires that s/he not put unfair questions to a witness; this includes putting questions
solely intended to harass or intimidate a witness and having no other purpose. Further, questions should not be put
without proper basis either in evidence already adduced or to be adduced, or soundly based instructions. In this case, in
order for the question to be proper, counsel would have to be instructed about the earlier alleged threat. Prudently,
counsel should have met with the person who made this accusation. It is a serious allegation, amounting to dishonesty.
Plaintiff’s counsel could object that the question goes only to credit and has insignificant probative value (further that
his denial of the matter going to collateral credit should be the end of the matter). Further, such an allegation should not
be put having not identified the person making it or leading evidence from him. It is unfairly prejudicial and in isolation
from context, misleading and confusing.
38
Sample Answer #2:
Counsel should not make unjust aspersions without first being satisfied they have a proper basis. Counsel should make
sure this cross-examination has a proper basis. It is not clear it does – there is no evidence Ms Chong threatened anyone
about entering into a supply contract with TNG. Unless counsel has received instructions from his client that this threat
has occurred, and counsel warned his client such allegations should not be made lightly, it should not be put. Counsel to
the plaintiff should object on the basis of credibility. A witness can only be cross-examined on their credibility if it
substantially affects the assessment of their credibility. There is no such basis here as the attack is suggesting she
threatens people rather than anything to do with her likelihood to be telling the truth. Counsel should also object on the
basis it is an improper question, it is unfair for the witness to have to answer it.
QUESTION 24
Evidence: Refer to the additional facts stated in Question 23. Mr Wilkinson provided his witness
statement to the Defendant’s solicitors about week after he sent the email to Mrs Chong. His
witness statement is signed and dated 22 October 2013. When the trial commences in 2015, Mr
Wilkinson is no longer a director of the Defendant. His departure from the company was
acrimonious. He does not now wish to give evidence, but has nevertheless answered a subpoena to
appear as a witness for the Defendant. After he is sworn, the following exchange takes place
between Counsel and Mr Wilkinson in examination-in-chief:
Counsel for Defendant: Can I take you back to late 2012. You were involved in negotiating an agreement on
behalf of Lease Hire with TNG, is that correct?
Mr Wilkinson: I’m sorry I have absolutely no recollection of that transaction.
Counsel for Defendant: And the dispute arising out of it?
Mr Wilkinson: No. No recollection.
How should Counsel now go about seeking to adduce the evidence contained in Mr Wilkinson’s
original witness statement? Can Counsel simply tender it? You should consider in your answer the
possibility that Mr Wilkinson may be either: (i) genuinely telling the truth about not being able to
recollect the events in question; or (ii) deliberately not wanting to assist the Defendant with its case.
[5 marks]
39
Sample Answer #1:
Counsel cannot simply tender the document. Counsel needs to ask questions of the witness to show that his memory is
completely exhausted. Then seek leave to show the document to the witness to refresh his memory. If he is deliberately
not wanting to assist the defendant with his case, then should seek leave to treat as an unfavourable witness pursuant to
s.38 of the Evidence Act. This enables counsel to cross-examine Mr Wilkinson on his lack of memory and depending
on the leave given, the interests of his witness statement. The statement is hearsay, and should not be tendered without
notice, even though the maker is available. However even if it was tendered under the hearsay provisions, s135 would
be available as an objection to the evidence going in, in circumstances where he can no longer recall and cannot provide
evidence on oath, and it may be unfairly prejudicial to the plaintiff.
Sample Answer #2:
Counsel should seek leave to refresh Mr Wilkinson’s memory by showing him a relevant contemporaneous document
relating to the transaction. If that process is not successful, and it becomes apparent that Mr Wilkinson is giving
unfavourable evidence, or is being evasive (by being unable to recall matters he should be able to give evidence about)
leave could be sought to cross-examine him about his knowledge of the transaction. Once given, propositions could be
put to Mr Wilkinson about his knowledge of the transactions (based on his evidence in his statement, but without
disclosing this). If he fails to admit such matters, counsel could identify the circumstances in which he earlier gave
evidence about the matters. Once sufficiently identified, counsel would draw his attention to the inconsistencies
between Mr Wilkinson’s current evidence and his prior statement, and then tender the statement.
End of Part B
40