Help with evidence exam

page1

Hi, would anyone be so kind as to offer some assistance with an evidence question.
Simon, a postman disappeared while delivering the post on 1st May 2009 a year later his remains were found buried in a field behind a house belonging to Michael, the local schoolmaster, and used by Michael as his principal residence.
Michael is subsequently charged with Simons murder on the basis of the following:

(i) A statement from Sarah, Michael's girlfreind about a previous sexual relationship she had with Simon. This relationship had taken place over a six month period ending a year prior to Simon's death, throughout which period Sarah had been living with Michael as his girlfriend. Sarah who ends by saying that she never disclosed this relationship to Michael at any stage is happy to give oral evidence to the facts set out in her statement, provided she can do so by video-link.

(ii) A statement from Alison, Michael's previous girlfriend, made to Gardai in 2004 detailing numerous acts of violence carried out towards her by Michael in the course of their relationship. Alison subsequently died of breast cancer before any subsequent action could be taken on foot of the statement.

(iii) A notebook found with Simon's remains, containing an entry headed "Houses on Route " apparently listing houses to which he was required to deliver post to on the date of his death. The order to which the houses are listed corresponds to the route Simon would normally have taken as part of his delivery. There are ticks against the first 10 houses but not against Michael's, which is the eleventh house, nor against any subsequent house on the list.

Im really struggling with some parts of evidence as I have not studied it before.
Id say to part (i) she may with leave of the court under s13 CEA 1992. Is there an issue of relevance here? I think the purpose of adducing the evidence in court is to provide a motive.

Part (ii) hearsay? doesnt come under any of the exceptions. Its not a res gestae statement or a dying declaration.

Part (iii) again I thought not admissible as its hearsay, either as written statement by someone not able to testify or as an implied statement - implying he didnt get to deliver the post to Michaels house because he died before he could.
I cant see that it comes under the work rule exception as he was not under a duty to record his route.

I have gone over all the other past papers and im happy I can answer them but this part is stumping me.

I would really appreciate any help.
Thanks.

NoQuarter

page1 wrote: »

Hi, would anyone be so kind as to offer some assistance with an evidence question.
Simon, a postman disappeared while delivering the post on 1st May 2009 a year later his remains were found buried in a field behind a house belonging to Michael, the local schoolmaster, and used by Michael as his principal residence.
Michael is subsequently charged with Simons murder on the basis of the following:

(i) A statement from Sarah, Michael's girlfreind about a previous sexual relationship she had with Simon. This relationship had taken place over a six month period ending a year prior to Simon's death, throughout which period Sarah had been living with Michael as his girlfriend. Sarah who ends by saying that she never disclosed this relationship to Michael at any stage is happy to give oral evidence to the facts set out in her statement, provided she can do so by video-link.

(ii) A statement from Alison, Michael's previous girlfriend, made to Gardai in 2004 detailing numerous acts of violence carried out towards her by Michael in the course of their relationship. Alison subsequently died of breast cancer before any subsequent action could be taken on foot of the statement.

(iii) A notebook found with Simon's remains, containing an entry headed "Houses on Route " apparently listing houses to which he was required to deliver post to on the date of his death. The order to which the houses are listed corresponds to the route Simon would normally have taken as part of his delivery. There are ticks against the first 10 houses but not against Michael's, which is the eleventh house, nor against any subsequent house on the list.

Im really struggling with some parts of evidence as I have not studied it before.
Id say to part (i) she may with leave of the court under s13 CEA 1992. Is there an issue of relevance here? I think the purpose of adducing the evidence in court is to provide a motive.

Part (ii) hearsay? doesnt come under any of the exceptions. Its not a res gestae statement or a dying declaration.

Part (iii) again I thought not admissible as its hearsay, either as written statement by someone not able to testify or as an implied statement - implying he didnt get to deliver the post to Michaels house because he died before he could.
I cant see that it comes under the work rule exception as he was not under a duty to record his route.

I have gone over all the other past papers and im happy I can answer them but this part is stumping me.

I would really appreciate any help.
Thanks.

Is this the KI papaer from last year? It sent a shudder down my spine so I know ive read it before somewhere. Anyway, I dont have my evidence manual and havent looked at evidence in a while but my instincts are tingling on some of the questions: ( i could be wrong in what i say here but check it out anyway)

(i)check out the new Criminal Procedure Act 2010, it has a section on TV link, I dont think it mentions that a normal adult can give evidence via TV link or if it does, its only in certain circumstances, this doesnt seem like such a circumstance and so I dont think she will be able to do it by TV link (importance of being able to cross-examine etc etc)

(ii) I'd say this is hearsay, I cant see it getting in. I might be missing something though.

(iii) Might get in as an exception, find the case that convicted a guy on a note with "Sean rules" writtin on it found at a post office robbery. Start there.

Mostly, ALL this evidence is circumstantial so you need to mention that.

Finally, and probably most importantly, you never actually gave us the end of the question, which contains the actual question, thats very important and might guide you to the answer.

page1

Thanks noquarter, yes you are correct it was last years KI paper.
Ok so for part (I) s 5 of CPA 2010 apply and she can only give evidence through videolink if a minor, mental disorder or an adult who the offence has been comitted against- so not apply here.
Part (iii) that case is R v Lyons and the evidence was admissible because of the proximity to the gun. So here the notebook may also be admissible as it was found with the remains.
We are to advise the defence of the admissibilty of each. So I would be arguing that the notebook should be subject to the exclusionary rule.

Thanks again.

seb65

Does (ii) also have something to do with prior bad acts evidence? To mention it, but then, it's dismissible as hearsay as it doesn't fall under any of the exceptions of statements by deceased persons, I believe.

page1

seb65 wrote: »

Does (ii) also have something to do with prior bad acts evidence? To mention it, but then, it's dismissible as hearsay as it doesn't fall under any of the exceptions of statements by deceased persons, I believe.

For bad character evidence he would have to drop the shield would'nt he, and come under the provisions of s1(f)(i) of the Criminal Justice (Evidence) Act 1924.

Do you mean similar fact evidence, so allowing evidence of multiple accusations under B v DPP, DPP v BK and DPP v DO'S sufficient similarity (both involve violence) not likely they conspired. Can it still be admitted under this rule if the complainant is dead and cannot give oral testimony. Would it be possible to admit it if the complaint had been given under oath?
So assuming the above is correct, would the correct procedure for the exam be, arguing for the defence, to set out the exceptions to the hearsay rule and argue that it doesnt come under any of them. I am just wondering how much detail to give.

Hippo

Re Sarah's evidence, s39 of the Criminal Justice Act 1999 allows a witness in proceedings for an indictable defence to give evidence via tv link where he or she is likely to be in fear or subject to intimidation in giving otherwise...so there may be a route for her to do so.

Page, don't worry about not having studied Ev before, our Dip course this year was not perhaps the most appropriate preparation for this exam from what I've seen of the papers!