LW 307 Evidence - Week 4 – Tutorial 2

The following probably constitutes more than we will be able to accomplish in one hour.

Circumstantial Evidence: In each of the following examples determine what evidence is

A. Susy is charged with stealing two Cadbury bars from Shop n Save supermarket. She is seen running
away from the supermarket, in the direction of town. Later that afternoon Suzy is seen eating a
Cadbury bar near her house.

This is a Circumstantial Evidence as according to the elements of theft two elements are
missing that is date and the time of the offence. In the scenario she did takes and carries away
the Cadbury without the consent of the owner from Shop n Save Supermarket but the date and
time of the alleged offence is not clear which then prove the case beyond reasonable doubt.

B. Bob is suing Big Boy supermarket for damages arising out of breach of warranty in relation to the condition
of a washing machine he purchased from Big Boy Supermarket. Since purchasing the washing machine, Bob
has used it only once and the machine overflowed and ruined the floor carpeting in Bob’s house.  The machine
should be able to discharge the water through the hose, however the hose leaks and Bob has suffered
damages to his house floor and carpet which cannot be used anymore. Bob’s neighbor Tom has also bought
the same washing machine a week after Bob bought it and that machine also overflowed as the discharge hose
was leaking.

C. Pita is alleged to have been negligent in the manner he drove his truck when the truck went off the road on
a curve. Pita was driving at 140 kilometers an hour on the road approaching the curve. There were no skid
marks on the road where Pita had driven into the curve. Pita failed the driver's license test 4 times before he
passed and finally obtained his driver's license a year before the accident.

D. Jane was dismissed for alleged incompetence and insubordination from her employment as a secretary at
the Blue Cross. Her duties included acting as a receptionist. She has commenced an action claiming damages
for wrongful dismissal. She was late for work 20 times in the year before being dismissed. She was very
impolite when she answered the telephone at work. She had been looking for another job since she got her
first warning from the CEO 2 months ago. Jane did not go to school beyond grade 4 and has trouble reading
and writing. Jane told her friend Jack that she was in trouble at work after she got her second warning 1 month
ago.

2. What are the essential features that distinguish the adversarial system from the inquisitorial system of
justice? Confine your answer to matters that pertain to the law of evidence.

3. Discretion to exclude evidence.

In lectures we considered whether a judge has, in addition to the hard rules of evidence which provide for the
exclusion of some evidence, a residual discretion to exclude evidence that would not otherwise be excluded. In
exercising a discretion to exclude evidence (that is not inadmissible pursuant to any other exclusionary rule), a
judge may take into account a number of factors. One of these is where the probative value of the evidence is
outweighed by the prejudice to the accused. Another is where there is a public policy reason. The public policy
reason may relate to the way the evidence was obtained. Read the following scenarios. Identify what basis
there might be for excluding the evidence. (Assume that there is no exclusionary rule that applies.) As counsel
for the accused, what submission would you make in seeking to have the evidence excluded. How would the
prosecution respond? Apart from what you might say as counsel, what are your thoughts on the admissibility
of the evidence?

The following cases will provide you with some assistance in formulating your thoughts on this matter. Selvey
v DPP (HL) [1970] AC 304, ITC Film Distributors Ltd. v Video Exchange Ltd [1982] Ch 436, Jones v
Owens (1870)34 JP at 759, Jeffrey v Black [1978]QB 490, Khan v R (1973) 19 FLR 133.

A. The police have charged Belinda with stealing money from her employer. They have some circumstantial
evidence but, in order to be confident of securing a conviction, they would like to obtain a confession from
Belinda. Her lawyer has advised Belinda not to make a statement. The police know that Belinda is a practising
Catholic and is very religious. They suspect that she might admit the offence to a priest in confession. The
police go into the church one night and hide a microphone in the confessional. Next day, when Belinda goes to
confession, she admits to the priest that she stole the money. The police get the admission on tape and want
to admit it as evidence.
B. The police arrest Donald and a Rene for stealing money. They arrest them and hold them in custody
overnight. In the morning a policeman comes into Donald's cell and (after advising Donald of his right to a
lawyer and that he need not say anything) says to Donald. By the way, the Rene has already confessed to the
theft and has told us that you were involved. Rene has also told us where you have hidden the money and we
have already recovered it. On hearing this, Donald decides that he might as well confess. He does so. In fact,
Rene has not confessed and the money is still missing. The prosecutor wants to have Donald's confession
admitted as evidence.

C. Bertha is charged with setting fire to a warehouse that her family owns in Port Vila with the intention of
claiming insurance money. The prosecutor learns that when Bertha was a child of 10 she set fire to a shed in
the back yard of her family's home. They also learn that Bertha failed to report the fire of the warehouse even
though she was seen close to the fire and had a mobile telephone in her possession.

D. The police arrest Curly for theft of a Rolex watch from the Paradise Duty Free Store. The police are rough
with Curly. They threaten him and bully him until he tells them that the watch is hidden under the pillow in his
bedroom. The police go to the bedroom and find the watch exactly where Curly said it was. The watch has
Curly's fingerprints on it. The prosecutor wants to admit the watch with the fingerprints and also that it was
found in Curly's bedroom.