LLW4007 - Documentary Evidence & Relevance - Forida Pether Case Study - Law Assignment Help

Assignment Task

Forida Pether

The Hearsay Rule under section 59(1) of the Evidence Act 2008 (Vic) ('EA') states that evidence from a previous representation made by a person is not permissible to prove the continuation of a fact that can reasonably be assumed that the person intended to affirm the representation. However, there are specific exceptions where the previous representation is admissible. Thus, the following facts are admissible by first-hand hearsay or for a non-hearsay purpose. The asserted fact is the injuries inflicted by Gino led to Harriet's death.

Fact D - sections 65(2)(c) and 66A
Under section 65(1) of the EA, this applies to criminal proceedings where the person who made the previous representation is unavailable to provide evidence to an asserted fact. The proceeding is a criminal trial, and the person who has made the previous representation, Harriet, is not available as she has died. Under section 65(2) the hearsay rule is not applicable if the previous representation provided by the person who heard, saw or perceived the representation is unavailable. Nevertheless, section 65(2) provides exceptions where the hearsay rule is not applicable. In regard to fact D, it could fall under section 65(2)(c). The test is an 'onerous one'. The representation was made in circumstances that make it 'highly probable' that the previous representation is reliable. Fact D is reliable as Olivia knew of Harriet's career occupation and knew she had to wear revealing clothing but was not an escort. Thus, it is highly probable that the representation is trustworthy. In regard to Gino being Jealous, under section 66A indicates the hearsay rule does not apply where a previous representation made is about the person's 'health,
feelings, sensations, intention, knowledge or state of mind'. Harriet informed Olivia that Gino was jealous due to clients mistaking her for an escort. Gino's jealousy displays his feelings about Harriet's career. Gino's jealousy is relevant under section 66A, as it displays a contemporaneous representation of the accused's feelings of the deceased's occupation.

Fact E - sections 65(2)(c) and 66A
As mentioned above, section 65(1) of the EA is applicable. In regard to fact E, section 65(2)(c) is also applicable. Harriet made the previous representation to Olivia. The previous representation was made in circumstances that make it highly probable & the representation is trustworthy. Harriet informed Olivia of Ginos obsessive and possessive behaviour. The previous representation of Ginos behaviour is reliable as Harriet knew of his attitude when she worked as a client officer. Furthermore, section 66A is also applicable. Previously mentioned, section 66A states the hearsay rule does not apply to previous representations made about a persons emotions or wellbeing. The Australian Law Reform Commission noted that if a person's physical or mental state is sought to be used, it must be relevant for the other purpose. Ginos malicious and possessive state is relevant to demonstrate his state of mind during the circumstances. His constant questioning and invasion of Harriet's privacy by checking her phone messages is a contemporaneous representation of the accuseds intention to restrict her freedom and control every part of her life. Thus, fact E is relevant, reliable and will be admissible due to the exceptions under sections 65(2)(c) and 66A.

FACTS AND QUESTIONS

1. Don de Tramp (de Tramp), a politician, was running for re-election but a few months before Polling Day, he was sensing a possible loss of goodwill among his constituents. There had been too many photos of him playing golf published in the media, which were pointed out by many people to contradict his frequent claims of “working extremely hard for the people”.

2. de Tramp began to lay plans to ensure that he would stay in power. He started telling his supporters that he would win by a landslide and a bigger majority than in the previous election, and that the only way he could lose was if the election was rigged.

3. de Tramp lost no opportunity to spread these claims and used various means to amplify them on numerous occasions - radio interviews, television interviews, speaking engagements and rallies. At press briefings or in press statements, de Tramp’s staffers would parrot these claims at his behest.

4. 2 nights before Polling Day, de Tramp held a closed door meeting with 20 of his most ardent supporters. Among his staffers, only his closest adviser, Kayli Mckenny attended, together with de Tramp’s father, Jon de Tramp. Lizzie Chenez (Lizzie), another de Tramp staffer, was working in an office adjacent to the meeting room at the time and could hear shouts coming from behind the closed doors. She believed that de Tramp was egging his supporters on to do something drastic, possibly violent.

5. Unknown to anyone except his editors at the reputable print and online newspaper, the Melbourne Post, an investigative journalist Bob Woodard (Bob) had inveigled himself into de Tramp’s base of supporters. Bob was among the 20 who attended the closed door meeting with de Tramp, and so was privy to all that transpired then.

6. At a rally the day before Polling Day, de Tramp boasted that he would easily win by a landslide and that if he lost, it could only mean one thing - that the election was rigged. He repeatedly urged his supporters to “stand up for what you believe” and to “fight for what you think is right”. Again and again, de Tramp reiterated, “sometimes, you just gotta do what you gotta do, no matter the consequences”.

7. That night after the rally, a group of 4 people with masks, wearing hoodies imprinted with the words, “Long live de Tramp” and carrying banners with the slogan, “Vote for de Tramp”, rammed a truck into the office of Marko Rubbo (Marko), de Tramp’s rival in the election. Several of Marko’s staffers were injured. The perpetrators fled before police arrived. It was later established that the truck was stolen.

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