PCLL CONVERSION EXAMINATION JUNE 2019

Title of Paper : Evidence

Date : 18 June 2019

Time : 2:30 p.m. – 5:30 p.m.

Instructions

1. Write your candidate number on the cover of each answer book.

2. Start each answer on a separate page of the answer book.

3. Write your answers only in the answer books provided.

4. This is a three-hour examination.

5. This is an open book examination.

6. NO reading time is designated for this paper.

7. This paper consists of 5 pages, including five compulsory questions. A total of 50

8. Each question is worth 10 marks.

9. The passing mark for this paper is 25 marks.

DO NOT OPEN THIS QUESTION BOOK

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 PCLL Conversion Examination June 2019

Evidence

Question 1 (10 marks)

The Defendant, 35 years old, is charged with burglary at the “Hung On Building”, on 20th
February 2019. Two Prosecution witnesses, (John and Kate) say that just as it was getting dark,
at around 1830 hours, they saw the Defendant, hurriedly leaving the “Hung On Building”. The
identification evidence is the only evidence against the Defendant in this case. There is no
other forensic or circumstantial evidence against him. The Defendant was arrested later on the
same day at 2330 hours in Causeway Bay (wearing white trainers, black jeans, and a dark
green leather jacket) after reports of his acting suspiciously around a row of locked garages.

John is a security guard at “Hung On Building”. He claims to have watched the Defendant on
his TV monitor standing around in the lobby. Since the Defendant appeared to be a stranger
John went out of his office to check on him and just as he was doing so, he saw the
Defendant from a distance of no more than 10 meters as he was exiting “Hung On Building”
to the road. John picked the Defendant out in a subsequent ID parade two days later.

Kate is a resident of “Hung On Building” and claims the Defendant walked right past her as
he left the building. She says he looked at her briefly before walking calmly to the exit and
roadway. She says, “She would recognize his face anywhere.” Kate was never asked to attend
any ID Parade.

Both John and Kate have given statements containing a description of the Defendant and his
clothing (around 35-40, short black hair, white trainers, blue jeans and a black leather jacket).
John and Kate will both given evidence in the District Court tomorrow that the Defendant is
the person they saw leaving “Hung On Building” at around 1830 hours on February 20th
2019.

The Defendant denies that he was anywhere near “Hung On Building” at the relevant time,
saying he was home in bed in North Point together with his girlfriend. He only went to
Causeway Bay at around 2200 hours to meet a friend for a drink. The Defendant’s girlfriend
has given an alibi statement to this effect, confirming he was at home with her at the time and
only went out later.

Identify and discuss all the relevant evidential issues that are likely to arise at trial in respect
of John and Kate and, in particular, say what directions, if any, the judge is likely to give
before considering his verdict.

Question 2 (10 marks)

Alex is charged with the fatal wounding of Brenda. The prosecution case in the murder trial is
that he attacked Brenda with a knife after an argument in the lobby of the "Silver Dollar"
nightclub in Wan Chai. Alex denies the attack. Brenda was taken to hospital by ambulance.

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On the way, she said to Colin, a friend, who accompanied her, "I did not know that Alex could
not take a joke, he pushed that bloody knife into my chest. Make sure I get a beautiful funeral."
She then died upon arrival at the hospital.

Doris also claimed to have seen Brenda's attacker. At an identification parade she identified
Alex and called out the number representing Alex's position. While testifying, Doris could not
remember the number she called out during the identification parade.

The reception record of the "Silver Dollar" nightclub has the names of all the guests and
visitors and the names of Alex and Brenda are recorded in it as being at the nightclub at the
material time. Eric, the receptionist who was on duty on the day of the incident has resigned
from his job and cannot be located.

Freddy, an African tourist from Ghana, who was drinking with Alex at the nightclub bar, also
witnessed the attack and was heard to shout "Oh my God! Alex, I can't believe what you have
done." Freddy has since left Hong Kong and is travelling in Australia and cannot be located.

The Prosecution intends to call Colin, Doris, Eric, and Freddy. Advise on the admissibility of
their evidence.

Question 3 (10 marks)

Alice is 26 and a mature student, studying law, at the University of Hong Kong. At the end of
term Bert, a fellow student in her tutorial group, asked her if she would join him and others to
go drinking in Lan Kwai Fong on Friday night. Alice accepted and she and Bert spent the
evening drinking and partying with about 10 other people. At around 0100 hours. Bert asked
Alice if she would like to come back to his flat for coffee. Alice agreed and, after saying good-
bye to the others in the group, they took a taxi to Bert’s flat in Tin Hau. Once inside the flat
Bert became overly affectionate and the pair started kissing. Alice was feeling unwell, having
drunk the best part of a bottle of wine and two vodkas. She was not drunk and knew what she
was doing but became uncomfortable with Bert’s insistence. After about an hour Alice decided
that she wanted to leave and go home. Bert became angry and tried to pull her into the
bedroom saying that she should stay the night. When she protested Bert attacked her and raped
her.

After Bert passed out on the bed, Alice gathered her belongings and left in a taxi. The next
morning she contacted her best friend Anne and told her everything that had happened with
Bert the night before. Anne persuaded Alice to report the matter to the police – which she did
at around 1100 hours that morning. Bert was arrested and charged with rape later that day.

Bert says that Alice consented to sexual intercourse and that she is only complaining now
because he asked her to leave as his girlfriend Jane would be arriving early in the morning.

At trial Alice gave evidence of the attack. The prosecution now also want to call Anne to give
evidence.

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i) Discuss the evidential basis upon which Anne’s testimony may be put before the jury
and whether it has any bearing on Bert’s defence of consent.
(8 Marks)

ii) If, instead of waiting until the next day, Alice had made a 999 call to the police from
the flat immediately after Bert had fallen asleep, would what was said by Alice to the
operator be admissible evidence in the trial?
(2 Marks)

Question 4 (10 marks)

Andrew, Bill and Colin are all jointly charged with one count of obtaining property by
deception. The allegation against them is that they set up a false company together and
persuaded people to invest in the company before shutting the operation down and keeping all
the money. Andrew is also individually charged with making a false statement in a tax return.

At the trial Andrew pleads guilty to the making of the false statement in the tax return, and all
the defendants plead not guilty to the joint deception offence.

Andrew states that there was no joint enterprise to set up a company together at all. Bill accepts
that there was a jointly set up company that was used to commit fraud but claims he was not
involved. Bill said in interview that he thought the police had charged him with the offence
because they had a grudge against him. Colin has vigorously denied the offence.

Andrew is previously of good character; Bill has previous spent convictions for road traffic
offences and Colin has several previous convictions for deception offences. Colin’s previous
convictions all involve setting up false companies and fraudulently taking money from the
investors.

Discuss the admissibility of character evidence that arise out of these facts for each of the three
Defendants: Andrew, Bill and Colin.

Question 5 (10 marks)

Alan and Bruce were arrested on suspicion of committing an armed robbery at a jewellery store
in Causeway Bay. Both were taken to Eastern police station where they were interviewed
separately.

Alan claimed that he asked to see his solicitor but that his request was refused on the ground
that waiting for his solicitor would cause unreasonable delay to the investigation. Alan further
claimed that it was only when the police told him that Bruce had confessed (and implicated
Alan) that he decided to confess.

Alan then made a video-taped statement in which he admitted his part in the burglary but
claimed it had all been planned by Bruce. In fact Bruce had not made any confession and had
maintained his silence throughout his interrogation.

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Both men now stand jointly charged with armed robbery.

Before the trial a voir dire is held to determine the admissibility of Alan’s confession. On the
assumption that the trial judge accepts Alan’s account of what happened during his
interrogation, prepare an argument to support the exclusion of his confession using supporting
case law.

~ End of Examination Paper ~