Evidence law

James Bluntell is guitarist and lead sin” rel=”nofollow”>inger for Lazareth, a Christian heavy-
5 metal band based in” rel=”nofollow”>in Lismore, New South Wales. They have not yet signed
any recordin” rel=”nofollow”>ing deals, but they have played live at many pubs and clubs
around the Northern Rivers region of New South Wales.
Through good luck and good contacts, James managed to get his band a slot
at the annual Lennox Head Thrash-Metal Music Festival last year. This five-
10 day event is renowned world-wide among metal music fans and receives
global coverage, in” rel=”nofollow”>includin” rel=”nofollow”>ing live streamin” rel=”nofollow”>ing on its own website as well as clips
of most of the sessions bein” rel=”nofollow”>ing filmed by attendees and uploaded to YouTube
and other social media.
The headlin” rel=”nofollow”>ine act for last year’s Festival was André Rice-Bublé, a world-
15 famous musician, composer and producer who divides his time between
Perth and Adelaide. This was his first visit to northern New South Wales in” rel=”nofollow”>in
two years. André performed on stage on Days 1, 3 and 5 of the Festival.
Lazareth performed on stage on Day 4 of the Festival, as one of the closin” rel=”nofollow”>ing
acts. They fin” rel=”nofollow”>inished with the first ever public performance of a song James
20 had recently written, titled Love Is a Battlefield in” rel=”nofollow”>in the Air All Around Us.
Five months after the Festival ended, James was in” rel=”nofollow”>in the office of a recordin” rel=”nofollow”>ing
company agent, Hilaria, tryin” rel=”nofollow”>ing to hawk a demo tape of Lazareth’s latest
album. After Hilaria heard Love Is a Battlefield in” rel=”nofollow”>in the Air All Around Us,
she told James “Sorry, pal, but Rice-Bublé impersonators are a nickel a
25 dozen. I could get in” rel=”nofollow”>in my Audi and drive up to the Gold Coast and hear that
exact sound at any one of a dozen clubs. Your other tracks have some
promise, but if we did commit – and that’s still very much an “if” – you’d
need to write somethin” rel=”nofollow”>ing else to replace that “Battlefield” song.”
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“… Rice-Bublé impersonators? What do you mean?” James repeated,
30 surprised.
“Yeah. Look, I mean, the guy’s got a catchy beat, true, and he’s always on
the radio, so it’s no surprise that he seeps in” rel=”nofollow”>into the back of your head. But
you’ve got to get him out again” rel=”nofollow”>in.” She reached across the desk and tapped
James three times on his forehead. “Out. Out of there. He does thrash metal
35 his way, but you’ve got to do it your way. We don’t want to sign up two,
three hundred Rice-Bublé clones. Bad for busin” rel=”nofollow”>iness, bad for the music.”
“What do you mean…’in” rel=”nofollow”>inside my head”?”
“Well, it’s obvious to Blin” rel=”nofollow”>ind Freddy that Love Is a Battlefield in” rel=”nofollow”>in the Air All
Around Us copies André’s new sin” rel=”nofollow”>ingle. You know, the one that’s in” rel=”nofollow”>in the ad
40 for the new Lexus. You must’ve heard it on TV.”
“I don’t have a TV,” James said, still stunned.
Hilaria opened her laptop, logged in” rel=”nofollow”>into iTunes, and looked up André RiceBublé’s
playlist. She quickly bought, downloaded, and played the song she
referred to, titled We Bow unto Thee, O Lord Satan.
45 After listenin” rel=”nofollow”>ing, James acknowledged that there was “a certain” rel=”nofollow”>in resemblance”
between the two songs.
“Crikey, James, don’t be goin” rel=”nofollow”>ing around sayin” rel=”nofollow”>ing that in” rel=”nofollow”>in public,” Hilaria
warned him. “André’s notoriously litigious. He’ll have his lawyers onto you
for copyright.”
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50 But this only made James more annoyed. He became determin” rel=”nofollow”>ined to sue
André Rice-Bublé for breachin” rel=”nofollow”>ing his copyright. After consultin” rel=”nofollow”>ing a solicitor,
he has commenced proceedin” rel=”nofollow”>ings in” rel=”nofollow”>in the Federal Court of Australia (through
its new Lismore Registry) for breach of copyright.
The matter turns upon two issues:
55
• Whether there is “substantial similarity” between James’ song and
André’s, and
• Whether the defendant (André) was likely to have had a
60 “reasonable opportunity” to hear and copy the plain” rel=”nofollow”>intiff’s work
before the defendant created his or her own version.
[NOTE: This is all that LAW72005 Evidence students need to know about
copyright law for the purposes of this assignment.]
James’ lawyers want to adduce the followin” rel=”nofollow”>ing four items of evidence:
65
(a) Testimony in” rel=”nofollow”>in person by Associate Professor Athol Weiss, PhD,
lecturer in” rel=”nofollow”>in Popular Musicology at the University of Lismore, to the
effect that he considers We Bow Unto Thee, O Lord Satan to be
“totally ripped off” from Love Is A Battlefield In The Air All
70 Around Us. “There is a defin” rel=”nofollow”>inite pattern in” rel=”nofollow”>in André’s song that is far
too specific to be random luck,” Athol asserts.
Challenged by counsel for the plain” rel=”nofollow”>intiff to back up this conclusion,
Athol answers “It’s not somethin” rel=”nofollow”>ing one can reduce to a code or a pie
75 chart or a graph on large sheets of butchers’ paper, counsellor.
Rather, recognisin” rel=”nofollow”>ing similar patterns in” rel=”nofollow”>in music a fin” rel=”nofollow”>inely-tuned skill,
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excuse the pun, that some of us have and others, sad to say, are
born without.”
80 (b) Testimony by Kriss, the Lismore Herald’s youth correspondent,
that We Bow Unto Thee, O Lord Satan is “just doin” rel=”nofollow”>ing the same old
thin” rel=”nofollow”>ing” as Love Is A Battlefield In The Air All Around Us. Kriss, 16
years old, has been writin” rel=”nofollow”>ing a column on “Music for the Young
People of Today” for the Lismore Herald for the past two years.
85
Cross-examin” rel=”nofollow”>ined on the witness stand over this statement, Kriss
affirms that “Yeah, André’s just doin” rel=”nofollow”>ing the same old thin” rel=”nofollow”>ing as James
here. But then James is doin” rel=”nofollow”>ing the same old shtick too. Really,
they’re all drawin” rel=”nofollow”>ing from a sin” rel=”nofollow”>ingle common source of archetypes and
90 musical patterns.”
Asked “Do you understand this is a serious matter here? This is a
judicial proceedin” rel=”nofollow”>ing and you are under affirmation” by counsel for
the plain” rel=”nofollow”>intiff, Kriss replies “Ooh. Yeah, I get it. Totally. Big scary
95 place, this courtroom – ‘off with my head’ [Kriss waggles fin” rel=”nofollow”>ingers
to symbolise quotation marks] if I don’t tell the truth!”
(c) A page ripped out of the Lennox Head Local News, dated the day
after the festival ended, where an article “Local Festival Puts
100 Lennox On The Heavy-Metal Map” by one Shawna Tweed
in” rel=”nofollow”>includes a photo of André and the words “World metal legend
André Rice-Bublé attended the festival and when he wasn’t
performin” rel=”nofollow”>ing on stage, was down groovin” rel=”nofollow”>ing in” rel=”nofollow”>in the mosh pit with the
audience, from the start of Day 1 to the end of Day 5.” James has
105 phoned the newspaper office askin” rel=”nofollow”>ing if Shawna Tweed would testify
in” rel=”nofollow”>in person, but was told by an unidentified person that “Our articles
are reliable and truthful as they stand and there is no need for our
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reporters to be cross-examin” rel=”nofollow”>ined in” rel=”nofollow”>in any court over what they have
written.”
110 In turn, Magda, counsel for André, wants to adduce the followin” rel=”nofollow”>ing two items
of evidence:
(d) André wishes to testify that, four years ago, he was in” rel=”nofollow”>informally
jammin” rel=”nofollow”>ing on the guitar at the Beached Whale Café, Byron Bay, one
115 Sunday afternoon to a crowd largely composed of backpackers.
“This was not an official concert – I’m friends with Henri and
Sasha, you know, the couple who manage it, and they’re always
happy for me to start playin” rel=”nofollow”>ing if I’m in” rel=”nofollow”>in the mood, it draws in” rel=”nofollow”>in more
customers. You know, backpackers wantin” rel=”nofollow”>ing autographs, that sort of
120 thin” rel=”nofollow”>ing.” André had consumed “two, perhaps three glasses of win” rel=”nofollow”>ine –
look, this was four years ago, you do understand” — but was “sober
enough that I drove home at six PM that evenin” rel=”nofollow”>ing. Among the songs
he played, he says, was an early version of We Bow unto Thee, O
Lord Satan. André claims he is “fairly certain” rel=”nofollow”>in” that the he
125 recognised James among the spectators. “There were only a dozen
or so people there at that time. Five or six were tourists, probably,
the rest were regulars whom I know well. Anyway, this fellow was
there, fiddlin” rel=”nofollow”>ing with his phone. I thought he was textin” rel=”nofollow”>ing but now
I’m wonderin” rel=”nofollow”>ing if he was recordin” rel=”nofollow”>ing me.”
130
(e) The chief compere of the Festival, Estelle Axelforth, is willin” rel=”nofollow”>ing to
testify in” rel=”nofollow”>in court that she was havin” rel=”nofollow”>ing lunch with André at a restaurant
at Byron Bay, several miles away from Lennox Head, while “the
lesser bands” were “competin” rel=”nofollow”>ing for attention” on Day 4. Estelle is
135 vague about the precise time the lunch fin” rel=”nofollow”>inished and ended, and has
given several varyin” rel=”nofollow”>ing accounts of the time-frame.
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On hearin” rel=”nofollow”>ing Estelle’s name mentioned as a potential witness, James’
solicitor tells James: “She’s got a rotten memory, that one. Too
140 many party drugs back in” rel=”nofollow”>in the Seventies. I know for a fact myself
that she left her own daughter at pre-school until 7 PM one evenin” rel=”nofollow”>ing
back in” rel=”nofollow”>in 1983. Forgot all about her own kid, until the police rang her
at home. I was duty lawyer that night, had to represent her at the
watchhouse when they arrested her for child neglect. She could
145 have been havin” rel=”nofollow”>ing lunch with Elvis himself and she still wouldn’t
remember details.”
(f) On the witness stand, James tries to recall details of when and
where he first got the idea to compose Love Is a Battlefield in” rel=”nofollow”>in the
150 Air All Around Us. But under cross-examin” rel=”nofollow”>ination from Magda,
James makes a series of embarrassin” rel=”nofollow”>ing gaffes and contradicts
himself at least once. His defence counsel in” rel=”nofollow”>intervenes to ask the
court if James may have leave to refresh his memory from his
notebook, in” rel=”nofollow”>in which he jots ideas for song tunes and lyrics. The
155 judge grants leave. James glances at the notebook, closes it, and
then repeats a short account of how he composed the song about
twelve months ago, sittin” rel=”nofollow”>ing in” rel=”nofollow”>in a café on Woodlark Street, central
Lismore: “It was the day just before the last big flood.”
160 Magda demands to see the notebook. James objects but the judge
orders him to hand it over. Magda seeks a short adjournment, and
peruses the notebook under the judge’s supervision. When the court
resumes, Magda’s first question is “You told this court, Mr
Blundell, that you composed this tune sittin” rel=”nofollow”>ing in” rel=”nofollow”>in a café in” rel=”nofollow”>in Woodlark
165 Street. However, on the same page as what you claim to be your
lyrics and musical notations for this tune, I see you have doodled a
number of sketches of what appear to be schoolgirls in” rel=”nofollow”>in Trin” rel=”nofollow”>inity
College sports uniforms. I put it to you that you were not, in” rel=”nofollow”>in fact,
sittin” rel=”nofollow”>ing in” rel=”nofollow”>in a café at Woodlark Street at the time, but lurkin” rel=”nofollow”>ing outside
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170 the sports grounds at Trin” rel=”nofollow”>inity College, four blocks away, for
whatever reason.”
(g) Durin” rel=”nofollow”>ing the above (civil) trial, a person or persons unknown
smashed the win” rel=”nofollow”>indows of André’s Mercedes, parked outside the
175 Byron Bay resort where he is temporarily residin” rel=”nofollow”>ing, and caused
about $5,000 worth of damage to the in” rel=”nofollow”>interior with battery acid.
André persuaded the police to charge James with malicious
damage. This crimin” rel=”nofollow”>inal trial was held after the civil proceedin” rel=”nofollow”>ings
180 conclude.
The prosecution called Liza, James’ wife, and asked her the
followin” rel=”nofollow”>ing questions:
185 (i) “Has James ever said anythin” rel=”nofollow”>ing to you that might in” rel=”nofollow”>indicate
plans to take revenge on André?”
(ii) “Have you ever known James to purchase battery acid, or
to store any of same around your dwellin” rel=”nofollow”>ing?”
190
(iii) “On the night of [when the damage occurred], was James
sleepin” rel=”nofollow”>ing in” rel=”nofollow”>in your bed beside you?”
(iv) “If James was out all night on that date, and you didn’t
195 know where he was, did you ask him where he had been
when he arrived home? Is this a regular feature of your
relationship with him?”
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Liza objected, but the trial judge compelled her to answer all four
200 of these questions.
In relation to ANY THREE (3) of the above sub-questions (a) to (g), state
whether each is or is not likely to be held admissible (and – where
applicable – on what conditions, if any) by the courts. Eg, in” rel=”nofollow”>in particular:

• On what ground(s) could the opposin” rel=”nofollow”>ing party object to that evidence
bein” rel=”nofollow”>ing admitted?
• On what ground(s) could the adducin” rel=”nofollow”>ing party argue for that
evidence to be admitted?
• Which way is it likely the trial judge will rule (or would be
expected by the appellate courts to rule) on these admissibility
issues?
Give your reasons why, citin” rel=”nofollow”>ing relevant legislative provisions and case law.
These sub-questions (a) to (g) are weighted equally, ie each carries 16.67
marks out of a possible 50.
PS: Please…
205 • Write this as an essay in” rel=”nofollow”>in the third person, not as a “legal advice” or
“letter from a solicitor” in” rel=”nofollow”>in the second person.
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• Focus on the admissibility of evidence only: don’t spend words
tryin” rel=”nofollow”>ing to predict which way the verdict(s) overall will go.
210
• Don’t burn up your words repeatin” rel=”nofollow”>ing large chunks of this question at
length.

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