Question 1
Tom has been charged with armed robbery. It is alleged that he committed the robbery on 3 March 2019. When the police interviewed Tom, Tom claimed that he was overseas in New Zealand with his girlfriend.
Mary, his girlfriend of six years, who is deaf and mute, has been subpoenaed by the prosecution to give evidence about Tom’s whereabouts on 3 March 2019. Mary lives with Tom and has done so for four years. She is pregnant and is expecting to give birth to their first child in two months.
Is Mary likely to be required to give evidence? Please explain fully. (5 marks)
Question 2
Ben and Jill entered a written contract pursuant to which Ben borrowed money from Jill. Pursuant to that contract, Jill loaned $130,000 to Ben. There is no dispute about the principal amount however there is dispute about the rate of interest. Whilst Ben says the rate of interest was 10% per annum, Jill claims it was 10% per month. Neither party has the written contract or a copy of the written contract. Jill secretly recorded, using a dictaphone, a conversation between Ben and herself in which Ben acknowledge that it was 10% per month. Jill then transcribed the conversation herself in a word document that is on a USB.
How could Jill adduce evidence of the contents of the original written contract? (10 marks)
Question 3
Sam has sued Sarah for taking $50,000 of his without returning it. Sam claims that Sarah asked to borrow $50,000 just for a few days and that he provided $50,000 in cash.
Days before the trial, Sam’s lawyers receive an anonymous tip off of sorts. They receive in an envelope a copy of a Commonwealth Bank statement bearing Sarah’s name and showing that $50,000 was transferred into the account the day after Sam allegedly provided the cash to Sarah. Sam’s lawyers are not able to subpoena the Commonwealth Bank in time. They nevertheless present the document to the Court. They also present evidence that Sarah does not have a job but that about a week after allegedly receiving the $50,000, she purchased a car for $40,000.
Are the potential items of evidence in this scenario relevant? (10 marks)
Question 4
Ditchim Quik and Hyde Pty Ltd is a law firm in Melbourne specialising in family law. One of their former lawyers, who left the firm five years ago, was handling a file for a client, Jenny. Jenny has sued the law firm for negligence. She claims that the law firm failed to properly advise her about her caveatable interest in some property. She also claims that they failed to advise her that she would liable for any losses suffered by her former husband, as a consequence of the caveat. The husband was the sole registered proprietor of the land occupied by their matrimonial home. The husband suffered significant losses as a consequence of the fact that Jenny’s lawyers lodged the wrong type of caveat.
Ditchum Quik and Hyde have a detailed file note written by their former employee, Madeleine Smith. In that file note, dated 28 July 2014, Ms Smith notes that she has had an extensive phone call with Jenny and, amongst other things, that:
- she (Ms Smith) advised that there were significant costs and risks in maintaining the caveat;
- Jenny responded by saying that she accepted any costs that might arise out of the application but that she wanted to maintain the caveat at all costs.
The firm has been unable to contact Ms Smith by using her details on file. They hire a private investigation firm to find Ms Smith and to ask her to give evidence on their behalf and confirm the file note. The private investigation firm searched the Victorian Electoral Roll and found three Madeleine Smiths upon it. Two of the names have addresses in Melbourne whereas the third is in Echuca. The private investigation firm has sought to locate the former employee at each of the two Melbourne addresses by visiting each address and leaving a letter (since no one was home). They visited each residence once. They have not visited the Echuca, since they were instructed that it was highly unlikely that the relevant Madeleine had moved there, and given the cost of travelling that distance.
Do you think the file note is admissible? (15 marks)
Sample Solution