COUNCIL FOR VOCATIONAL LEGAL EDUCATION

BARRISTERS’ EXAMINATION – SEPTEMBER 2017

PAPER V – EVIDENCE

(THREE HOURS)

Candidates have ten minutes to study the Examination Paper

which consists of 7 pages before they start writing.

Marks will be granted, where appropriate, for correct reference to

enactments and case law.

EACH QUESTION MUST BE ANSWERED ON SEPARATE SHEETS

WITH CLEAR MARKING AS TO THE QUESTION ANSWERED AND
THE NUMBER OF PAGES.

MAKE SURE THAT YOU PUT ALL YOUR ANSWERS IN THE

ENVELOPE PROVIDED.

All questions carry equal marks and there are SIX QUESTIONS in
all.

Candidates must answer only FOUR QUESTIONS.

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Question 1

Mark is being prosecuted before the Assizes for manslaughter after a

Preliminary Enquiry was conducted into the case by a District
Magistrate. It is alleged that he beat Alan to his death, whilst they were
caught up in an argument. Mark admits having only slapped Alan,
following which Mark left the scene. The Prosecution is seeking to
prove its case by adducing the following items of evidence at the trial
before the Assizes:

(a) A statement recorded from Alan by PC Jean, whilst Alan was

admitted in hospital with multiple injuries. In the statement,
Alan states that he has no hope of living and that Mark told
him the following words, just before starting to beat him up, “I
am going to finish you off! You won’t live to see tomorrow!”
However, at the time of giving his statement, the treating
doctor had found that Alan’s condition had stabilised and that
he had a good chance of recovery. Alan passed away as a
result of the multiple injuries he had sustained nearly 2 months
after giving his statement to PC Jean.
(b) A taped audio recording purporting to be a recording by Alan
himself of the altercation between him and Mark. In the
recording the voice of a man shouting in anger and the voice
of another man pleading that his assailant stops beating him,
can be heard.
(c) An autopsy report signed by Dr Ying with the conclusion that
Alan died as a result of multiple injuries which included a
ruptured spleen and liver. However, the Doctor has now
migrated to France and is not expected to come back to
Mauritius. Dr. Ying deponed during the Preliminary Enquiry
and was thoroughly cross-examined by the defence.
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Discuss the evidential issues arising in connection with all the above
items of evidence which the Prosecution is seeking to adduce at the
trial.

Question 2

Jane found out that her boyfriend Kevin was cheating on her with one
Vanessa. She spoke to her grandmother Helen about her resolution to
take revenge on Vanessa. Some days later, Vanessa was found dead
in her apartment with a stab wound to the heart. The enquiry led to the
arrest of Jane and a search was carried out at her place where, in the
laundry basket, a T-shirt stained with blood was found. Upon discovery
of the T-shirt, PC Vincent asked Jane: “Where does this T-shirt come
from?” She replied “It’s Vanessa’s. She has got what she deserved!”

Jane had been arrested in the past for manslaughter when she
allegedly stabbed her fiancé’s best friend Stacey in the heart, out of
jealousy, but the case was dismissed against her.

A DNA analysis of the T-shirt showed that the blood was Vanessa’s.
The search was carried out without a search warrant and without Jane’s
consent. PC Vincent did not caution Jane before questioning her.
Helen is now bedridden and suffers from Alzheimer.

Discuss the admissibility of the various pieces of evidence which may

be available to the prosecution to prove a charge of homicide against
Jane.

Question 3

Alan is being prosecuted for driving with alcohol above the prescribed
limit. Samples of his blood taken on that day indicated a level of alcohol
above the prescribed limit. During the trial, his counsel gave notice that
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he intends to challenge the admissibility of the following evidence which

the Prosecution is seeking to adduce:

(1) The confession obtained from Alan. Alan alleges that prior to the
recording of his statement, he had informed the recording officers
that he needed to take his medication, without which he would not
be in a normal state, but they refused. He will be calling his
treating doctor to testify that without this medication, he becomes
depressed and confused.
(2) The evidence of Alan’s 8-year-old son, Davis, who was in the car
with him to the effect that his father had consumed alcohol at
home just before getting in his car on the material day. Davis
suffers from mild mental retardation.
(3) The evidence of PC Martin who stated that he saw the car owned
by Alan zigzagging on the road at about 22 00 hours. PC Martin
was at a distance of about 100 metres from the car and it was
raining heavily at that time. Alan was intercepted by another
police patrol at 01.00 hours on the next day.

Discuss.

Question 4

Dealer is being prosecuted for selling a prohibited substance, contrary

to section 138 of the Pharmacy Act. Section 138 reads as follows:

“138. Selling prohibited substance

(1) No person shall sell a prohibited substance except

with the permission of the Ministry of Health.

(2) For the purpose of subsection (1), a prohibited

substance shall be a product containing more than
5% of morphine.
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(3) … … …

(4) … … …”

Bonehead who is the prosecuting Counsel intends to call Loony as a

witness. Loony is the former wife of Dealer and used to work as a
dispenser in Dealer’s pharmacy. She gave a statement to the police to
the effect that Dealer used to stock and sell ‘MORPH-IN’, a product
which she says contains more than 5% of morphine.

Bonehead further intends to make Loony produce as evidence a box of

‘MORPH-IN’ on which it is stated that the product contains 15% of
morphine. Bonehead then proposes to close his case as he is of the
view that it is for Dealer to prove that he had the permission of the
Ministry of Health to sell any such substance.

Discuss the evidential issues which would arise in the course of the trial
in order to establish the charge against Dealer.

Question 5

Prosecution is being contemplated against Sherlock for an offence of

arson. The main witness so far is Mrs. Watson.

Mrs. Watson’s version is that she was waiting for the bus on Baker
Street at around 11.00 am on Friday 30 June 2017 when she saw
Irene running out of Baker Street Court. Irene suddenly stopped and
started holding her chest in pain. When Mrs. Watson ran to her
rescue, Irene pointed to the window of an apartment in Baker Street
Court and said: “Look at what Sherlock has done!”
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Mrs. Watson saw smoke coming out of the window of the apartment.
While Mrs. Watson was calling an ambulance on her mobile phone,
Irene collapsed and died of a heart attack.

Sherlock and Irene were married and occupied apartment 315 in

Baker Street Court. In his statement to the police, Sherlock stated
that the fire had started in the toaster and then spread to the whole
apartment.

There is an entry in the occurrence book of Baker Street Fire Station

to the effect that on Friday 30 June 2017, at 10.45 am, there was a
call from a woman who said that she was the occupier of apartment
315 in Baker Street Court and that her husband had set fire to the
apartment after an argument broke out between them.

Sherlock was married to Rachel between 1990 and 1995. He was

also married to Leah between 2000 and 2005. Both Rachel and
Leah died tragically after their apartments caught fire. In both cases,
the enquiry revealed that the fire was of accidental cause.

Advise the prosecution as to the evidence upon which it may rely in

order to prosecute Sherlock.

Question 6

Peter, a groom at Park Royal Stables is charged before the

Intermediate Court with the offence of poisoning animal. The case for
the prosecution is that Peter gave a potassium chlorate injection to
Cherry Blossom, a horse kept at Park Royal Stables, and the horse
died soon thereafter.
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At the trial, Peter’s defence is that he administered potassium

chlorate to Cherry Blossom as a cure against seizures. Peter also
stated under oath that he had an impeccable track record as groom
for the past 15 years.

Raoul, another groom of 30 years’ experience, was called as a

defence witness and he stated that potassium chlorate was
commonly used to treat horses suffering from seizures.

A few years ago, Peter pleaded guilty to killing his neighbour’s dog
with arsenic. In that case, he stated in mitigation that the dog had
rabies and was a threat to the neighbourhood. He was given a
conditional discharge.

George, the owner of Park Royal Stables stated to the police that the
stables have their own veterinary surgeon, Mr Alex, who looks after
their horses on a permanent basis. Mr Alex has given a written
statement to the police concerning the case but has however added
that he does not wish to testify against anybody in Court.

Cherry Blossom stood a good chance to win the Iron Maiden Cup, a
classic race that was to be run two days after Peter had given the
potassium chlorate injection to Cherry Blossom. Records from
Superbook, a bookmaker, indicate that Peter had placed a bet of
Rs 10,000 on Road Runner, a competitor to Cherry Blossom in the
Iron Maiden Cup.

Discuss all evidential issues that would arise in connection with the
trial.