Josue Case Study Of The Evidence Act 2008

1. Rosalie is a right-wing activist who espouses radical views and spreads misinformation. She has been scaremongering that Australia will be swamped by Asians, Muslims, and Africans. She was busy amplifying anti-Chinese sentiments during the COVID pandemic.
2. One day, Roslie and her fellow right-wing activist Naliya were distributing anti-multiculturalism leaflets outside Victoria train station when an attractive young couple walked by, holding hands. The young lady was of fair complexion with Asian features while the young man appeared to be extremely tanned. They both declined the leaflet that Naliya offered them, and inexplicably Roslie got upset.
3. Goaded by Naliya, Roslie grabbed her umbrella and started following the young couple, while Naliya trailed behind in gleeful anticipation of a confrontation. Roslie berated the young lady, accusing her of bringing the China virus to Australia and causing the worldwide pandemic. Rosalie also ranted at the young man, saying that he was useless and good for nothing because he was black. She called them parasites and harangued them to go back to diseased China and dirty Africa.
4. The parochial Roslie did not realize that the young lady, Aiko is of Japanese descent while the young man, Josue is of Haitian heritage. Both were born and grew up in Australia. Aiko completed a Cyber Systems Management degree and works as an Information Technology Systems analyst. Josue is in his final year of law school at Westfoote University (WU) and works part-time at the University library while also volunteering at the Westfoote Community Legal Service (WCLS).
5. At first, neither Josue nor Aiko paid any attention to Roslie. This only made Roslie more frustrated, and she became more belligerent. She started calling them names that are not mentionable in polite society. She swore at them in their faces and started poking her umbrella at Josue, apparently trying to provoke a reaction out of him.
6. At that point, Josue could not stand Roslie's abuse any longer. He fended off Roslie's umbrella and pointed a finger at her, telling her to leave him and Aiko alone. Rosie retaliated by striking Josue several times on his face with her umbrella, causing him to bleed and fall to the ground. Rosalie and Naliya then fled while Aiko attended to Josue.
7. An off-duty nurse, Majlinda from Westfoote Public Hospital, was passing by and rendered first aid to him. At Aiko's request, she provided her details and indicated that she would be willing to be a witness, if necessary. In their panic, Roslie had dropped her umbrella while Naliya dropped the leaflets he was carrying. Majlinda observed that there were bloodstains on the umbrella and on Josue's shirt. The umbrella and leaflets were later picked up by Aiko.
8. Josue attended the Emergency Room of Westfoote Public Hospital for treatment. He later confided in Nusret, one of the solicitors at WCLS. Nusret advised Josue to report the incident to the police, but Josue was hesitant as he had a bad experience with the police in his local area previously and he distrusted them.
9. With the information gathered from the leaflets, Aiko used her cyber sleuthing skills to trace Roslie. Accompanied by Aiko, Josue consulted Nusret again with the information that Aiko had gathered. He decided to make a claim against Roslie for the tort of battery. Nusret opened a file for Josue and sent a letter of demand to Roslie. Rosie's response was to tear up the letter and return it in pieces to WCLS.
10. Although WCLS provides only legal advice in civil matters, Nusret offered to draft the court papers and guide Josue through the process of commencing a civil claim. Nusret also advised Josue to get a witness statement from Majlinda; however, Josue would have to brief a barrister if he wished to be represented in court.
11. Josue gratefully accepted Nusret's offer to draft the court papers for him, but briefing a barrister was beyond his means. Nusret promised to coach Josue on conducting his case. With Aiko's encouragement, Josue decided to go ahead and self-represent in the proposed proceedings.
12. Josue contacted Majlinda who agreed to give a witness statement and attend court, if necessary. Josue brought Majlinda to meet Nusret at WCLS. Majlinda affirmed that she had seen a female person hit Josue several times on the face with an umbrella, that the female person and another person had fled the scene and that she (Majlinda) had gone to his (Josue's) aid. When shown Roslie's and Naliya's Facebook pages, Majlinda readily identified both Roslie and Naliya from the photos displayed. Nusret helped Josue to type and print out a statement according to what Majlinda told them and she signed the witness statement.
13. Josue has commenced proceedings against Roslie, who is contesting his claim. Believing she has superior intelligence because she is a self-described 7th generation true-blue Aussie, Roslie is also acting in person, as she has no intention of wasting money on lawyers on what she perceives to be a no-brainer case. There is no doubt in Roslie's mind that she would be able to get Josue's claim thrown out as she is unable to conceive of the possibility that a court might find in Josue's favor. Naliya's law clerk friend helped Roslie to prepare and file the paperwork for her defense.
14. A mediation conducted by a court registrar failed to produce a settlement. Rosalie flatly denied assaulting Josue and refused to compromise. The case is now being heard by a magistrate.
15. Josue testifies that Roslie had attacked him without any provocation or excuse. He adduces into evidence Roslie's umbrella, which has his dried blood on it, and his bloodstained shirt and gives evidence of seeking treatment at Westfoote Public Hospital. He tenders into evidence a medical report from the hospital on his injuries. Rosie raises no objection to the umbrella, Josue's shirt, and medical report being received into evidence as she does not think they prove she committed the battery on Josue.
16. Rosie confidently starts her cross-examination of Josue by asking him which part of Africa he was from. Josue replies that he is an Australian. Momentarily confused, Roslie questions Josue further about his nationality. Josue responds firmly that he is an Australian, having been born in Australia and whose parents are also Australian citizens. Rosalie tries to press Josue on his background and nationality at which the magistrate intervenes and queries the point of such questions. Rosalie is unable to justify her questioning and the magistrate informs her to move on and confine her questions to the issues in the case. Flustered, Roslie forgets to question Josue about the umbrella, his shirt, or the medical report and sits down.
17. Josue calls Aiko to give evidence next. Her testimony is consistent with Josue's evidence earlier. In cross-examination, Roslie also tries to ask Aiko about her nationality and background but is stopped by the magistrate, who reminds her to confine her questions to the issues of the case. After patiently putting up with Roslie's litany of complaints of obstruction, the magistrate informs Roslie that she is free to conduct her cross-examination as long as her line of questioning is pertinent to the issues. Completely flummoxed by this time, Roslie abandons any further cross-examination of Aiko.
18. Josue calls Majlinda as his next witness. Expecting her to give evidence according to her witness statement, Josue asks Majlinda in examination-in-chief to tell the Court what she saw and did regarding the incident between Roslie and himself. Majlinda testifies that she saw Josue lying on the ground with blood on his head, that a female person was running away from the scene, and that she does not know what had happened but she had gone to Josue's aid.
19. Taken aback, Josue asks Majlinda whether she saw anyone striking him. Majlinda thinks for a while, then says she does not actually recall seeing anyone hit him but had assumed the female person had done so as there was an umbrella with blood on the ground and the female person was running away.
20. Josue next asks Majlinda whether she can identify the female person running away and whom she assumed had struck him. Again, Majlinda thinks for a while before replying, I don't think so. Look, I'm really trying but I have a poor memory and it has been more than a year. I would like to help but I'm afraid that I just don't remember.

Question.With reference to relevant provision(s) of the Evidence Act 2008 (Vic), discuss any options that may be open to Josue if he wishes to get Majlinda to testify according to her witness statement.