Law Extension Committe evidence based assessment
On 20 January 2022, Sterling is tried by a judge sitting with a jury in the District Court of NSW, with one count of “causing dog to inflict actual bodily harm” (s 35A(2) of the Crimes Act 1900 (NSW) – Sterling has elected to have the matter heard by a jury.
The prosecution’s case is that, at about 10.00 am on 3 November 2021, Lana was playing with a drone in the backyard of her house at Bronte with her six-year-old son, Cyril. The drone accidentally clipped a tree and crashed into the backyard of Lana’s neighbour, Sterling. Because Cyril was getting upset, and because the drone was unresponsive, Lana climbed over
the 180 cm high, wooden paling fence into Sterling’s yard to retrieve the drone. Hearing a noise Sterling went to his rear porch where he saw Lana climb over the fence. Sterling did not immediately recognise that it was Lana coming over the fence, and having been burgled a couple of times recently, and seeing his daughter, Pam in the back yard, Sterling panicked and released his dog “Cochise”, which attacked Lana and bit her on the leg, seriously injuring her.
At the trial:
The prosecution called Pam. Upon entering the witness box, she said to the judge, “Is this about Dad? Do I have to talk about Dad?” The judge nodded and asked her the following questions:
Q: Hello Pam. Do you understand that when you answer questions today, it's important that you tell us the truth, but if you don’t know the answer, or can’t remember, you can say that if you want.
A: Yes.
Q: Do you understand that if someone suggests to you that something that you say isn’t true but you think it is, then you can say that the person is wrong?
A: Yes.
The judge determined that Pam was not able to give sworn evidence, but that she could give unsworn evidence and allowed the prosecution to question her. Pam was not cross-examined.
The prosecution sought to tender the video taken by the broken drone, which showed it flying and crashing into the tree, and then cut out. However, it briefly continued to record sound, and one and half minutes after going blank it recorded the sound of the drone being picked up and a dog growling, before the audio also cut out. The aerial video also briefly showed Ray, the neighbour who lives on the other side of Sterling’s property, trimming his hedges and looking over his (shorter) fence into Sterling’s yard.
Sterling’s new girlfriend, Cheryl, gave a statement to the Police setting out that she was also on the rear porch at the time of the incident, and that she saw Sterling let his dog, Cochise off a lead. However, when called to give evidence, she objected to doing so. The judge over-ruled this objection and the prosecutor immediately began cross- examining her as follows:
Q: You have previously given a statement that says that Sterling threw a rock at Lana, haven’t you?
A: No.
Q: You are lying, aren’t you?
A: No.
Q: You have changed your story because you are going out with Sterling, haven’t you? You have changed your mind because you are angry at being called to give evidence, haven’t you? Do you lie all the time?
Over objection, the prosecutor then tendered the statement that Cheryl gave to the police.
Lana gave evidence that Sterling let Cochise loose to attack her. She also gave evidence that as the dog approached her, Sterling was yelling, “My house, my castle, my right!”. Over objection this is also allowed. In cross-examination, Sterling’s counsel put to Lana that she didn’t remember what happened, that she “would say anything to protect herself and her daughter. And that she is a lying girl.” She was not otherwise cross-examined.
Sterling’s English is not very good and he asked for a translator at the hearing. As soon as the translator was brought into the Court, the judge asked Sterling if he wanted to swear or affirm, but he said that he was not sure. The Judge ordered him to take an oath. Jason then gave evidence that he didn’t let Cochise loose and was not near the
dog at the time that it escaped the porch. The prosecution objected to this evidence and the judge disallowed the evidence.
Discuss the evidentiary issues that arise out of the above. In your analysis, you need only consider the topics taught in Topics 1 - 7 (up to, but not including hearsay)
