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7030 EVIDENCE LAW – PRELIMINARY EXERCISE: CASE ANALYSIS

Instruction: Read the case of Knight v State of New South Wales [2001] NSWSC 1096 (30 November 2001) and then answer the following questions.

Question 1. What kind of proceeding was this (i.e. civil or criminal – identify the cause of action or offences being prosecuted) and before what kind of court? Which Evidence Act applied? (See first pages and par [1]).
Knight is a civil case in which the plaintiff is claiming damages for an injury that resulted from police negligence. The Evidence Act 1995 (NSW) was the applicable legislation and the matter was held in the New South Wales Supreme Court

Question 2. Who were the parties to the case? (See first pages and par [1]).
Plaintiff – Austin Owen Knight
Defendant – The state of New South Wales

Question 3. Briefly, what was the case theory of each of the parties? What standard of proof applied? (See par [1] and [2] and s140(1) of the Evidence Act).
Plaintiff – The plaintiff’s case is that he had been assaulted by Constable Jones after vaulting over a fence (whilst being pursued by police) and that the assault caused injury (including brain damage).
Defendant - The defendant’s case is that the plaintiff suffered his injuries in a fall after vaulting over the fence.

Question 4. As between the competing case theories, what was common ground, and what were the main remaining facts in issue? (See par [1] and [2]).
That Austin Knight was being chased by the police and that Knight has sustained and injury after vaulting over the fence.

Question 5. Which witnesses were called by each of the parties, and how did they give evidence? (See par [8] and [9]).
Plaintiff - Oral evidence was given by the plaintiff himself, Mr Doherty, Mr Bullock and the plaintiff’s father.
Defendant – Oral evidence was given by Mr McLaren and Mrs Smith (two ambulance officers who attended the scene). Both Mr Jones (formerly Constable Jones) and Senior Constable Parker gave evidence on behalf of the defendant.

Question 6. In what way did Dr Bookallil give evidence? (See par [10]).
Mr Bookallil was not called, although he did give a tender of written material evidence

Question 7. What aspects of the witnesses’ evidence were of crucial importance in this case and why? (See par [6] and [11]).
The credibility of the witnesses’ evidence was of crucial importance because of several reasons. One of the reasons included the fact that the incident had occurred 11 years ago and that one of the witnesses was left with memory problems.

Question 8. What issue of admissibility arose concerning the plaintiff’s evidence, and how did the court resolve it? (See par [12] and [117] – [120]). Had a voir dire been held on this issue, what would this have entailed? (Note s189 of the Evidence Act).
An issue of admissibility arose due to the defendant having memory problems after the incident and in trying to enhance his memory he attended a hypnosis session. The evidence adduced in this case leads to the view that recollection enhanced by hypnosis is of dubious reliability, the court refused to admit the evidence.

Question 9. The plaintiff’s background, including past offences, was considered by the court. How might this have been relevant? (See par [14]).
Because within his past offences arose issues of how he was treated by police officers and that his previous community service order may be the reason why he fled the police in this situation.

Question 10. What activity engaged in by the plaintiff’s friends attracted the attention of police? What then ensued? (See par [15] – [17] and [20] – [25]).
The plaintiff and two other men were “browneying cars” or “mooning” which involved them dropping their pants and exposing their bare buttocks to passing motorists. The officers then pursued the three men and just prior to catching the men the plaintiff tumbled down an embankment.

Question 11. What divergences…