Your task:  You have been asked to provide submissions on behalf of the Defendant, Wei Shan Liu, in a Criminal Code Act 1899 (Qld) s.590AA hearing, seeking that the prosecution’s expert evidence (of Mr Tootell) be excluded.  Wei Shan Liu was charged with fraud arising out of a Baccarat game, at Jupiter’s Casino.

Please see the Queensland Court of Appeal (‘QCA’) decision in R v Liu [2007] QCA 113:

http://www.austlii.edu.au/cgi-bin/viewdoc/au/cases/qld/QCA/2007/113.html

This case forms the factual basis for this exercise.

As you will see, in R v Liu, the Crown initially successfully persuaded the trial judge that Mr Tootell, the “Assistant Manager of Surveillance” could give expert evidence, for the prosecution.  The nature and content of the expert evidence given by Mr Tootell is addressed in the QCA decision.  On appeal, the QCA decided that Mr Tootell’s advice had been wrongly admitted and, in consequence, that the trial had miscarried, such that the Court of Appeal ordered a new trial.

This Exercise

You are now being asked to “climb into your time machine” and go back in time, to the proceedings that would have transpired before the District Court, at Southport, yet now equipped with the benefit of your understanding of the law as it applies, in light of the QCA decision in R v Liu.  You will “re-argue” the s.590AA hearing and seek to have the evidence of Mr Tootell excluded.  At the s.590AA Hearing before the District Court, the Crown would have made arguments asserting that Mr Tootell’s evidence was admissible, as expert evidence.  You are being asked to prepare submissions in response to the arguments that would have been made, based upon the nature of the evidence as described in the QCA decision.

Were this matter heard today, Supreme Court of Queensland Practice Direction Number 6 of 2013 – Case Management in Complex Criminal Trials, would be applicable.  You should read this, in order to know and understand how these types of matters are currently conducted.

Submissions (in general) are designed to be helpful to the Court in setting out a party’s arguments and the law that they say is applicable.  They have a practical focus.  Here, you will be outlining the reasons the Defence says that Mr Tootell’s evidence should not be permitted.   When making your submissions, please bear in mind that any student who actually cites the QCA decision in R v Liu will out themselves as being a novice time-traveller – realize that this case had not been decided at the point in time when you are making your submissions!  Use the reasoning in R v Liu, but don’t cite the case.

In the Assessment folder, you will find an example set of submissions, which should help you work out the proper structure for such a document.  You will note that it is paragraph numbered.  The reason for this is that the submissions form the basis of the argument that will be made orally before the Court.  Because there are numbers, Counsel can then refer to the paragraphs as they work through the submissions orally – “I take your Honour to paragraph 8 of my written submissions, where you will see that I have addressed the hearsay issue relating to Mrs. Smith’s evidence.”  In the modern context, the great majority of advocacy is undertaken in the written form.  The oral hearing merely marks an occasion to give a global overview or your submissions, as well as some critique of those of your opponent, and to answer questions posed by the judge.   When viewed in this context, it is important that your written submissions be persuasive, and logical.

Marking Criteria

Submissions will be assessed for:

1.      Correct application of the test relating to expert evidence;

2.      Effectiveness in setting out the Defendant’s arguments in relation to the exclusion of Mr Tootell’s evidence;

3.      The potential utility of the submissions as an aide memoir to an oral argument in a 590AA hearing;

4.      Sensible application of relevant case law and statutory authority;

5.      Written expression, including spelling, grammar, and citation compliance.

Ultimately, your goal is to produce something that would be professionally competent were you assisting the Defendant in court proceedings.