LW113 / 2019 / Week 9 Tutorial Question [Topic 7 /Review Problem]

By way of review for both Topics 6 & 7 we are going to look at a hypothetical problem and try to see
how the principles we have discussed work in practice.

 Firstly make sure you read the facts carefully and understand them clearly before you proceed to
answer the questions. You may have to read the problem more than once.  Read the questions
carefully and work through them one at a time.  If you don’t understand a question read it again! Then
write down in your own words what you think the question is asking.  You will need to refer to the
materials in both Topics 6 and 7. You should also make sure that you have read and understood the
cases in the Readings Lists for the topics, especially Connelly v DPP.  You may find it more helpful to
work with other students when you are discussing the questions and issues involved.

1. Instructions

Imagine that you are a lawyer in law firm in your country. Terry the Thug has come to you for legal
advice. He tells you his long sad story and you take detailed notes of your interview with him. You advise
Terry that the legal issues concerning his case are complex. You will review his situation in light of the
law and he should make another appointment to see you later in the week.

2. Facts

In 2003, Terry the Thug was involved in a fight in the bar of the Hotshot Hotel late one Friday night.
Terry had been a regular drinker at the hotel. Harry Hotshot, the hotel manager, had recently banned
Terry from entering the public bar for disruptive and offensive behaviour. Terry was previously a
member of the Bad Boys motorbike gang but he had an argument with its leader, and arch enemy, Billy
the Bull. The argument was over Terry’s girlfriend, Red Rose who was assaulted by Billy. As ‘payback’,
Terry set fire to Billy’s Harley Davidson and pushed it into the river. Billy was very angry and wanted to
cause trouble for Terry. Billy told Terry that the hotel manager, Harry, had agreed Terry could return to
the public bar for Red Rose’s birthday party. When Terry entered the bar, Billy made sure there was no
one present and grabbed Terry by the throat. Terry smashed a barstool over Billy’s head. Billy was taken
to hospital with serious head injuries. Terry was charged by the police with aggravated assault. At the
trial Billy lied and denied telling Terry he was allowed back into the bar. There were no witnesses to the
actual fight in the bar except Harry who called the police

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and the ambulance. Billy threatened Harry that if he gave evidence against him, he would make sure
that none of the Bad Boys ever drank at his hotel again. Harry was not called not give evidence. Billy’s
threat did not come out in evidence despite vigorous cross examination by Terry’s defence counsel.
Terry was convicted of aggravated assault and sent to prison for two years. Terry was never happy with
his conviction as he knows Billy lied under oath at the trial. While he is in prison, one of the prisoners,
Sam the Snake, tells Terry that another inmate told Sam that he heard Billy admit he lied at trial. Sam is
prepared to give evidence of the conversation he heard if Terry can get the case reopened. In 2004
when he gets out of prison, Terry comes to you for advice and wants you to approach the DPP to apply
to the court to reopen the case against him.

3. Legal Issues

A. How do you think the DPP might view Terry’s request to reopen the criminal case against him?

B. What arguments might the DPP raise to support its position?

C. What advice will you give Terry about whether Sam’s evidence would be admissible? (You may need
to review the materials in Topic 5 to answer this question.)

4. More facts

In the meantime, Billy has issued civil proceedings against Terry for assault claiming damages for head
injuries, medical expenses and lost wages. Terry brings the statement of claim to you for advice.

5. Legal Issues

D. Could you raise the defence of res judicata for Terry to prevent the Billy’s civil action against him
proceeding? Explain your reasons to Terry.

E. Terry is worried that his criminal conviction for assault will be used as evidence against him in the civil
action. Explain to Terry whether the civil court be would be bound by the criminal conviction for assault
in relation to the civil action? (You may need to review the materials in Topic 4 to answer this question.)
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6. Last of the facts

A couple of months later, Terry is in more trouble and comes to see you again. It is now 2006 and the
police have charged him with a different offence, criminal trespass. The charge arises from the same
incident in the hotel bar in 2003 and is based on the same evidence presented at the first criminal trial.
It is alleged that there was no evidence at trial supporting the fact that Harry had given Terry permission
to return to the Hotshot Hotel. Accordingly, Terry’s actions constituted criminal trespass. It would seem
that the police overlooked the charge at the time of the original trial and the word on the street is that
the police just want Terry back in gaol.

7. Legal issues

F. As Terry’s lawyer, would you advise him to raise the defence of ‘previously convicted’ / autrefois
convict in relation to the charge of trespass? Explain your reasons to Terry.

G. Is there any other argument you could put to the court to prevent the charge of criminal trespass
proceeding? Explain your answer to Terry.