Challenges in Convicting Mino for Mony's Murder

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Question 1
The prosecution is faced with a big challenge in trying to get Mino convicted for the murder of
Mony. This is due to the fact that the prosecution is unable to produce in court a key witness who
may have overheard the planning and execution of the murder. The lack of Doc physically in
court has dented the prosecution case in the sense that the court will not be able to get his first
hand information on what he saw on that particular day, what he heard and in fact what he might
have mentioned to the police1.
Therefore it follows that the prosecution in advancing its case will try to bring in Docs wife as a
witness to the case. Her sole mission will be to inform the court of what Doc had told her
concerning the murder before he left. This is basically hearsay and thus the prosecution will be
trying to get a conviction in court based on this.
Hearsay according to chapter 3.2 of the Evidence Act of 1995 can be defined as a statement that
was made outside of the court premises and is intended to try and prove the truth about the
matter that is before court. In most cases hearsay evidence is normally inadmissible but section
60 of the Evidence Act provide for instances whereby an exception to the rule may apply. It is
important to note that hearsay does not really omit the issue of evidence2.
Hearsay evidence has the risk that the evidence being submitted may not be reliable. The judge
might find it difficult to admit the same as part of evidence simply by being informed that
1 Baker, K.K., 2017. In Nussbaum and Law (pp. 205-224). Routledge.
2 Boister, N., 2018. Oxford University Press.

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someone said this regarding the matter in court. However, the rule of exception to hearsay is
informed by the reliability of the evidence being submitted3. A Judge is by law allowed to
practice discretion if by any chance he feels that the hearsay evidence is somehow reliable and
critical to the matter at hand. This can only be possible if there is documentation provided in
court about what the person who cannot testify stated in relation to the case at hand.( Farahany,
2016)
Thus in the first instance, Doc is not present in court and thus cannot testify and be cross
examined. According to the prosecution, Docs wife is to inform the court what he told her on the
use of the gun. The case of R vs Suteski 2002 provided that the maker of the statement must
appear in court to confirm on the statement made..The evidence is not reliable and thus the Judge
may rule that the evidence being given is inadmissible.
For the second part, the prosecution will produce in court Docs diary. The diary contains an entry
made on the 16th of March which was a day before the alleged crime. This form of evidence is
still hearsay as the person who recorded it is not in court to confirm if what he indeed wrote was
true4. However, there is some documentation in court upon which the prosecution will try and
rely as proof that Mino actually committed the crime. Section 70 of the Evidence Act Division 3
provides for exceptions to hearsay by use of content writings. This is where the exception of
hearsay evidence comes into play. The Judge in his consideration and in his exercise of the
3 Farahany, N.A., 2016. Journal of Law and the Biosciences, 2(3), pp.485-509.
4 Kadish, S.H., Schulhofer, S.J. and Barkow, R.E., 2016. Wolters Kluwer Law & Business.