Click
HERE for a link to the Mock Cross and Direct Assignment,
Click
HERE for the guidance document of the admission of exhibits by Kambaho Brian.
Below is the the text from the Mock Cross and Direct Assignment:
CLINICAL LEGAL EDUCATION II
Mock Cross and Direct Exercise:
Each student shall be on a team
of two and will be assigned to the Prosecution or the Defendant. Each student must conduct one direct
examination of a teammate and one cross examination of an opposing
witness. Each student must also
serve as a witness
Each team has a total of 24
MINUTES of net time to use for their directs and cross.
Each team should attempt to
tender at least one exhibit for each of their witnesses during their witnesses’
direct examination. You will need
to create or bring your own exhibits.
They can include bottles, cans, permits, certificates, maps of the
scene, etc. You can be creative in
coming up with the exhibits and do not have to be tied to the facts of the
problem when coming up with an exhibit.
However, you cannot come up with an exhibit that is in conflict with the
facts of the problem. When
tendering exhibits the teams should be mindful of the guidance provided in
Kambaho Brian’s helpful Synopsis entitled Admissibility
of Documentary Evidence and the legal authority cited therein.
OFFICER CAPTAIN SEWALI State’s
Witness #1
Officer
Captain Sewali is a 35 year old police officer and a 10 year veteran of the
Ugandan Police Force, although Sewali’s experience. Until November of 2012 Officer Sewali’s only experience was
as an officer assigned to directing traffic at busy intersections in
Kampala. Since December of 2012
Sewali has been serving as a vehicle patrol officer and has been provided with
one of the fifteen new and fully equipped SUV’s that the UPF received thanks to
a generous donation from the Chinese government.
Officer
Sewali has not actually reached the rank of Captain. It is just that Captain is one of Sewali’s given names. Sewali’s mother wanted him to be an
army man so she named him Captain.
Officer
Sewali started a shift at 8:00 am on the morning of January 15, 2013. Sewali was required to work a
double-shift on the 15th because of cutbacks in the UPF's budget and also
because Sewali’s relief that day had called in ill. At 9:00 pm., Sewali was alone in the SUV patrolling of some
villages near Seeta High School where there had been reports of mob justice
activities and burning tires. It was a clear, dry night and road conditions
were excellent. There had been no rain all that day.
At
approximately 9:40 pm., Sewali was driving eastbound along Jinja Road, a wide
tarmac road, approaching its intersection with Kobs Crossing. According to Officer Sewali the speed
limit along Jinja Road at that juncture is posted at 50 kph and Sewali was
travelling at "about" 60 kph when she first noticed the white Toyota
Prado.
When
Sewali first saw the Prado it was travelling northbound on Kob’s Crossing
towards its intersection with Jinja Road. The Prado came to a complete stop at
the intersection, but then proceeded to make a right turn in front of Sewali’s
SUV. This forced Sewali to brake
suddenly. There is neither a stop
sign nor a traffic light at the intersection of JinJa Road and Kob’s
Crossing. The Prado continued
along Jinja Road, with the police cruiser following it for about a
kilometre. While following the
Prado, Officer Sewali noted the following:
1.
The Prado's speed was slow,
travelling at approximately 25 kph;
2.
The driver's head moved
constantly from left to right;
3.
The Prado weaved, somewhat, on
two occasions, crossing one wheel over the
centre
line on each occasion;
4. Suddenly,
and for no apparent reason, the Prado swerved fully into the
westbound
lane. Fortunately, there was no
oncoming traffic.
At
this point Sewali had seen enough and decided to pull the Prado over. Sewali activated his SUV's flashing
roof lights and signalled the Prado to pull over. The did not seem to notice the flashing lights for a few
seconds. Eventually the diver of
the Prado seemed to notice the lights and pulled off to the side of the road
soon afterwards. Sewali pulled the
police SUV up behind the Prado and promptly "exited" the SUV and
approached the accused. The
accused remained seated in the
driver's side seat but appeared to squirm a bit. It looked as if the accused was trying to hide
something. As the accused rolled
the window down Sewali noticed a strong smell of alcohol coming from the car.
Sewali
asked the driver to produce a driver's licence, the vehicle registration and
the insurance. Sewali was
surprised to see that the driver’s legal name was Wallie Waragi. As soon as Waragi spoke, Sewali was
"was struck in the face" by the "stench of alcohol" on the
driver's breath. Waragi fumbled
for, and eventually found, all of the required documents saying "Here they
are officer, hope they're all in order". Sewali asked whether Waragi had been drinking. Waragi replied "yes officer, but I
only had two or three beers at a house party".
When
asked how long before the accused had consumed the beers, Waragi admitted to
having one beer around 7:30 and another between 8:00 and 8:30. Next, Sewali asked Waragi if there was
a reason the Prado had been going so slow and why it was weaving. Waragi claimed to have been looking for
the turn to a small village and claimed to be unfamiliar with the area.
Officer
Sewali shone her flashlight into the car and saw a few empty beer cans on the
passenger's side floor of the car.
Sewali asked Waragi to exit the Prado and accompany Sewali back to the
police cruiser. Sewali noticed
Waragi walk slowly and with deliberate steps. Sewali further noticed that Waragi's eyes were glassy and bloodshot. Waragi was charged under Section
111 of the Traffic and Road Safety Act for operating a motor vehicle while
under the influence of drink to such an extent as to be incapable of having
proper control of a motor vehicle.
All of Waragi's Constitutional rights were respected and honoured.
Waragi
was taken to the police station, precessed and released on bond pending trial.
Unfortunately, the station's breathalyser machine was broken due to a power
surge earlier that day and a breathalyser test could not be administered to the
accused. Sewali denies that the
accused made the request to have the breathalyser administered. Officer Sewali "is quite
sure" that Waragi would have "blown over 80, there is absolutely no
question about it."
T. TOTALLER State’s
Witness #2
T.
Totaller is a 56 year old Irish missionary and counsellor at Seeta High
School. T. Totaller was out
walking to a local trading centre on the late evening of January 15, 2012. Totaller had left home around 9:00 pm,
as was Totaller’s usual habit.
At
approximately 9:40 pm that evening as Totaller was returning home, walking
eastbound on the south side of Jinja Road, about 500 metres from the Seeta High
Shool gate when Totaller observed "a couple of young punks"
travelling slowly, and a little erratically, eastbound along Jinja Road in a
white Prado. Totaller will state,
in direct examination that Totaller saw the passenger drinking from a beer
can. However, when pressed in
cross examination, Totaller will grudgingly admit that the passenger was
actually drinking from what "looked like" a beer can.
Totaller
will testify that a plastic bag containing some of the food he bought at the
trading centre had a hole in it and many of his groceries had fallen out along
the way. When Totaller turned
around to look for missing items along his path he noticed the Prado swerve
"wildly" into the oncoming lane on Jinja Road.
At
this point, Totaller noticed the flashing lights of the police SUV and observed
the Prado pull over to the side of the road. Totaller watched as the officer approached the Prado and
then watched as the officer and the driver walked back to the police
cruiser. Totaller will testify
that the accused was unsteady on his feet and tended to rock back and
forth. Totaller saw the driver
lean against the police SUV to maintain balance.
Totaller
will admit in cross examination to having first been drawn to the Prado by the
blaring of "that blasted car radio.”
Totaller is “sick and tired of drunk hooligans racing up and down Jinja
Road, with their radios shrieking out that awful rap music, having little
regard for anybody but themselves.”
Totaller believes that people that generate “noise pollution should be
put into jail until they learn some manners".
Totaller
usually wears glasses, but he is able to function OK without them. Totaller was not wearing glasses
on the night in question. Totally
was unable to find the glasses prior to going out on the walk that evening.
WALLIE WARAGI
Defence Witness #1
Wallie Waragi is a
5'8", 125 lb., 18 year old secondary school student. On on 15 January 2012 Wallie went out
with his best friend Rabadaba to celebrate Rabadaba's eighteenth birthday. It had been a long day at work for
Wallie. Wallie has just worked a
double shift (14 hours) at the Coke Bottling Plant, when, at approximately 7:15
pm. that evening, Wallie picked up Rabadaba, in the white Toyota Prado
belonging to Wallie’s sister.
Wallie had only eaten
once that day, at approximately 2:30 pm., having devoured a small box of
chicken and chips. Wallie had had
no time for breakfast and had had no time for supper.
Rabadaba and Wallie
arrived at the party at approximately 7:30 pm carrying bottles of Club beer and
a Jerrycan of the “local brew.”
Rabadaba and Wallie cracked open "a cold one" as soon as they
stepped into the party.
Rabadaba and Wallie separated until a little before 9:30 pm. when Rabadaba approached
Wallie and stated that it was time to leave and go to another party. Wallie recalls having one or two
additional beers between 8 and 9:30 pm.
Wallie is unable to recall whether Rabadaba consumed any of the local
brew, "although it is possible". Wallie does recall that Rabadaba seemed to be having a
really, really great time and always seemed to have a cup in his hand.
At approximately 9:30
pm. Rabadaba and Wallie left the party in the Prado to go to the party in a
village located somewhere off the Jinja road. Wallie drove despite the fact that Wallie did not know the
way to the second party.
Rabadaba knew the route and was giving Wallie directions. Rabadaba had turned the volume of the
car radio to its maximum setting so Rabadaba had to yell the directions to
Wallie. Rabadaba drank a can of
Red Bull along the way in order to keep his energy levels high for the next
party.
Wallie will state
that, after travelling several blocks, the Prado came to a full stop at the
corner of Kob’s Crossing and Jinja Road at which point Rabadaba yelled
"turn right this is Jinja Road ... now, look for the turn off across from
Seeta High School". Wallie
turned right, drove slowly looking intently from side to side at the street
signs since Wallie had no idea where the turn off was. Wallie did not notice turning in front
of a police SUV. Wallie was too
busy trying to find the road and trying to understand Rabadaba to notice much
of anything else at that point.
While looking around
for Seeta High School, Wallie noticed some mangos rolling in front of the Prado
and swerved into the oncoming lane to avoid hitting them. Wallie remembers yelling “Mangos”
as the fruit rolled into the path of the Prado. After successfully avoiding the fruit, Wallie immediately
noticed flashing police lights in the car's rear view mirror and pulled over to
the side of the road.
As the police officer
approached the driver's side door, Wallie rolled the window down and turned to
face Captain Sewali. Wallie
recalls being extremely nervous upon being asked for driver’s licence,
registration and insurance. Wallie
had never been stopped by the police before. Wallie fumbled
nervously through Wallie’s wallet trying to locate the documents. When
asked by Captain Sewali to explain the reason for swerving suddenly into the
oncoming lane, Walllie remembers telling Captain Sewali that he swerved to
avoid some mangos that were rolling on the road. Wallie followed the officer back to the police SUV where
Captain Sewali informed of Wallie of Wallie’s rights. Sewali charged Wallie with "driving while under the
influence". They drove to the
station where Wallie was formally processed. Wallie asked for a
breathalyser test, but the test was never administered. Instead, Sewali advised Wallie that the
breathalyser was broken.
RAMA RABADABA Defence
Witness #2
Rama Rabadaba is an
OAC secondary school student who.
On 15 January, 2012 Rabadaba was set to celebrate the first long weekend
of the summer, the end of the school year and Rabadaba’s 18th birthday. At
approximately 7:15 pm. that evening, Rabadaba was picked up by Rabadaba’s best
friend, 18 year old Wallie Waragi, in Wallie's sister's white Toyota
Prado. Their plan was to attend a
house party at 12 Kobs Crossing, together with the rest of the graduating class
of OAC Secondary School.
The friends arrived at
the party at approximately 7:30 p.m.
Between them, they had purchased a twelve pack of Rabadaba's favourite
beer, Club and they had acquired a Jerrycan of the “Local Brew” from Rabadaba’s
uncle. As they entered the house
on Kob’s Crossing, they each cracked open a beer and started to party. The
music was loud and all of their friends were there. It took almost no time for them to feel "good". According to Rabadaba the party was
“crunk swag.”
At around 9:30 p.m.
Rabadaba remembered that a teammate on the swim team was also having a
“village-still” party in a village near Seeta High School (which is just down
Jiinja Road a ways from Kob’s Crossing).
Rabadaba thought that it would be good to chill there for a while. So Rabadaba found Wallie and they left
in Wallie’s sister’s Prado.
Rabadaba thinks Wallie
had at least one beer prior to leaving the Kobs Crossing party and cannot
recall seeing Wallie consume any other alcohol. Rabadaba admits to having "several" beers over the
course of the two or so hours they were at the party and some of the local brew
that Rabadaba drank through a long straw.
The Jerrycan was much lighter than when they left so there is no way
that Rabadaba was the only one drinking the local brew. Rabadaba does not know who else
consumed the local brew.
Upon departing from
Kob’s Crossing, Rabadaba grabbed a can of Red Bull for the road, put the
remaining beer and the Jerrycan of local brew into the Prado's boot. Rabadaba sat in the passenger
seat and Wallie took the wheel and proceeded to drive.
Rabadaba cranked the radio to the maximum volume and bass levels. Rabadaba recalls seeing "a
few" empty beer cans on the floor in front of the passenger seat. Rabadaba denies consuming any
alcohol during the drive to the swimmer’s party. Rabadaba does not know when, or how, the beer cans found
their way into the car. The Club
he was drinking was in bottles.
Rabadaba recalls that
at some point Wallie swerved into the oncoming lane on Jinja Road while yelling
“Mzungu!” out the window.
Prior to this, Rabadaba did not notice anything unusual about Wallie's
driving. Rabadaba is unaware of
exact speed of the car at the time of the swerve. He was too focused on the the music playing on the radio to
notice. Rabadaba believes that
Wallie was driving both carefully and safely at that time.
Rabadaba has never
known Wallie to drive while drunk.
Rabadaba has great
confidence Wallie' driving abilities.
Rabadaba has been driven with Wallie at least five or six other
times.
THE INDICTMENT
The STATE OF UGANDA AGAINST
WALLIE WARAGI
Wallie
Waragi stands charged:
That
in Uganda, Mukono County, on or about the 15th day of January, 2013 Wallie
Waragi did unlawfully operate a motor vehicle while under the influence of
drink or drug to such an extent as to be incapable of having proper control of
the motor vehicle.
Dated
this 24th day of January 2013.
Director of Public Prosecutions
APPLICABLE LAW
111.
Driving while under the influence of drink or drugs.
Every
person who, while under the influence of drink or a drug to such an extent as
to be incapable of having proper control of the motor vehicle, trailer or
engineering plant, drives or attempts to drive a motor vehicle, trailer or
engineering plant on any road commits an offence and is liable on conviction to
a fine of not less than five currency points and not exceeding sixty currency
points or imprisonment of not less than six months and not exceeding two years
or both.
To assist the students
in their preparation of the case, reference may be had to the following
judicial comments: (Please note,
however, that these comments are provided ONLY as a guide to the preparation of
the case, and SHOULD NOT be cited or referred to during the trial.)
1. "There
appears to be no single test or observation of impairment of control of
faculties, standing alone, which is sufficiently conclusive. There should be
consideration of a combination of several tests and observations of such as
general conduct, smell of the breath, character of the speech, manner of
walking, turning sharply, sitting down and rising, picking up objects, reaction
of the pupils of the eyes, character of the breathing.
"If a combination
of several test and observations shows a marked departure from what is usually
considered as the normal, it seems a reasonable conclusion that the driver is
intoxicated with consequent impairment of control of faculties and therefore
that his ability to drive is impaired.
"I do not think
such a finding should be made on a slight variation from the normal."
2. "In
determining whether or not a person's ability to drive was impaired by alcohol
or a drug, consideration may be given to such factors as his ability to drive
in a mechanical sense and also in the field of judgment, his appearance, his
manner of speech, the smell of his breath, his manner of walking, the reaction
of the pupils of his eyes and the results of all physical test including the
breathalyser test. If a consideration of such factors leads the court to the
conclusion that the condition of the accused was consistent with the conclusion
that he was driving while his ability to drive was impaired by alcohol or a
drug and inconsistent with any other rational explanation, then the court is
justified in convicting him."
"It should be
noted that it is not the driving of the accused that is to be judged, although
that is a factor to be considered. Even
if nothing abnormal about his driving was observed, that is not conclusive as
to his guilt or innocence. One's ability to drive may be impaired even though
there is no evidence of bad driving and, conversely, one may drive badly
without being impaired. The question for determination is not whether he drove
badly, but rather was his ability to drive impaired or was it not."
