CLINICAL LEGAL EDUCATION II
(January Semester 2014)
Mock Direct and Cross Examination 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. Prior to
March 2013 Sewali served as a foot patrol officer assigned to directing
traffic. Since March of 2013
Sewali has been serving as a vehicle patrol officer and has been provided with
one of the fifteen new SUV’s that the UPF received thanks to a generous donation
from the government of Norway.
Officer
Sewali has not actually reached the rank of Captain. Sewali used to be captain of a football team and the name
just stuck.
Officer
Sewali started a shift at 8:00 am on the morning of January 17, 2014 and was
forced to work late that night because of cutbacks in the UPF's budget and
because other officers that could have relieved him had malaria. At 9:00 pm., Sewali was alone in her
SUV patrolling the area near Seeta High School where there had been reports of
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
approaching its intersection with a newly constructed road called Kobs
Crossing. According to Officer
Sewali the speed limit along this stretch of Jinja Road at that juncture is
posted at 50 kph and Sewali was travelling at "about" 55 kph when she
first noticed the white Toyota Prado.
When
Sewali first saw it the Prado was travelling northbound on Kob’s Crossing
towards its intersection with Jinja Road. There is neither a stop sign nor a
traffic light at the intersection of JinJa Road and Kob’s Crossing. The Prado came to a complete stop at
the intersection, but then proceeded to make a right turn in front of Sewali’s
SUV. The Prado forced Sewali to
brake suddenly. 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).
Sewali
had seen enough and decided to pull the Prado over. Sewali activated the cruiser's flashing roof lights and
signalled the Prado to pull over.
The Prado immediately pulled off to the side of the road. Sewali pulled the cruiser up behind the
Prado and promptly exited the cruiser and approached the accused, who was still
sitting in the driver's side seat.
As the accused rolled the window down Sewali noticed a very strong smell
of alcohol coming from the car.
Sewali
asked the driver to produce a driver's licence. 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 "smell
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 p.m and another between 8:00 and 8:30 p.m. Next, Sewali asked Waragi is 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 road leading to 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 rights were fully complied with.
Waragi
was taken to the police station, was booked and was then released pending
trial. Unfortunately, the station's breathalyser machine was broken due to a
power surge earlier that day and a test could not be administered to the
accused. Sewali does not recall
Waragi ever requesting to have a breathalyser administered, but is it possible
that Sewali could have forgot.
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 68 year old Irish missionary/counsellor at Seeta High
School. T. Totaller happened to be
out walking to a local trading centre on the late evening of January 17, 2014. 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 100 metres from the Seeta High
School gate when Totaller observed "a couple of young punks"
travelling slowly, and a little erratically, eastbound along Jinja Road in a
white Prado. Totaller believes
Totaller saw the passenger drinking from a beer can. However, Totaller cannot be sure. All Totaller knows is that it looked a beer can. Totaller will also admit that he rarely
sees beer sold in cans in Uganda.
Totaller
will testify that a plastic bag containing some of the food Totaller bought at
the trading centre had a hole in it and many of Totaller’s groceries had fallen
out along the way. When Totaller
turned around to look for missing items along Totaller’s path Totaller 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 swear that the accused
was walking unsteadily and it looked to Totaller that the driver could only
maintain balance by leaning against the Prado when walking to the Police
cruiser.
Totaller
admits to having first been drawn to the Prado by the blaring of "that
blasted car radio. Totaller told
the police offer at the seen “you know, I am getting sick and tired of these
drunk hooligans racing up and down Jinja Road, with their radios shrieking out
that awful rap music, having little regard for anybody but themselves. They
should all be put into jail".
Totaller,
who usually always wears eye glasses, was not wearing them while taking the
walk to the trading centre.
Totaller could not find them and Totaller really needed some milk and
mangos for his breakfast the the next morning.
WALLIE WARAGI
Defence Witness #1
Wallie Waragi is a 55
kilogram 18 year old secondary school student who, on 17 January 2014, was
looking forward to going to a party with his/her best friend, Rabadaba, to
celebrate Rabadaba's eighteenth birthday. It had been a long day at work for
Wallie, having worked a double shift (14 hours) at the Coke Bottling Plant,
when, at approximately 7:15 pm. that evening, Wallie picked up Rabadaba, in
Waragi's older sister's white Toyota Prado.
Waragi had only eaten
once that day, at approximately 2:30 pm., having devoured a large box of
chicken and chips. Waragi had had no time for breakfast, and had had no time
for supper because Rabadaba picked Waragi up at 7:15 p.m.
Rabadaba and Waragi
arrived at the party at approximately 7:30 pm carrying bottles of Club beer and
a Jerrycan of the “local brew”.
Each of them cracked open "a cold one" as soon as they stepped
into the party. The friends
separated until approximately 9:25 pm. when Rabadaba approached Waragi and
stated that it was time to leave and go to another party. Waragi recalls having one or two
additional beers between 8:00 and 8:30 pm. Waragi is unable to recall whether Waragi consumed any of
the local brew, "although it is possible". On the other hand, Waragi does recall that Rabadaba had had
a considerable amount of alcohol to drink throughout the evening and was
"thoroughly enjoying the celebrations".
At approximately 9:30
pm. they left the party in Waragi' sister's car to go to the party in a village
near Seeta High School. Waragi was
driving. Although Waragi did not
know the way to the second party, Rabadaba knew the route and gave Waragi
directions. Rabadaba turned the
volume of the car radio upto its maximum setting, was changing stations
frequently, and was drinking from a can of Red Bull.
Waragi 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 blurted out
"turn right this is Jinja Road ... now, look for the turn off across from
Seeta High School". Waragi
turned right, drove slowly looking intently from side to side at the street
signs since Waragi had no idea where the turn off was.
While looking around
for Seeta High School, Waragi noticed some mangos rolling in front of the Prado
and swerved into the oncoming lane to avoid hitting them. Waragi remembers yelling “Mangos”
as the fruit rolled into the path of his vehicle. After successfully avoiding the fruit, Waragi immediately
noticed a flashing light 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, Waragi rolled the window down and turned to
face Captain Sewali. Waragi was
extremely nervous. Waragi
had never been stopped by the police before. Waragi nervously fumbled around trying to locate the
documents. When asked to respond to the reason for swerving suddenly into the
oncoming lane, Waragi remembers telling Captain Sewali that Waragi swerved to
avoid some mangos that were rolling on the road. Waragi followed the officer back to the cruiser and was
informed of Waragi’s rights.
Sewali charged Waragi with
"driving while under the influence".
They drove to the
station where Waragi was formally booked.
Waragi asked for a
breathalyser test, but one was never administered. Sewali advised Waragi that the
breathalyser was broken.
RAMA RABADABA Defence
Witness #2
Rama Rabadaba is an
OAC secondary school student who, on 17 January 2014, was looking forward to
celebrating 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, 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. ready to celebrate Rabadaba's reaching the
age of majority. 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, all of their
friends were there and it took almost no time for them to feel
"good".
At 9:30, Rabadaba
recalled that a teammate on the swim team was also having a party in a village
near Seeta High School (which is just down Jinja Road a ways from Kob’s
Crossing). Rabadaba wanted to
attend before the evening ended, so Rabadaba sought out the Wallie and they
left together 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.
It is true that the Jerrycan was much lighter than when they arrived 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.
When leaving the Kob’s
Crossing party, 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, and sat in the
passenger seat. Meanwhile, Wallie
took the wheel and proceeded to drive.
The Prado's radio was
set to the maximum volume and bass levels, the windows were closed and the
friends set off for the village party.
Rabadaba recalls seeing "a few" empty beer cans in the front
seat of the car, but the cans were on the passenger’s side of the Prado. Rabadaba denies consuming any alcohol
during the drive to the other party.
Rabadaba does not know when, or how, the beer cans found their way into
the car.
Rabadaba recalls, that
while chugging the last of the Red Bull, Wallie suddenly 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 other than the fact that Wallie
was confused because Wallie did not know the way to the party.
Rabadaba is unaware of
exact speed of the car at the time of the swerve, having been absorbed by the
music playing on the radio.
Rabadaba believes that Waragi 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 ridden with Wallie as the driver at least five or six other
times. All of those times Wallie
drove without incident other than the time Wallie glanced a boda guy, but it
was the boda guy’s fault.
THE INDICTMENT
The STATE OF UGANDA AGAINST
WALLIE WARAGI
Wallie
Waragi stands charged:
That
in Uganda, Mukono County, on or about the 17th day of January 2014 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 27th day of January 2014.
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."
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