Category: Appeal

Petitioner appeals his conviction by the lower court at trial of one count of first-degree arson, in violation of Florida statue 806.01(1).

Constitutional and Policy Provisions Involved.

Florida Statue (insert weird thingy) Florida statue 806.01 provides in pertinent part:

Any person who willfully and unlawfully, or while in the commission of any felony, by fire or explosion, damages or causes to be damaged:

• Any dwelling, whether occupied or not, or its contents;
• Any structure, or contents thereof, where persons are normally present, such as: jails, prisons, or detention centers; hospitals, nursing homes, or other health care facilities; department stores, office buildings, business establishments, churches, or educational institutions during normal hours of occupancy; or other similar structures; or
• Any other structure that he or she knew or had reasonable grounds to believe was occupied by a human being, is guilty of arson in the first degree, which constitutes a felony of the first degree, punishable as provided in s. 775.082, s. 775.083, or s. 775.084.

Questions Presented

1. Whether Petitioner’s recorded statement to law enforcement immediately prior to his arrest in the instant case was coerced and therefore subject to exclusion under the Due Process Clause of the Fourteenth Amendment and Article 1, section 9 of the Florida Constitution?
2. Whether a declarant’s question is categorically exempt from the Florida Evidence Code’s definition of “hearsay” in section 90.801 (1), Florida Statues?

Statement of the case

In 2018, a student enrolled at Southern Coastal University (“SCU”) angerly set fire to the abandoned and condemned student union building. At trial the victim was found guilty of first-degree arson in violation of section 806.01(1) Florida Statues. On appeal of the Sixth District Court, the issues before this court are:

1. whether the trial court erroneously denied the motion to suppress his confession to law enforcement and;
2. whether the trial court erroneously overruled his hearsay objection to the admission of a question posed to Mr. Murphy at the scene of the offense.

Arguments

Florida law, like its federal counterpart Federal Rule of Evidence 801, defines hearsay as “a statement, other than one made by the declarant while testifying at the trial or hearing, offered in evidence to prove the truth of the matter asserted.” Fla. Stat. § 90.801(1)(c); see also Fed. R. Evid. 801(c). The term “statement” is defined further as “[a]n oral or written assertion[.]” Fla. Stat. § 90.801(1)(a)(1). “[W]hether evidence falls under the statutory definition of hearsay or is admissible under an exception to the hearsay rule are questions of law reviewed de novo.” Helms v. State, 271 So. 3d 1030, 1033 (Fla. 4th DCA 2019).

The trial court correctly permitted the admission of Patrick’s question to his brother because it was not hearsay. “An inquiry is not an ‘assertion,’ and accordingly is not and cannot be a hearsay statement.” United States v. Oguns, 921 F.2d 442, 449 (2d Cir. 1990). “Because a question cannot be used to show the truth of the matter asserted, the dangers necessitating the hearsay rule are not present.” Id.; see also United States v. Love, 706 F.3d 832, 840 (7th Cir. 2013) (collecting cases).

In United States v. Oates, 560 F.2d 45 (2nd Cir. 1977), the court held a law enforcement chemist’s report to be hearsay, not subject to an exception under Federal Rules of Evidence, Rule 803(8) and therefore inadmissible without the chemist. The court significantly held that the prohibition of Rule 803(8) against admitting hearsay reports prepared by law enforcement personnel in criminal cases carried over to Rule 803(6). Thus the government cannot use the business records exception to introduce reports that would violate Rule 803(8).

Mr. Murphy was not subject to be there time of questioning, therefor even if the question was “hearsay”, it is inadmissible.

There is no merit to petitioner’s contention – based on the “bootstrapping rule” of Glasser vs. United States, 315 U. S. 60, and United States vs. Nixon, 418 U. S. 683 – that a court, in determining the preliminary facts relevant to Rule 801(d)(2)(E), must look only to independent evidence other than the statements sought to be admitted. Both Glasser and Nixon were decided before Congress enacted the Federal Rules of Evidence, and Rule 104(a) provides that, in determining preliminary questions concerning admissibility, the court “is not bound by the rules of evidence” (except those with respect to privileges), thus authorizing consideration of hearsay. Such construction of Rule 104(a) does not fundamentally change the nature of the co-conspirator exception to the hearsay rule. Out-of court statements are only presumed unreliable, and may be rebutted by appropriate proof, and individual pieces of evidence, insufficient in themselves to prove a point, may in cumulation prove it.

In order to encourage the witness to do his best with respect to each of these factors, and to expose any inaccuracies which may enter in, the Anglo-American tradition has evolved three conditions under which witnesses will ideally be required to testify:

1. under oath,
2. in the personal presence of the trier of fact,
3. subject to cross-examination.

Which in Mr. Murphy was subject to none of these.

For similar approaches, see Uniform Rule 62(1); California Evidence Code §§225, 1200; Kansas Code of Civil Procedure §60–459(a); New Jersey Evidence Rule 62(1).

In The Court Of Appeal (Criminal Division) between: Regina, Respondant, v. Sam, Appellant

Introduction

This is a submission on behalf of the appellant in the matter of Regina v Sam now being appealed to the court of appeal (Criminal Division).

Salient Facts

• On the 26th July a fire was discovered in a large field of wheat.
• The farm was owned by Western Foods limited but run by a tenant farmer named Adam Macey.
• Police arrested Sam who is Tony’s niece a neighbor to Adam who admitted being responsible for the arson.
• On apprehension she stated that she knew Adam from school.
• She made the decision to commit arson after she had been drinking in the pub with a group of fellow environmentalists.
• Sam was charged with Criminal Damage contrary to S1 (3).
• At her trial Sam raised two defenses:

1. First that she believed the owner consented to the damage or would have done had they known of the circumstances.
2. Secondly that she destroyed the property because she believed this to be the only way to protect the property from immediate threat.

Two grounds of appeal

2. The appellant will be dealing with two grounds of appeal by which it is claimed:

• Her defense of lawful excuse under S5 (2)(a) was untenable and they should disregard this as Western Foods would never have consented to the damage of the crop and her belief was clouded by her consumption of alcohol.
• A defense under S5 2(b) was not sustainable because she was not protecting the property – the orchard – as she was really working as an environmental activist and the protection was too remote.

First submission appeal 1

3. In the case of Jaggard v. Dickinson – [1981, Q.B. 527] despite breaking and entry the decision was held to allow an appeal based on statute. The case relied on section 5 (2)(a) of the Criminal damage Act 1971 which indicated: If at the time of the act alleged to constitute the offence he believed that the person whom he believed to be entitled to consent to the damage of the property in question would have so consented to it [Jaggard v. Dickinson, 1981, Q.B. 527] [Criminal Damage Act, 1971, s5 (2)(a)].

4. This provides Sam with a defense to the charge because at the time of the alleged offence, she honestly believed that the person whom she believed to be entitled to consent (Adam) would have so consented. Mr. Adam was a school friend and also a neighbor to Miss Sam’s uncle. This clearly indicates that there was some sort of mutual day to day understanding or interaction. Therefore, after hearing Adam talking negative about the plantation of the crops this made Sam honestly believe she would have gained consent over the damages to the land.

5. Based on the decision held in Jaggard v. Dickinson of allowing the appeal. The appellant was able to rely on her mistaken belief even though she was in an intoxicated state. In the same way Miss Sam held the same belief that she had consent from Mr Adam.

Second submission appeal 1

6. I submit that the appellants judgment was not clouded due to the voluntary consumption of alcohol as per the principles set out in the case of R v. Kingston 1994 3 WLR 519. Where it was held: “That although the drugs had essentially done away with Kingston’ inhibitions they did not negative the necessary mental element’. This shows her judgment was not clouded as she was part of an environmentalist group before the consumption of alcohol. Therefore, when under the influence her actions and thoughts aligned with the submission of her offence [R v. Kingston, 1994, 3 WLR 519].

7. The appellant was also able to give a reasoned account of what happened as she immediately admitted being responsible for the arson. On apprehension she stated reasons for carrying out the offence, which was the fact that she was concerned, GM was damaging the environment and the welfare of the planet. Therefore, her judgement was not clouded by her consumption of alcohol as her confession had structure. This also shows remorse due to her nature of immediate admittance and concern for the environment as there was no personal gain or benefit.

First submission appeal 2

8. A fire was discovered in a large field of wheat. The field was destroyed at Ambridge Farm which was situated close to Bridge Farm an organic fruit growing small holding owned by Tony Archer. Sam stated that she was concerned that GM was damaging the environment and therefore the welfare of the planet. This would also severely affect the value of her uncle’s crops.

9. This shows “that the means of protection adopted or proposed to be adopted were or would be reasonable having regard to all the circumstances” [Criminal Damage Act, 1971, s5 (2)(b)(ii)].

10. Gm are detrimental to neighboring land because it consists of causing contamination to none GM crops of the same spices “including cross pollination of neighboring crops”. This shows that Sam had reasonable grounds to destroy the wheat field under the defense of the criminal damage act 1971 [Genewatch UK].

Second Submission appeal 2

11. The judge erred in directing the jury that Sam’s defense under S5 2(b) was not sustainable because she was not protecting the property as she was really working as an environmental activist and the protection was too remote.

12. HHJ Grundy was mistaken in applying the case of Hill and Hall which took a narrow view of remoteness and failed to apply a subjective test to the belief held by the defendant. The Applicant states she was in genuine fear about the livelihood of Uncle Tony and the organic nature of the orchard at Bridge Farm.

13. In the case of Hill and Hall the defendants’ acts would be too remote from the eventual harm they were protecting the property from” it may have been too remote as it states, “in the event of a war”. This shows there is nothing to suggest there was a war and that their property would be damaged at any time. They were protecting the property from eventual harm, but in this scenario the threat is her uncle’s property as per the sections – s5(2)(b) (i) “that the property, right or interest was in immediate need of protection” [R V Hill And Hall, 1989, 89, CR APP R 74] [Criminal Damage Act, 1971, s5 (2)(b)(i)].

14. In the case of Hill and Hall “where the defendant broke in to a us naval base in England as they held an honest belief that in the event of a war the base would be subject of a nuclear attack. The damage would affect the defendant’s property this was held to be to remote as they were protecting their property from eventual harm”. In contrast the wheat had already been planted and thus would be immediate harm.

Conclusion

15. Miss Sam has held the reasonable belief that she had lawful excuse under S5 (2) (a) and (b). That she gained consent to set the farm alight. Also, her judgment was not clouded and her actions had reason for her to be protecting the environment in all circumstances as her family members property would have been affected showing that she had an interest in the property and by setting GM wheat on fire was needed as a immediate cause of action. However, with Sam it was not to remote as immediate affects could have caused substantial detriment to her uncle if she had not acted showing her property rights and interests of immediate protection.

What I would like the courts to do?

16. So, I hereby submit that on these grounds you dismiss the conviction and uphold the appeal.

Bibliography

Cases:

1. Jaggard V. Dickinson – [1981] Q.B. 527
2. R V Hill And Hall (1989) 89 CR APP R 74
3. R v Kingston [1994] 3 WLR 519

Statute

1. “Without Lawfull Excuse” Criminal Damage Act, 197, s5 (2)(a)(i)(ii)

Website

1. ‘Genewatch Uk – Contamination An Coexsitance – How Can Gm Contamination Of Crops Be Provented?’

The court of appeal between Jimmy Brown (Appellant) and Galaxy General Hospital (Defendant).

Notice of appeal

• I. The learned Trial Judge, Campbell J, erred in law in holding that Dr. Roberts was not negligent in performing the operation and that the procedure in question was a general and approved practice.
• II. The learned Trial Judge erred in law in failing to find that the operation in question did not contain inherent defects and was carried out with the appropriate standard of care.
• III. The Learned Trial Judge erred in law when finding that the performed procedure was a non-elective surgery and therefore did not require a higher standard of care when carrying out the procedure and by doing so, there was no duty to inform the plaintive of all material risks and complications of the medical procedure in question.
• IV. The learned Trial Judge erred in law in finding that the timing (1 hour before the procedure) of warning, by Dr Roberts was sufficient and consequently did not impact on the validity of the consent obtained.

Legal Submission

[1] Statement of Claim

[1.1] Council for the Appellant, Mr. Jimmy Brown, respectfully submits that the learned Trial Judge, Campbell J, was incorrect in finding in favour of Galaxy General Hospital in the High Court. Council Submits that Campbell J erred in law in (i) holding that Dr Roberts was not negligent in performing the operation, (ii) for failing to identify that the procedure in question was not a general and approved practice, one of which (iii) contained inherent defects and was not carried out with the correct standard of care, (iv) incorrectly defining the nature of the surgery as non-elective and also (v) failing to identify the invalidity of the consent obtained as a result of its timing and warning.

[2] General and Approved Practice

[2.1] Council respectively submits that Dr Roberts did deviate from General and Approved Practice, but also failed to identify the Inherent Defects which ought to have been obvious to any person when giving the matter due consideration [McMahon & Binchy, 2013, at 514].

[2.2] The principals to establish negligence in diagnosis and treatment of the part of the medical practitioner was laid down and summarized in six parts, by Finlay CJ, in the case of Dunne v National Maternity Hospital where in his judgment he stated that [Ibid, at 513] [Dunne v National Maternity Hospital [1989] IR 91, at 108-110]; “Deviance from general and approved practice, is not sufficient to prove negligence, unless it is also proven that the course taken was one which no medical practitioner of like specialization and skill would have followed had he been taking the ordinary care required from a person of his qualification” [Dunne v National Maternity Hospital, 1989, ILRM 735, IR 91].

[2.3] Finlay CJ later clarifies that; “General and approved practice need not be universal but must be approved of and adhered to by a substantial number of reputable practitioners holding the relevant specialist or general qualifications” [1989 IR 91, at 110].

[2.4] Council submits that Dr Roberts did in fact deviate from general and approved practice when he, a general surgeon, undertook a procedure which was not “wildly used and practiced in the field”, as so stated by a medical expert in their testimony, but also a procedure which had never been attempted in Ireland and should only have been attempted by one of the four specialists within this field in the country. We submit that no other medical practitioner of like specialization of that of Dr Roberts, would have undertaken such a procedure.

[2.5] The third principal of the negligence ‘test’ was initially laid down by Walsh J in the O’Donovan v Cork County Council where he stated that; [O’Donovan v Cork County Council, 1967, IR 173, at 193-194] “A medical practitioner cannot be held negligent if he honors general and approved practice… But if there is a commonly used practice which has inherent defects which ought to be obvious to any person giving the matter due consideration, the fact that it is shown to have been widely and generally adopted over a period of time does not make the practice any less negligent” [Ibid, at 193-194].

[2.6] Additionally, council respectively submits that Dr. Roberts failed to identify the inherent defects which ought to have been obvious to any person giving the matter due consideration, in this case, the fact that he failed to examine the possibility of the lack of skin in order to complete the skin graft before commencing the surgery which ultimately resulted in the appellant’s head deformity, nerve damage, and chronic pain not to mention the potential damage to his career and future as a model [1967, IR 173, at 193-194].

[2.7] Finally, council submits that even if one was to disagree and insist that Dr. Roberts did not deviate from general and approved practice, one cannot ignore the obvious inherent defects which any reasonable person of like specialization would have noticed before the commencement of surgery. The true test to establishing negligence in diagnosis or treatment on the part of the medical practitioner is whether he has been proved to be guilty of such failure as no medical practitioner of equal specialist or general status and skill would be guilty of if acting with ordinary care and Dr. Roberts is guilty of such a failure [McMahon & Binchy, 2013, at 513].

[3] Elective/ Non-Elective Surgery

[3.1] Counsel submits that Campbell J erred in finding that the procedure was non-elective. We argue that the surgery was elective as it was carried out for cosmetic purposes and therefore the consent obtained should have been of a higher standard.

[3.2] It is generally accepted that more rigorous disclosure of risks is required when a patient wishes to undergo an elective form of treatment. In the case of Walsh v Family Planning Services Ltd. it was accepted that warnings of risks associated with an elective surgery should be more exhaustive. Since an elective procedure is “not essential to health or bodily well- being” it is for the patient to decide if the risks are worth the benefits of the procedure [John Healy, 2009] [Walsh v Family Planning Services Ltd, 1992] [Ibid].

[3.3] The case of Fitzpatrick v White it was stated that warnings given only shortly before an operation is about to commence are undesirable. The point was also argued that warnings given late in the day may also err on the side of negligence. As stated by Kearns J., “where a warning is given late in the day, particularly where a surgery is elective surgery, the outcome might be different” [Fitzpatrick v White, 2008, 3 IR 551] [2008, 3 IR 551].

[3.4] The appellant is of the belief that this case features an elective procedure. Mr Brown’s main goal was to improve the appearance of his forehead and surrounding area. During his follow up consultation with Dr Murphy there was no indication that the surgery was medically necessary. Due to the fact that it was an elective procedure there was also no pressure placed on how soon the operation had to take place. If given more time to process the information Mr Brown may have opted not to have the surgery since it was not essential for his health or to delay the procedure till the original doctor was available. With elective procedures such as cosmetic surgery and sterilization on the rise, we urge the court to consider this very grey area in Irish law.

[4] Informed Consent

[4.1] Counsel submits that the appellant was not given adequate time to make an informed decision on the matter and therefore did not satisfy the criteria for sufficient consent. It is accepted in the courts that individuals have an autonomous entitlement to accept or reject what their doctors propose. In order for a patient to consent to a medical procedure the following three requirements must be satisfied. They must have had: (i) the capacity to consent, along with (ii) being properly informed prior to the commencement of the treatment and (iii) the consent must have been given voluntarily.

[4.2] A key implication in this case is that the late warning given to Mr. Brown tarnishes the validity of his consent. Referring again to the case of Fitzpatrick v White, Kearns J. expressed the necessity for warnings of risks prior to the date of commencement. Prior to an operation he commented on how, “a patient may be stressed medicated or in pain in this period and may be less likely to make a calm and reasoned decision” [2008, 3 IR 551] [Ibid].

[4.3] The case of Re Mb shows the English courts stance that: “Capacity to decide could be completely eroded by temporary factors such as confusion, shock, fatigue, pain, drugs or panic induced by fear. Fear could paralyze the will and thus destroy the capacity to make a decision” [​1997, 38 BMLR 175A].

[4.4] Materiality must also be examined in these proceedings. As stated in the case of Montgomery [Montgomery v Lanarkshire Health Board, 2015, UKSC 11]; “The test of materiality is whether, in the circumstances of the particular case, a reasonable person in the patient’s position would be likely to attach significance to the risk, or the doctor is or should reasonably be aware that the particular patient would be likely to attach significance to it” [2015, UKSC 11].

[4.5] Given Mr. Brown’s occupation as both a model and a footballer one can understand why he may have been more distressed than the average patient in these circumstances. He relies heavily on the appearance of his face for his source of income. As a result, he would have attached significance to the risks discussed and may have decided against the procedure. Given that Mr. Brown is well known as a footballer, the respondents should have shown more regards to the fact his career would be affected if the procedure was not successful.

Conclusion

In conclusion, council submits that the High Court erred in law in holding that Dr. Roberts was not negligent in his medical proceedings and for failing to find that the applied negligent tests were in fact satisfied and therefore should not have found in favor of Galaxy General Hospital. We also ask the court to acknowledge that the procedure received by Mr. Brown was an elective procedure, one which was carried out in the absence of valid consent. To conclude, counsel respectfully requests that the Court overturn the decision of the High Court and find in favor of the Appellant, Mr. Brown.

Index Of Authorities:

1. Irish Case Law
2. Dunne v National Maternity Hospital [1989] ILRM 735, [1989] IR 91
3. Fitzpatrick v White [2007] IESC 51, [2008] 3 IR 551
4. O’Donovan v Cork County Council [1967] 102 ILTR 157, [ 1967] IR 173
5. Walsh v Family Planning Services Ltd [1992] IESC 3, [1992] 1 IR 496
6. UK Case Law
7. Montgomery v Lanarkshire Health Board [2015] UKSC 11
8. Re MB [1997] 38 BMLR 175

Books

1. John Healy, Medical Malpractice Law, (Dublin: Round Hall, 2009)
2. McMahon & Binchy, Law of Torts, 4th edt., (Dublin: Bloomsburry Professional Ltd., 2013)