Mooting problem

The Queen v McCavity

The moot task

Dr Phil McCavity is a dentist. He has been charged with the murder of Simon Kildare. The trial in the Supreme Court of Victoria has been underway for three days and the prosecution has just finished presenting its evidence (summarised below).

The accused's lawyers have now decided to make a 'no case' submission (pursuant to section 226 of the Criminal Procedure Act 2009 (Vic)), on the basis that the prosecution has not presented sufficient evidence that McCavity's conduct caused the death of Kildare and so the accused has no case to answer.

Counsel for the accused are to argue for the 'no case' submission. Counsel for the prosecution are to argue against the 'no case' submission.

The evidence (summarised)

Jean Kildare (sister of Simon Kildare): gave evidence that shortly before his death, Simon had mentioned to her that he suspected that his wife, Blanche, and her dentist, Dr McCavity, had been having an affair, and that he had decided to confront Dr McCavity about it by pretending to go in for a check-up, which he would audio-record using his mobile phone.

Lisa Martino (Dr McCavity's receptionist): gave evidence that she saw Mr Kildare attend Dr McCavity's dental surgery on the day in question. She saw him go into the surgery with Dr McCavity, heard raised voices a few minutes later, and then saw Mr Kildare run from the surgery, looking panicked, and run out the back door. She then heard a loud crash. She then ran to the back door herself and saw Mr Kildare lying motionless on the ground at the foot of the back stairs, which had about a dozen steps. She then ran back inside and called 000.

Senior Constable Edwina Hwang: gave evidence that she attended the dental surgery of Dr McCavity in Bundoora shortly after a call had been made to 000 requesting police and ambulance attendance. She confirmed that she located the body of the deceased at the foot of the outside stairs at the back of the surgery, and that she located a mobile phone in the top left breast pocket of the deceased's shirt, which still had the audio record function on. She played the recording at the scene and confirmed that the following conversation (played to the jury) was what she heard. (Witnesses Jean Kildare and Lisa Martino confirmed that the first voice is that of Dr McCavity and the other voice is that of Mr Kildare.)

'Okay, then Mr Kildare, if you would just sit back and open wide.'

'Ah. Before we start, Dr McCavity, can I just ask if you like my wife, Blanche?'

'I'm sorry — who?'

'Blanche, Blanche Kildare, my wife. Do you like her?'

'Oh, yes, Mrs Kildare. She's … um … a good patient, if that's what you mean.'

'She certainly likes you. She often tells me complimentary things about you.'

'Well, I … um … I try to be the best dentist I can be.'

'I'm sure you do, Phil. But I think you know that the compliments aren't just about your dentistry skills.'

'Mr Kildare, I'm afraid I don't know what you mean.'

'Oh, I think you do. You provide her with much more than they taught you in dentistry school, don't you?'

'Mr Kildare, I think your innuendo is quite out of order. Now if you would like to stop with the questions, and lie back, I'd like to examine your teeth.'

'Oh, there's not much wrong with my teeth. It's yours you should be worried. All that lying you do through them must be rotting them away.'

'Mr Kildare, I must insist that you cease these baseless suggestions. I don't know why you think this is appropriate. Well, I guess Blanche did warn me the other night that you were a very suspicious pers …. on. Oh …'

'Oh, she did, did she?.'

'Mr Kildare, Simon. Look, I think you have no right to come in here and make accusations. If you'd spent more time actually being with your wife, rather than being jealous, maybe she wouldn't have looked elsewhere for love. I don't have to put up with this.'

'Well, thank you for clearing up that little question for me. At least you won't have to worry about your rotten teeth any more — because I'm about to smash them in for you, just before I make a complaint to the Dental Registration Board to get you struck off!'

'Oh, I don't think we'll need to bother with that, Simon.'

'Ow! What the hell was that?'

'Simon, Simon, Simon. Just relax. Yes, I have been having an affair with your lovely wife, Blanche, but there's nothing for you to worry about because I've just injected you with a lethal dose of sedative. You've got about 60 seconds before you fall unconscious and die. But don't worry, I'm an experienced dentist and I assure you it won't hurt a bit. If you just relax and lie back, you'll feel pleasantly drunk before you slip into the eternal void in about … 50 seconds from now.'

'What?! You bastard! You're a monster! Get away from me! Oh, my neck feels weird! I've got to get away …'

[On the recording there can then be heard sounds of inarticulate shouting and something be knocked to the floor, followed by rapid footsteps, panting, then a loud crash — and silence.]

Dr Vyvyan Stenshall (forensic pathologist): gave evidence that he examined the body of the deceased and confirmed that Mr Kildare died instantly from a broken neck, sustained when he fell down the back stairs. Dr Stenshall also gave evidence that the accused had a puncture wound in the neck, consistent with an injection with a hypodermic needle. Dr Stenshall also stated that he had analysed the deceased's blood and had found that it contained procaine, which is a common anaesthetic drug used by dentists. The dosage was not anywhere near sufficient to be lethal for an average adult male. The effect would most likely have been only a localised numbness in the neck muscles.

Dr McCavity gave only a 'no comment' interview when questioned by police. This was not played to the jury.