2015, Semester 1
Page 1 of 6
SEAT NUMBER: ………………………………………
STUDENT ID: …………………………………………. SURNAME: ……………………………………………. GIVEN NAMES: …………………………………. …………………………………...
LAWS1014 Civil and Criminal Procedure Examination Semester 1, 2015
Time Allowed: Two Hours + 30 minutes reading time This examination paper consists of 6 pages pages This is an OPEN OPEN BOOK exam. exam. You may bring bring any written material into the the examination room, including text books, copies of legislation, and your own notes. Sydney University library books are not permitted unless granted permission by Miiko Kumar or Louise Boon-Kuo. INSTRUCTIONS INSTRUCTIONS TO CANDIDATES CANDIDATES 1. During reading time students may prepare answers by making notes on the examination paper, but may not write in the examination booklets in which they are to submit their answers. 2. Please print your student identification identificat ion number clearly on the front of of each of the answer books you submit and indicate which question you are answering. 3. The paper comprises 2 parts each with multiple parts. ANSWER BOTH PARTS. 4. There are two two parts. Each part is worth 35. The total total mark for the exam paper is out of a total of 70. 5. Part 1 (criminal procedure) has two questions. A problem question worth worth 25 marks and an essay question worth 10 marks 6. Part 2 (civil procedure) has has one problem question worth 35 marks. 7. Take care to write legibly. legibly. Write your your final answers answers in ink, ink, not pencil. pencil. 8. Answer each part in a separate answer book. 9. Please print your student identification identificat ion number clearly on the front of of each of the answer books you submit and indicate which question you are answering. 10. Students MUST submit their examination paper along with their
answer books. The paper is not to leave l eave the examination room.
2015, Semester 1
Page 2 of 6
Part 1 Criminal Procedure (Allocate 60 minutes for this Part) Question 1 is worth 25 marks. Question 2 is worth 10 marks. Allocate your time accordingly. Students must answer all sub-questions in Question 1. They are worth 25 marks in total. You must provide reasons supporting your analysis including references to the relevant facts, legislation, guidelines, codes and/or cases. Question 1. [The following scenario is based on a real case from South Australia, R v Williams (November 2014), which we have not studied in this course. The names have been changed.] At 4 am on the 4th of January 2015 the Police receive a report of a stolen car. It is described as being a white 1992 Subaru with heavily tinted windows. Senior Constable Smith (“Smith”), a uniformed police officer, is driving along when he sees the stolen Subaru driving in the opposite direction. Smith sees two occupants and he gives the following description over the police radio: “Two males in the vehicle – baseball caps – 30s - possibly Aboriginal.” Four other police vehicles in the vicinity head towards Smith’s location. Smith executes a U-turn and pursues the Subaru which travels “at speed” turning left where it comes to a stop when it crashes into a black Hyundai parked on the side of the road. The driver exits the car and runs away from the pursuing police vehicle. The passenger, after struggling for some time to unlock the passenger side door, also exits the vehicle. She is apprehended by police who quickly arrive on the scene. Her name is Kelsea Stanmore. She is Aboriginal, 16 years old. Smith has the driver in his sights and gives chase on foot. The driver, who is wearing a black baseball cap, runs down a side street, climbs a fence and then Smith sees him climb onto the garage roof at which point Smith loses sight of him. Smith gives his location over the police radio and within 15 seconds four other police vehicles arrive. In one of the vehicles is Constable Toltz (“Toltz”), also in uniform, with his police dog, Doka, a large adult German Shepherd. Toltz and Doka begin searching that street. 200m further along that street Doka picks up a “fresh scent” (indicating that a person is, or has recently been, in the area) and begins barking at a red Honda parked on the side of the road. Toltz looks inside and sees a male person lying on the back seat (“the occupant”). He yells “Police with a dog. Get out of the car!” Doka, who is on a lead, is barking loudly and lunging aggressively at the car. Seven other police officers arrive and surround the car. Toltz continuously shouts “Get out of the car!” The occupant unlocks the doors. Toltz opens the back passenger door closest to him. Doka is barking, snarling and lunging at the occupant. The occupant kicks out at Doka and reaches for the handle of the opposite car door at which point Toltz releases Doka with the command for Doka to bite the occupant. Doka bites the occupant on the hip and drags him out onto the ground. The occupant hits out at Doka who is still biting the occupant. Toltz puts
2015, Semester 1
Page 3 of 6
his foot on the occupant’s chest and pushes him flat to the ground “to stop him from hitting Doka”. Smith then approaches the occupant, looks at him, and says “Yeah, that’s him. My name is Constable Smith of Leichhardt Police. I am arresting you on suspicion of driving a stolen vehicle.” Toltz handcuffs him. In the red Honda police find a black baseball cap. The police take the occupant back to the police station and interview him. The occupant’s name is Jack Watson (“Jack”). He is 25 years old and Aboriginal. During the interview he tells police that the red Honda is his Uncle’s car and Police confirm that this is true. Jack says he was visiting his Uncle that day and they had been smoking marijuana. At one point he started “talking silly” to his Uncle who told him to go and sleep it off in the car. He knows nothing about a stolen Subaru. The police charge Jack with Unlawfully Taking a Vehicle (s154A of the Crimes Act 1900 (NSW) punishable by 5 years imprisonment, Table 2 offence) and Resist Police in Execution of their Duty (546C of the Crimes Act 1900 (NSW) punishable by 12 months imprisonment or a fine of 10 penalty units). DNA from three individuals was recovered from the steering wheel of the Subaru. One of those was the owner, the second was unknown, and the third was a possible match with Jack. The DNA expert said that if you take the population of Sydney as a whole, there are 400 other people in Sydney whose DNA would have produced a match in the same way Jack’s did. Kelsea Stanmore is Jack’s cousin. In her statement she says that on the night in question she took Jack’s weightlifting gloves so she could use them to steal from cars. In the early hours of the following morning she met a gu y called Lenny who offered to drive her home. She had never met Lenny before and has not seen him since. After driving for some time Lenny told Kelsea the car was stolen. Lenny took Jack’s gloves from her and tried them on. She says Jack was not the driver of the stolen Subaru. At trial the defence argues that the police acted unlawfully and therefore (1) the evidence of finding the baseball cap in the car should be excluded; and (2) Jack is not guilty of resisting police in execution of their duty. The presiding judicial officer rejects these arguments and finds Jack guilty of both offences. In relation to this scenario, answer the following questions. A. You are a solicitor working for the Director of Public Prosecutions prior to trial when the police prosecutors send you the file. They ask you to consider whether an election should be made. Which court will you choose to proceed in and why? (5 marks) B. Was the judicial officer right to find that the police acted lawfully? Was the judicial officer correct to admit the evidence of the baseball cap? Was the judicial officer correct in convicting Jack of resisting police in execution of their duty? (15 marks) C. You now are Jack’s solicitor. Jack has been in trouble with the police before, but has no prior criminal convictions. Jack asks you what
2015, Semester 1
Page 4 of 6
purposes the court will take into account in sentencing him. What will you advise Jack and why? (5 marks) Question 2 (10 marks) Answer one (1) question from the two (2) options below. Please indicate clearly at the top of your first page which question you are answering and write your answer in a separate answer booklet. You must illustrate your answer with material studied in the course. This question is worth 10 marks. Allocate your time accordingly. A. ‘Equal justice according to law also requires, where the law permits, differential treatment of persons according to differ ences between them relevant to the scope, purpose and subject matter of the law.’ French CJ, Crennan, Kiefel JJ in Green v The Queen (2011) 244 CLR 462, 472-73 [28] To what extent is equal justice achieved in criminal procedure? Drawing on examples, develop your argument with reference to one or more of the following areas: i. ii. iii.
Bail; and/or Sentencing; and/or Prosecutorial discretion.
OR
B. In Woolmington (1935) AC 462 Lord Sankey famously states: ‘Throughout the web of the English Criminal Law one golden thread is always to be seen that it is the duty of the prosecution to prove the prisoner's guilt...’ Does criminal procedure support or undermine the presumption of innocence set out in Woolmington?
2015, Semester 1
Page 5 of 6
Part 2 Civil Procedure (Allocate 60 minutes for this Part) Students must answer all sub-questions in this Part. Jack Brown, aged 40, decided to get fit so he joined a gym called Fitness Now at the end of December 2011. Prior to joining Fitness Now, he was a keen swimmer and dog-walker but was very inexperienced with gym equipment. Jack did a difficult morning gym session on 2 January 2012. His personal trainer, Mr Swift was employed by Fitness Now. Jack was Mr Swift’s first ever client as he was a newly accredited personal trainer. On 2 January 2012, Jack asked his trainer to go easy on him because he had not slept well the night before. “There's nothing better for a lack of sleep than exercise. We'll have to smash you,'' Swift told him. Jack was at the gym to push himself and he considered that it would have be an act of failure to refuse to do what the trainer was asking him to do. On 2 January 2012, Swift stood on Jack's toes and tossed him a 6 kilogram medicine ball as he did 200 twisting stomach crunches on the floor. Forty-ei ght hours after the session, Jack could barely move and he sustained a fractured back with nerve damage. Jack suspects that he hurt his back when he was directed to do the medicine ball exercise which was the exercise where Jack was required to catch a heavy medicine ball whilst sitting up from a prostrate or supine position and then to rotate or twist from side to side with the medicine ball held at arm’s length. Jack was taken by ambulance to hospital. Later, Jack required spinal fusion surgery on 1 July 2012. Jack is a personal injury lawyer and as a result of the injury he was not able to work for nine months after the surgery. A fitness expert, Chris Pushup, prepared a report for Jack. The report is dated 15 July 2012 and says that the medicine ball exercise was not an exercise recommended within the fitness industry, especially with so many repeated throws. Jack wishes to sue for damages for personal injury. Mr Swift has no assets and therefore Jack wishes to bring a claim against Fitness Now as the employer of Swift. Jack will claim that Fitness Now is vicariously liable for Swift’s negligence. (a)
Assume you are the solicitor that Jack consults today (i.e. 27 June 2015). Advise Jack about when he is required to commence a claim and what steps he can take to find out the owner of the gym. What other procedural matters would be the subject of your advice to Jack? (10 marks)
(b)
Assume you are Jack’s barrister and you are briefed to draft a statement of claim. Please draft Jack’s statement of claim and indicate further information that you require to finalise the statement of claim. In addition, please tell Jack how the statement of claim should be served. (10 marks)
2015, Semester 1
Page 6 of 6
Assume pleadings have now closed. Jack has filed, in the court registry, a subpoena to produce issued on Fitness Now. The subpoena calls for the following documents to be produced: 1.
All documents recording accidents with medicine balls from 2005 to date.
2.
All personnel and training records of personal trainer Swift
3.
All records, including legal records and advices, relating to the accident involving Jack Brown that occurred on 2 January 2012.
(c)
Assume you are the solicitor representing Fitness Now. Please advise on the grounds for resisting the subpoena to produce described above. What steps will need to be taken to object and/or resist the subpoena? The general manager of Fitness Now initially posted legal advice about Fitness Now’s prospects of success in defeating any action by Jack to its Facebook page however when the general manager was served with Jack’s statement of claim she removed the legal advice from the Facebook page.(10 marks)
(d)
The court grants a non-publication order over Jack’s true identity on the ground that the effect of litigation could adversely affect his reputation. Assume you are a solicitor employed by the media. Please advise on your client’s standing to remove such an order, the method to contest the order and the prospects of the success in contesting the order. (5 marks)
(End of Question 2)
