ADVOCATES AND SOLICITORS EXAMINATIONS COMMON EXAMINATIONS Civil Procedure and Criminal Procedure

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1 IMPORTANT NOTES ADVOCATES AND SOLICITORS EXAMINATIONS COMMON EXAMINATIONS Civil Procedure and Criminal Procedure April Please write legibly unreadable papers may result in lost marks. 2. Your written paper will have to be photocopied so please write in black ink. Write well within reasonable margins, i.e. 1" all round each page. 3. Write your candidate number at the top of each page and the page number in the top right hand corner of each page (remembering to keep within photocopyable margins, i.e. 1" all round each page). 4. Number your answers and start each new answer on a new page. 5. Write on one side of the paper only. 6. Answer question 1 ("the compulsory question") and two questions from Part A and two questions from Part B ("the questions of choice"). Each question carries a total of 20 marks. 7. Questions (and parts of questions) carry the marks shown in brackets. 8. Support your answers to the questions of choice wherever possible by reference to statutory, judicial or other authority and give reasons for your answers 9. Time allowed: 3 hours. Question 1. COMPULSORY QUESTION (1). Before whom and which Court and how may an application for leave to commence Judicial Review proceedings be made? (2 marks) (2). What are the time periods for filing a Notice of Appeal against (a) a decision of the Master; (b) a decision of the Samedi Division of the Royal Court in civil proceedings; (c) an appeal against conviction by the Royal Court? (3 marks)

2 (3). What are the provisions of the law relating to the giving of evidence in civil proceedings by: (a) a spouse (b) a parent of a party to those proceedings? (4 marks) (4). What are the provisions of the law relating to the giving of evidence in criminal proceedings by: (a) the spouse of the accused? (b) a parent of the accused (3 marks) (5). When is personal service required in civil proceedings? (2 marks) (6). How is personal service effected? (2 marks) (7). To which Court does an appeal against conviction and/or sentence imposed by the Youth Court lie? (1 mark) Describe the composition of that appellate court (1 mark). (8). Can a minor institute civil proceedings in Jersey, and if so, how? (2 marks) Question 2. CIVIL PROCEDURE (1). In what circumstances is it possible to obtain an order for (i) substituted service; (ii) service out of the jurisdiction, of a summons to appear in the Royal Court? (10 marks) (2). Describe the procedure to be followed in each of the above cases, up to the tabling of the action. (10 marks) Question 3. (1). What are the powers of the Royal Court to strike out a claim or pleading? (4 marks) (2). What principles does the Royal Court follow when determining an application to strike out? (4 marks) (3). Describe the procedure to be followed by the applicant who wishes to make an application to strike out the whole or part of the other party s pleading. (5 marks)

3 (4). Your application under paragraph (3) above is unsuccessful. You wish to appeal the decision of the Royal Court. Briefly describe the appeal procedure. On what basis would the Court of Appeal hear the appeal? Would your answer differ if the appeal was to the Royal Court from a decision of the Judicial Greffier/Master of the Royal Court? (7 marks) Question 4. (1). Describe the jurisdiction of the various divisions of the Royal Court when hearing a civil case. (8 marks) (2). Describe the jurisdiction of the Judicial Greffier/Master of the Royal Court. (4 marks) (3). Describe the functions of the Bailiff in a civil trial. (3 marks) (4). Describe the functions of the Jurats in a civil trial. (3 marks) (5). What jurisdiction does a single judge of the Court of Appeal possess in a civil appeal? (2 marks) Question 5. (1). What steps can be taken by a party in civil proceedings in the Royal Court to obtain more information about the other party s claim? (6 marks) (2) In what circumstances may a party to civil proceedings be required to provide security for costs? (4 marks) (3) In what circumstances might a party obtain an Ordre Provisoire returnable before the Royal Court. To whom is the application made. Describe the procedure from the initial application up to the time of tabling the action. (10 marks) CRIMINAL PROCEDURE Question 6. Recent legislative and other changes are likely to increase the efficiency of courts within the criminal justice system in the Island. Discuss with particular reference to the transfer of proceedings from the Magistrate s Court to the Royal Court and to the conduct of criminal trials in the Royal Court from indictment to verdict. (20 marks) Question 7. Adam is arrested in the parish St. Ouen is charged with a number of motoring offences which had occurred in several Parishes over a period of several hours. Adam had borrowed the vehicle he was driving. A search of Adam s lodgings reveals some valuable silver items which Adam had stolen from a house in St. Lawrence some weeks previously.

4 (1). You are instructed to represent Adam and he instructs you to plead not guilty. At the committal hearing, the Magistrate decides, because of Adam s record, that he cannot deal with the case. Adam objects to the Magistrate looking at his record before so deciding. Advise Adam. (4 marks) (2). Adam is then presented before the Royal Court on a single indictment which includes charges of breaking and entering and larceny, taking and driving away, dangerous driving and violently resisting the Police Officer who arrested him in St Ouen. Adam wishes to be tried by a jury. Advise him. (4 marks) (3). Adam wishes to have the jury trial delayed for as long as possible. He refuses to give reasons. Advise him. (2 marks) (4) Adam is convicted of all offences with which he was charged and is sentenced by the Inferior Number of the Royal Court to a sentence 12 months imprisonment which you have informed Adam, both orally and in writing, is a lenient sentence in view of his record. Against your advice, Adam wishes to appeal the sentence that was passed and asks you about the procedure from the time the Notice is filed to time that Appeal Court determines the appeal. Advise Adam of the procedure to be followed, the composition of the Court that will hear the appeal and the papers that will be before the Court. Question 8. Your client is accused of committing a grave and criminal assault on the female lodger in the matrimonial home he lives with his wife. The prosecution allege that your client beat the lodger badly when he returned home one night after he had been drinking and that the lodger had previously rebuffed your client s advances. Your client cannot dispute the medical evidence of her injuries nor can he explain how the injuries were received but tells you that he was out drinking on the relevant evening and had slept at the house of two friends. One friend is presently in New Zealand and will be there for the next four months. The other friend informs that he is about to undergo a long term course of medical treatment in three weeks time that will make him unavailable for the next two years (or indefinitely depending on the outcome of the treatment). Your client is in custody. He denies the charge and through you has agreed to a paper committal and is shortly to be indicted. He has some minor motoring convictions and one previous conviction a year ago for an assault on a woman. Your client does a great deal of charitable work and has raised considerable amounts of money by sponsored events for children s charities and the Battered Woman s Refuge. He feels the trial court should know about this. (1) What steps must you do to put your client s defence forward? (4 marks)

5 (2) What advice should you give your client on his potential testimony? (4 marks) (3) Will the Crown need to call the doctor to give the medical evidence? In what circumstances will the Crown not need to call the doctor? (4 marks) (4) How do you deal with the matter of the absent friend in New Zealand? (4 marks) (5) How do you deal with the friend who is about to undergo long term medical treatment? (4 marks) Question 9. (1) What is the sentencing jurisdiction of the Magistrate s Court in relation to an adult offender? What is the maximum term that can be imposed in default of a fine? (4 marks) (2) What conditions are required to be met before a Court can pass a form of custodial sentence on a person under 21 years of age? (3 marks) (3) What is the jurisdiction of the Youth Court? (3 marks) (4) What principles govern the grant of bail? (5 marks) (5) Your client has been refused bail by the Magistrate. He is dissatisfied with the decision of the Magistrate and wishes to appeal. Advise your client. Would your advise differ if your client had been committed to take trial before the Royal court and was to be presented on indictment in four weeks time? (5 marks)