ADVOCATES AND SOLICITORS EXAMINATIONS COMMON EXAMINATIONS. Civil Procedure and Criminal Procedure. April 2004

Transcription

1 ADVOCATES AND SOLICITORS EXAMINATIONS COMMON EXAMINATIONS Civil Procedure and Criminal Procedure April 2004 IMPORTANT NOTES 1. 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. Use the two columns on the question paper to complete your answers to question Questions (and parts of questions) carry the marks shown in brackets. 9. Support your answers to the questions of choice wherever possible by reference to statutory, judicial or other authority and give reasons for your answers. 10. Time allowed: 3 hours. COMPULSORY QUESTION 1. Which has jurisdiction to hear the various matters described in the table below. Write your answers in the relevant column on the table. Where necessary be specific: for example, if your answer is the Royal state whether the is sitting as the Inferior Number, the Superior Number or as an Assize, whether the application is dealt with by the Bailiff sitting as a single judge etc. (10 marks) In questions (a), (c), (d), (h), (i), (j), (p), (r), (s) and (t) only state the basis on which the jurisdiction is founded. Write your answer in the relevant column on the table (10 marks) (a) (b) the eviction of a tenant who occupies a flat on a monthly tenancy from a private landlord; the cancellation of a two year fixed term lease of a flat before the expiry of lease;

2 (c) (d) the eviction from the flat of the lessee referred to in (b) above after the cancellation of the lease; the cancellation of a contract lease; (e) a claim for an account rendered in the sum of 2,000; (f) a claim for an account rendered in the sum of 6,000; (g) (h) (i) (j) a claim for personal injuries where the claim will not exceed 1,000; an appeal against conviction and/or sentence imposed by the Youth ; an appeal by way of case stated against a decision on a point of law by the Magistrate; an appeal against a sentence of 2 years imprisonment; (k) an appeal against a sentence of 5 years imprisonment; (l) (m) the trial of a person indicted for possession of a controlled drug with intent to supply; the trial of a person indicted for conspiracy to import a controlled drug; (n) (o) (p) (q) an appeal against conviction by the Inferior Number of the Royal ; a "Newton" hearing where the sentencing is likely to impose a sentence of 3 years if the defence version of facts is accepted or 5 years if the prosecution version is accepted; the making of an order providing for the obtaining of evidence in Jersey under the Evidence (Proceedings in Other Jurisdictions) Act 1975, as extended to Jersey by the Evidence (Proceedings in Other Jurisdictions) (Jersey) Order 1983; the making of a vesting order under the Compulsory Purchase of Land (Jersey) Law 1961; (r) (s) (t) the grant of an application for the registration of an award of the Board of Arbitrators appointed under the provisions of the Compulsory Purchase of Land (Jersey) Law 1961; the hearing of an application that the accused is unfit to plead by reason of insanity; An application for costs following a civil trial before the Inferior Number of the Royal PART A

3 CIVIL PROCEDURE 2. (a) In what circumstances can discovery be obtained before legal proceedings have commenced?(5 marks) (b) In what circumstances can discovery be obtained against a person who is neither a plaintiff or a defendant to an action? (4 marks) (c) P is the Plaintiff in proceedings relating to the ownership of a car. P claims ownership to the car which it says it purchased from T on 30 August T acquired the car on Hire Purchase from D, the Defendant Finance Company, on 20 January Finance payments were due on the 20 th of each month. Finance payments were made to D monthly from 20 February 2003 until 20 January The payment due on 20 February 2004 was not made. D served a termination notice on T on 27 January 2004 and managed to repossess the car pursuant to the Hire Purchase agreement the following weekend when it was parked outside the New Raj in St. Saviour s Road. It has now impounded the vehicle. P is furious and has commenced proceedings against D by way of Order of Justice. You are instructed by D and an Answer has now been filed. The Master ordered that Discovery be made and that each party provide to the other a List of Documents to be inspected 7 days thereafter. You have just seen P s List of Documents and are far from happy. Certain of those documents referred to in the Order of Justice have not been discovered, certain documents discovered by P refer to other documents that have not been discovered and you also suspect that P has been economical with discovery. i. What general principles apply to discovery by List of Documents? (3 marks) ii. What step or steps might you take in relation to P s discovery and why? Before whom or what might you make any relevant applications and how? (5 Marks) iii. What principles would the apply when considering any and what application? (3 marks) 3. (a) What are the periods of prescription for actions in contract and in tort? (2 marks) (b) What are the relevant principles which apply when assessing when time commences to run and what interrupts prescription? (8 marks) (c) Describe two types of (civil) action which have periods of prescription different to those to which you have referred in your answer to (a) above. (3 marks) (d) You act for a defendant and believe that the plaintiff s claim against your client is prescribed. Pleadings have filed by both sides. What procedural steps would you take and why? (7 marks) 4. (a) In what circumstances is leave required to appeal an order made by the Royal in civil proceedings?(5 marks) (b) Which court (or courts) have jurisdiction to grant the application for leave to appeal in each of the cases you have identified in your answer to (a) above? (5 marks) (c) What are the principles that would be applied by a court in determining an application for leave to appeal? (5 marks) (d) What are the powers of a single judge of the of Appeal in civil cases? (5 marks)

4 5. (a) In what circumstances does the Royal have jurisdiction to make an order for service of a summons on a defendant out of the jurisdiction?(7 marks) (b) Describe the procedure for making an application for an order for service of a summons out of the jurisdiction in connection with proceedings before the Royal. (5 marks) (c) What is meant by the expression "substituted service" and inwhat circumstances would it be appropriate to apply for an order for "substituted service" in Royal proceedings. (2 marks) (d) Outline the procedure for making an application for "substituted service" in proceedings in the Royal, stating to whom such application may be made, how the application is made and what papers and information should accompany such application. (4 marks) (e) What is meant by the "record of service" (i) in an action commenced by simple summons; and (ii) in an action commenced by Order of Justice (2 marks) PART B CRIMINAL PROCEDURE 6. Mr. A, a foreign national, recently married to a local lady who had three children from a previous marriage, was sentenced to 4 years imprisonment and a recommendation was made by the to the Lieutenant Governor that Mr A. be deported after he had served his sentence. Following Mr. A s conviction and sentence relations with his wife became strained. Mr. A lodged a notice of appeal (within time) against the recommendation for deportation. He then received advice from his then lawyers that the prospects of successfully appealing the deportation recommendation were virtually non-existent. Before the appeal was heard Mr. A signed a notice of abandonment of appeal prepared by his lawyers and this was filed at the Judicial Greffe. Following the notice of abandonment, Mr. A whilst still serving his prison sentence was given "day release" and two extended periods of compassionate leave to care for his wife during her illness. The relationship with his wife and some of the children improved. Mr A and his then lawyers made representations to the Lieutenant Governor in relation to the recommendations for deportation. The Lieutenant Governor indicated that he was to make a deportation order. You are appointed to act for Mr. A on legal aid. You take instructions from Mr. A through an interpreter and you learn that Mr. A signed the notice of abandonment because he understood that his former lawyer had told him he had no right of appeal against the recommendation for deportation and that his only remedy was to make representations to the Lieutenant Governor. You have contacted Mr. A s former lawyers who state that Mr. A gave them instructions to abandon the appeal because an appeal was almost certain to fail. (a) What was the effect of the filing of the Notice of Abandonment? (3 marks) (b) In what circumstances will the permit the withdrawal of a Notice of Abandonment? (3 marks) (c) To which does an appeal lie in the above circumstances? (1 mark) (d) What applications do you need to make? (4 marks) (e) What action do you need to take if one of your grounds of appeal concerns the nature of advice given by Mr. A s former lawyers? (4 marks)

5 (f) What procedural and other steps should you take if you wish to seek to adduce additional evidence before the hearing the appeal? (5 marks) 7. (a) Outline the chronology of proceedings that is followed at a Criminal Assize trial starting from the opening of the proceedings to the time that the verdict is delivered (assume that the trial involves one accused who enters pleas of not guilty to the two counts with which he has been charged, that the Crown wish to make a minor amendment to the indictment which is not opposed by the defence and that the jury are unanimous in their verdict in relation to count one but not so relation to count 2). (8 marks) (b) How many members of the jury can be challenged on behalf of the accused? (2 marks) (c ) What happens procedurally if after the jury have been empanelled and before they are sworn two jury members notify the through the Viscount Substitute that they each know one of the prosecution witnesses. Would it make any difference if the were informed after jury have been sworn? (3 marks) (d) What happens if a witness duly summoned to appear fails to do so? (2 marks) (e) How many jurors are required to convict? (1 mark) (f) What can an accused do if an essential defence witness has indicated: (i) that he will be out of the Island for the whole of the period of the Assize trial (2 marks); (ii) will be emigrating prior to the date fixed for the assize trial and is not willing to return to Jersey thereafter (2 marks). 8. (a) Your client has just been indicted and entered pleas of not guilty. You wish to call an expert (whose written report you have just received) to give evidence of behalf of your client in a trial due to take place before the Inferior Number of the Royal in three months time. What action should you take and why? (4 marks) (b) In what circumstances may a witness give evidence via a video link. Describe the procedure before evidence can be so given. (5 marks) (c) In what circumstances will the of Appeal permit additional evidence to be adduced at the hearing of an appeal? (4 marks) (d) Your client has been refused bail by the Magistrate who has remanded your client in custody to take his trial before the Royal. Your have been in contact with the Chief Clerk at the Law Officers Department and learn client is due to be indicted before the Royal in 6 weeks time. Your client wishes to be released from custody. Set out the various applications that might be made, describing how and when such applications might be made, to which courts and the various tests that the courts will apply in relation to the applications that you describe. (7 marks) 9. (a) What are the maximum sentences that can be imposed in the Magistrate s? (2 marks) (b) In which court do the following proceedings take place: (i) a charge made jointly against a person under the age of eighteen and a person who has attained the age of eighteen (1 mark)

6 (ii) where a person under the age of eighteen is charged with an offence and another person who has attained the age of eighteen is charged at the same time with aiding, abetting, causing, procuring, allowing or permitting that offence; (1 mark) (c) Describe the different capacities in which the Magistrate may sit to hear cases which come before him in the Magistrate s. (7 marks) (d) What (if any) rights of appeal does the Attorney General have in relation to: (i) an acquittal of an accused by the Magistrate (2 marks); (ii) an unduly lenient sentence imposed by the Magistrate (2 marks); (iii) an unduly lenient sentence imposed by the Royal. (2 marks) (e) Your client s appeal to the Royal against his conviction in the Magistrate s has been dismissed. He wishes to appeal on the basis that both the Magistrate and the Royal erred in law. What advice would you give your client? (3 marks)