Advocates and Solicitors Examinations. Common Examinations. Civil Procedure and Criminal Procedure. June 2011

Transcription

1 Advocates and Solicitors Examinations Common Examinations Civil Procedure and Criminal Procedure June 2011 Important notes 1. Read the questions carefully. 2. Hand in all papers. 3. Write legibly unreadable papers may result in lost marks. 4. Your written paper will have to be photocopied, so please (a) write in black ink (b) write well within reasonable margins. 5. Write your assigned "Candidate s Examination No." at the top left of each page and the page number in the top right of each page (remembering to keep within margins). 6. Number your answer on each page and start each new answer on a new page. 7. Write on one side of the paper only. 8. This paper is divided into 3 parts Part A is compulsory and carries 20% of the marks and must be answered by all candidates; Part B is the Civil Procedure paper. You must answer 2 questions which together carry 40% of the marks; Part C is the Criminal Procedure paper. You must answer 2 questions which together carry 40% of the marks. 9. Questions (and parts of questions) carry the marks shown in brackets. 10. Support your answers wherever possible by reference to statutory judicial or other authority. Give reasons for your answers. 11. Time allowed: 3 HOURS.

2 Part A - Compulsory question 1. a. What is the jurisdiction of the Samedi division? (1) b. By whom may an order of justice be signed? (1) c. In what circumstances may the Clameur de Haro be raised? (3) d. Identify 3 functions of the Jurats as provided by Art. 15 Royal Court (Jersey) Law 1948 (3) e. How is personal service affected on a defendant situate in Jersey? (2) f. What is the least number of jurors required to convict? (1) g. In what, if any, circumstances might proceedings for a criminal offence become prescribed? (1) h. What must take place sous le plus bref délai? (1) i. Art.72 of the Loi (1864) réglant la procédure criminelle imposes what requirement in respect of the débats et tous les jugements qui le concernent, et le verdict de l enquête? (1) j. What statutory exception is imposed to this requirement? (1) k. In what circumstances is the Superior Number of the Royal Court required to sentence a convicted person, and what is the minimum constitution of the Court? (2) l. What is a contravention, and before whom might an allegation of one be tried? (2) m. What is the maximum sentence which the Inferior Number can impose? (1)

3 B - Civil procedure paper 2. a. What methods of service of civil process exist in Jersey? (5) b. What must be contained in an affidavit filed in support of an application for service out? Assuming leave is granted and service has been effected in accordance with the terms of the order, what are the consequences if the affidavit is subsequently found to be defective? (5) c. What factors or matters will the Court take into account on an application to strike out a claim for want of prosecution? (5) d. Does the Royal Court have any power to strike out proceedings of its own motion? If so, what are those powers and on what basis are they exercised? (5) 3. (a) You act for Tom Trust, a Jersey based trust which owns beach front property in Sydney. It employed a Sydney building contractor, Jerry, to carry out building and renovation works at the property. Jerry has instructed advocates who have served an order of justice on the trust seeking damages in respect of non-payment of fees for the works at the property. The trust is summoned to the next Friday sitting to witness the confirmation of the order of justice. The Trust instructs you that the contract employing Jerry is silent as to choice of law and jurisdiction. It also instructs you that Jerry turned out to be wholly inadequate to the tasks and carried out the works to a very low standard, incompletely, and indeed so badly that it had to engage another builder, Spike Pty Ltd, to carry out remedial works. Spike informed the Trust that its staff and contractors had never seen such bad works and that each of them can give chapter and verse in evidence as to just how bad Jerry s attempts had been. The Trust also informs you that the local building control authorities in Sydney would be able to give evidence as they refused to sign off Jerry s works. However, no-one at the Trust s St Helier headquarters has any first hand knowledge of any of these events. What steps are you likely to advise the trust to take at and subsequently to the Friday hearing (including the timing of any applications)? What will be the approach of the Court when it considers any such applications? (10) (b) In what circumstances is leave required to appeal an order made by the Royal Court in civil proceedings, and which court or courts have jurisdiction to grant such leave? (10)

4 4. You are due to attend the Petty Debts Court tomorrow morning when the Judge of the Petty Debts Court is to deliver judgment following a contested hearing involving a claim by a supplier in respect of an account rendered for goods supplied to your client and which your client claims are not fit for purpose. Your client advises you that if the decision goes against him he wishes to appeal and seek an order that the judgment be stayed pending appeal. a. Do you need leave and if so, how do you apply? Advise your client fully. Describe what applications may need to be made, when and to whom. Set out the procedures to be followed. (10) b. If leave is refused, does your client have any further recourse? Would it make a difference to your answer if (a) the relevant appellate body gave reasons for its refusal or (b) it refused to accept any paper work in respect of the appeal you would like to bring? (10) 5. Aubrey is the beneficiary of a trust of which Bernard is trustee. Bernard is retired and lives quietly off a modest pension. However, Aubrey has recently become suspicious. He suspects Bernard of breaching trust and diverting trust funds to his own use. Two months ago, Bernard wrote to Aubrey that the trust had not performed well and its net value had decreased. Then, last week, Aubrey saw from the Jersey Evening Post that Bernard had been caught speeding towards St Brelade in a new Maserati, which he had imported at some expense. Aubrey cannot ground these suspicions at present, but his concern is real. He tells you that Bernard was a lifelong customer of the Colbert Bank Ltd, where both the trust and Bernard s personal accounts were held. If Bernard has diverted funds, Aubrey will wish to take proceedings to recover them seeks your advice. While you share his concerns, you consider you need more information. (a) (b) Advise Aubrey how best to obtain the further information necessary to take legal action against Bernard. (10) Once you have the information, Aubrey instructs you to sue Bernard. It is apparent that Bernard has no further money readily available. However, you then learn that the importer of the Maserati, Dusecques Machines, now owes Bernard a large sum of money following the sale of a vintage Bentley which had been in Bernard s family for generations. Advise Aubrey of any further procedure by which he can protect his position regarding repayment of the money (10)

5 C - Criminal procedure paper 6. On appeal against conviction from the Royal Court: a. What are the tests for the appellate court? (5) b. What is the proviso and when might it apply? (5) c. Can the appellant submit fresh evidence to the appellate court and, if so, in what circumstances? (5) d. If the appellant succeeds, what orders are available to the appellate court to make good that success?(5) 7. Which courts of criminal jurisdiction sit in Jersey in respect of adult offending, what are their respective formations, and the limits of their jurisdictions? (20) 8. Guillame is accused of stealing money from his employer, Hubert &Co. He is committed to the Royal Court, and an indictment is laid is accusing him of: Count 1: larceny in that he did steal banknotes from the safe of Hubert & Co, at 2 Don Street, St Helier on or between 1 st April 2002 and 26 th June Count 2 alleges that Guillame committed grave and criminal assault against Jean Jones, a prominent and respected businessman, outside the Harbour Arms public house in St Helier at or very shortly after closing time on Saturday 25 th June The main evidence for the prosecution on count 1 will be from Hubert & Co s office manager, Irene. She will testify that she is responsible for counting money in and out of the safe and that, at the end of the working day on various occasions during that period, sums were missing from the safe which had been there at the start. The evidence on count 2 will be from Mr Jones, with no other contemporaneous witnesses to the assault. You act for Guillame. He instructs you that he is innocent of theft. He knows nothing of the stolen money. He also tells you that his role at Hubert & Co requires him to travel frequently to London for meetings, often weekly, and often for several days at a time, but only on weekdays. He also denies the assault. However, he does admit to being in the Harbour Arms on the evening of the assault, and leaving alone at closing time. a. Advise Guillame on the indictment which is laid. (6)

6 b. Are there any particular procedural steps Guillame should have taken at or following his committal in order to run his defence to the larceny allegation? Assuming he was not represented at the time, how should he have known this? Does it matter if he omitted to take the relevant step? (7) c. When may a defendant make a submission of no case to answer? (2) d. What pleas may an accused enter to criminal allegations in Jersey, and when is each appropriate? (5) 9. Jacques (21) and Gilles (17) have been charged with Obstruction of the Police at hours outside Chambers. You act for Gilles who lives with his parents at First Tower. Gilles is pleading not guilty. He says that he never spoke to the Police Officer or acted in any way that might be considered obstruction. Gilles has never been in trouble before. Gilles, unfortunately, considers obstruction a genuine past time a. Before which court will Jacques and Gilles first be brought? Describe what will happen on that first occasion? What role will the judge undertake? What conditions might you suggest on any bail application and what in brief will be your reasons for making the bail application? (6) b. Gilles is concerned as to the matter being reported in the media. Explain to him the position as it applies in the Magistrate's Court and the Youth Court. (5) c. Gilles wishes to appeal his conviction on the basis that the evidence against him was weak. To which Court would he appeal? What is the constitution of that Court? Can Gilles appeal further if this appeal fails? (4) d. What is a Newton hearing? Which division of the Court deals with it? What is its purpose? (5)