THE UNIVERSITY OF THE SOUTH PACIFIC UNIVERSITY
EXTENSION
EXAMINATION
PAPER SEMESTER
2, 2001
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COURSE TITLE: LA 101
LEGAL SYSTEMS II |
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DURATION OF EXAM: |
3 Hours |
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TOTAL NUMBER OF PAGES: |
Four |
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MARK VALUE: |
This examination carries sixty (60) marks. Both
sections A and B carry thirty (30) marks each. |
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NUMBER OF SECTIONS: |
Two |
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NUMBER OF QUESTIONS: |
Seven
(7) |
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NUMBER OF QUESTIONS TO BE ANSWERED |
Five: Two (2) compulsory questions in section A and any three (3) from section B. |
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NOTES TO CANDIDATES You
can bring unannotated or unmarked Readers
for LA 101 into the Examination Room. You
are to do five questions altogether: the two (2) questions in Section A and any three (3) questions in section B. |
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SECTION A
The two questions in this section are compulsory
so you should answer both. Both carry fifteen (15) marks each so the total
marks in this section is thirty (30). The recommended length of answers for
these questions is five paragraphs or two pages of the examination answer book.
QUESTION
ONE
The common law
doctrine of stare decisis is
recognised as applicable to the courts of countries in the USP region. This
means that the decisions of the superior courts serve as binding precedent
on the lower courts within the same country. However, in some instances, the
decisions of courts only have persuasive force so they are said to be persuasive
precedents.
Explain the meaning of
“persuasive precedent”, then identify and discuss four (4) instances
where decisions of courts can be regarded as having persuasive force only.
(15 marks)
QUESTION TWO
Bob is the
headmaster of the local high school and is also the rugby coach of the school.
He informed you that the Magistrate’s Court convicted him yesterday on a charge
of common assault and sentenced him to imprisonment for two years but suspended
the sentence and placed him on a two-year good behaviour bond. This arose from
an incident where he punched the referee during a game of rugby last weekend.
The Penal Code defines assault as
follows:
Assaults
244. Any person who unlawfully assaults another is
guilty of an offence and shall be liable to imprisonment for one year.
Bob tells you
that the magistrate who heard the case is a cousin of the referee whom Bob
punched. During the trial, several of the prosecution witnesses gave evidence
in the local language, which Bob does not know well and this was made worse by
the official court interpreter who spoke English very poorly. As a result Bob feels that he was not able to
clearly understand the evidence of the prosecution’s witnesses and that the
interpreter may have failed to properly convey Bob’s questions in
cross-examination to the prosecution witnesses.
Bob is afraid
that the conviction will prejudice his teaching career. You are a lawyer in
private practice and Bob asks you to bring an appeal against his conviction by
the magistrate’s court.
Identify and explain three (3) possible
grounds of appeal based on the way in which the Magistrate’s Court dealt with
this matter and the penalty which was imposed. In your discussions, refer to relevant
cases or legislative provisions from any country to support your answers.
(15 marks)
SECTION B
This section contains five (5) optional
questions. You are required to answer only three (3) questions from this
section. Each question in this section carries ten (10) marks so that the total
number of marks for this section is thirty (30).
QUESTION THREE
Your Course Book
1 says this on page 36:
During the modern times (1700s – 1900s) “important
changes occurred in the structure of the courts (in England)” and “the
practices as to their functioning which had developed in the medieval period in
the royal courts, were strengthened and refined, and have become established
principles.”
Explain
this statement as it applies to:
a)
the structure of the Supreme Courts
of Judicature and the final Appellate Court in
b)
the functioning of the above courts.
(10
marks)
QUESTION FOUR
The most common courts in countries of the USP region are classified as
the:
·
Appellate
Courts,
·
Principal
Courts, and
·
Subordinate
Courts.
For each of the above types of
court, you must:
a) Explain
what each type of court is, and
b) Refer
to the current court structure of a USP country of your choice to provide an
example for each type of court, and
c) Refer
to statutory provisions to explain the jurisdiction of each court that you cite
as examples.
(10 marks)
QUESTION FIVE
The courts at
common law require, amongst other things, that:
·
A
decision on law must be based on correct application of the law; and
·
A
decision on facts must be based on some evidence.
For
each of the above two rules:
a) Explain
what it means,
b) Identify
a possible objective of the rule, and
c) Refer
to a case to explain the rule as applied by the courts.
(10 marks)
QUESTION SIX
Let
us suppose that the Criminal Code of
a country in the USP region makes “murder” an offence by defining it in these
words in section 199 of the Code:
Any person who of malice aforethought
causes the death of another person by an unlawful act or omission is guilty of
murder.
In another section of the same Code, it also says that on an indictment for murder, a person found
not guilty of murder may be found guilty of alternative charges such as
“manslaughter, or of causing grievous bodily harm with intent to do so, or of
wounding with that intent.”
Let us also suppose that one Mangi, a client of yours, was
indicted for the murder of a tourist at the main wharf of your country’s
capital. The prosecution alleged that on New Years Eve last year, Mangi tried
to pick pocket a tourist who had just come off a visiting cruise ship. When the
tourist realised this and tried to protect his wallet, Mangi pushed him into
the water where he drowned. Last month, the Supreme Court of your country
acquitted Mangi of the charge of murder because of lack of evidence.
Now the prosecution has re-charged Mangi for manslaughter and
for attempted robbery arising out of the incident on New Year’s Eve.
Can you plead autrefois acquit for the two new charges
of manslaughter and robbery? Please explain your answer.
(10
marks)
QUESTION SEVEN
According to
your Course Book at page 267, “In the
sixteenth, seventeenth and eighteenth centuries the ‘mischief rule’ was much
used by the judges of the royal courts in the interpretation of statutes…”
With reference to common law cases, explain what this rule
means and the specific questions which the courts address when applying the
rule.
(10 marks)