Part A: Short Answer Questions

Marks for section: 40

There are four sections in this part of the paper. Answer one question from each section. (To complete part A you will therefore need to answer four questions).

Your answer for each question should be 2 – 3 paragraphs long.

Note that you will be marked on correct English language usage as well as content.

Section 1: Reading and writing

1. Explain what the main features of good writing are; or

2. A new law student has you for tips on how to get through all of the reading required in the law courses. What advice and strategies for coping with the reading would you give her?

Section 2: Research

1. Explain how law reporting in the Pacific Islands has changed over the past 10 years, and what differences these changes make to modern Pacific lawyers; or

2. List three examples of primary sources and three examples of secondary sources. How is each type of source used in solving legal problems?

Section 3: Referencing

1. Explain why it is important to reference your work, and what the features of good referencing are; or

2. Explain why plagiarism is considered to be a serious matter, and what the consequences may be if you are caught plagiarising while you are a USP student.

Section 4: Ethics and the Legal profession

3. What do you think your country’s law society could do to help ensure that lawyers are viewed as honest professionals by members of society?; or

4. What are the main features that make law a profession?

Part B: Case analysis

Marks for section: 30

Read the following case and answer all of the questions.

a) What is the correct citation for this case?

b) How did this case come before the High Court?

c) What was the accused charged with?

d) What facts gave rise to that charge/those charges?

e) What was the outcome of the initial court hearing?

f) Why is the accused taking the case to the High Court?

g) What did the judge decide in respect of each ground of appeal?

h) Why did the judge decide the case in this way? (Discuss each ground of appeal separately)

IN THE HIGH COURT OF TUVALU
CRIMINAL JURISDICTION

CASE NO: 3/2003

POOPU LISALE

v

R

James Duckworth for the appellant
Sa'aga Talu for the respondent

Hearing: 8 April 2003
Judgment: 9 April 2003

JUDGMENT

The appellant was charged with criminal trespass by night and larceny and pleaded guilty before the Resident Magistrate on 22 January 2003. He was sentenced to 4 months imprisonment on the first charge and fined $10.00 on the second with 2 weeks to pay or one month imprisonment in default. He was also prohibited from drinking for one year.

He appeals against the sentence on the grounds that:

1. The sentence was excessive given the age and antecedents of the appellant;

2. The order of a fine when a sentence of imprisonment had been ordered was inappropriate; and

3. The prohibition on drinking was in excess of the powers of the magistrate.

It is unclear why, but there is no record of the proceedings in the Magistrate's Court and so the facts have been taken from the appellant's submissions which are not, it appears, challenged by the respondent.

In brief, the appellant was drinking with the owner of the property in which the trespass occurred. The property was let to another person but was unoccupied at the time and, at some stage, the owner told the appellant to enter the house and take some liquor that was there. The appellant did so.

He has numerous previous convictions starting in 1928 and continuing to 1986. There were then two convictions in 1991, and one each in 1993 and 1994. He has been sentenced to prison a number of times before but the last was in 1984.

He is now 33 years old and married with 4 children. He was a seaman but is now a fisherman.

As the result of the absence of a court record, there is no evidence before the court of the date the offence occurred. However, the last convictions of the appellant had been minor apart from common assault in 1993 and, whenever this offence occurred, the appellant has shown a distinct change in conduct from the early days of his offending.

In such a case, even if the court considers the proper penalty should be imprisonment, it should consider whether the accused should be given a chance to continue the improvement in his behaviour. This was a serious offence but committed in rather unusual circumstances. I consider an order of immediate imprisonment is less likely to be a deterrent from further offending than a suspended sentence. The latter would give the accused a chance to show that he had really changed his ways but in the certain knowledge that, if he fails, he will have to go to prison.

The magistrate had grounds for his decision to order imprisonment but I am satisfied it would have been appropriate in the circumstances of this case to suspend it.

The second ground of appeal relates to the order of a fine. When an accused is sentenced to an immediate sentence of imprisonment, it may still be appropriate to order a fine for other offences. However, it is not a proper sentence if it is likely to be impossible for the accused to pay it. To make such an order is effectively to order a longer term of imprisonment.

In the present case, the magistrate gave 2 weeks to pay. That time would inevitably expire whilst the appellant was serving the sentence ordered on the first charge. As a result, he would automatically have to serve the default term, which would extend his sentence by a further month.

I appreciate that such a fine is often paid by the accused man's family but it is not a proper basis of sentencing if that is the intention of the sentencing court.

Finally, the power to make a prohibition order under section 82 of the Alcoholic Drinks Act is very strictly defined. In this case the power arose under section 82 (2). The terms of that section are perfectly clear and the magistrate had no power to make such an order. It is hard to understand how it could have been thought to apply in this case.

The appeal is allowed. I understand that the appellant has actually been serving the sentence of imprisonment since it was ordered on 22 January 2003. It must be nearly completed and so I shall not order it be suspended. The sentence on the first charge is altered to whatever term is required to ensure the accused is released immediately. The fine on the second charge is quashed, as is the prohibition order.

The result is that the appellant is to be released today with no further penalty.

DATED this 9th day of April 2003

Gordon Ward
Chief Justice

Part C: Problem analysis

Marks for section: 30

John’s son fell out of a tree while he was playing in the back yard and broke his arm. John put his son in his car then drove to the hospital. As John was in a hurry he was driving lots faster than people usually drive when going about their normal daily business. On his way to the hospital a cat ran out in front of him. John swerved to hit the cat, and hit Pita’s car, which was parked on the side of the road.

Pita is now suing John in negligence for the cost of repair to his car. John says he was not driving negligently, but he was just hurrying to get his child to the hospital.

Your research has discovered the following information about negligence:

In order to establish a claim in negligence you must be able to show that:

• a duty of care was owed by the defendant to the plaintiff;
• that duty was breached; and
• damage was suffered by the plaintiff as a result of the breach of duty.

To determine whether a duty of care was owed the neighbourhood test from Donoghue v Stevenson [1932] AC 562 is used:

The rule that you are to love your neighbour becomes, in law, you must not injure your neighbour; and the lawyer's question, Who is my neighbour? receives a restricted reply. You must take reasonable care to avoid acts or omissions which you can reasonably foresee would be likely to injure your neighbour. Who in law, is my neighbour? The answer seems to be ‑ persons who are so closely and directly affected by my act that I ought reasonably to have them in contemplation as being so affected when I am directing my mind to the acts or omissions which are called in question.

To determine whether the duty was breached you must consider whether a reasonable person in the same situation have acted in a more careful manner than the defendant did. In deciding this the courts will take into consideration how serious the harm the plaintiff suffered was and whether the defendant’s conduct served any useful purpose.

Write a memo using the IRAC style that analyses whether John is liable in negligence for damaging Pita’s car.