The University of the South Pacific	Examinations Semester 2 2003
Emalus Campus

SCHOOL OF LAW

COURSE NAME: Criminal Law & Procedure II

COURSE NO: LA206

TIME ALLOWED: 3 hours

READING TIME: 15 minutes

NUMBER OF PAGES: 7 (including this page)

NUMBER OF QUESTIONS ON PAPER: Six (6)

NUMBER OF QUESTIONS TO BE ANSWERED: Three (3)

MARK ALLOCATED FOR EACH QUESTION:

Part A: COMPULSORY QUESTION. All students must answer the question in this part (20 marks)

Part B: PROBLEM QUESTION. There are 2 questions in this part and students must choose only 1 question (15 marks)

Part C ESSAY QUESTION. There are 3 questions in this part and students must choose only 1 question (15 marks)

TOTAL MARKS: 50 marks

MATERIALS PERMITTED IN EXAMINATION ROOM:

The exam is a restricted open book exam. Students will be provided with the following materials only during the exam:

· Pasifika Criminal Procedure Code & Penal Code

· LA206 Case List

SPECIAL INSTRUCTIONS

· The Pasifika Criminal Procedure Code and Penal Code must be used only in answering questions in Part A and Part B, Question 2. You are not required to use the Codes in answering other questions in the exam.

PART A

THIS PART IS COMPULSORY: YOU MUST ANSWER ALL QUESTIONS IN THIS PART

1. Read the following facts in (a) and (b) and answer ALL parts of this question:

The Police in Pasifika have commenced an investigation on 13^th October 2003 in relation to two stolen ANZ Bank cheques to the value of VT. 1,000,000 (one million vatu) and VT. 1,500,000 (one million and five hundred thousand vatu). The police believe that the cheques were used to obtain a Hyundai Sonata car, number plate HP1021 for VT. 800,000 (eight hundred thousand vatu). This car is owned by Mr. Ramaka. The vehicle was bought from Asco Motors by Mr. Kanaka. Mr. Kanaka then sold the car to Mr. Ramaka for VT. 500,000 (five hundred thousand vatu) on 8^th October 2003, five days after Mr. Kanaka had bought the car from Asco Motors.

Mr. Ramaka discovered that the car had not been formally transferred to Mr. Kanaka, and checked the position with Asco Motors. Asco Motors informed Mr. Ramaka that the vehicle had been sold to Mr. Kanaka. Mr. Ramaka then became the registered owner of the vehicle. He intended to sell the vehicle through his car dealer company “Motoka Motor Mart.”

On 24th October 2003, the police obtained a search warrant to seize the vehicle. The vehicle has remained at the Police Station since that date. There are sworn statements by Constable Tom and Sergeant Dick outlining the circumstances of the seizure.

No charges have been laid in respect of the stolen cheques, or the vehicle. The file has been sent to the Office of the Director of Public Prosecutions, but no decision has been made on sufficiency of evidence. No application has been made by the DPP under the Proceeds of Crime Act 2003, for an order to confiscate the vehicle.

At a preliminary hearing, counsel for Mr. Ramaka submitted that the police had no legal basis for the continued custody of the vehicle. In response, the DPP said that there may be evidence that Mr. Ramaka knew the vehicle was stolen, but the DPP could not say with any certainty that the vehcile was needed as an exhibit in the case. The DPP relied on the common law for continued detention of the vehicle pending a criminal prosecution.

The vehicle was lawfully seized by the police using section 36(1) of the Pasifika Criminal Procedure Code. Section 36(2) deals with the steps to be taken when things are seized.

The Constitution of Pasifika in section 29(1) provides:

“Every person has the right not to be deprived of property by the State otherwise than in accordance with a law.”

A confiscation order under the Proceeds of Crime Act 2003 is specifically provided for under the Constitution by virtue of section 29(2) which provides that:

“Nothing contained in, or done under the authority of, a law is inconsistent with this section to the extent that the law makes provision for the acquisition of property by way of: …..

(c) confiscation of the proceeds of crime;”

Mr. Ramaka is now taking legal action against the Police and the DPP in the High Court to release his vehicle from the custody of the Police.

(a) You are the High Court judge responsible for determining this matter. After considering all the facts and taking into account all the relevant provisions of the Pasifika Criminal Procedure Code and Constitution, you must now write a judgment on this matter. Your judgment must address four (4) main questions:

(i) Are the Police empowered under the law to detain Mr. Ramaka’s vehicle?

(ii) Have the Police acted lawfully to seize the vehicle of Mr. Ramaka on the information obtained through their investigations, and have they breached any of Mr. Ramaka’s rights?

(iii) Are there reasonable grounds to detain the vehicle as material evidence to prove the suspected offence?

(iv) Is the DPP justified in relying on the common law for continued detention of the vehicle pending a criminal prosecution?

(20 marks)

PART B

ANSWER ONE QUESTION ONLY IN THIS PART

Question 2

Jaki received a phone call from the Police one morning and was asked by the police officer to come down to the station and see Constable Joni at 3pm to discuss some information received by the Police. Jaki was told that if he had difficulty getting to the station they would pick him up. Jaki arrived at the station at 4pm and asked to see Constable Joni. The duty officer greeted him by saying, “So you’re the one doing all this black magic, aah!”. He was told that he should wait in the interview room for Constable Joni. Nobody arrived until 8pm, before that he was not allowed to leave by the duty officer. When Constable Joni arrived he rushed into the interview room and thumped the table in front of him and said, “Because of you, I’ve wasted a whole day doing nothing”. He then thrusted a form in front of Jaki and asked him to sign it quickly. Jaki was hungry and tired and under pressure could not think properly and signed without asking a question. He was then told to leave.

The next day, Sergeant Pita arrived at Jaki’s house and apologised for the treatment given to him yesterday and asked him to come to the station and cancel his statement. When they got to the station, they could not locate the form and so he signed a fresh form. Jaki having realised what had happened to him decided to write a letter to the editor to the Daily Post and complain about the police actions. Jaki’s letter was published 2 days after and immediately, the police arrested him and took him to the station. Constable Joni was there and he shouted at Jaki in the interview room and threatened him for writing such a letter. He said to Jaki that they are arresting him for defaming the name of the police and that he was to remain in the station for the weekend. “Even if you did not say anything to us, we know that you have committed a big offence, because no one ever disrespects the police in this town”. Jaki was refused a phone call to his mother and was not cautioned or advised about his rights. He was told not to leave town but wait for his trial.

With reference to the Constitution and case law of a South Pacific jurisdiction and the Pasifika Criminal Procedure Code, discuss:

(a) Which (if any) of Jaki’s rights have been breached?

(b) In your view, would the two separate statement forms signed by Jaki be admissible in court as evidence

(c) What, if anything, can he or his lawyer do about such breaches?

(15 marks)

Question 3

The city of Blue Lagoon is hosting the Annual South Pacific Forum Leaders Conference. Apart from the many officials and media personnel that are attending the Conference, over 100 Environmental activists and supporters have also arrived at Blue Lagoon to stage a huge rally and protest against the proposed Pacific Treaty on Genetically Modified Products. Their aim is to send a peaceful and strong message to the leaders about the harmful and disastrous effects of GMP’s and to lobby the leaders to not ratify the Treaty. They plan to stand at the entrance of the hotel where the Conference is held, use banners and placards with words such as “GMP’s Kill People”, “Leave Our Islands Alone, Or Else” and “Don’t Sign, We Are Watching You”. There has been bomb threats but the Police have not identified who made those threats and many of the protestors are experienced at what they do. The Police are also cautious that the international media are in Blue Lagoon and they might report them as abusing human rights if they arrest the protestors.

(b) Imagine that you are a Police Officer that day and relating to the provisions contained in the Pasifika Criminal Procedure Code, address the following questions:

(i) In your view, has there been a breach of peace caused by the protestors and what action(s) will you decide to take and give reasons to support your answer?

(ii) What safeguards will you take to ensure that the protestor’s rights and freedoms are not breached?

(15 marks)

PART C

ANSWER ONE QUESTION ONLY IN THIS PART

Question 4

“The granting of bail to one accused of an offence ( a process as old as the law of England itself) is simply the releasing of that person from police custody prior to or during the court proceedings. In order to determine what a person’s rights are in relation to bail, and what the possibilities are of bail being granted, it is necessary to examine several factors.”

Discuss the following questions:

(a) Identify and explain the relevant factors that are considered by the court when making decisions in bail applications?

(b) What types of conditions would a court normally place on a defendant if released on bail (Give examples to support your answer)?

(c) How is the decision of whether or not to grant bail an exercise of discretion?

(15 marks)

Question 5

“We hold that evidence in corroboration must be independent testimony which affects the accused by connecting or tending to connect him with the crime. In other words, it must be evidence which implicates him, that is, which confirms in some material particular not only the evidence that the crime has been committed, but also that the prisoner committed it.”

R v. Baskerville [1916] 2 K.B. 658 at 667

With reference to a South Pacific jurisdiction of your choice, address the following questions:

(a) “The corroboration rule allows for the trier-of-fact to ensure a fair trial.” Say whether or not you are in support of this proposition and give reasons to support your answer.

(b) What adverse effects of the corroboration rule exist within the criminal justice system? Give practical examples to support your answer.

(c) Suggest some legal and procedural avenues for reforming the corroboration rule and its adverse effects within the criminal justice system.

(15 marks)

Question 6

The defendant is a self-employed male, 38 years old, married and has 4 children. He is the sole bread-winner of his family. He is convicted of raping a 16-year old girl. He is a first time offender and pleaded guilty to the charges as well as making a statement to the police that he was remorseful for his actions and felt sorry. At the time of committing the offence, the defendant tricked the girl by saying that he would drop her off where she wanted to go and instead took her to a secluded part of town. She suffered physical injuries, bruises, a black eye and was diagnosed as being psychologically traumatised. The defendant tied a T-shirt around her mouth and head to stop her screaming. The defendant did take her back to her home, but threatened that he would kill her if she told anybody and that if anybody asked her what happened, to tell them that 2 men raped her. The girl was terrified and lied to the police and doctors about her injuries. The defendant’s families carried out a traditional reconciliation ceremony which was accepted by the girl’s families. At the sentencing hearing, the Court decided that the sentence would not be a rehabilitating sentence but a deterrent sentence and that he should be punished. The defendant received a term of 18 months imprisonment.

Discuss the following:

(a) In your view, was the sentence given by the judge reasonable?

(b) What factors might have been considered by the judge when giving such sentence?

(c) What other alternative forms of sentencing would be appropriate for a person with such characteristics like the Defendant?

(15 marks)

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