The University of the South Pacific

Examinations

Semester 2 2004

Emalus Campus

SCHOOL OF LAW

COURSE NAME: CRIMINAL LAW AND PROCEDURE II

COURSE NO: LA 206

TIME ALLOWED: THREE (3) HOURS

READING TIME: TEN (10) MINUTES

NUMBER OF PAGES: EIGHT (8) (including cover page)

NUMBER OF QUESTIONS ON PAPER: FOURTEEN (14)

NUMBER OF QUESTIONS TO BE ANSWERED: SEVEN (7)

MARK ALLOCATED FOR EACH QUESTION:

PART A: All students must answer this question which is worth 20 marks.

PART B: Students must answer FIVE questions from this part. Each question is worth 3 marks, making a total of 15 marks for the part

PART C: Students must choose ONE question from this part to answer. Each question is worth 15 marks

TOTAL MARKS: FIFTY (50) MARKS

MATERIALS PERMITTED IN EXAMINATION ROOM: NONE

Approved by Head of School: ………………………… Date:……………………….

PART A

This question is COMPULSORY. It is worth 20 marks. You will need to refer to the extracts of the Criminal Procedure Code of Pacifica and the Constitution of Pacifica which are provided with the exam.

Question 1

Imagine you are a defence lawyer in Pacifica and a client comes to see you and tells you the following story.

“A couple of Friday nights ago I was at a bit of a loose end so I went to hang out at my local bar. I started to play pool and then I noticed a prostitute nearby who was enticing me to go with her. I was a bit drunk by that stage and I thought “oh I might as well” so I followed her into the lane outside and we had sexual intercourse. I paid her and then she disappeared and I have never seen her again. I am a married man with children and I really do not want my family to find out about that incident. I then went back inside the bar and continued to drink and play pool. I was drinking whisky and cola at pretty regular intervals, but I am a big man who is used to drinking so I felt didn’t feel that I was really drunk. About 1pm a man with a big beard came in with a group of friends. They got noiser and noiser but I didn’t pay them much attention until I suddenly realised that the man with the beard had broken a beer bottle and was holding the broken glass right near the neck of the girl serving the drinks behind the bar. I didn’t wait to see more or to find out what was going on but straight away I leapt across the bar and grabbed the guy and pulled him away from the girl and punched him in the face. I must have really scared the guy because he turned to go out the door but I was really angry by this stage and I followed him and kicked him in the backside which made him fall down flat on his face and break his teeth.

The man’s friends then jumped on me and told me that they were taking me to the police station. I told them there was a police station around the corner that they could take me to, but they insisted on tying me up very tightly with rope and making me walk in that way to the police station that was right across the other side of town. It took about an hour to get there and I was cut by the rope all over by the time we arrived.

I am not sure what the man’s friends told the police, but the next thing I knew the police had thrown me into one of their holding cells and kept me there until the next morning. When I complained the police officer said that I was too drunk to get any sense out of, which wasn’t true at all as I was perfectly rational. Eventually they came to get me and took me to the interview room and told me that I had been charged with intentional assault. They then told me that I had a right to contact a lawyer and I asked them for a list of lawyers but they said that they were not a free legal consulting centre and if I didn’t know a lawyer then that was my problem not theirs. They then told me that I had the right to remain silent and that whatever I said could be used against me in court, so I said “very well then, I will keep quiet”. Then they told me, “that’s fine, you stay quiet but if you don’t say anything then you will just sit here without food, water or cigarettes for as long as we like”. By that time I was dying for a cigarette and I also really needed to drink water, so I just gave up and confessed to everything that I had done. Even after I had confessed though they kept me until Monday morning before letting me go, and they wouldn’t get me any medical attention for my cuts from the rope, although they did feed me and give me water and cigarettes eventually.”

You must advise the client on the following:

(a) Whether or not there is a defence or defences open to the client to argue and an assessment of how strong that defence is; (5 marks)

(b) Whether or not the client was lawfully arrested and detained and the reasons to support your opinion; (5 marks)

(d) Whether or not the fact that the client had visited a prostitute earlier in the evening would be admissible in court and the reasons in support of your opinion. (5 marks)

PART B

You must answer FIVE questions from this part. Each question is worth 3 marks, making a total of 15 marks in total.

Question two

Identify and discuss the main criteria of the definition of white collar crime. (3 marks)

Question three

With reference to constitutions and crimes acts in the region (specific sections not required), discuss three areas in which there is a conflict between the interests of the State in regulating society and individual rights. (3 marks)

Question four

Explain the difference between a capacity defence, an excuse and a justification defence. (3 marks)

Question five

Discuss whether or not consent is a defence to any offence in the region, and briefly explain in what situations people have argued that it should be a defence. (3 marks)

Question six

Explain why the right to be presumed innocent forms the bedrock or foundation for other rights accorded to suspects. (3 marks)

Question seven

Discuss three aspects (or “sub-rights”) of the right to a fair trial. (3 marks)

Question eight

Explain what remedies are available to a person who has been wrongfully arrested and in what circumstances they would be available. (3 marks)

Question nine

Explain the differences in roles between the prosecutor and the defence lawyer in the criminal justice system. (3 marks)

Question ten

Discuss four arguments that the prosecution could use to convince a court that a defendant should not be granted bail. In your answer you should mention whether or not there is a presumption against the grant of bail. (3 marks)

Question eleven

Explain what an equivocal plea is and what course of action a magistrate should take in regard to such a plea. (3 marks)

PART C

You must answer ONE question from this part. Each question is worth 15 marks.

Question twelve

In the English case of Dudley and Stephens (1884) 14 QBD 273 Lord Coleridge stated:

“There remains to be considered the real question in the case - whether killing under the circumstances set forth in the verdict be or be not murder. The contention that it could be anything else was, to the minds of us all, both new and strange, and we stopped the Attorney-General in his negative argument in order that we might hear what could be said in support of a proposition which appeared to us at once dangerous, immoral and opposed to all legal principle and analogy.”

With reference to this citation:

(a) discuss whether or not the defence of necessity exists in any form in the USP region; (8 marks) AND

(b) discuss the arguments both for and against the development of a defence of necessity. (7 marks)

Question thirteen

Discuss the maxim “It is better that ten guilty persons escape than that one innocent suffer” with regard to the criminal justice system of a jurisdiction of your choice. In your answer you should include:

(a) An analysis of the ways in which this maxim is or is not enshrined in the criminal justice system of that jurisdiction (6 marks)

(b) Reference to the differences of approach between the crime control model of justice and the due process model (4 marks)

Question fourteen

Discuss some of the factors that could cause a miscarriage of justice in a jurisdiction of your choice in the region. In your answer you must include a discussion of the following:

(a) what are miscarriages of justice and what factors cause them to arise (5 marks)

(b) what procedural safeguards are already in place to help guard against miscarriages of justice (5 marks)

(c) what further safeguards need to be put in place to help to ensure the factors you have identified do not cause a miscarriage of justice. (5 marks)

PASIFIKA CRIMINAL PROCEDURE CODE

……………….

ARREST HOW MADE

4. (1) The police officer or other person making an arrest shall actually touch or confine the person to be arrested, unless there be a submission to custody by word or action.

(2) If a person forcibly resists the endeavour to arrest him, or attempts to evade arrest, such police officer or other person may use all means necessary to effect the arrest.

(3) Nothing in this section shall justify the use of greater force than is reasonable in the particular circumstances in which it is employed, or is necessary for the arrest.

ARREST BY POLICE OFFICER WITHOUT WARRANT

12. (1) Any police officer may, without an order from a judicial officer, or warrant, arrest any person whom he suspects upon reasonable grounds of having committed a cognisable offence.

(2) Without prejudice to the generality of subsection (1) a police officer may without a warrant arrest-

(a) any person who commits a breach of the peace in his presence;

(b) any person who wilfully obstructs a police officer while in the execution of his duty, or who has escaped or attempts to escape from lawful custody;

(d) any person whom he finds lying or loitering in any highway, yard or garden or other place during the night and whom he suspects upon reasonable grounds of having committed or being about to commit an offence or who has in his possession without lawful excuse any offensive weapon or housebreaking implement;

(e) any person for whom he has reasonable cause to believe a warrant of arrest has been issued.

DISPOSAL OF PERSON ARRESTED BY POLICE OFFICER

15 A police officer making an arrest without a warrant shall without unnecessary delay and subject to the provisions herein contained as to release from custody, take or send the person arrested before a judicial officer or before an officer in charge of a police station.

ARREST BY PRIVATE PERSON

16. (1) Any private person may arrest any person who commits a serious offence, or whom he reasonably suspects of having committed an offence punishable by a term of imprisonment for more than 10 years.

(2) Persons found committing any offence involving damage to property may be arrested without a warrant by the owner of the property or persons authorised by him.

DISPOSAL OF PERSON ARRESTED BY PRIVATE PERSON

17. (1) Any private person who arrests a person without a warrant shall without unnecessary delay place the person so arrested in the custody of a police officer, or in the absence of a police officer shall take such person to the nearest police station.

(2) If there is reason to believe that a person placed in police custody under subsection (1) comes under the provisions of section 12 a police officer shall re-arrest him.

(3) If there is reason to believe that such person has committed a non-cognisable offence and he refuses on the demand of a police officer to give his name and address, or gives a name or address which such officer has reason to believe to be false, he shall be dealt with under the provisions of section 14. If there is not sufficient reason to believe that he has committed any offence, he shall be at once released.

DETENTION OF PERSON ARRESTED WITHOUT WARRANT

18. (1) Subject to subsection (2) when any person has been taken into custody without a warrant for an offence other than intentional homicide or any offence against the external security of the Republic, the officer in charge of the police station to which such person shall be brought may in any case and shall, if it does not appear practicable to bring such person before an appropriate court within 24 hours after he has been so taken into custody, inquire into the case. Unless the offence appears to the officer to be of a 'serious nature the officer shall release the person on his signing a written undertaking to appear before a court at a time and place to be named in the undertaking; but where any person is kept in custody he shall be brought before a court as soon as practicable.

(2) The officer in charge of the police station may release a person arrested on suspicion of committing any offence, when after due police inquiry, insufficient evidence is, in his opinion, disclosed on which to proceed with a prosecution for the offence.

POLICE TO REPORT ARRESTS

19. Officers in charge of police stations shall make a report to the Commissioner of Police about all persons arrested without warrant within the limits of their respective stations, whether such persons have been released from custody or otherwise.

PACIFICA CONSTITUTION

Section 27 of the Constitution provides as follows:

“(1) Every person who is arrested or detained has the right:

(a) to be informed promptly in a language that he or she understands of the reason for his or her arrest or detention and of the nature of any charge that may be brought;

(b) to be promptly released if not charged;

(c) to consult with a legal practitioner of his or her choice in private in the place where he or she is detained, to be informed of that right promptly and, if he or she does not have sufficient means to engage a legal practitioner and the interests of justice require legal representation to be available, to be given the services of a legal practitioner under a scheme for legal aid;

(d) to be given the opportunity to communicate with, and to be visited by:

(a) his or her spouse, partner or next-of-kin; and

(b) a religious counsellor or social worker.

(e) to challenge the lawfulness of his or her detention before a court of law and to be released if the detention is unlawful; and

(f) to be treated with humanity and with respect for his or her inherent dignity.

(2) The authorities holding a person who has been arrested or detained must promptly take all reasonable steps to inform his or her spouse, partner or next-of-kin of his or her arrest or detention.