2015, Semester 1

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SEAT NUMBER:
STUDENT ID: .
SURNAME: .
GIVEN NAMES: ..

LAWS1014
Civil and Criminal Procedure
Examination
Semester 1, 2015

Time Allowed: Two Hours + 30 minutes reading time

This examination paper consists of 6 pages
This is an OPEN BOOK exam. You may bring any written material into the
examination room, including text books, copies of legislation, and your own
notes. Sydney University library books are not permitted unless granted
permission by Miiko Kumar or Louise Boon-Kuo.
INSTRUCTIONS TO CANDIDATES
1. During reading time students may prepare answers by making notes on the
examination paper, but may not write in the examination booklets in which they
are to submit their answers.
2. Please print your student identification number clearly on the front of each of
the answer books you submit and indicate which question you are answering.
3. The paper comprises 2 parts each with multiple parts. ANSWER BOTH PARTS.
4. There are two parts. Each part is worth 35. The total mark for the exam paper is
out of a total of 70.
5. Part 1 (criminal procedure) has two questions. A problem question worth 25
marks and an essay question worth 10 marks
6. Part 2 (civil procedure) has one problem question worth 35 marks.
7. Take care to write legibly. Write your final answers in ink, not pencil.
8. Answer each part in a separate answer book.
9. Please print your student identification number clearly on the front of each of
the answer books you submit and indicate which question you are answering.
10. Students MUST submit their examination paper along with their

answer books. The paper is not to leave the examination room.

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Part 1
Criminal Procedure
(Allocate 60 minutes for this Part)
Question 1 is worth 25 marks. Question 2 is worth 10 marks.
Allocate your time accordingly.
Students must answer all sub-questions in Question 1. They are worth 25
marks in total. You must provide reasons supporting your analysis including
references to the relevant facts, legislation, guidelines, codes and/or cases.
Question 1.
[The following scenario is based on a real case from South Australia, R v
Williams (November 2014), which we have not studied in this course. The
names have been changed.]
At 4 am on the 4th of January 2015 the Police receive a report of a stolen car. It
is described as being a white 1992 Subaru with heavily tinted windows. Senior
Constable Smith (Smith), a uniformed police officer, is driving along when he
sees the stolen Subaru driving in the opposite direction. Smith sees two
occupants and he gives the following description over the police radio: Two
males in the vehicle baseball caps 30s - possibly Aboriginal. Four other
police vehicles in the vicinity head towards Smiths location. Smith executes a
U-turn and pursues the Subaru which travels at speed turning left where it
comes to a stop when it crashes into a black Hyundai parked on the side of the
road. The driver exits the car and runs away from the pursuing police vehicle.
The passenger, after struggling for some time to unlock the passenger side
door, also exits the vehicle. She is apprehended by police who quickly arrive on
the scene. Her name is Kelsea Stanmore. She is Aboriginal, 16 years old. Smith
has the driver in his sights and gives chase on foot. The driver, who is wearing
a black baseball cap, runs down a side street, climbs a fence and then Smith
sees him climb onto the garage roof at which point Smith loses sight of him.
Smith gives his location over the police radio and within 15 seconds four other
police vehicles arrive. In one of the vehicles is Constable Toltz (Toltz), also in
uniform, with his police dog, Doka, a large adult German Shepherd. Toltz and
Doka begin searching that street. 200m further along that street Doka picks up
a fresh scent (indicating that a person is, or has recently been, in the area)
and begins barking at a red Honda parked on the side of the road.
Toltz looks inside and sees a male person lying on the back seat (the
occupant). He yells Police with a dog. Get out of the car! Doka, who is on a
lead, is barking loudly and lunging aggressively at the car. Seven other police
officers arrive and surround the car. Toltz continuously shouts Get out of the
car! The occupant unlocks the doors. Toltz opens the back passenger door
closest to him. Doka is barking, snarling and lunging at the occupant. The
occupant kicks out at Doka and reaches for the handle of the opposite car door
at which point Toltz releases Doka with the command for Doka to bite the
occupant. Doka bites the occupant on the hip and drags him out onto the
ground. The occupant hits out at Doka who is still biting the occupant. Toltz puts

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his foot on the occupants chest and pushes him flat to the ground to stop him
from hitting Doka.
Smith then approaches the occupant, looks at him, and says Yeah, thats him.
My name is Constable Smith of Leichhardt Police. I am arresting you on
suspicion of driving a stolen vehicle. Toltz handcuffs him. In the red Honda
police find a black baseball cap. The police take the occupant back to the
police station and interview him.
The occupants name is Jack Watson (Jack). He is 25 years old and
Aboriginal. During the interview he tells police that the red Honda is his Uncles
car and Police confirm that this is true. Jack says he was visiting his Uncle that
day and they had been smoking marijuana. At one point he started talking silly
to his Uncle who told him to go and sleep it off in the car. He knows nothing
about a stolen Subaru. The police charge Jack with Unlawfully Taking a Vehicle
(s154A of the Crimes Act 1900 (NSW) punishable by 5 years imprisonment,
Table 2 offence) and Resist Police in Execution of their Duty (546C of the
Crimes Act 1900 (NSW) punishable by 12 months imprisonment or a fine of 10
penalty units).
DNA from three individuals was recovered from the steering wheel of the
Subaru. One of those was the owner, the second was unknown, and the third
was a possible match with Jack. The DNA expert said that if you take the
population of Sydney as a whole, there are 400 other people in Sydney whose
DNA would have produced a match in the same way Jacks did.
Kelsea Stanmore is Jacks cousin. In her statement she says that on the night in
question she took Jacks weightlifting gloves so she could use them to steal
from cars. In the early hours of the following morning she met a guy called
Lenny who offered to drive her home. She had never met Lenny before and has
not seen him since. After driving for some time Lenny told Kelsea the car was
stolen. Lenny took Jacks gloves from her and tried them on. She says Jack
was not the driver of the stolen Subaru.
At trial the defence argues that the police acted unlawfully and therefore (1) the
evidence of finding the baseball cap in the car should be excluded; and (2) Jack
is not guilty of resisting police in execution of their duty. The presiding judicial
officer rejects these arguments and finds Jack guilty of both offences.
In relation to this scenario, answer the following questions.
A. You are a solicitor working for the Director of Public Prosecutions prior to
trial when the police prosecutors send you the file. They ask you to
consider whether an election should be made. Which court will you
choose to proceed in and why? (5 marks)
B. Was the judicial officer right to find that the police acted lawfully? Was
the judicial officer correct to admit the evidence of the baseball cap? Was
the judicial officer correct in convicting Jack of resisting police in
execution of their duty? (15 marks)
C. You now are Jacks solicitor. Jack has been in trouble with the police
before, but has no prior criminal convictions. Jack asks you what

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purposes the court will take into account in sentencing him. What will you
advise Jack and why? (5 marks)
Question 2 (10 marks)
Answer one (1) question from the two (2) options below. Please indicate
clearly at the top of your first page which question you are answering and
write your answer in a separate answer booklet. You must illustrate your
answer with material studied in the course.
This question is worth 10 marks. Allocate your time accordingly.
A. Equal justice according to law also requires, where the law permits,
differential treatment of persons according to differences between them
relevant to the scope, purpose and subject matter of the law.
French CJ, Crennan, Kiefel JJ in Green v The Queen (2011) 244 CLR
462, 472-73 [28]
To what extent is equal justice achieved in criminal procedure? Drawing
on examples, develop your argument with reference to one or more of
the following areas:
i.
ii.
iii.

Bail; and/or
Sentencing; and/or
Prosecutorial discretion.

OR

B. In Woolmington (1935) AC 462 Lord Sankey famously states:

Throughout the web of the English Criminal Law one golden thread is
always to be seen that it is the duty of the prosecution to prove the
prisoner's guilt...
Does criminal procedure support or undermine the presumption of
innocence set out in Woolmington?

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Part 2
Civil Procedure
(Allocate 60 minutes for this Part)
Students must answer all sub-questions in this Part.
Jack Brown, aged 40, decided to get fit so he joined a gym called Fitness Now
at the end of December 2011. Prior to joining Fitness Now, he was a keen
swimmer and dog-walker but was very inexperienced with gym equipment.
Jack did a difficult morning gym session on 2 January 2012. His personal trainer,
Mr Swift was employed by Fitness Now. Jack was Mr Swifts first ever client as
he was a newly accredited personal trainer.
On 2 January 2012, Jack asked his trainer to go easy on him because he had
not slept well the night before.
There's nothing better for a lack of sleep than exercise. We'll have to smash
you,'' Swift told him.
Jack was at the gym to push himself and he considered that it would have be an
act of failure to refuse to do what the trainer was asking him to do.
On 2 January 2012, Swift stood on Jack's toes and tossed him a 6 kilogram
medicine ball as he did 200 twisting stomach crunches on the floor. Forty-eight
hours after the session, Jack could barely move and he sustained a fractured
back with nerve damage. Jack suspects that he hurt his back when he was
directed to do the medicine ball exercise which was the exercise where Jack
was required to catch a heavy medicine ball whilst sitting up from a prostrate or
supine position and then to rotate or twist from side to side with the medicine
ball held at arms length.
Jack was taken by ambulance to hospital. Later, Jack required spinal fusion
surgery on 1 July 2012.
Jack is a personal injury lawyer and as a result of the injury he was not able to
work for nine months after the surgery.
A fitness expert, Chris Pushup, prepared a report for Jack. The report is dated
15 July 2012 and says that the medicine ball exercise was not an exercise
recommended within the fitness industry, especially with so many repeated
throws.
Jack wishes to sue for damages for personal injury. Mr Swift has no assets and
therefore Jack wishes to bring a claim against Fitness Now as the employer of
Swift. Jack will claim that Fitness Now is vicariously liable for Swifts negligence.
(a)

Assume you are the solicitor that Jack consults today (i.e. 27 June 2015).
Advise Jack about when he is required to commence a claim and what
steps he can take to find out the owner of the gym. What other
procedural matters would be the subject of your advice to Jack? (10
marks)

(b)

Assume you are Jacks barrister and you are briefed to draft a statement
of claim. Please draft Jacks statement of claim and indicate further
information that you require to finalise the statement of claim. In addition,
please tell Jack how the statement of claim should be served. (10 marks)

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Assume pleadings have now closed. Jack has filed, in the court registry, a
subpoena to produce issued on Fitness Now. The subpoena calls for the
following documents to be produced:
1.

All documents recording accidents with medicine balls from 2005

to date.

2.

All personnel and training records of personal trainer Swift

3.

All records, including legal records and advices, relating to the

accident involving Jack Brown that occurred on 2 January 2012.

(c)

Assume you are the solicitor representing Fitness Now. Please advise on
the grounds for resisting the subpoena to produce described above.
What steps will need to be taken to object and/or resist the subpoena?
The general manager of Fitness Now initially posted legal advice about
Fitness Nows prospects of success in defeating any action by Jack to its
Facebook page however when the general manager was served with
Jacks statement of claim she removed the legal advice from the
Facebook page.(10 marks)

(d)

The court grants a non-publication order over Jacks true identity on the
ground that the effect of litigation could adversely affect his reputation.
Assume you are a solicitor employed by the media. Please advise on
your clients standing to remove such an order, the method to contest the
order and the prospects of the success in contesting the order. (5 marks)

(End of Question 2)