Practice of Legal Skills - Assignment Example

LEGAL SKILL CASE ANALYSIS LLB LEGAL SKILLS CASE ANALYSIS COURSEWORK. Read the case of Regina v Da Silva [2007] 1 WLR 303 and using this case ONLY answer the following questions. 10 marks will be awarded for correct grammar, punctuation and spelling. 1)  In what court was the case heard at first instance? (1 mark) Crown Court at Middlesex Guildhall 2)  Who was the judge at first instance? (1 mark) Judge Martineau QC. 3)  What did the court of first instance decide? (3 marks) (i) Hilda Gondwe Da Silva was to be convicted on charges under two counts, 14 and 15. (ii) She was also charged with helping to retain a benefit of criminal conduct. (iii) She was pardoned on counts 1 to 10 that included both her and the husband (Mario Da Silva), for achieving money transfer as a result of ruse. 4)  In the Court of Appeal who was the appellant, and who was the respondent? (2 marks) Appellant was Hilda Gondwe Da Silva being represented by Rossano Cifonelli. The respondent was the Crown represented by Richard Milne 5)  What were the grounds of appeal? (4 marks) i) Her reason for appealing was that the judge had given the jury the definition of suspect and somehow reinforced its meaning ii) Her main notion for appeal was that she did not agree with the ruling the preceded court had made, the crown court. 6)  What did the Court of Appeal decide? (4 marks) i) It rejected the appeal that was made. ii) That preceded court judge was justified to use the dictionary meaning of “suspect” to give meaning to jury and reinforce its meaning. 7)  Which judges heard the case in the Court of Appeal? (1 mark) (i) Judge Diehl QC (ii) Gloster J (iii) Longmore LJ 8)  On what date did the Court of Appeal give its judgment? (1 mark) On July 11th 2006 by Judge Longmore LJ 9)  Who were the counsel and solicitors in the Court of Appeal? (2 marks) Counsel: Rossano Cifonelli, Richard Milne, Gloster J and Longmore LJ Solicitors: Crown Prosecution Service, Central London 10) What offences did counts 14 and 15 of the charges against the defendant relate to? (4 marks) (i) On count 14, she was charged for aiding transfer on money into the first bank account operated by her that took place on 11 November 2001 to 1 July 2003 (ii) Count 15 was a similar offence in respect of a second bank account for the period June 2001 to September 2003. 11) Were these offences summary offences or indictable offences? (1 mark) All of the offences were indictable. 12) How did the trial judge define ‘suspicion’ (3 marks) According to the judge of first instance of the case, suspicion is an act of suspecting one or to imagine without a proof or tiny evidence about something to be true. But any hint or slight idea that an act of criminal conduct is in progress is adequate enough to be used against one in their offense. 13) a)  How did the counsel for the Appellant wish to extend the ground on which he was given leave to appeal? (2 marks) The counsel of appellant wished to leave to appeal on the ground of passage the definition of suspicion was given. b)  Did the Court accept the counsel’s argument? (1 mark) No, it didn’t. The Court dismissed it because it could not be justified by their argument. c)  Why did the court refer to section 93C of Criminal Justice Act 1988? (2 marks) Because in 93A (1) the word “reasonable grounds” for suspicion has not been spelled or was not contained in that section. Therefore 93C is used as a reference of “reasonable grounds.” d)  What method of statutory interpretation did the Court of Appeal use with regard to the counsel’s argument? (2 marks) With regards to counsel arguments, the court of appeal stressed that the according to the statutory construction, the two section required to be interpreted as one without regarding the other section or interpreting them separately. e)  What case authority did the Court of Appeal use to give support to its conclusion? (1 mark) To give support to it conclusion given on “reasonable grounds” of suspicion, the court used the authority of the Proceeds of Crime Act 2002. f)  Did the Court of Appeal agree with the counsel for the Appellant that failing to imply a requirement for reasonable grounds for suspicion would lead to inappropriate convictions? Give reasons for your answer (2 marks) Court of appeal did not agree with the appellant argument of inappropriate conviction based on reasonable ground of suspicion. It stated that the chance of such conviction is not likely to occur because prosecution too may not take place and even if, the jury would decide that their no reasonable grounds to convict one. 14) What definitions of the word ‘suspect’ used in a criminal context did the court draw upon? (2 marks) The definition of suspect in criminal context used by the court was the dictionary definition because it had no judicial authority. It was also argued that since it had on English authority in a criminal context it was therefore preferable to use it. 15) Why was the authority of R v Gillard (1988) 87 Cr App R 189 cited? (2 marks) Authority of R v Gillard (1988) 87 Cr App R 189 was cited because it was a similar situation to the hearing of the case Regina v Da_Silva, where the judge gave the meaning of “suspect” according to the dictionary meaning. In that particular case the judge assisted the jury with meaning of the word and even reinforced it to obtain the right meaning without difficulty. This was necessary in order for the jury to issue accurate judgment. 16) Which court heard the case of Hussein v Chang FookKam[1970] AC 942? (1 mark) It was heard in a Privy court. 17) Apart from case law and statutory authority, what other secondary sources of law were referred to by the Court of Appeal, and why? (3 marks) Mitchell, Taylor & Talbot on Confiscation and Proceeds of Crime 18) Which of the following facts were material to this case? (5 marks) a)  Mrs Da Silva’s husband was running a coffee bar at the time of the incidents. b)  Mrs Da Silva’s arguments as to why she was unaware of her husband’s crimes were unconvincing. c)  The three ‘ghost employees’ of the coffee bar had worked for AMT in the past. d)  Mrs Da Silva had facilitated the payment of the proceeds of Mr Da Silva’s crimes into bank accounts she controlled. e)  Mrs Da Silva was acquitted of obtaining money transfers by deception. ANSWER: A,B, D, and E 19) Explain whether each of the following statements is part of the ratio decidendi of Regina v Da Silva [2007] 1 WLR 303. If you think a statement is part of the ratio decidendi, explain why. If you think a statement is not part of the ratio decidendi, explain why. (15 marks) a) The court cannot imply the word ‘reasonably’ before the word ‘suspecting’ in the wording of section 93A(1)(a) of the Criminal Justice Act 1988 and neither can it imply the words ‘on reasonable grounds’ after the word ‘suspecting’. It is ratio decidendi because these words do not appear in this section but in section 93C of the 1988 Act. Hence they should be construed as one. b)  Mrs Da Silva’s husband was guilty of obtaining money transfers by deception. This is true because he uses the “ghost workers” to obtain transfer and obtain proceeds which are against statutory law. Therefore it is ratio decidendi. c)  In civil cases regarding dishonest accessory liability for breach of trust, suspicion has to be ‘clear’ or ‘firmly grounded’. It is ratio decidendi. For suspicion to be used in civil case it has to be strong enough to be valid. According to this case suspicion holds some certain strength it based. d)  The Crown had a good prima facie case, partly because Mrs Da Silva remained silent when interviewed about her joint participation in her husband’s crimes. Because she did not defend herself against such accusation, the crown stood to be corrected unless otherwise, hence a ratio decidendi against this case. e)  To convict a person under section 93A (1)(a) of the Criminal Justice Act 1988 for facilitating the retention or control of the proceeds of criminal conduct by another (A), suspecting that A is or has been engaged in criminal conduct requires that the defendant thought that there was a possibility, which was more than just fanciful, that A had been engaged in or had benefited from criminal conduct. She aids her co-accused gain access to criminal proceeds through account she managed. Therefore it is a ratio decidendi. The following section is referred because it is contained in the judicial law and the defendant is guilty of such. 20)a) Matt worked in the Waterloo branch of Big Bank Plc. In June 2013, Matt revealed the security codes of the main safes in the bank to a group of bodybuilders he knew at his local gym. The next day, while Matt was at work, the bodybuilders proceeded to rob the bank. At the time of the robbery, Matt pretended to be an innocent victim. After the robbery had taken place, the bodybuilders gave him £100,000 as a share of the proceeds. In August 2013, the bodybuilders were convicted of robbery for robbing the bank. In the newspaper and television reports of the case it was clear that the police thought that the bodybuilders had been assisted by an insider at the bank, but that they had no firm evidence of this. In October, Matt asked his sister, Rose, if she could put £50,000 of his money into her bank account to hold it for him. He explained that he thought her bank account would provide a better interest rate than his bank could at the moment. Rose agreed to his request and placed the money in her account. In November, Matt was convicted of assisting with the robbery of Big Bank Plc in June. Rose has subsequently been interviewed by the police in respect of the money she deposited in her bank account on behalf of Matt, which turns out to have been half of his share of the proceeds of the bank robbery. She tells the police that she had always trusted Matt due to his respectable job, although she was aware that he had been spending time with some ‘unsavoury characters’ at the gym. Advise Rose on her potential criminal liability under section 93A(1)(a) of the Criminal Justice Act 1988, with specific reference to the judgment in Regina v Da Silva [2006] (15 marks) Rose helps her brother gain proceed of a criminal act by agreeing to bank it on her account. Therefore she can be charged against abetting criminal process and may have a case to answer. She is also suspicious that her brother was engaging with individuals (bodybuilders) who were not of his type. It is later announced in television and newspaper that the bodybuilders who robbed the bank had an insider who had helped them. This incident follows after she had the knowledge that her brother was associating with those kinds of people. For this reason, if a case is opened against her, the judge may use suspicion and if found that she had inking or fleeting thoughts that the money given to her by her brother were proceeds of criminal conduct then this will suffice on other offence of abetting crime to be proved. She is therefore criminally liable according to section 93A (1) (a) of the 1988 Act b) John was a trustee of funds held in a trust account for a charity. John removed £10,000 from the trust account in breach of his trustee duties in January 2013.
In February 2013, he asked his niece, Sarah, to put £10,000 of his money into her bank account to hold it for him in case he needed it in the future. Sarah agreed to do this for John. She was aware that John was having serious financial difficulties at the time and that he was desperate to resolve his problems. She also knew that he was a trustee for a charity. Advise Sarah on her potential civil liability for accessory liability for breach of trust, with specific reference to the judgment in Regina v Da Silva [2006] (10 marks) Sarah knows that her niece john has serious financial problems. She is also aware that her brother works as trustee of funds in trust account of a charity. John later gives her a sum amount of £10,000 to put in her account at that instance that he is experiencing financial problem. Her suspicion is therefore termed to be firm. And since her brother was working in that organization, both are liable for civil offences and any damages can be awarded. If a case is presented against her, she will be guilty as charged and suspicion may be clear and firmly be grounded because she may have known that her brother had obtained criminal proceeds through her without proper channel thus his accomplice having known that he had financial problem at that time. Read More