Unit Title: Legal Memorandum
Value: 30%
Group Assessment: No
Submission method options: EASTS (online)
TASK
Task description: You are required to consider a legal problem and prepare a legal memorandum that analyses the three issues asked in the problem below. The problem will require you to consider a number of issues of criminal law covered in Topics 3 – 6 and use IRAC legal problem-solving methodology. The question does NOT require a discussion of the elements of the offences.
Legal Memorandum Assessment 3 – Australia.
The Legal Problem:
You are a barrister in private practice in New South Wales. You specialise in criminal law and are briefed by Legal Aid NSW to appear for Mr Allan Smith, an 18-year-old man who lives in Bourke. Mr Smith has been arrested and is in the holding cells at Bourke Police Station. You speak with him quickly over the phone and tell him not to say anything to the police until you arrive. You arrive at the Police Station a short time later and sit in a private interview room with Mr Smith and your instructing solicitor. Mr Smith hands you some paperwork given to him by the police.
You discover the facts of the matter to be as follows:
Antecedents:
The accused, Mr Allan Smith, is an 18-year-old male with a wife and three dependents.He has lived in Bourke all his life and is usually employed full time as a shearer. However, due to the drought, most landholders have de-stocked, there is very little shearing work and the accused has not worked for six months. This has caused Mr Smith to suffer depression which he has attempted to medicate with alcohol and drug abuse. Mr Smith has been unable to access proper mental health services due to lack of money and living in a remote town. He has no prior criminal history but has some reports within the last three months for drunk and disorderly conduct and has been‘moved on’ by the police on a number of recent occasions.
Legal Memorandum Assessment 3 – Australia.
Facts:
On 16 June 2018 the accused attended at a party at 7 Apple Street, Bourke. The party was attended by a large number of people. The accused, Mr Brown and most of the other guests were very intoxicated. The party was held in the backyard of a large rural block. The only lighting came from a number of fire buckets. There was loud music coming from a set of speakers. Most people were standing around the fire buckets drinking and talking. Most people were dressed in jeans, heavy jackets, scarfs and beanies due to the cold.
About 1 am the accused, Mr Brown and about a dozen other people were standing around a fire bucket talking. A bottle of vodka was being passed from person to person.Mr Brown and the accused had never met before and were not known to each other. A disagreement between two persons (not the accused or Mr Brown) escalated quickly and a brawl broke out, with all dozen people, including the accused and Mr Brown getting involved.
During the brawl the bottle of vodka was smashed and Mr Brown was slashed and stabbed repeatedly to the head and chest. Police and ambulance arrived and Mr Brown required emergency evacuation to Dubbo Base Hospital where he underwent surgery and suffered serious, long term injuries. Police shut down the party but made no investigation other than taking the pieces of the broken bottle and writing down a few names of some of the people they recognised.
Police who were sitting in their car on the street outside the party saw the accused leaving after the party had been shut down. One officer said to the other, “there’s that Smith kid, I bet he’s up to no good, he’s always drunk and wandering the streets. He stabbed that bloke for sure. Let’s follow him.”
Police then drove at a walking pace behind the accused as he made his way home.They spoke to the accused through their window, telling him that they were going to get him and that he should sleep with one eye open. When the accused reached his home the police parked their car out the front and stayed all night until shift change over at 6 am.
At change over the Supervisor told the Constables that the accused’s DNA, along with that of three other local men, had been located on a piece of the broken the vodka bottle. Police went out to search for the accused only and made no attempt to locate the other men.
Legal Memorandum Assessment 3 – Australia.
About 11 am police observed the accused in Victoria Park sitting with other family members talking about the events of the evening. A number of police officers, including Constable Green, grabbed the accused, threw him on his face and handcuffed him to the rear. The Sergeant said, “that was a bit rough, we’ll have to make something up.Let’s say he was swearing and carrying on and that he assaulted Constable Green.Let’s also say that he admitted to stabbing Mr Brown at that party this morning”. The police officers all made notebook entries to this effect, including the ‘confession’. The accused was taken to Bourke Police Station.
The task:
Prepare a legal memorandum addressing the following three issues. Address your memorandum to the firm of solicitors who are briefing you in this matter.The purpose of your advice is to explain the three issues below to your instructing solicitor.
1.Explain the charge, pre-trial (including negotiation) and trial process. Can the matter stay in the Local Court? What are the advantages and disadvantages for Mr. Smith?
2.Explain discretion in the criminal process and how it may be relevant to assisting Mr Smith in this case.
3.Is Mr. Smith’s case a miscarriage of justice? How can you, as Mr. Smith’s barrister,prevent the case from becoming a miscarriage of justice or a further miscarriage of justice? Explain.
How do I Analyse the Problem?
It is recommended you utilise the IRAC legal problem-solving methodology as a way to think about how you should approach the issues raised in your memorandum. There is no need to strictly structure your memorandum under the four headings of IRAC, but it is a helpful way of thinking about how you might approach the problem.
Your memorandum should be structured around the following components:
1.An executive summary
2.The body of the memo (analysing the issues identified above)
3.A conclusion
4.Appropriate references by way of footnotes, bibliography etc in accordance with AGLC4 referencing.
You may use headings, bullet points and numbering to organise your memorandum.
A legal memorandum is an “in house communication”. You may assume the reader of this document has a good understanding of the facts and the law. Whilst plain English is encouraged, you do not have to explain legal terminology as you would in client communications.
Legal Memorandum Assessment 3 – Australia.
You should prepare this document with reference to the “How to prepare a legal memorandum” document in your assessment 3 folder on the subject site.
Submission Requirements:
You are requested to submit your assignment via EASTS as a word document (no PDF’s please, as these cannot receive feedback). You are also required to submit a Centre for Law and Justice cover sheet that is duly completed with all information required by that sheet, including a Turnitin similarity score.
The problem will require you to consider a number of issues of criminal law covered in Topics 3 – 6.
Supporting Material
You will need to have understood and reviewed:
Topics 1 , 2, 3, 4, 5 and 6 and the readings related to this.
Selected chapters of ‘Australian Criminal Justice’ by Mark Findlay, Stephen Odgers and Stanley Yeo (2014) that will be identified in the Assessment 3 folder on your subject site.
This assessment task will assess the following learning outcome/s:
be able to explain and critically analyse the relationship between criminal law and other branches of law as systems of social control.
be able to demonstrate an in-depth understanding of the elements of criminal procedure, together with the operative framework of criminal trials.
be able to demonstrate critical awareness of the benefits, limitations and injustices connected to the imposition of criminal law.
be able to analyse the impact on regional, rural, remote and indigenous communities of ‘targeted’ law reform.
be able to demonstrate an understanding of institutional bias and the role of the legal profession in facilitating access to justice for Indigenous people and communities.
PRESENTATION:
Essays must use the cover sheet available in the resources section of Interact 2.
Essays must be submitted to Turnitin. Our Class ID for this session is: 15437371, and the password is: Procedure
You must record your final turnitin score on your cover sheet.
Your essay must be formatted and submitted to EASTS as a Word document.
All other formatting instructions are on the cover sheet.
Please delete the instructional sections of the cover sheet before submission.
Referencing must be according to AGLC4.
Legal Memorandum Assessment 3 – Australia.
REQUIREMENTS
Presentation:
Your assignment should have a Centre for Law and Justice cover sheet at the front. All required information should be recorded on that cover sheet. Please submit your assignment as a word document (no PDFs please) via EASTS. You may use headings, bullet points and footnotes to organise your work. You should provide a bibliography.
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