SimDemocracy Judiciary Interview Questions
4 September 2020 — A collection of questions asked in SimDemocracy judiciary interviews to gauge legal thinking skills.
In mid-to-late 2020, the SimDemocracy legislature asked me to interview prospective candidates for judicial positions to determine their competency. Instead of asking them questions about their legal knowledge, I opted to ask questions to gauge their legal thinking skills.
The following is a reproduction of the questions and answers I had asked prospective candidates. They are a product of their time and may not reflect my views today.
Questions
1. Civil harassment
What is the difference between criminal and civil law?
Let’s say there is a harasser (H) who has been allegedly harassing the victim (V).
The DoJ tried to prosecute H for criminal harassment. In the trial, the judge found H not guilty of criminal harassment.
V has now opted to file a civil lawsuit against H for civil harassment and is seeking compensation for civil harassment.
H claimed that as they were acquitted for criminal harassment, they are also innocent and not liable for civil harassment.
Do you agree with H?
Suppose you are in the civil hearing between H and V.
They disagree on the definition of civil harassment.
In Dodowarrior44 v FruitRollUp [2020] Civ 2, which happened in May 2020, Judge Wolf said civil harassment is “the intentional continued interaction with an individual or group by another individual or group that causes the victim to become intimidated, feel pressured, or generally uncomfortable.”
Meanwhile in Mobilfan v Dick_head68 [2020] Civ 3, which happened in June 2020, Judge Ivy went back to the old precedent of civil harassment, which is “the repeated and unwanted bothering, threatening or anything along those lines by one or more users to one or more users even after being asked to stopped.”
One party argues that the Mobilfan definition should be used because it’s the most recent case involving civil harassment. The other party, on the other hand, argues that the Dodowarrior44 definition should be used because it is a new and updated definition. They argue that the definition in Mobilfan has been used since June 2019 and is sorely outdated.
Which definition would you use and why?
Do you think there are grounds for appeal for this civil hearing? If so, what grounds do you think an appeal could be filed for?
H lost the civil hearing and has now appealed to the Supreme Court.
They are appealing on the basis that their rights to a fair hearing (Article 19 of the Constitution) are infringed.
Article 19, s6 states: “No legal entity may be tried again on the same or similar charges and on the same facts following a valid acquittal or conviction.”
They argue that as civil and criminal harassment are similar charges, and as they were acquitted for criminal harassment, their Section 6 rights were infringed by the civil hearing.
Do you agree with their appeal?
2. Burden of proof and mens rea
Without searching it up, what is the burden of proof for crimes?
Let’s say the DoJ is prosecuting the defendant (D) for doxxing the alleged victim (V).
During the trial, the defence argued that V gave consent to the release of V’s personal information. The defence cites Article 14, s4 of the Criminal Code, which states “consent may be a defense for all crimes against privacy”.
The evidence given for this claim is not concrete. The prosecution claims that as D has not proven that V has consented beyond a reasonable doubt, the defence should not be considered.
Do you agree with the prosecution?
Article 2 of the Criminal Code, which deals with the burden of proof, states that the prosecution must prove each element of an offence beyond a reasonable doubt. Some criminal offences have multiple elements in them.
One of these criminal offences is spam pinging (Article 62). For your reference, spam pinging is “the rapid use of pings in multiple messages in a short amount of time in the associated Discord server, which is done without any reasonable or legitimate intent; rather done with nefarious intent.”
What elements of spam pinging do the prosecution have to prove beyond a reasonable doubt?
In SD v Von Otto [2020] Crim 4 [4], Judge Mobilfan wrote in his judgment that the phrase “rather done with nefarious intent” implies that nefarious intent is not an element that needs to be proved for spam pinging, only that the court must consider it.
Do you agree with his assessment? If you do agree, why do you think other judges may disagree?
For this question, I need to give you some brief background knowledge. In real life, most criminal offences are made up of two main elements: actus reus and mens rea. Actus reus is the physical action of a crime (e.g. killing), whereas mens rea means the mental state of the accused (e.g. with intention). So, for example, murder in most places is defined as “killing someone with the intention to kill”.
Now, suppose a defendant (D) was appealing their conviction to the Supreme Court. They were found guilty of Abuse of Power (Article 35), which is the “commitment of an act which an official had no legal right or authority to commit; as any wrongful conduct which affects, interrupts or interferes with the performance of official duty.”
D is appealing on the basis that the criminal offence of Abuse of Power does not have a mens rea element. In other words, Abuse of Power does not have an element where the prosecution has to prove that D intended to commit abuse of power. The only thing the prosecution has to prove is that D did the action, also known as the actus reus.
Article 9, s2 of the Criminal Code, meanwhile, states: “While determining the sentence, the court is to base it on the severity of the offense, the social harm caused, the damage caused to the victim (if applicable), the motivations of the offender, and the intent with which the offender has committed the offense; and any defences invoked.”
D argues that Article 9, s2 requires judges to consider the intention of which they committed the offence. They argue that Article 9, s2 creates a “presumption of mens rea”. In other words, D argues that it does not matter whether a criminal offence has an explicitly written intention element, it is implied in every offence under Article 9, s2.
Therefore, D argues that when prosecuting for abuse of power, prosecutors must not only prove that D did actions that were abuse of power, prosecutors must prove that D intended to commit abuse of power under Article 9, s2 of the Criminal Code.
Do you agree with D’s appeal?
3. Hate speech
Under the Bill of Rights, everyone is entitled to equal protection of the law. Article 13, s3 of the Constitution states, “equal protection of the law, and equality of rights under the law, shall not be restricted or abridged on the basis of protected characteristics.”
One of these protected characteristics is race. Without searching them up, could you name some other protected characteristics?
Article 72b of the Criminal Code criminalises hate speech. For your reference, s1 states: “Whoever publicly submits, posts, relays; or in private messages to another citizen asks to relay; or in private messages uses hate speech is to be guilty under this Article.”
Meanwhile, s2 states: “Hate speech is to be any upsetting, demeaning, or humiliating speech about someone’s race, religion, disabilty, gender, sex or sexuality.”
Suppose there is a defendant (D) who is being prosecuted by the DoJ for allegedly using hate speech targeted at the victim (V).
During the trial, the defence argued that D could not have committed hate speech because V was not upset, demeaned, or humiliated by it. During witness cross-examination, V affirmed this, saying that they were not actually upset, nor did they feel demeaned, or humiliated by D’s remarks.
Do you agree with D’s defence?
In SD v Shwiftula [2020] Crim 6 [4], the then Chief Justice Mobilfan, acting in the capacity of a standard judge, wrote in his judgment that it did not matter whether V was actually upset by D’s hate speech. The only thing that matters is whether D tried to make that comment to upset V.
Do you agree with his interpretation?
D argues that the criminalisation of hate speech (Article 72b) unconstitutionally infringes on their freedom of expression (Article 14 of the Constitution).
The DoJ disagrees and says there is already legally binding Supreme Court precedent regarding the extent of freedom of expression. They point to In re Restraining Order Act [2019] SDSC 1 [15], which states: “[...] Freedom of expression, fundamentally, covers a citizen’s right to freely express their political and religious beliefs. However, there are certain forms of expression that do not legitimately convey any form of opinion or belief. For example, doxxing is merely the release of someone’s personal information. It serves no other purpose, and thus is not covered under freedom of expression. Likewise, the existence of defamation and harassment laws fall under this premise [...]”
The judgment does not actually mention anything about hate speech.
The DoJ argues that the precedent set under In re Restraining Order Act [2019] SDSC 1 [15] gives Article 72b its constitutional authority.
Do you agree with the DoJ’s assessment? Or do you agree with D instead?
D is now appealing their conviction to the Supreme Court. The main focus of their appeal is on Article 13 (equality before the law).
For your reference, Article 13, s2 gives a list of protected characteristics: “Protected characteristics shall include, race, religion, sexual orientation, gender identity, national or social origin, ethnicity, age, disability, religion, and political beliefs.”
Meanwhile Article 13, s3 states: “Equal protection of the law, and equality of rights under the law, shall not be restricted or abridged on the basis of protected characteristics.”
D argues that as some groups are more likely to run afoul of hate speech laws, e.g. fascists, Article 72b indirectly targets certain political beliefs by criminalising them. Conversely, the protection of certain protected characteristics (but not all) by hate speech law, such as race, religion, and gender, protects other forms of political belief from serious ridicule or critique, e.g. intersectionality, as either serious ridicule or critique can be construed to be upsetting, demeaning, or humiliating speech. This kind of protection is limited and is not afforded to other forms of political ideology such as nationalism. As political beliefs are a protected characteristic under Article 13, s2, the targeting of certain political beliefs, and the protection of others, violates the equal protection clause.
Do you agree with D’s appeal?
4. Common law
What does “common law” mean?
In NovaSM v Mr_Cynical6 [2019] Civ Pt 1, a civil pre-trial that took place in July 2019, Judge Mcbb14 summarily charged the plaintiff with the common law offence of mischief, which he personally defined as “to falsely accuse someone of doing a crime [...]” after finding that the plaintiff falsely accused the defendant of doing something they didn’t. The common law offence of mischief did not exist before this civil pre-trial.
Why would such an event be considered legally improper today?
In In re SDBI & SDIA Acts [2020] SDSC 2, the Supreme Court ruled that the SDBI and SDIA Acts were unconstitutional because they excluded the Attorney General from criminal investigations. The ruling was based on a constitutional clause which gave the Attorney General “primary authority” over all criminal investigations.
This clause has since been repealed.
Suppose the Senate amends the New Executive Reformation Act, a statutory law which regulates the workings of the executive branch, so that the Attorney General is now excluded from criminal investigations.
The Attorney General has now applied for judicial review, arguing that the amendment is unconstitutional under In re SDBI & SDIA Acts.
“As Supreme Court precedent is legally binding, I still possess primary authority over criminal investigations under common law, even if the original clause has been repealed”, they argue.
Do you agree with the Attorney General’s argument?
Let’s say a defendant (D) is being charged with harassment by the DoJ. D pleaded guilty during the pre-trial and entered mitigation.
During mitigation, D argued that they did their actions as a joke. The prosecution agreed with D on this fact.
In SD v Mr_Cynical6 [2019] Crim 6 [1], Judge Kate wrote in her judgment regarding a different harassment case that: “[...] While committing a crime in jest is still illegal, it is an extenuation for the defendant” For your reference, “extenuation” means to lessen the seriousness of an offence.
D argues that under Mr_Cynical6, they have a partial defence under common law and their sentence should be reduced accordingly.
The prosecution, meanwhile, cites SD v NovaSM [2019] Crim 3 [3], where Judge lolcheapboosts stated: “Breaking the law as a joke is still breaking the law”.
The prosecution also notes that Mr_Cynical6 predated the introduction of the Criminal Code. They argue the existence of certain offences with statutory defences for jest such as doxxing and threatening harm imply that jest is not a universal defence and implies that the partial defence under common law for jest has been repealed.
D counters that the Criminal Code does not explicitly repeal defences recognised under common law and therefore his partial defence is still valid.
Do you allow D’s partial defence?
A different defendant (D) was found liable for civil harassment against the plaintiff (P) in a civil hearing. They are now appealing the ruling to the Supreme Court.
Central to this ruling was the case of Dick_head68 (Appellant) v NovaSM (Respondent) [2019] SDCA 1, which was a case ruled on by the now defunct Court of Appeal.
The Court of Appeal was a predecessor to the Supreme Court and used to be the highest court of appeal. In the past, when the Court of Appeal existed, lower courts were legally bound by their rulings.
D argued that as the Court of Appeal was the predecessor to the Supreme Court, and historically possessed the power of issuing legally binding precedent when it functioned, precedents set by the Court of Appeal are still legally binding on lower courts.
P, on the other hand, argued that the replacement of the Court of Appeal with the Supreme Court came with it the downgrade of its precedent from legally binding to persuasive. P concludes that Court of Appeal precedent is not binding on lower courts.
Do you agree with D’s appeal?
