Fiji Magistrates Bench Book - Federal Court of Australia

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See DPP v Vikash Sharma 40 FLR 234; HAA 0011d.94s; Robert Tweedie McCahill v R FCA Crim App No. 43 of 1980; Rajesh Chand & Shailesh Kumar v State FCA Crim App No. AAU0056 of 1999S; State v Preet Singh Verma FCA Crim App No. 1039 of 2001. 6 The Mentally Ill Defendant The procedure in cases where the defendant is of unsound mind or otherwise incapacitated is provided for under the Criminal Procedure Code. If at any time after a formal charge has been presented, you have reason to believe that the defendant may be of unsound mind so as to be incapable of making his or her defence, you may adjourn the case and make an order for a medical report or to make other enquiries as you deem necessary: s148(1) CPC. Upon receipt of such medical evidence, if you are of the opinion that the defendant is of unsound mind that he or she is incapable of making a defence, postpone further proceedings and make a report of the case to the President: s148(2) CPC. The President has the discretion to issue a committal warrant for the commitment of the defendant to a mental hospital or other suitable place of custody: s148(4) CPC. Where there is a postponement of proceedings, you may resume proceedings if you consider that the defendant is capable of making his or her defence. A certificate from the medical officer of the mental hospital would be sufficient evidence to confirm the same: ss151, 152 CPC. Where the defendant raises the defence of insanity at trial and the evidence before the Court supports such contention, make a special finding to the effect that the defendant was not guilty by reason of insanity, and report the case to the President for a committal order: s150 CPC. 7 Cultural Knowledge Some knowledge about the different ethnic groups and their diverse cultures would be an added bonus for the Magistrate in his or her daily work. What may appear strange and weird for one set of group may be the acceptable norm in another. Reconciliation as a means of resolving certain offences is a legislated provision under s163 CPC. However for the Fijian “bulubulu” system, a misconception is that every wrong or offence can be settled by such means. The bulubulu should be considered in its context, as a strong mitigating factor, and not a means to evade or escape criminal sanction. Fiji Magistrates Bench Book April 2004
In the unique case of Reginam v Netani Lati & Ors, Review No.1 of 1982, the High Court acknowledged a sentence of corporal punishment meted out by village elders. The basis of this decision was the view that the “elders were exercising customary law which though had no legal force … are entitled, in a suitable case to recognition by the Courts in such manner as to uphold their sanctity and moral force within the Fijian society”. . In the Indo-Fijian custom, respect for the community is of such significance that informal relationships within a settlement are often considered more important than relationship by kin. It would therefore not be unusual to have a defendant naming “aunts” and “uncles” in Court though in reality there are no blood connections. There are other minority groups that co-exist in Fiji whose cultures and traditions add diversity to the Court procedure. For example, the Asian migrant population have grown in number and regularly appear in Court. The Court structure has had to accommodate this new clientele without any additional resource. As a Magistrate, you may have to use your own initiative in utilising limited resources for this new challenge. 8 Victims Victims of crime are usually the main prosecution witnesses. There is no specific legislation dealing with victims, but Magistrates are expected to treat them with courtesy and compassion. In particular, you should restrain defence lawyers from humiliating victims of crime in Court. Especially vulnerable witnesses, such as the very young, very old, or disabled, are entitled to special measures for the giving of evidence. Consider the use of screens, allowing people in wheelchairs to give evidence from the floor of the Court instead of the witness box and ensuring that a family member or friend can sit with a child victim or elderly victim while giving evidence. 8.1 Checklist 1. Identify the victim/s. 2. At all times treat the victim/s with courtesy and compassion. 3. At all times respect the victim/s privacy and dignity. 4. If the victim and offender both want a meeting, encourage that to occur. 5. Take into account the victim’s views on a bail application. Fiji Magistrates Bench Book April 2004
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Fiji Magistrates Bench Book Produce
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Table of Contents 1: The Law and Co
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4 Real Evidence 5 Exhibits 6 Oral E
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9: First Appearance 1 General 2 Non
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13: Sentencing 1 Introduction 2 Jur
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PJEP BENCHBOOK PROJECT 2003/2004 TE
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Fiji Magistrates Bench Book April 2
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3.1 The Fiji Constitution The first
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4 The Branches of the State 4.1 The
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Prime Minister The Prime Minster mu
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5 Jurisdiction Jurisdiction is the
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2: FIJI MAGISTRATE’S COURT Fiji M
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1 Introduction The Magistrate’s C
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• make copies of proceedings and
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4.4 Sentencing Jurisdiction Residen
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in suits wherein the validity of an
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By application of a Magistrate Subj
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Also, see State v Peniasi Kata Cr.
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For the defendant to have a fair tr
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An exception for the requirement fo
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4: JUDICIAL CONDUCT Fiji Magistrate
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1 Ethical Principles On appointment
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1.5 “Without Fear or Favour, Affe
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d) Conflict of interest You must di
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1. Prior notice • You should be s
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• Avoid a patronising and or undu
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5: EVIDENCE Fiji Magistrates Bench
Page 57 and 58: 1 Introduction Evidence refers to t
Page 59 and 60: By definition, documentary evidence
Page 61 and 62: The distinction between ‘in Court
Page 63 and 64: Spouses The spouse of the defendant
Page 65 and 66: 7.3 Leading Questions A general rul
Page 67 and 68: • Sometimes the witness will show
Page 69 and 70: If the legal burden is borne by the
Page 71 and 72: In a voir dire hearing, evidence sh
Page 73 and 74: • ensure that the witness who giv
Page 75 and 76: 8.8 Character Evidence Admissibilit
Page 77 and 78: 6: CRIMINAL RESPONSIBILITY Fiji Mag
Page 79 and 80: 1 Introduction The Penal Code is th
Page 81 and 82: An honest claim of right is when a
Page 83 and 84: To raise a defence of accident, it
Page 85 and 86: It is the defendant who bears the o
Page 87 and 88: 3 Intoxication must also be taken i
Page 89 and 90: Compulsion by threats Compulsion by
Page 91 and 92: • Force may include killing the a
Page 93 and 94: Enabling or Aiding: s21(1)(b) Penal
Page 95 and 96: Counselling The normal meaning of c
Page 97 and 98: Withdrawal Sometimes there may be a
Page 99 and 100: 4.3 Accessories After the Fact: ss3
Page 101 and 102: • At least two persons must agree
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Page 105 and 106: 2.2 Endorsing the Criminal Evidence
Page 107: • Deal with matters that counsel
Page 111 and 112: When the alleged offence occurs in
Page 113 and 114: See Akuila Kuoutawa & R Labasa Crim
Page 115 and 116: 12 Case Management The American Bar
Page 117 and 118: 8: PRE-TRIAL MATTERS Fiji Magistrat
Page 119 and 120: 1 The Criminal Process The followin
Page 121 and 122: In the event of a person whom such
Page 123 and 124: If the charge is defective: • ret
Page 125 and 126: 3.2 Warrant of Arrest Notwithstandi
Page 127 and 128: If, in the course of trial, the evi
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Page 131 and 132: 2 Non-Appearance by the Defendant I
Page 133 and 134: Explaining the charge to the defend
Page 135 and 136: For example, on a charge of malicio
Page 137 and 138: Immediate hearing If all parties ar
Page 139 and 140: 10: DEFENDED HEARINGS Fiji Magistra
Page 141 and 142: 1 Magistrate’s Notes A suggestion
Page 143 and 144: 2.4 Plea of Guilty to Other Offence
Page 145 and 146: A convenient test is found in the P
Page 147 and 148: 5.6 Lies If it is established that
Page 149 and 150: 7 Exhibits 7.1 Production Though it
Page 151 and 152: 11: BAIL Fiji Magistrates Bench Boo
Page 153 and 154: 1 Introduction The Bail Act 2002 se
Page 155 and 156: 4.3 Primary Consideration The prima
Page 157 and 158: A “serious offence” is any offe
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On the granting of bail, the accuse
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6 Refusal of Bail If bail is refuse
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12: JUDGMENT Fiji Magistrates Bench
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1 A Structured Approach to Defended
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3.1 Judgment Format The format on t
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13: SENTENCING Fiji Magistrates Ben
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1 Introduction At the end of a tria
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The judicial act of sentencing need
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These include the following: • pr
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7 Consideration of Other Offences W
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9 Types of Sentences 9.1 Corporal P
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9.5 Supervision As part of the prob
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Police supervision should not excee
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14: APPEALS, REVISIONS AND CASES ST
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1 Appeals The Magistrates’ Courts
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Supplementing the record In cases w
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The High Court shall hear and deter
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Evidence of age In cases where the
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5 Procedure in Juvenile Courts When
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6 Sentencing of Juvenile Offenders
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6.6 Special Considerations Regardin
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16: COMMON OFFENCES Fiji Magistrate
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False Pretences Under s309(a) Secti
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False Pretences Under s309(b) Secti
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Simple Larceny (Theft) Section s259
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The requirement of permanent depriv
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Conversion Under s279(1)(a) Section
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Conversion Under s279(1)(b) Section
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Conversion Under s279(1)(c) Section
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Burglary Section s299 Penal Code (C
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Abuse of Office Section s111 Penal
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Acts Intended to Cause Grievous Har
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Defences If the prosecution has pro
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Robbery Section s293(1)(a) Penal Co
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Robbery (with Violence) Section s29
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Rape Section s149 Penal Code (Cap.
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Corroboration In all sexual offence
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Indecent Assault on a Female Sectio
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Indecently Insulting or Annoying a
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Defilement of Girl under Thirteen Y
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Defilement of Girl between Thirteen
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Defilement of Female Under Severe A
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Dangerous Drugs Section s8(b), 41(2
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Causing Death by Reckless or Danger
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Receiving Stolen Property Section s
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Sentence Like Degree The conviction
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Fiji Magistrates Bench Book - Federal Court of Australia

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