Fiji Magistrates Bench Book - Federal Court of Australia

More documents

Recommendations

Info

• You must also consider whether a screen should be used to screen the child witness from the defendant. The prosecution can be ordered to provide a screen. In the rural Courts, a mat may have to be used as a screen. • If a screen is not available, you can ask the child to face you and not to look anywhere else during evidence-in-chief and cross-examination. When cross-examination of the child is conducted, you are expected to be sensitive to the child’s special vulnerability in deciding whether or not you should allow the questions to be asked, as under the Convention on the Rights of the Child, the judiciary must give primary consideration to the interests of children. 10 Unrepresented Defendants Because of the expensive cost of hiring lawyers to conduct proceedings, a significant number of defendants appear in the Magistrate’s Court on their own behalf. Most have little or no idea of Court procedures and what is involved and rely on the system to assist to some extent. If at all possible, every defendant charged with an offence carrying imprisonment terms should be legally represented. However, if legal representation is not available, then you are to ensure that he or she understands: • the charge(s); • that the office of the Legal Aid is available to assist with legal representation; and • that if found guilty, there is a probability of an imprisonment term. To assist in the smooth running of any hearing, you should give an initial explanation outlining: • the procedure; • the obligation to put their case; • the limitation of providing new evidence; • the need to ask questions and not make statements; and • any issues arising out of the evidence. For an unrepresented defendant, before plea or election is entered: • advise of the right to a lawyer; • advise of the right to apply for legal aid; • put each charge and ask for election/plea. Fiji Magistrates Bench Book April 2004
See Akuila Kuoutawa & R Labasa Crim Appeal No. 2/75: “in the case of an unrepresented defendant, any statutory defence should be brought to his attention”. See also Alipate Karikai v State Labasa Crim Appeal No. 110 of 1999, HC of Fiji. 11 Disruption and Misbehaviour The defendant is entitled to be present in Court during the whole of his or her trial, unless he or she interrupts the proceedings. The defendant’s right is protected by the Constitution: s28 (1) (h)& (2). Where a defendant is required to appear in Court, but fails to do so, you may • issue a warrant for his or her arrest: s90 CPC; • adjourn the proceedings to such time and conditions as you think fit; or • where the maximum penalty is only 6 months and a fine not exceeding $100, proceed without the defendant: s199 CPC. You have power to impose criminal sanctions for offences relating to judicial proceedings: s136 Penal Code. Offences under this provision include: • failure to attend Court after being summoned: s136(1)(b) PC; • refusal to give evidence after being sworn in: s136(1)(c) PC; • refusal to answer question during trial: s136(1)(d) PC; • obstructing or disturbing the proceedings: s136(1)(g) PC. Where the above offences are committed in view of the Court, you may order that the defendant be detained in custody till the rising of the Court on the same day: s136(2) Penal Code. Magistrates do not have inherent jurisdiction to cite anyone with contempt of Court. If you think that someone should be charged with one of the offences under s136 Penal Code, then refer the matter to the DPP for investigation and prosecution. For further discussion of contempt of Court proceedings, see Elizabeth Rice & Ors v S M Shah [1999] FJCA 57; AAU0007U.97S, (High Court Criminal Action No. HAA002 of 1997). If you think that someone should be summoned for contempt of Court, then refer the matter to the High Court through the Chief Registrar. Do not attempt to deal with it yourself. Fiji Magistrates Bench Book April 2004
Page 1 and 2:
Fiji Magistrates Bench Book Produce
Page 3 and 4:
Table of Contents 1: The Law and Co
Page 5 and 6:
4 Real Evidence 5 Exhibits 6 Oral E
Page 7 and 8:
9: First Appearance 1 General 2 Non
Page 9 and 10:
13: Sentencing 1 Introduction 2 Jur
Page 11 and 12:
PJEP BENCHBOOK PROJECT 2003/2004 TE
Page 13 and 14:
Fiji Magistrates Bench Book April 2
Page 15 and 16:
3.1 The Fiji Constitution The first
Page 17 and 18:
4 The Branches of the State 4.1 The
Page 19 and 20:
Prime Minister The Prime Minster mu
Page 21 and 22:
5 Jurisdiction Jurisdiction is the
Page 23 and 24:
2: FIJI MAGISTRATE’S COURT Fiji M
Page 25 and 26:
1 Introduction The Magistrate’s C
Page 27 and 28:
• make copies of proceedings and
Page 29 and 30:
4.4 Sentencing Jurisdiction Residen
Page 31 and 32:
in suits wherein the validity of an
Page 33 and 34:
By application of a Magistrate Subj
Page 35 and 36:
Page 37 and 38:
Also, see State v Peniasi Kata Cr.
Page 39 and 40:
For the defendant to have a fair tr
Page 41 and 42:
An exception for the requirement fo
Page 43 and 44:
4: JUDICIAL CONDUCT Fiji Magistrate
Page 45 and 46:
1 Ethical Principles On appointment
Page 47 and 48:
1.5 “Without Fear or Favour, Affe
Page 49 and 50:
d) Conflict of interest You must di
Page 51 and 52:
1. Prior notice • You should be s
Page 53 and 54:
• Avoid a patronising and or undu
Page 55 and 56:
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
Page 103 and 104: Fiji Magistrates Bench Book April 2
Page 105 and 106: 2.2 Endorsing the Criminal Evidence
Page 107 and 108: • Deal with matters that counsel
Page 109 and 110: In the unique case of Reginam v Net
Page 111: When the alleged offence occurs in
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
Page 129 and 130: Fiji Magistrates Bench Book April 2
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
Page 159 and 160: On the granting of bail, the accuse
Page 161 and 162: 6 Refusal of Bail If bail is refuse
Page 163 and 164:
12: JUDGMENT Fiji Magistrates Bench
Page 165 and 166:
1 A Structured Approach to Defended
Page 167 and 168:
3.1 Judgment Format The format on t
Page 169 and 170:
13: SENTENCING Fiji Magistrates Ben
Page 171 and 172:
1 Introduction At the end of a tria
Page 173 and 174:
The judicial act of sentencing need
Page 175 and 176:
These include the following: • pr
Page 177 and 178:
7 Consideration of Other Offences W
Page 179 and 180:
9 Types of Sentences 9.1 Corporal P
Page 181 and 182:
9.5 Supervision As part of the prob
Page 183 and 184:
Police supervision should not excee
Page 185 and 186:
14: APPEALS, REVISIONS AND CASES ST
Page 187 and 188:
1 Appeals The Magistrates’ Courts
Page 189 and 190:
Supplementing the record In cases w
Page 191 and 192:
The High Court shall hear and deter
Page 193 and 194:
Page 195 and 196:
Evidence of age In cases where the
Page 197 and 198:
5 Procedure in Juvenile Courts When
Page 199 and 200:
6 Sentencing of Juvenile Offenders
Page 201 and 202:
6.6 Special Considerations Regardin
Page 203 and 204:
16: COMMON OFFENCES Fiji Magistrate
Page 205 and 206:
False Pretences Under s309(a) Secti
Page 207 and 208:
False Pretences Under s309(b) Secti
Page 209 and 210:
Simple Larceny (Theft) Section s259
Page 211 and 212:
The requirement of permanent depriv
Page 213 and 214:
Conversion Under s279(1)(a) Section
Page 215 and 216:
Conversion Under s279(1)(b) Section
Page 217 and 218:
Conversion Under s279(1)(c) Section
Page 219 and 220:
Burglary Section s299 Penal Code (C
Page 221 and 222:
Abuse of Office Section s111 Penal
Page 223 and 224:
Acts Intended to Cause Grievous Har
Page 225 and 226:
Defences If the prosecution has pro
Page 227 and 228:
Robbery Section s293(1)(a) Penal Co
Page 229 and 230:
Robbery (with Violence) Section s29
Page 231 and 232:
Rape Section s149 Penal Code (Cap.
Page 233 and 234:
Corroboration In all sexual offence
Page 235 and 236:
Indecent Assault on a Female Sectio
Page 237 and 238:
Indecently Insulting or Annoying a
Page 239 and 240:
Defilement of Girl under Thirteen Y
Page 241 and 242:
Defilement of Girl between Thirteen
Page 243 and 244:
Defilement of Female Under Severe A
Page 245 and 246:
Dangerous Drugs Section s8(b), 41(2
Page 247 and 248:
Causing Death by Reckless or Danger
Page 249 and 250:
Receiving Stolen Property Section s
Page 251:
Sentence Like Degree The conviction
show all

Fiji Magistrates Bench Book - Federal Court of Australia

Create successful ePaper yourself

Delete template?

Save as template?