Fiji Magistrates Bench Book - Federal Court of Australia

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7 Right to Not Give Evidence in Court Section 28(1)(f) states: “Every person charged with an offence has the right …not to be a compellable witness against himself or herself”. In criminal cases, the prosecution has the burden of proving the charges against the defendant. The defendant may give evidence in his or her own defence once the prosecution has finished presenting his or her case, but is not required to do so. The Court may not infer anything whatsoever from the defendant’s choice not to give evidence. In such cases you must base your decision solely on the evidence presented by the prosecution and decide whether the prosecution has met the required burden and standard of proof. 8 Right to be Present in Court Section 28(1)(h) states: “Every person charged with an offence has the right not to have the trial take place in his or her absence...” This provision protects the right of the defendant to be present and hear the proceedings and the evidence against him or her. However, this right is qualified by two limitations. The proceedings may take place in his or her absence if: • after having being served with summons requiring his or her attendance, he or she chooses not to attend; or • his or her conduct in Court is such that the continuation of proceedings is impracticable. Nevertheless, if the offence charged is punishable by a term of imprisonment, then the above qualifications do not apply: s28(2) Constitution. Section 189 CPC supports this principle by requiring that: “Except as otherwise expressly provided, all evidence taken in any inquiry or trial under this Code shall be taken in the presence of the defendant, or when his personal attendance has been dispensed with, in the presence of his barrister and solicitor”. Fiji Magistrates Bench Book April 2004
An exception for the requirement for the defendant to be present during his or her trial is provided for in s8 CPC. A Magistrate may dispense with the personal attendance of the defendant in cases where: • a summons is issued for any offence other than a felony; and • the punishment is only a fine and/or imprisonment not exceeding 3 months; and • the defendant has pleaded guilty, in writing or through a lawyer. Also note the provision under s199 CPC, where the Court may proceed with the hearing in the absence of the defendant in cases where the term of imprisonment does not exceed 6 months and/or a fine not exceeding $100. 9 Right to Not be Found Guilty of a Criminal Offence if, at the Time, it Does Not Constitute an Offence Section 28(1)(j) states: “Every person charged with an offence has the right not to be found guilty… of an offence unless such act or omission ... at the time it occurred … constituted an offence”. Upholding this right prevents a person from being tried for something that is not an offence in law at the time they committed an act or omission. If there is no law, there is no offence. This right also prevents a person from being tried in the future according to future legislation, for an act or omission they committed before the legislation making it unlawful came into existence. For example, if a person commits an act in 2001, but no legislation exists regarding that offence until 2003, the person cannot then be tried for the act committed in 2001 using the 2003 legislation. 10 Right to Not be Tried Again for the Same Offence Section 28(1)(k) states: “Every person charged with an offence has the right not to be tried again for an offence of which he or she has previously been convicted or acquitted”. 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: Fiji Magistrates Bench Book April 2
Page 37 and 38: Also, see State v Peniasi Kata Cr.
Page 39: For the defendant to have a fair tr
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 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
Page 129 and 130:
Page 131 and 132:
2 Non-Appearance by the Defendant I
Page 133 and 134:
Explaining the charge to the defend
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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
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1 Magistrate’s Notes A suggestion
Page 143 and 144:
2.4 Plea of Guilty to Other Offence
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A convenient test is found in the P
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5.6 Lies If it is established that
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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
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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
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16: COMMON OFFENCES Fiji Magistrate
Page 205 and 206:
False Pretences Under s309(a) Secti
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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
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