Fiji Magistrates Bench Book - Federal Court of Australia
Fiji Magistrates Bench Book - Federal Court of Australia Fiji Magistrates Bench Book - Federal Court of Australia
• may be charged with actually committing it. It must be proved that the defendant had both the mens rea and actus reus for the particular offence that they have been charged with in order to be a principal offender. In cases where there is only one person who is involved in the offence, he or she will be the principal offender. For Example: If a person punches another on the face causing injury, that person would be considered the principal offender for the offence of assault. Accessories An accessory is a person who: • enables or aids; • aids or abets; or • counsels or procures, the commission of an offence. Although an accessory is not a principal offender, he or she can be charged and convicted of the actual offence, as if he or she had been the principal offender. An accessory may be found criminally responsible for all offences, unless expressly excluded by statute. The actus reus of an accessory involves two concepts: • aiding, enabling, abetting, counselling or procuring; and • the offence. The mental element (mens rea) for an accessory is generally narrower and more demanding than that required for a principal offender. The mental element for principal offenders includes less culpable states of mind such as recklessness or negligence, while the mental elements required for an accessory are: • knowledge: the accessory must know at least the essential matters which constitute the offence; and • intention: the accessory must have had an intention to aid, abet, enable, counsel or procure. This does not necessarily mean that he or she had the intention as to the principal offence that was committed. Note that a common intention is not required for procuring. Fiji Magistrates Bench Book April 2004
Enabling or Aiding: s21(1)(b) Penal Code Every person who does or omits to do any act for the purpose of enabling or aiding another person to commit the offence is: • deemed to have taken part in committing the offence and to be guilty of the offence; and • may be charged with actually committing it: s21(1)(b) Penal Code. Enabling or aiding is different from aiding and abetting in two respects: • criminal responsibility is attached to those who do not in fact aid in the commission of an offence but who engage in conduct for the purpose of aiding or enabling. Therefore, the person could be found guilty for an offence because they tried to aid even though they did not actually succeed in aiding. See, for example, R v William Taupa Tovarula & Others [1973] PNGLR 140; and • a person can be found guilty for an offence by failing or omitting to do something that enables or aids the person committing an offence. Elements for Enabling or Aiding • An offence must have been committed by the principal. • The defendant must have done something (or ommitted to do something) for the purpose of assisting or encouraging the principal offender (but need not in fact have assisted or encouraged the principal offender). Aiding or Abetting: s21(1)(c) Penal Code Every person who aids or abets another person in committing the offence is: • deemed to have taken part in committing the offence and to be guilty of the offence; and • may be charged with actually committing it: s21(1)(c) Penal Code. The term “to aid and abet” generally means to give assistance and encouragement at the time of the offence. To prove the offence of aiding and abetting to another person in the commission of an offence it must be established that he or she: • is present (actual or constructive); and • knows the facts necessary to constitute the offence; and • is actively encouraging or in some way assisting the other person in the commission of the offence. Fiji Magistrates Bench Book April 2004
- 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: • Force may include killing the a
- 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: 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
Enabling or Aiding: s21(1)(b) Penal Code<br />
Every person who does or omits to do any act for the purpose <strong>of</strong> enabling or aiding another<br />
person to commit the <strong>of</strong>fence is:<br />
• deemed to have taken part in committing the <strong>of</strong>fence and to be guilty <strong>of</strong> the <strong>of</strong>fence; and<br />
• may be charged with actually committing it: s21(1)(b) Penal Code.<br />
Enabling or aiding is different from aiding and abetting in two respects:<br />
• criminal responsibility is attached to those who do not in fact aid in the commission <strong>of</strong> an<br />
<strong>of</strong>fence but who engage in conduct for the purpose <strong>of</strong> aiding or enabling. Therefore, the<br />
person could be found guilty for an <strong>of</strong>fence because they tried to aid even though they<br />
did not actually succeed in aiding. See, for example, R v William Taupa Tovarula &<br />
Others [1973] PNGLR 140; and<br />
• a person can be found guilty for an <strong>of</strong>fence by failing or omitting to do something that<br />
enables or aids the person committing an <strong>of</strong>fence.<br />
Elements for Enabling or Aiding<br />
• An <strong>of</strong>fence must have been committed by the principal.<br />
• The defendant must have done something (or ommitted to do<br />
something) for the purpose <strong>of</strong> assisting or encouraging the principal<br />
<strong>of</strong>fender (but need not in fact have assisted or encouraged the<br />
principal <strong>of</strong>fender).<br />
Aiding or Abetting: s21(1)(c) Penal Code<br />
Every person who aids or abets another person in committing the <strong>of</strong>fence is:<br />
• deemed to have taken part in committing the <strong>of</strong>fence and to be guilty <strong>of</strong> the <strong>of</strong>fence; and<br />
• may be charged with actually committing it: s21(1)(c) Penal Code.<br />
The term “to aid and abet” generally means to give assistance and encouragement at the time <strong>of</strong><br />
the <strong>of</strong>fence.<br />
To prove the <strong>of</strong>fence <strong>of</strong> aiding and abetting to another person in the commission <strong>of</strong> an <strong>of</strong>fence it<br />
must be established that he or she:<br />
• is present (actual or constructive); and<br />
• knows the facts necessary to constitute the <strong>of</strong>fence; and<br />
• is actively encouraging or in some way assisting the other person in the commission <strong>of</strong><br />
the <strong>of</strong>fence.<br />
<strong>Fiji</strong> <strong>Magistrates</strong> <strong>Bench</strong> <strong>Book</strong> April 2004