Fiji Magistrates Bench Book - Federal Court of Australia

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Actual knowledge of, or wilful blindness towards the circumstances which constitute the offence is required. This does not mean the same mental state as that required by the principle party in the commission of the substantive offence. Rather, the secondary party must know of the principal’s mental state and the facts which would make his or her purpose criminal. In Attorney-General Reference (No. 1 of 1975) [1975] 2 All ER 684, it was found that some sort of mental link is required between the principal offender and the secondary party in order for there to be aiding and abetting. This requires that the principal offender and the secondary party were together at some stage discussing the plans made in relation to the alleged offence. In Wilcox v Jeffrey [1951] 1 All ER 464, the Court held that mere presence alone is insufficient to act as an encouragement. There must, on behalf of the secondary party, be an intention to encourage, or actual encouragement, beyond an accidental presence at the scene of the crime. In R v Allan [1965] 1 QB 130, the Court held that, to be a principal in the second degree to an affray, there must be some evidence of encouraging those who participated. Courts cannot convict a person for his or her thoughts unaccompanied by any other physical act beyond his or her presence. See also: Johnson v Youden [1950] 1 KB 554, per Lord Goddard; Gillick v West Norfolk and Wisbeach Area Health Authority [1986] 1 AC 112; R v Clarkson [1971] 3 All ER 344. Elements for Aiding or Abetting • An offence must have been committed by the principal. • The defendant was acting in concert with the principal offender (encouragement in one form or another is a minimal requirement). • There was some sort of mental link or meeting of minds between the secondary party and the principal offender regarding the offence. Counselling or Procuring: s21(1)(d) Penal Code Every person who counsels or procures any other person to commit an 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 or may be charged with counselling or procuring its commission: s21(1)(d) Penal Code. A conviction of counselling or procuring the commission of an offence entails the same consequences as a conviction for the offence as a principal offender: s21(2) Penal Code. The term “to counsel or procure” generally describes advice and assistance given at an earlier stage in the commission of the offence. Fiji Magistrates Bench Book April 2004
Counselling The normal meaning of counsel is to incite, solicit, instruct or authorise. Counselling does not require any causal link. As long as the advice or encouragement of the counsellor comes to the attention of the principal offender, the person who counselled can be convicted of the offence. It does not matter that the principal offender would have committed the offence anyway, even without the encouragement of the counsellor: Attorney-General v Able [1984] QB 795. The defendant must counsel before the commission of the offence. When a person counsels another to commit an offence and the offence is committed, it is immaterial whether: • the offence actually committed is the same as the one that was counselled or a different one; or • the offence is committed in the way counselled or in a different way: s23 Penal Code. The one who counselled will be deemed to have counselled the offence actually committed by the principal offender, provided the facts constituting the offence actually committed are a probable consequence of the counselling: s23 Penal Code. See R v Calhaem [1985] 2 All ER 226. The Elements for Counselling • An offence must have been committed by the principal. • The defendant counselled the principal to commit an offence. • The principal acted within the scope of his or her authority: R v Calhaem [1985] 2 All ER 267. Procuring To procure means to bring about or to cause something or to acquire, provide for, or obtain for another. Procuring must occur prior to the commission of the offence. 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
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: Enabling or Aiding: s21(1)(b) Penal
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 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
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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
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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
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11: BAIL Fiji Magistrates Bench Boo
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1 Introduction The Bail Act 2002 se
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4.3 Primary Consideration The prima
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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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