Tuvalu Island Courts Bench Book - Federal Court of Australia
Tuvalu Island Courts Bench Book - Federal Court of Australia Tuvalu Island Courts Bench Book - Federal Court of Australia
Doctrine of precedent Judges and Magistrates must follow decisions of higher Courts, unless the material facts in the case are different. This means cases of similar type should be decided in the same way, making the law certain. It is through this process of making decisions based on previous decisions that the body of common law has been built up. The Island Court is bound to follow decisions of the Resident Magistrate, Senior Magistrate, High Court and Appeal Courts. The Chief Justice and the Senior Magistrate will, from time to time, issue Practice Directions that explain how the law is to be applied in particular cases. These bind the Island Courts. As there is little developed case law in Tuvalu, this makes it difficult for the Island Courts to know what decisions to follow. If in doubt, guidance should be sought from the Resident Magistrate, and the Senior Magistrate. Some cases have been included in Appendix 4. When there is no relevant Tuvaluan decision, then English cases may be considered. You might do this if the wording of the legislation you are considering is the same or similar to legislation that English cases have considered. This is common for offences under the Penal Code (Cap 8). 4.5 Applied Laws Applied laws are defined in the Laws of Tuvalu Act 1987 as “those imperial enactments which have effect as part of the law of Tuvalu”. The Attorney General may effect amendments to any applied law that appear necessary or expedient for bringing the law into conformity with the Constitution, and Act of Parliament or customary law. 4.6 Customary Law See s5 and Schedule 1 of the Laws of Tuvalu Act 1987. Custom is the customs and usages of the natives of Tuvalu. The principles of the Constitution, which are set out in the Preamble, specifically refer to the Tuvaluan values and culture, and the need to respect and preserve these. Custom shall have effect as part of the law of Tuvalu, except to the extent that it is inconsistent with an Act or Regulations: s5 Laws of Tuvalu Act 1987. So where an Act says something that is different from custom, then the Act prevails. Tuvalu Island Courts Bench Book June 2004
Customs must be taken into consideration in every case before the Court. They must be considered in criminal, civil and family matters, and must be assessed by the Island Court on the facts of each and every case. However, if enforcing customary law will result in injustice or is not in the public interest, do not enforce it. Different rules apply to the recognition of customary law in criminal and civil/family cases. See Schedule 1 of the Laws of Tuvalu Act 1987, which details where customary law applies in relation to various cases. How customary law is determined Schedule 1 Laws of Tuvalu Act 1987 sets out how customary law is determined and recognised. It is up to the Court to determine the existence and nature of customary law in relation to a matter, and how it is applied in any particular case. Consider any submissions by the parties. You may also make any inquiries into the question, by adjourning to find out more, if necessary. Any inquiries you make will be part of the proceedings. You are not bound to observe strict legal procedure or apply technical rules of evidence and you can call any evidence or opinions as you think fit. If the Court has discussed customary practice then this should form part of the decision. 5 Evidence 5.1 What is Evidence? Evidence is the facts placed before the Court to prove or disprove the allegation at issue. Rules have been established to assist the Court as to what is evidence and what the Court may (or may not) consider. 5.2 Types of Evidence Oral evidence This is evidence that is made by the parties and witnesses in front of you. Oral evidence should be given on oath. Tuvalu Island Courts Bench Book June 2004
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Customs must be taken into consideration in every case before the <strong>Court</strong>. They must be<br />
considered in criminal, civil and family matters, and must be assessed by the <strong>Island</strong> <strong>Court</strong> on the<br />
facts <strong>of</strong> each and every case. However, if enforcing customary law will result in injustice or is<br />
not in the public interest, do not enforce it.<br />
Different rules apply to the recognition <strong>of</strong> customary law in criminal and civil/family cases. See<br />
Schedule 1 <strong>of</strong> the Laws <strong>of</strong> <strong>Tuvalu</strong> Act 1987, which details where customary law applies in<br />
relation to various cases.<br />
How customary law is determined<br />
Schedule 1 Laws <strong>of</strong> <strong>Tuvalu</strong> Act 1987 sets out how customary law is determined and recognised.<br />
It is up to the <strong>Court</strong> to determine the existence and nature <strong>of</strong> customary law in relation to a<br />
matter, and how it is applied in any particular case.<br />
Consider any submissions by the parties. You may also make any inquiries into the question, by<br />
adjourning to find out more, if necessary. Any inquiries you make will be part <strong>of</strong> the<br />
proceedings. You are not bound to observe strict legal procedure or apply technical rules <strong>of</strong><br />
evidence and you can call any evidence or opinions as you think fit.<br />
If the <strong>Court</strong> has discussed customary practice then this should form part <strong>of</strong> the decision.<br />
5 Evidence<br />
5.1 What is Evidence?<br />
Evidence is the facts placed before the <strong>Court</strong> to prove or disprove the allegation at issue.<br />
Rules have been established to assist the <strong>Court</strong> as to what is evidence and what the <strong>Court</strong> may (or<br />
may not) consider.<br />
5.2 Types <strong>of</strong> Evidence<br />
Oral evidence<br />
This is evidence that is made by the parties and witnesses in front <strong>of</strong> you. Oral evidence should<br />
be given on oath.<br />
<strong>Tuvalu</strong> <strong>Island</strong> <strong><strong>Court</strong>s</strong> <strong>Bench</strong> <strong>Book</strong> June 2004
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