Tuvalu Island Courts Bench Book - Federal Court of Australia

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INTRODUCTION This Handbook has been prepared for the Island Magistrates and their Clerks on the islands of Tuvalu to assist them to have more understanding of their work. It has followed two Workshops in December 2001 and May 2002 aimed at capacity building and in particular, addressing the training needs that the Magistrates have. By creating this Handbook, it is hoped that there will be an improvement in both understanding and in the quality of justice to the benefit of all those who live in Tuvalu. It is designed to ensure that all Courts follow procedures and ensure that there is greater confidence in the Judicial system. This Handbook is based on the knowledge of various people who work within the legal system of Tuvalu and through the years that I have worked as Peoples Lawyer from April 1999 to January 2004. It reflects the law as it is although it accepts that there is much that needs to be done and that practice and procedures will change as law in Tuvalu develops. It has been designed in loose leaf form to enable those changes to be made and incorporated within the Book as they arise. The law is as stated and accurate to the 1 st January 2004. This version has been prepared with the support of others, particularly the National Judicial Education Committee and the Pacific Judicial Education Programme (PJEP) based in Fiji. The support of PJEP has been invaluable both for their time and commitment to this Book – special thanks need to be given to Kim Stanford Smith, Peter Boshier and Vere Bakani (for her patience in typing the script). I acknowledge further the assistance of Crystal Reeves who has checked the relevant law and ensured the accuracy of the final version as far as possible. Further thanks need to be given to Tina Pope for the editing, revision, and formatting which has helped to create the final version. Her considerable skill and professionalism have contributed greatly to ensuring the published Book will be accessible and widely used by Magistrates, and all Court users. In Tuvalu, thanks needs to be given to the National Judicial Education Committee of His Honour Chief Justice Gordon Ward, Afele Kitiona – now Senior Magistrate (since September 2003) and formerly Crown Counsel, and the former Resident Magistrate Saloa Tauia, now sadly deceased, for their support, help and comments and for checking and proof reading the English version. I also acknowledge the patience and understanding of my family for the time that I have had to spend away from them in the preparation of this Book. This work owes a special debt to Tagaloa Enoka Puni, Coordinator of the Pacific Judicial Education Programme. Without his help and his knowledge of Tuvalu neither the Workshops Tuvalu Island Courts Bench Book June 2004
nor this Book would be as effective as they have been. To him, personal thanks are given and I hope that he and PJEP will continue to support the development of the judiciary of Tuvalu. Finally, this Book recognises the financial contribution of the Canada Fund in providing funds for the Workshops and the production and printing of this Book as well as for the research of Crystal Reeves. Such funding has enabled this project to be realised and it is hoped that they will continue to support such projects in the future in Tuvalu and within the Pacific. Without their assistance neither the Workshops nor this Book would have taken place. JAMES DUCKWORTH SUVA JANUARY 2004 Tuvalu Island Courts Bench Book June 2004
Page 1: Tuvalu Island Courts Bench Book Pro
Page 5 and 6: 2 Conduct in Court 2.1 Preparing fo
Page 7 and 8: E Civil 1 Introduction 2 Civil Juri
Page 9 and 10: Pacific Judicial Education Programm
Page 11 and 12: Tuvalu Island Courts Bench Book Jun
Page 13 and 14: The independence of the Judiciary i
Page 15 and 16: The Constitution gives immunity to
Page 17 and 18: 2.2 General Characteristics of the
Page 19 and 20: 2.4 A Brief Description of the Cour
Page 21 and 22: The Sovereign in Council is the Que
Page 23 and 24: The following people may not be app
Page 25 and 26: 3.6 Procedures Procedures establish
Page 27 and 28: Any statute or regulation passed af
Page 29 and 30: Customs must be taken into consider
Page 31 and 32: 5.3 The Important Rules of Evidence
Page 33 and 34: For example, X has been prohibited
Page 35 and 36: Term Adjournment Meaning When a cas
Page 37 and 38: Impartial/Impartiality Being free o
Page 39 and 40: Tort A wrong committed by one perso
Page 41 and 42: Tuvalu Island Courts Bench Book Jun
Page 43 and 44: 1.2 “Do Right” Integrity You sh
Page 45 and 46: This principle touches several diff
Page 47 and 48: 2 Conduct in Court 2.1 Preparing fo
Page 49 and 50: • Never make fun of a party or wi
Page 51 and 52: It is your responsibility to ensure
Page 53 and 54:
C: CRIMINAL This part describes the
Page 55 and 56:
1 Criminal Jurisdiction of the Isla
Page 57 and 58:
Act Section Description Penal Code
Page 59 and 60:
Act Section Description Marriage Ac
Page 61 and 62:
4 How a Case Gets to Court Criminal
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In any case before the Court, the d
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The person should be in attendance
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6.4 The Defence The defence does no
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Mental capacity (called the mens re
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8.1 Principles Governing Decision M
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8.3 A Structured Approach to Making
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Criminal Decision Format Follow thi
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9.1 Principles of Sentencing It is
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Customary considerations Custom may
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9.4 Types of Sentence The Island Co
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Discharge (Absolute) Imposed where
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When a case has been decided on app
Page 87 and 88:
Assistance for the young person Usu
Page 89 and 90:
11.4 Sentencing Young Offenders Par
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D: COMMON OFFENCES This part is a q
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The following offences are those th
Page 95 and 96:
Drunk and disorderly Section s167(d
Page 97 and 98:
Defences If the prosecution has pro
Page 99 and 100:
Words or behaviour There must be go
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Public place The prosecution must p
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Legal excuse The prosecution must p
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Took and carried away The prosecuti
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The prosecution must provide eviden
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Larceny (theft) or destruction of t
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This is a subjective test - it is t
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In Court, the prosecution should id
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Larceny (theft) of or destruction/d
Page 117 and 118:
Defences If the prosecution has pro
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Larceny (theft) of or damage to fix
Page 121 and 122:
For a charge of stealing: Took and
Page 123 and 124:
Going armed in public Section s25 P
Page 125 and 126:
Sentence The maximum penalty is imp
Page 127 and 128:
Place The fight may be in a public
Page 129 and 130:
Driving while unlicensed Section s1
Page 131 and 132:
Breach of provisional driving licen
Page 133 and 134:
Careless driving Section s20 Traffi
Page 135 and 136:
Taking a vehicle without authority
Page 137 and 138:
Driving while impaired by alcohol o
Page 139 and 140:
Speeding Section reg7(1), (2), (3)
Page 141 and 142:
Traffic Act offences where no speci
Page 143 and 144:
Drunkenness on licensed premises Se
Page 145 and 146:
Charges under s98(1) License holder
Page 147 and 148:
Supplying a minor Section s99(1) an
Page 149 and 150:
Under age drinking on licensed prem
Page 151 and 152:
Refusal to leave licensed premises
Page 153 and 154:
Possession of a dangerous weapon on
Page 155 and 156:
Possession of a dangerous weapon wh
Page 157 and 158:
Drinking alcohol in prohibited publ
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The following offences are usually
Page 161 and 162:
• The person named in the charge
Page 163 and 164:
other person. This is a subjective
Page 165 and 166:
possession. Possession does not hav
Page 167 and 168:
Assault causing actual bodily harm
Page 169 and 170:
Assault with intention to commit fe
Page 171 and 172:
Assaulting, resisting or wilfully o
Page 173 and 174:
Assaulting, resisting or obstructin
Page 175 and 176:
Assaulting any person in execution
Page 177 and 178:
Simple larceny (theft) Section ss25
Page 179 and 180:
The accused will have to establish
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Tuvalu Island Courts Bench Book Jun
Page 183 and 184:
3 Civil Procedure Writ filed. Date
Page 185 and 186:
Upon a request for a subpoena of a
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5 Judgment Once all the evidence ha
Page 189 and 190:
If you order imprisonment for defau
Page 191 and 192:
6 Contracts 6.1 What is a Contract?
Page 193 and 194:
Certainty The general rule is that
Page 195 and 196:
A breach of contract can take many
Page 197 and 198:
Validity Is there any reason to mak
Page 199 and 200:
3. Damage or harm as a direct cause
Page 201 and 202:
8 Appeals and Revisions 8.1 Appeals
Page 203 and 204:
F: FAMILY This part generally descr
Page 205 and 206:
1 Family Jurisdiction See s5 and Sc
Page 207 and 208:
2 Marriage The law on Marriage is f
Page 209 and 210:
2.3 The Special License Hearing Thi
Page 211 and 212:
3.3 How a Divorce Case Gets to Cour
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The Court may forego attempts at re
Page 215 and 216:
Divorce Checklist Jurisdiction Are
Page 217 and 218:
If you are not satisfied that adequ
Page 219 and 220:
4.6 Interim Hearing An interim-hear
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5 Matrimonial Property In divorce p
Page 223 and 224:
6.3 How an Application for a Mainte
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If the Island Court makes a mainten
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CRIMINAL FORMS: 1. Charge 2. Summon
Page 229 and 230:
CIVIL FORMS: 11. Writ of summons 12
Page 231 and 232:
FAMILY FORMS: 17. Divorce petition
Page 233 and 234:
CASES: High Court of Tuvalu 2002 an
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Tuvalu Island Courts Bench Book - Federal Court of Australia

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