TOPIC 1 Trial Process

Def. Criminal procedure- the criminal law's adjudication process is known as criminal procedure. Although criminal
procedure varies greatly by jurisdiction, the process often starts with a formal criminal charge, the defendant is
either out on bail  or in jail, and the outcome is either the conviction or acquittal. Def. Adversarial System- a criminal
justice system in which determinations of guilt are made through the prosecution and defence processes. The
prosecutor and defence have the primary responsibility for advancing their respective cases within the limitations of
the rules of evidence, with the judge serving as an impartial umpire who permits the facts to emerge from this
process. Systems based on common law typically use an accusatory process. Inquisitorial system- is a type of
criminal justice that is used in several European nations but not in England and in which the judge conducts an
investigation into the facts in order to determine the truth. Instead of the prosecution or defence, the judge is the
one who initiates the case in this system. Classifications of crimes- Different categories of offenses are established.
Typically, the classifications are "felony," "misdemeanor," and "infraction." Petty offenses, often known as
infractions or violations, are normally sanctioned by penalties rather than jail time. Defendants accused of
infractions do not have a right to a jury trial because they are not punishable by jail time or even probation. A
person accused of a crime can retain legal counsel, but the government is not required under the constitution to do
so. In cases involving infractions, prosecutors frequently choose not to represent the government in court. The most
typical type of infraction is a traffic violation.  Example- Ginger is issued a ticket for speeding. The judge determines
that Ginger was speeding after hearing testimony from both her and the officer who issued the ticket. The only
sanctions for Ginger are a fine and a mark on her driving record. Misdemeanor is serious criminal violations that
can result in up to a year in prison. Misdemeanor can also result in fines, probation, community service, and
restitution as punishment. Misdemeanor defendants frequently have the right to a jury trial. In most cases, indigent
defendants facing misdemeanor charges are eligible to government-funded legal assistance. Some states categorize
minor offenses according to class, degree, or describe the most serious ones as "gross misdemeanor." The severity
of the penalty is determined by these categories. Example. An assault charge against Dave is upheld. The maximum
fine and jail sentence for the offense are each $1,000. Felonies are the most serious tpe of criminal offence. it can
include offenses like fraud schemes and white collar crimes, but they also frequently involve serious physical harm
(or the threat of physical harm) to the victims. Second-time offenders may have previously minor offenses upgraded
to felonies. Like a misdemeanor conviction, a felony conviction may not result in jail time. However, felonies have a
potential sentence that might include anything from a year or less in jail to life in prison without the possibility of
parole or even death. States may categorize felonies by class or degree, similar to how they do with misdemeanor .
Example- Even though Randy's attempt to throw a bottle at another customer in a bar was unsuccessful, he was
nevertheless found guilty of felony assault with a deadly weapon. Even though he didn't really hurt the intended
victim, his actions were meant to (and did) raise the possibility of major physical harm. Criminal process- summary
offences- A summary offence or petty offence is a violation in some common law jurisdictions that can be
proceeded against summarily, without the right to a jury trial and/or indictment., offences triable either way-
a crime that, depending upon the circumstances, can be tried as a summary offence or as an indictable offence,
indictable offences- An offense that, if committed by an adult, would be subject to a trial after being indicted is
referred to as a "indictable offense." Criminal court system- Supreme Court- (The final appellate court in civil and
criminal matters. Has exclusive jurisdiction to hear and determine appeals from all final judgments of the Court of
Appeal, with leave of the Court of Appeal or special leave of the Supreme Court. Appeals lie as of right:  from final
decisions involving any constitutional question; and  from final decisions in proceedings involving F$20,000 or more.
The President may on the advice of the Cabinet, refer questions as to the effect of the Constitution to the Supreme
Court for an opinion.) Court of Appeal (Has jurisdiction, to hear and determine appeals from judgments of the High
Court. Appeals from final judgments of civil claims lie of right: in matters arising under the Constitution or involving
its interpretation; from final decisions involving interpretation of the Judicature Act 1988; and    from final decisions
given in the exercise of original jurisdiction under the fundamental rights provisions of the Constitution, including
deprivation of property. Other applications require leave.) A person who has been convicted on trial before the
High Court may appeal to the Court of Appeal: against conviction on any ground involving only a question of
law with leave of the Court of Appeal; and with leave of the Court of Appeal against sentence unless it is one that is
fixed by law. Any party who wishes to further appeal from a criminal appeal in the High Court can only do so if the
High Court did not affirm a verdict of acquittal by a magistrate’s court and only if the ground of appeal involves a
question of law (not involving severity of sentence). High court- Has unlimited jurisdiction to hear and determine
civil proceedings. Has an appellate jurisdiction in relation to decisions of magistrate’s courts. Criminal appeals may
be made in relation to matters of fact, as well as law. Magistrates may refer any question of law to the High Court.
Magistrates Court - Magistrates are divided into three classes: resident magistrate, second class magistrate and
third class magistrate. Territorial division of magistrates courts is limited to the division in which they are situated.
Magistrates have civil jurisdiction to hear: claims in contract or tort where the amount involved does not exceed
F$15,000,proceedings between landlord and tenant where the annual rental does not exceed F$2,000,all suits
involving trespass or recovery of land (other than landlord and tenant disputes), habeas  corpus applications,
and   application for appointment of guardians or custody.  Magistrates have a criminal jurisdiction as defined in ss4-
9 of the Criminal Procedure Code and in the First Schedule of to the Code.   The Code identifies which class of
magistrate may conduct hearings in respect of the offence.Criminal sentences are also imposed by magistrates
according to their class. A resident magistrate has jurisdiction to hear appeal from decisions of second and third
class magistrates. Mode of Trial- Held to determine whether the matter will be heard in the magistrates' court or
the High Court following a defendant's plea to an either-way offense. Decisions made: Seriousness of the case.Their
sentencing powers. Since 1996 – they must take into account the defendant’s plea. Criminal Procedure Act 2009, –
magistrates will be told of defendant’s prior convictions when deciding mode of trial. Aim: to encourage early
preparation of cases and reduce ‘cracked trials’: hearings held in open court, defendant present, enter a plea –
process known as the ‘arraignment ’. If guilty plea – proceed to sentence . If not guilty, prosecution and defence
identify the key issues. Plea and Case Management- in plea and case management hearings, the judge determines
whether there is sufficient evidence to schedule a trial date. In it, a guilty or not guilty plea is entered, and it is a
crucial step in the whole trial process. If you enter a guilty plea, your punishment might be handed down right
away; if not, the court will be informed of the witnesses and evidence that will be presented during the trial, as well
as any other pertinent administrative details. Discloser and plea Bargaining- in a discloser, the Defence obliged to
disclose all its evidence to the prosecution – including defences they intend to rely on and points of law they will
raise. Defence must provide names and addresses of all witnesses including experts. Prosecution – continuing duty
to disclose anything that might reasonably be capable of undermining the prosecution case or helps the defence
case. In plea bargaining, Negotiations between the prosecution and defence e.g. defendant. agrees to plead guilty
to a lesser charge: Pleas bargaining very common in US and now in the English system .R v Turner (1970) – judges
not allowed to get involved in plea bargaining . R v Goodyear (2005) – defendant can request an indication from the
judge as to likely sentence if they plead guilty. Trial process- Burden of proof – prosecution – beyond all reasonable
doubt.Prosecution presents first. Defence then presents their case (unless submission of no case to answer is
successful. Measures aimed at protecting vulnerable witnesses giving evidence. Each side makes closing speech.
Court ‒ judge sums up for the jury. Evidence of bad character and previous convictions. R V Clark 2003. Two
models of criminal process- Packer developed two key models – the due process and crime control models of
criminal justice. The due process model prioritises the interests of the individual suspect who is confronted by the
mighty power of the State. Packer developed two key models – the due process and crime control models of criminal
justice. The due process model prioritises the interests of the individual suspect who is confronted by the mighty
power of the State. Such an individual is entitled to a presumption of innocence, and should not be found guilty of an
offence other than by way of clearly defined and formal decision-making processes. This model suggests that the
criminal process sets legitimate obstacles to the State, which must be negotiated if a conviction is to be secured. By
contrast, the crime control model was suggested to reflect the values of an assembly line rather than an obstacle
course. This model reflects the prioritisation of the efficient suppression of criminal activity in the interests of public
order. It involves speedy, informal and routinised processes which are administered by criminal justice agents – e.g.,
police and prosecutors – with the expertise to make sound judgements under those conditions.
TOPIC 2 Police and Prosecutors:

Note: Prosecutors include State Counsels (s50 of CPC), public prosecutors (s51(1) & s52(1), police prosecutors
(s51(2) & s53) or private prosecutors (s52(2) e.g., Whitehouse v Lemon [1979]AC 617) Roles of Prosecutors-
not to cause conviction, advice the court by showing all relevant and admissible evidence to help the court to
determine the guilt or innocence of the accused. Represent the state in the prosecution of criminal trials. Provide
legal advice to law enforcement agencies, analyse evidence and draft charges. Maintain record of active cases.
Ensure matters are attended in court on time. ODPP: is an independent office by virtue of section 117 of the
2013 Constitution. Principle is that it is in the interests of justice that the guilty be brought to justice and the
innocent are not wrongly convicted. Established under the Fiji Independence Act 1970. 3 Divisions: serious fraud,
child protection, general crimes division. Section 117(8) empowers the Director of Public Prosecutions (DPP) to:
conduct criminal proceedings, take over criminal proceedings that have been instituted by another person or
authority except FICAC. Discontinue, at any stage before judgment is delivered criminal proceedings conducted by
DPP. Intervene in proceedings that might question of public interest that may affect the conduct of criminal
proceedings. The powers of DPP may be exercised by the Director. DPP is not subjected to any direction or control
of any other person except by court of law. Parliament ensures adequate funding resources are made available to the
ODPP, enabling them to independently and effectively exercise their powers and perform their duties. Constitution
allows the DPP to appoint any legal practitioner whether from Fiji or from another country to be a public prosecutor
for the purposes of any criminal proceeding. DPP allows the police prosecutors to conduct prosecution in the
Magistrates Court. DPP appoints removes and takes disciplinary action against all staffs of the ODPP. In accordance
with the Constitution, the DPP is empowered to independently oversee all matters relating to public prosecutions.
Sole authority to make decisions about the hiring of all staff members and other administrative issues involving the
ODPP. Functions- support the enforcement of criminal laws in Fiji, international laws, treaties and convention that
government has ratified and contributed towards fair and just criminal justice system. The ODPP is responsible for
prosecuting criminal appeals before the COA and the SC. In addition, all HC trials are prosecuted by State Counsel
who also handles appeals to the HC in Suva, Labasa and Lautoka. Cases of public interest in the MC are also
processed by DPP. Summary offences are ordinarily prosecuted by Police Prosecutors with oversight by the (DPP).
The DPP considers written representations concerning criminal cases from aggrieved persons, defendants, or from
their lawyers. Decision to prosecute- No person in Fiji shall be prosecuted unless there is sufficient evidence and it
is in the public interest to prosecute. In the decision-making process be sure that there is a reasonable prospect of a
conviction. This is an objective test, which includes an assessment of the reliability of evidence, and the likely
defence case. The test is, whether a court, properly directed in accordance with the law is more likely than not, to
convict the accused of the charge alleged. Two stages- the evidential stage and the public interest stage. Test for
prosecution/ Sufficiency of evidence- sufficient evidence to provide a reasonable prospect of conviction against
each accused person. Admissibility and reliability of each piece of evidence contained in the brief. Consider the
likely defence case and assess the likely effect this may have on the prosecution case. If there is no sufficient
evidence, the judge or magistrate will more likely not convict the accused on the charge alleged. If the answer is yes,
then the charge can proceed. If no, then it must not go ahead, no matter how important the case or serious the charge
itself may be. The Public Interest- If there is sufficient evidence to sustain criminal proceedings, and then the
prosecutor must decide whether or not a prosecution is needed in the public interest. The prosecutor must balance
factors for and against prosecutions fairly and objectively. Drafting criminal charges- State Prosecutors select
charges which:(a) reflect the seriousness of the offending;(b) give the court adequate sentencing powers;(c ) enable
the case to be presented in a clear and simple way; and(d) adequately reflect the true criminality of the offender’s
conduct. They cannot lay more charges than are necessary just to encourage an accused to plead guilty to a few.
Ensures a more serious charge is not laid just to encourage an accused to plead guilty to a lesser charge.

TOPIC 3 police powers- CPA. TOPIC 4- Charges- CPA. Example1- on 13 September 2012, Benjamin Wolf crept
into Robin Woodcutter’s home (31 Natokowaqa Lane, Lautoka). He waited behind the kitchen counter for Red
Riding Hood to enter. When she did, he pounced from behind the counter and he gobbled her up in one bite. Red
Riding Hood lost her life. Offences- S387: Criminal trespass(1) A person commits a summary offence if he or she
—(a) enters into or upon property in the possession of another with intent to commit an offence or to intimidate or
annoy any person lawfully in possession of such property; S237: Murder-A person commits an indictable offence if
—(a) the person engages in conduct; and(b) the conduct causes the death of another person; and(c) the
first-mentioned person intends to cause, or is reckless as to causing, the death of the other person by the conduct. Eg
2- On 10 August 2012, Robin Hood spied the Sheriff’s taxman (Lincoln Green) walking through Shirley Park,
Lautoka. He attacked him with a wooden staff and brought him down. He then stole two bags containing 50 gold
coins each, being tax money collected from a nearby village. On 15 September 2012, Robin Hood spied Bishop
Merry Winter’s carriage travelling through Churchill Park, Lautoka. He held up the carriage with a long bow and
threatened to kill the driver if the Bishop did not surrender his valuables. The Bishop surrendered a bag containing
10 gold coins; a golden chalice; and an 18 carat ruby ring. Robin Hood scooped these items up and made his escape.
Offences- S 311: Aggravated Robbery-(1) A person commits an indictable offence if he or she—(a) commits a
robbery in company with one or more other persons; or(b) commits a robbery and, at the time of the robbery, has an
offensive weapon with him or her. Joinder of accused persons S60 CPD. Persons accused of the same or different
crimes committed in the course of the same transaction may be jointly charged and tried. Eg 3 on 5 September 2012,
at 7.00pm, Batman and Robin broke into Commissioner Gordon’s residence at Grantham Road, Raiwaqa, Suva and
looked through the Commissioner’s files for his records of the Joker. They took nothing and caused no damage.
S387(4)(a) of the Crimes Decree 2009 :(4) A person commits a summary offence if he or she enters by night, and
without lawful excuse—(a) any dwelling-house . Eg 4 On 11 September 2012, at Airport Park, Nadi, the Penguin
assaulted Batman with his umbrella whilst Catwoman called out encouragement from the side. Batman received a cut
to the side of the face before he escaped in a cloud of smoke. Offences S 275 of CD: Assault causing actual bodily
harm. A person commits a summary offence if he or she commits an assault occasioning actual bodily harm. S45 of
CD: Complicity and common purpose. (2) F or the person to be guilty—(a) the person’s conduct must have in fact
aided, abetted, counselled or procured the commission of the offence by the other person; and (b) the offence must
have been committed by the other person. Eg 5- On 11 September 2012, at 7.00pm, Mika Dua and Jone Rua broke
into Fruit Town Shop (4, Sunshine Parade, Nausori) and stole 10 oranges. Jerry Lima owned Fruit Town Shop. At
12.00am, Mika Dua met Rusi Tolu and they broke into Jack B. Nimble Shop (5 Water Drive, Nakasi) and stole 5
candlesticks. At 2.00am, Jone Rua and Sireli Va punched Ciwa Tini at Bau Landing, Bau and took $10.00 off him.
On 13 September 2012, Rusi Tolu met Jo Ono and they assaulted Vitu Walu outside the Whistling Duck Nightclub,
Main Street, Nausori and took his Timex watch valued at $50.00. offences-S 291 of CD: Theft- 1) A person commits
a summary offence if he or she dishonestly appropriates property belonging to another with the intention of
permanently depriving the other of the property. Eg 6- Mere Jane then facilitated the entry of Edward Snowden
into Tonga via on 17 March 2014, knowing that Edward Snowden was travelling under an assumed name and
using a false passport. Offences- S127(a), (b) and (c) (ii) of CD: Making, providing or possessing a false travel or
identity document. A person (the first person) commits an indictable offence (which is triable summarily), if—(a) the
first person makes, provides or possesses a false travel or identity document; and(b) the first person intends that the
document will be used to facilitate the entry of another person (the other person) into a foreign country, where the
entry of the other person into the foreign country would not comply with the requirements under that country’s law
for entry into the country; and (c) the first person made, provided or possessed the document- (ii) with the intention
of obtaining (whether directly or indirectly) a benefit. S122 (1) (a), (b), (c) and (d) (i) of CD: Offence of people
smuggling- A person (the first person) commits an indictable offence if—(a) the first person organises or facilitates
the entry of another person (the other person) into a foreign country (whether or not via Fiji); and (b) the entry of
the other person into the foreign country does not comply with the requirements under that country’s law for entry
into the country; and (c) the other person is not a citizen or permanent resident of the foreign country; and (d) the
first person organises or facilitates the entry—(i) having obtained (whether directly or indirectly) a benefit to do so.

TOPIC 5 Bail-  The principal use of bail in modern legal systems is to secure the freedom, pending trial, of one
arrested and charged with a criminal offense, although it may also be used in some cases to secure release pending
an appeal of a conviction. The primary purpose of bail is to allow the arrested person to remain free until convicted
of a crime and at the same time ensure his or her return to court. Who can grant bail? Section 437, Criminal
Procedure Code, deals with the powers of the trial court and of the Magistrate to whom the offender is produced by
the police or the accused surrenders or appears, to grant or refuse bail to  person accused of,or suspected of the
commission of any non-bailable offence. R v. Morales [1992] 3 SCR 711 (a decision of the Supreme Court of
Canada): “The liberty interest of the accused is, undoubtedly, a very important matter which must be brought to bear
on any consideration of the process by which bail is granted or denied…Unlike that of the application of the
criminal law, the purpose of a denial of bail is neither punishment, nor is it retribution or reform. Rather, it is better
understood as a part of the process by which those aims of the law may eventually be achieved by safeguarding the
proper functioning of the justice system. Primary test: the likelihood of the accused person surrendering to custody
(s19(2)(a)) and appearing in court to answer the charges laid against him or her. Other tests (flight risks):The
interests of the accused person (s19(b)); The public interest and the protection of the community (s19(c)) Williams v
the State ; The risk defendant may interfere with witnesses or other evidence (Turagabete v. the State). Bail as of
right (S4(5) & s5) (with certain exceptions): an accused person under the age of 18 years; any offence not
punishable by a sentence of imprisonment; any offence under the Minor Offences Act (Cap. 18); any offence
punishable summarily. Case judgement- Turagabete v. the State [2005] FJHC 24; HAM0001J.2005L (14
February 2005)“However, I consider that bail should nevertheless be refused. The offence charged is a serious
offence, and the facts relied upon by the prosecution are set forth in the affidavit of Sgt. 496 Kushi Ram are that the
Applicants kicked the victim to death. The prosecution alleges that the victim had previously assaulted the 1st
Applicant, and that this was a “revenge” killing. The prosecution will rely on the evidence of the two eye-witnesses
one who is 13 and the other 16. My concern is for the vulnerability of these two witnesses. The Applicants and the
witnesses all come from the same community. Children are notoriously easy to intimidate or influence. I am of the
view that it is not in the public interest to release the Applicants on bail in order to protect these witnesses…”
Williams v the State [2008] FJHC 249; HAM099.2008 (8 October 2008) [4] However, I am concerned about the
Applicant’s history of breaching bail conditions…[7] Robbery with violence is a serious charge. The offence is
prevalent in our community. The Applicant has a history of committing robbery with violence. Of course, he is
presumed to be innocent until proven guilty in respect of the charges pending in court, but these matters persuade
me that it is in the public. Interest that the Applicant remains in remand pending trail despite his ability to provide a
surety who has good standing in the community.” The Burden and Standard of Proof-Williams v the State [2008]
FJHC 249; HAM099.2008 (8 October 2008): “…Under the Bail Act, there is a presumption in favour of bail. This
presumption has to be rebutted by the prosecution on balance of probability”. State v Tuimouta [2008] FJHC 177;
HAC078.2008 (18 August 2008): “In a bail hearing the prosecution carries the burden of proof on balance of
probability that the accused should not be granted bail.” State v. Singh [2010] FJHC 600; HAM187.2010 (2
September 2010): “[7] It is recognized that rules of evidence are relaxed in bail hearings and a court may rely on
written hearsay evidence provided it is properly evaluated. It must be borne in mind that a bail hearing is not
equivalent to a trial hearing, when guilt or innocence is determined. “State v Tuimouta [2008] FJHC 177;
HAC078.2008 (18 August 2008):“[8] A bail hearing is not a trial. In a trial the prosecution carries the burden of
proof to satisfy the guilt of an accused beyond a reasonable doubt.” Sureties S2(1) a person, other than the accused
person or a person under 18 years, whom a police officer or court determines to be acceptable to provide
confirmation of the accused person's bail undertaking, or security that such undertaking will be complied with.
Rajesh Kumar v. the State, HAM 008.05S, (23rd March 2005): “Sureties are usually offered, who are in a position
to ensure the applicant’s presence in court, not only because of the fear of losing the money guaranteed if there is
non-appearance, but also because of some ability to insist on the applicant’s obedience to bail conditions.” Tawake
Cakacaka v. the State, HAM045.04S (2nd August 2004):“A spouse would not be a suitable surety since that
person would lack independence, and by virtue of the emotional attachment to the applicant would be unlikely to
ensure the attendance of the Accused at court.” Bail Conditions (s22 & 23)- Saqasaqa v The State [2006] FJHC
35; HAM0005D.2006S (31 January 2006): “[5] Bail conditions, imposing as they must restrictions on persons
awaiting trial, must therefore be reasonable and commensurate with the gravity of the offence and with the
individual risks identified as applicable. Bail must not be fixed excessively, in effect, denying the applicant an
opportunity to take up the grant of bail. This has been a principle of great antiquity in the common law.”

TOPIC 6: First Appearance- An accused, on first appearance, will be present: After arrest and in Police custody;
After arrest and on Police bail or notice; or On summons. At the first hearing, Magistrates will be concerned with
some or all of the following: The integrity of the charge (if not already considered);Nonappearance, therefore
summons and warrant; Legal representation; Plea, including fitness to plead; Election; Remands in custody; Bail;
Adjournments. First appearance- Before presenting the charge, a Magistrate informs the defendant of the
proceedings and his or her rights to legal representation; the defendant is questioned by a magistrate about whether
they want legal counsel; If legal aid is requested, Magistrates postpone the case so the defendant can communicate
with the Legal Aid Commission office. Non-Appearance of complainant at hearing (s166).Non-Appearance of the
accused (s167).Putting the charge to the defendant: Reconciliation (s154): The complainant/victim must agree.
Taking the Plea (s174-176)- A defendant can either plead “guilty” or “not guilty” to a charge; The defendant may,
with leave of the Court, change a not guilty plea to guilty at any time; The defendant may also, with leave of the
Court, change a guilty plea to not guilty at any time, but before sentencing. If the defendant says its true, The
prosecution to read a brief summary of the facts; The defendant is asked whether the facts are true or not; If the
defendant admits the truth of the facts, this will suffice as a plea of guilty; If the defendant disputes any of the facts,
the Court considers whether the disputed facts are relevant to the elements of the offence. A plea of guilty is a plea to
the elements of the charge; If the facts in dispute are not relevant to the elements, enter a plea of guilty);If the
disputed facts are relevant to any of the elements, or where any remarks or comments made by the defendant may
amount to a defence, a plea of not guilty is entered. Fitness- the Court need to consider whether the defendant is fit
to plead. A defendant is under a disability if he or she cannot: plead; understand the nature of proceedings; or instruct
counsel. Guilty plea- After entering conviction, the Court may: Sentence immediately; Stand down the matter to
consider the appropriate sentence; or Adjourn the matter to allow for relevant reports to be compiled, and
remand/bail is considered. Not guilty plea- the Court: Proceeds with the trial if all parties are ready and the matter
can be dealt with quickly; or Ascertain the number of witness, the parties intended to call at the trial, so as to know
the probable duration of the trial, and set a date for the trial; Deal with bail/remand in custody, and summonses for
witnesses if necessary; and Adjourn the matter.
TOPIC 7 Evidence- By form: Documentary evidence: information contained in written or visual documents (e.g.,
public documents (statutes, parliamentary material, judicial documents, public registers); private documents
(business records, agreements, deeds). Real evidence: some material object or thing (such as a weapon) produced in
Court and the object’s existence, condition or value is a fact in issue or is relevant to a fact in issue; Oral evidence:
the statements or representation of facts given by witnesses. These statements may be ‘in Court’ statements or ‘out of
Court’ statements. By content: Direct evidence: which, if believed, directly establishes a fact in issue (e.g., direct
evidence given by a witness who claimed to have personal knowledge of the facts in issue). Circumstantial
evidence: from which the existence or non-existence of facts in issue may be inferred; Corroborating or collateral
evidence: does not bear upon the facts in issue either directly or indirectly but is relevant for the credibility or
admissibility of other evidence in the case (either the direct or circumstantial evidence); and should come from
another independent source (e.g., an analyst or medical report). Competence: if he or she may be lawfully called to
testify; Compellability: means that the Court can require or compel a witness to testify once they have been found
competent. General law rules: The defendant is not a competent witness for the prosecution (co-defendant cannot
be called by the prosecution to give evidence against another, unless certain qualifications are present); A defendant
cannot be compelled to give evidence at his or her own trial; A co-defendant can only lawfully be called to give
evidence for the prosecution when he or she has ceased to be a co-defendant (pleads guilty, acquitted, tried
separately, DPP ends the proceedings or sentenced. The spouse of the defendant shall be a competent witness for the
prosecution and defence without the consent of the defendant in any case; and may be compelled to give evidence
(s126); A number of points relating to a spouse who is competent but not compellable for the prosecution: The
choice whether to give evidence is that of the spouse and the spouse retains the right of refusal; I the spouse waives
the right of refusal, he or she becomes an ordinary witness and in some cases, an application may be made to treat
the spouse as a hostile witness; Although not a rule of law or practice, it is desirable that when a spouse is
determined a competent but not a compellable witness, that the judge [or Magistrate] explain that he or she has the
right to refuse to give evidence but if he or she does choose to give evidence, he or she will be treated like any other
witness. Examination of Witnesses- General: The object of examining a witness by the party calling him or her is
to gain evidence from the witness that supports the party’s case. The Court may at any stage of any trial, summon
any person as a witness or examine any person in attendance though not summoned (s116);The Court may adjourn
any case for up to 8 days and remand a witness where he or she: refuses to be sworn; having being sworn, refuses to
answer any question; refuses or neglects to produce any document or exhibit; or refuses to sign his or her deposition.
Examination-in-chief: is the questioning of a witness by the party calling him. The party calling a witness will seek
to elicit evidence which supports his version of the facts in issue. Cross-examination: The objectives To gain
evidence from the witness that supports the cross-examining party’s version of the facts in issue; To weaken or cast
doubt upon the accuracy of the evidence given by the witness in examination-in-chief; and in appropriate
circumstances, to draw questions as to the credibility of the witness. Re-examine: to repair such damage as has been
done by the cross-examining party insofar.

TOPIC 8 Juvenile Justice- “Child” means a person who has not attained the age of 14 years; “Juvenile” means a
person who has not attained the age of 17 years; and includes a child and a young person; and “ Young person”
means a person who has attained the age of 14 years but who has not attained the age of 17 years . Criminal
Responsibility of Juveniles- s 26- 27 CD. A child under 10 years old is not criminally responsible for an offence. A
child aged 10 years or more but under 14 years old can only be criminally responsible for an offence if the child
knows that his or her conduct is wrong. The question whether a child knows that his or her conduct is wrong is one
of fact. The burden of proving this is on the prosecution. Separated Courts- So far as practicable, when hearing
charges against juveniles, unless they are jointly charged with adults (s17 JA):carry out the proceedings in a room or
building separate from where proceedings are normally held and exclude the public; or Carry out proceedings on a
different day or at a different time than ordinary proceedings, and exclude the public. The only people who should be
in the Courtroom (s17 (2) JA):Court officers; Parties to the case and their advocates; and Any other person directly
concerned with the case. The Media- S12 of JA: No newspaper report or radio broadcast of the proceedings shall
reveal the name, address or school, or include any particulars calculated to lead to the identification of any juvenile
either as being the person by or against or in respect of whom the proceedings are taken, or as being as a witness
therein; No picture shall be published in any manner as being, or including a picture of, any juvenile so concerned in
the proceedings. Sentencing Options- If a juvenile is found guilty, one or more of the following options will be
given (s32(1) JA):Discharge the juvenile offender; Order the juvenile offender to pay a fine, compensation or costs;
Order the parent or guardian of the juvenile offender to pay a fine, compensation or costs (the offender is a
child);Order the parent or guardian of the juvenile offender to give security for the good behavior of the juvenile
offender; Make a care order in respect of the juvenile offender. Make a probation order in respect of the juvenile
offender; where the juvenile offender is a young person, make an order for imprisonment; and/or Deal with the case
in any other lawful manner. Special Considerations Regarding Detention of Juveniles- A child shall not be
ordered to be imprisoned for any offence (s30(1) JA);A young person shall not be imprisoned for more than 2 years
for any offence (s30(3) JA).Where a juvenile is found guilty of a grave crime (murder, attempted murder or
wounding), the Court may order that he or she be detained for a specified period and at such place and on such
conditions as the Minister may direct (s31(1) JA).A juvenile offender in detention for a grave crime may at any time
be discharged by the Minister, on his or her discretion, or by license: s31(3) JA.

TOPIC 9: Appeal- Appeal from the Magistrates’ Court to the High Court- Grounds (S249 (1) of CPD): questions
of fact or questions of law. Against the judgment, sentence or order of the Magistrates Court. Procedure of Appeal
by petition: File the Petition of Appeal at the High Court Registry within 28 days of the day the decision appealed
against was handed down (S 248 (1) CPD 2009 as amended by s2 of the CPD (Amendment) Decree 2014); Serve a
Petition of Appeal upon the Magistrates Court (Criminal Registry). Upon receiving the Petition of Appeal, the
Magistrate against whose order, sentence, ruling or decision is being appealed against must ensure that the record of
proceedings in the Magistrates Court is forwarded to the Chief Registrar of the High Court within 28 days (s 250
(1),CPD 09). If the High Court does not dismiss the appeal summarily, the Chief Registrar shall enter the appeal for
hearing; serve a notice of hearing on the parties; supply the respondent with a copy of the petition and a copy of the
judgment or order appealed against; supply the respondent with a copy of the proceedings (except when the appeal
is against sentence only); and where additional grounds are filed by the appellant, serve a notice of such filing on
the respondent and supply the respondent with a cop of the document containing the additional grounds of appeal
(s252, CPD 09). If the Appellant wishes to discontinue the appeal, the Appellant may do so by giving notice in
writing to the Chief Registrar to discontinue the appeal. This may be done at any time before the date of hearing (s
255 (1), CPD 09). If the Appellant wishes to file additional grounds of appeal, this may be filed (by leave of the High
Court) at any time not later than 3 days before the date fixed for the hearing of the appeal (s 249 (4), CPD 09). At
the hearing of the appeal, the High Court shall hear the appellant or the appellant’s lawyer; and the respondent or
the respondent’s lawyer (if the respondent appears); and the DPP or the DPP’s representative (if there is an
appearance by or for the DPP) (s 256 (1), CPD 09 and s 117 (8) (d) of the Constitution 2013). High Court’ s
Hearing of an Appeal by Petition- The High Court may (s 256 (2) CPD 09):Confirm, reverse or vary the decision of
the Magistrate’s Court; Remit the matter back to the Magistrate’s Court after giving their opinion; Order a new trial;
Order a trial by a Court of competent jurisdiction; Make such order as it may deem just; or Exercise any power
which the Magistrate’s Court might have exercised. The High Court also has power to: Take additional evidence or
direct the Magistrate’s Court to do so. (s257 of CPD 09). Make an order as to costs (s254 of CPP 09). Criminal
Judgment Format- Introduction What the case is about. What is alleged by the prosecution in the summary of
facts. The law What must be proved beyond reasonable doubt. The elements of the offence. The facts not in dispute
The facts that are accepted by the defence. The elements that those accepted facts prove. The facts in dispute The
facts that are disputed by the defence. These are usually the issues (points for determination) in the case. Your
finding of the facts, with reason. Which evidence you prefer and why. Apply the facts to the law. Apply the facts as
you have found them to the elements of the offence. Do the facts prove all the essential elements? Deliver your
judgment This will be conviction or acquittal. Structure your judgment before delivering it. Make sure you give
adequate reasons and that the parties understand. Orders Pronounce any orders as to costs, return of exhibits, etc.

TOPIC 10: Sentencing- PRINCIPLES- Deterrence: to deter the offender from breaking the law again and act as a
warning to others not to do the same; Rehabilitation: to assist an offender to reform and not offend again;
Punishment: to punish the offender for his or her criminal behavior; Restoration: to restore or repair the damage
done to others by the offender. Sentencing discretion- Factors when selecting the most appropriate penalty or
sentence: The purpose of the legislation; The circumstances of the offence; The personal circumstances of the
offender; and The welfare of the community. Sentences should be consistent. Approach to sentencing- The
Tariff-The range within which sentences have been imposed for that offence, usually specified in the Crimes Decree
or the relevant legislation; Assisted by guideline judgments from superior Courts; sentences from other Courts for
the same offence; sentences for similar offences from overseas jurisdictions. Choose a starting point: Based on the
seriousness of the offending. Aggravating factors: the use of violence; persistent offending; damage to property;
age and vulnerability of victim; value of property stolen; premeditated acts; danger to the public; and prevalence.
Mitigating factors: guilty plea; remorse; reparation; reconciliation; young offender; first offender; provocation; and
no harm or minimal harm to person or property. Types of Sentence Imprisonment Except for murder, a Court must
impose a definite term of imprisonment that must not be more than the maximum term provided for in the statute
which creates the offence and not more than the maximum you are empowered to pass (s9 CPD); An offender liable
to imprisonment maybe sentenced to pay a fine in addition to or instead of imprisonment; Imprisonment should only
be considered when no other sentence is appropriate. Costs: Whenever an offender is convicted or discharged, but
not in a stay of proceedings, he or she may be ordered to pay Court costs in addition to any other penalty.
Restitution (part X Sentencing and Penalties decree 2009) For the preservation and disposal of property; The
restoration of stolen property to its owner; The restoration of possession of real property; and The preservation
and/or restoration of property whose ownership is in doubt in the possession of Police. Compensation (part X
Sentencing and Penalties decree 2009): An offender convicted of a charge may be ordered to pay compensation to
any person who suffers damage to his or her property or loss as a result of the offence. Probation of Offenders
(Probation of Offenders Act Cap 22): After convicting the offender,, instead of sentencing him or her, placing him or
her on probation for a period of not less than one year or more than three years. Upon (usually used against young
offenders): The nature of the offence; the character of the offender; The offender’s home surroundings; and The
expedient disposal of the case. Fines: a sufficient or convenient punishment for less serious offences. Community
Work Orders: Where a person is convicted of an offence punishable by imprisonment, the Court may, with the
consent of the offender, sentence him or her to community work (s3(1) Community Work Act 1994).

Case laws
R v Turner (1970) (No. 1) (1970) 2 All ER 281 is a Criminal Law case concerning sentencing. Facts: Mr. Turner
was indicted for stealing his own car as the garage allegedly had the lien over it. Over the course of the case, the
deputy chairman advised Mr. Turner’ counsel that if he continued arguing his case in the way he had planned, he
might end up in prison if found guilty. Therefore, he strongly recommended that the defendant plead guilty so as to
avoid prison sentence. Following his advice, the counsel strongly advised his client to plead guilty. Issues: In R v
Turner, was the plea of legal effect? Held: The Court of Appeal found that the plea was a nullity. The key reason
behind the finding however was that the counsel did not make clear that this was his own recommendation.
Therefore, the defendant was under the impression that the counsel was stating the deputy chairman’s views.  

R v Goodyear (2005) R v Goodyear (2005) concerns advance indications of the sentence.

Facts: In the case of R v Goodyear (2005), the appellant pleaded guilty to an offence of corruption. According to the
appellant, the trial judge indicated that he would not receive a custodial sentence. However, the judge sentenced the
appellant to a six months prison sentence suspended for two years. Issue: Giving an advance indication of sentence
by a trial judge and its subsequent effects. Held: The Court of Appeal held that where a defendant requests a
sentence indication from a judge, the latter might give such an indication. The Court of Appeal pointed out in a
detailed manner the pre-conditions for giving a sentence indication. As to the effect of the indication, the Court of
Appeal held that once an indication has been given, it is binding and remains binding on the judge. It also binds any
other judge who becomes responsible for the case. In principle, the judge who has given an indication should, where
possible, deal with the case immediately. An indication should not be sought on a basis of hypothetical facts. Based
on the above, the Court of Appeal found that in the present case the trial judge should have abided by his sentence
indication. A non-custodial sentence would have been appropriate in the circumstances of the case. Thus, the
appellant’s suspended sentence of imprisonment was quashed by the Court of Appeal.

Whitehouse v Lemon [1979]AC 617)

At issue was whether or not the offence of blasphemous libel required specific intent of committing such a
blasphemy. By a majority of 3 to 2, the Lords concluded that intention was not required. Lord Scarman was of the
opinion that blasphemy laws should cover all religions and not just Christianity and sought  strict liability for those
who "cause grave offence to the religious feelings of some of their fellow citizens or are such as to tend to deprave
and corrupt persons who are likely to read them". [2] The appeal was lost. Judgement The European Commission of
Human Rights declared the case inadmissible to be heard by the European Court of Human Rights on 7 May 1982.
The £26,435 raised by the Gay News Fighting Fund through benefits and donations from the gay community and
others, including a £500 donation from Monty Python, was sufficient to cover the costs of the trial and appeals.

R v. Morales [1992] 3 SCR 711

R v Morales, [1992] 3 S.C.R. 711, is a case decided by the Supreme Court of Canada. The Court found that the
"public interest" basis for pre-trial detention under section 515 of the Criminal Code violated section 11(e) of
the Canadian Charter of Rights and Freedoms, the right not to be denied reasonable bail, as it authorized detention
on vague and imprecise grounds, and could not be saved by section 1. Facts: charged with trafficking and possession
for the purpose of trafficking under the Narcotics Control Act and Criminal Code. "is necessary in the public interest
or for the protection or safety of the public, having regard to all the circumstances including any substantial
likelihood that the accused will ... commit a criminal offence or interfere with the administration of justice". Morales
applied for a review of the judge's order. He was granted release with conditions.  The issue before the Supreme
Court was whether the "public interest" component of section 515 violated sections 7, 9, 11(d) or 11(e) of
the Charter, and if so, whether it could be saved under section 1. Held: Chief Justice Lamer, for the majority, found
that the "public interest" component violated the accused right not to be denied reasonable bail under section 11(e) of
the Charter and could not be saved under section 1. He ordered the words "in the public interest" be declared of no
force or effect. Lamer examined the phrase "in the public interest" and found that it was vague and imprecise, and
so could not be used to frame a legal debate that could produce a structured rule. Thus, the phrase violated
the doctrine of vagueness and authorized detention without "just cause". On the justification analysis under section 1,
he found that the provision was not rationally connected to its purpose as it allowed pre-trial detention where it was
not related to the objective. It also failed to be minimally impairing, as it permitted more detentions than necessary,
and it was not proportional, as the deleterious effect outweighed the objective.

R v clark 2003-
Facts: In R v Sally Clark (2003), the court convicted the appellant, a solicitor, of killing her first and second baby
sons. The appellant’s first son died aged eight weeks. A post mortem examination concluded that the cause of death
was Sudden Infant Death Syndrome (SIDS). The appellant’s second son died aged 11 weeks. A post mortem
examination found that shaking was the likely cause of death. At trial, the expert evidence indicated that the chances
of two sudden infant deaths occurring in the same family from natural causes was one in 73 million. After the trial,
the results of microbiological tests suggested that the appellant’s second might have died of natural causes. The
evidence of microbiological reports was not disclosed during the trial. As a result, the appellant argued that failure to
disclose microbiological reports rendered the conviction unsafe. Also, the appellant contended that the statistical
information about the likelihood of two sudden infant deaths misled the jury. Issue: Whether the appellant’s
conviction was unsafe due to non-disclosure of microbiological reports at trial? Held: The Court of Appeal allowed
the appeal and found the conviction unsafe. It held that the expert evidence, based on the microbiological tests, met
the evidence criteria contained in the Criminal Appeal Act 1968. In the present case, any evidence that suggested that
the appellant’s second son died of natural causes was potentially crucial evidence. As a result, such evidence could
have significantly affected the jury’s verdict. Thus, the failure to disclose the microbiological reports meant that the
resulting convictions could be viewed as unsafe.

(Turagabete v. the State).

State v Tuimouta [2008] FJHC 177; HAC078.2008 (18 August 2008)
State v. Singh [2010] FJHC 600; HAM187.2010 (2 September 2010)
State v Tuimouta [2008] FJHC 177; HAC078.2008 (18 August 2008)
Tawake Cakacaka v. the State, HAM045.04S (2nd August 2004):“
Saqasaqa v The State [2006] FJHC 35; HAM0005D.2006S (31 January 2006)

What are the principles of granting bail?

Bail and the importance of liberty are well known concepts in the contemporary public sphere. Bail determines
whether an individual may return home while awaiting trial or remain in custody, with or without conditions. Yet in
contemporary society, it is commonly misconstrued as a way to punish offenders who have not been formally found
guilty or as a ‘get out of jail free’ card used by the wealthy and powerful.For this reason, it might be surprising to
learn that the concept of bail is a critical aspect of the rule of law and is an example of how our legal system reflects
principles such as the presumption of innocence. When considering an application for bail, the bail authority
weighs up their right to liberty against other considerations, such as the safety of the community, the interests of
justice, and the need for the accused person to appear at court as part of the trial process. It can take months or even
years before a matter comes to trial. The primary principles which underpin bail legislation across all States and
Territories include the Presumption of Innocence and the Right to Liberty and are part of the larger framework of
the rule of law. The bail process must uphold these principles to ensure we maintain a fair and just legal system.In
our society based upon the rule of law, a person can only be punished for a breach of the established laws of the
land.  A person is only considered guilty for breaking a law when the justice system, based upon satisfactory legal
evidence, rules that the accused is guilty.  Before this time, even if an accusation has been made, the accused is still
considered innocent according to the law.  The principle is called the Presumption of Innocence. The presumption of
innocence ensures that people are not punished before being found guilty of the crime they are accused of, and is an
important check on the power of the government.  It protects the rights of the accused and must be protected at all
times.  However, the presumption of innocence is not absolute – there are good reasons why a person can be
deprived of their liberty before being found guilty. Bail is one such example. The process of granting or refusing bail
in the courts must carefully considered to ensure there is an appropriate balance between the rights of the individual
to be presumed innocent with the safety of the community.Right to Liberty Article 9 of the ICCPR dictates that
persons will‘not be subject to arrest and detention except as provided for by law, and provided that neither the
arrest nor the detention is arbitrary’. If an individual is arrested, they should be informed of the reason for their
charges and must be tried before court within a reasonable period according to Article 9 of the ICCPR (International
Covenant on Civil and Political Rights). The bail process must consider the weight of depriving someone of their
freedom as they await trial and must seriously consider other mitigating and aggravating factors. Conclude:
Therefore, the rule of law has an integral role in shaping bail laws as its principles are based on the presumption of
innocence and right to liberty. The legal system must be careful to create a process that upholds the true purpose of
bail and ensure that bail laws remain appropriate for securing those objectives.
Terms
Bail- Bail enables an accused person to be released from custody in between the date of being charged and the
eventual hearing of the court case. The accused may be required to promise (known as entering into a
recognisance) to appear in court and meet other conditions, including that a guarantor (surety) be provided.
Aggravating factors- Circumstances that make an offence much more serious. affirmation A pledge that statements
made are true which may be made in place of an oath if an oath is contrary to a person's religious belief or if the
person has no religious belief. It can be used where a person is giving evidence in a court or where a declaration or
affidavit is being made. answer charge hearing An appearance in the Magistrates Court where a defendant is
formally asked to answer a criminal charge. If the defendant does not plead guilty, the Court will go on to take
evidence as part of the committal process to determine if the defendant should be put on trial for the offence(s).
arbitration A procedure for resolving disputes which involves less formality than a court hearing. The parties to the
dispute agree to an unbiased third party (an arbitrator) hearing the dispute, and also to comply with the decision of
the arbitrator. A contract may include an agreement to go to arbitration in the event of a dispute . bail authority A
person who has authority to grant or refuse bail such as, Magistrates, District and Supreme Court Judges and
certain police officers, as authorised by the Bail Act 1985 (SA). beyond reasonable doubt The standard of proof
required in criminal cases. burden of proof The obligation to prove what is alleged. In criminal cases, this obligation
rests on the prosecution, which must prove its case beyond reasonable doubt. In civil cases, it rests on the
applicant, who must prove his or her case on the balance of probabilities. Sometimes, however, this burden shifts,
for example, where the defendant or respondent raises particular defences. conflict of interest A situation where a
person's own interests, or a duty towards someone else, may affect the way they carry out a duty towards others.
confidentiality Protection against disclosure to an outside person of information revealed in a professional
relationship, e.g. doctor-patient. contempt of court The failure to obey a court order or an act which shows a
disregard for the authority of the court or judge. A person in contempt may face a fine, or imprisonment, or both.
cross examination The questioning of a witness by the opposing party in a court case. See party. double jeopardy A
situation in which a person may be convicted twice for the same offence. duty of care The obligation of a person to
exercise reasonable care in the conduct of an activity. Breach of a duty of care which causes damage or loss to
another may give rise to an action in tort. false imprisonment Confinement of a person without legal permission.
forensic procedure Examination of the body of a person suspected of having committed an offence, or the taking of
certain body samples. hearsay evidence Evidence of a fact not personally seen or heard by a witness, but proved by
him or her to have been said by another. Hearsay evidence is normally not admissible in court proceedings, but
there are exceptions to this rule. indictable offence A serious crime which is generally triable before a judge and
jury. injunction A court order which directs someone either to do, or to refrain from doing, a particular thing. An
injunction may be interim (operative until further order) or perpetual (continuing indefinitely). mitigation
Circumstances which go towards reducing the damages or punishment which the court may order against a
defendant or prisoner. natural justice The rules and procedures to be followed by a person or body with the power
to settle disputes. Some rules of natural justice are to act fairly, without bias, and the right of all parties to be
heard. oath A pledge that statements made are true which is made with one's hand on the bible. Witnesses in
court are required to take an oath or make an affirmation before giving evidence. prima facie On the face of it;
enough evidence to indicate legal action is likely to be successful. sanction A penalty or punishment imposed on
someone found guilty of an offence. standard of proof The required level to which something must be proved in
court. In criminal matters, the standard is "beyond reasonable doubt"; in civil matters, "on the balance of
probabilities". summary offence A minor offence heard and decided in a Magistrates' Court and not sent for trial
before a judge and jury. trust account A special bank account where a lawyer deposits money held on behalf of
other people, subject to strict accounting rules. ultra vires Beyond the power. An act which is in excess of the
authority conferred by law, and therefore invalid.