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Fiji Islands - FLR Volume 17 - Digest & Index |
THE FIJI LAW REPORTS
of cases decided in
THE FIJI COURT OF APPEAL
and
THE SUPREME COURT OF FIJI1971
Volume 17This volume may be cited as “17 F.L.R.”
EDITOR:
SIR TREVOR GOULD, Kt., LL.M. (N.Z.)
Barrister-at-law, Judge of the Fiji Court of AppealPRICE: $18.00
DIGEST AND INDEX
PAGE
APPEAL
See also Criminal Law – Conviction
Criminal appeal – misdirection by magistrate on matter of law or principle not lightly assumed – onus on appellant – Penal Code (Cap.11) s.333 (a) – Court of Appeal Ordinance (Cap. 8) s.22 (1).
48
Criminal appeal – refusal of application for separate trials – basic question whether exercise of trial judge’s discretion resulted in miscarriage of justice.
208
Criminal appeal – trial unsatisfactory – order for new trial – Criminal Procedure Code (Cap.14) ss. 246, 270 – Court of Appeal Ordinance (Cap.8) ss.23 (1) (2) – Criminal Appeal Act 1968 (Imp. – c.19) s.2 (1).
Inaith Hussain v. Reginam235
Variance between charge and evidence adduced thereon in Magistrate’s Court – curative provisions of section 323 of the Criminal Procedure Code – not applicable where amendment of charge required – Criminal Procedure Code (Cap.14) ss. 204, 323, 300 (1) – Magistrates Courts Act 1952 (15 & 16 Geo. 6 & 1 Eliz. 2 c. 55) (Imp.) s. 10-0 (1).
81
BRITISH SOLOMON ISLANDS PROTECTORATE
See Criminal Law (Pages 172, 179, 197, 205, 224, 228)
COMPANIES
Winding up – action brought by creditor prior to making of compulsory winding up order – creditor lodging proof of debt with liquidators – rejection of proof on ground of failure to produce vouchers and supply explanations – application to court for leave to continue action – on facts the lodging of proof of debt no bar to discretion of judge to give leave to continue action – election – whether rejection of proof an adjudication – Companies (Winding Up) - Rules 1929 (Imp.) rr.1, 89, 90, 105, 106, 115, 223 – Companies (Winding Up) Rules 1949 (Imp.) rr.91, 108 Appendix – Companies Ordinance (Cap. 216) ss. 176, 190 (3), 247 (1).
148
CONTRACT
Illegality – agreement to sell motor vehicle – subject to existing Bill of Sale – vehicle registered in name of original grantor – no transfer of registration or of insurance policy – vehicle used by purchaser – no evidence of terms of insurance policy – whether on facts the agreement for sale tainted with illegality – meaning of “new owner” in section 19 (1) (a) of Traffic Ordinance – Traffic Ordinance (Cap. 152) ss. 2, 19 (1) (a) (b), 19 (2), 19 (3), 19 (5), 19 (6), 19 (8) – Motor Vehicles (Insurance) Ordinance (cap. 153) s. 4 (10 – Sale of Goods Ordinance s. 20 (1).
162
CRIMINAL LAW
Accomplice – See Evidence and Proof
Assessors – conviction of accused by judge against unanimous advice of reasons of judge for differing.
208
Charge
Variance between charge and evidence adduced thereon in Magistrate’s Court – curative provisions of section 323 of the Criminal Procedure Code – not applicable where amendment of charge required – Criminal Procedure Code (Cap.14) ss. 204, 323, 300 (1) – Liquor Ordinance (Cap.167) ss. 76 (1) (a), 76 (2) – Magistrates Courts Act 1952 (15 & 16 Geo. 6 & 1 Eliz. 2, c.55) (Imp.) s. 100 (1).
81
Conviction
Substitution on appeal of conviction of minor cognate offence – Criminal Procedure Code 1961 (British Solomon Islands Protectorate) s. 157 – Penal Code 1963 (B.S.I.P.) s.238 – Pacific Order in Council 1893 (Imp.) (Rules) r. 36 (2).
228
Counsel
Election of accused not to say anything at his trial – divulgence by counsel for accused of his advice to accused – irregularity – no mis-carriage of justice.
62
Evidence and Proof
Admissibility – joint trial knowledge by co-accused of whereabouts of articles similar to those stolen – like articles in house of appellant – evidence admissible against appellant as part of pattern showing guilty nature of association.
48
Corroboration of accomplice evidence – trial judge entitled to consider unsworn statement of accused in court.
179
Homicide – cause of death – medical evidence – no post mortem carried out – sufficiency of evidence – malice aforethought – severity of injuries as evidence of Penal Code 1965 (Gilbert and Ellice Islands Colony) s. 195.
190
Lies told to police – relevance of identical lies by accused persons to question of acting in concert – influence of common guild.
208
Notice of additional evidence under section 270 of Criminal Procedure Code (Cap.14) – evidence given not included in notice – not necessarily inadmissible.
235
Previous similar transaction – admissible as tending to negative innocence or inadvertence.
172
Self-incriminatory statement of accused person – contradicted by other statements by same person – evidential value – position where sole evidence is confession of accused.
208
Statement by accused – evidence of interview with accused by Justice of the Peace after charge – rights of accused – evidence to be confined to sole legitimate purpose of interview.
185
Submission of no case to answer in Magistrate’s Court – principles upon which court should act – Penal Code (Cap.11) ss.294 (1), 7 (1) (a) – Criminal Procedure Code (Cap. 14) ss. 200, 201, 300 (1) (b).
118
Tendering by prosecution of statement by accused – practice where accused unrepresented – discretion of judge.
224
Fiji Constitution
Prisoner brought to court for continuation of hearing of charge of rape – charge of forgery filed and case called – plea of guilty followed by conviction – no breach of prisoner’s constitutional rights – Fiji Independence Order 1970 (Schedule) (Fiji Constitution) ss. 5 (1) (2) (3) 10 (2) (c) – Penal Code (Cap.11) s. 377 (3) – Criminal Procedure Code (Cap. 14) ss. 79, 79 (3), 80, 80 (1), 89, 102, 191, 197 (1) (2).
86
Homicide
Malice aforethought – evidence of – joinder of more than one count.
190
Information
Joint trial – joinder of charges – different persons charged in separate counts – Criminal Procedure Code 1961 (British Solomon Islands Protectorate) s. 119 (d) – Indictments Act 1915 (5 & 6 Geo. 5, c.90) (Imp.) Schedule 1, r.3.
172
Judgment
Joint trial – magistrate’s duty to distinguish evidence against each accused – evidence against two accused discussed together in judgment as matter of convenience – no breach of principle.
48
Magisterial judgment – criticism of defendant in minor traffic defence – observations by Supreme Court on appeal.
74
Practice and Procedure
Accused not legally represented – procedure where statement by accused tendered in evidence by prosecution – judge’s discretion – Penal Code 1963 (British Solomon Islands Protectorate) s. 266 (c) (i).
224
Application for separate trials–interests of justice to be considered–on appeal question is whether the exercise of trial judge’s discretion resulted in miscarriage of justice–Penal Code (Cap.11) ss.16, 22–Court of Appeal Ordinance (Cap.8) s.23 (1) – Court of Appeal Rules (Cap.8) r.39 (1).
208
Case for prosecution resting upon accomplice evidence – whether incumbent upon judge to acquit at close of prosecution – Criminal Procedure Code 1961 (British Solomon Islands Protectorate) s. 256 (1).
179
Charge – framing of charge averring offences in the alternative – alternative offences under separate sections to be charges in separate counts – practice of stating the offence is averred in the alternative is permissible – Traffic Ordinance (Cap. 152) ss. 27, 38 (1), 39 91) – Traffic Regulations 1967 reg. 73 (4) – Penal Code (Cap.11) ss. 255, 261 – Criminal Procedure Code (Cap. 14) ss. 121 (2), 123 (a) (iv), 123 (a) (v), 123 (b) (i), 201, 2nd Schedule.
20
Duplicity – charges of breaking and entering a dwelling house with intent to steal and actually stealing therein may be joined in the same count – on conviction only one sentence may be passed – Penal Code (Cap. 11) ss. 218 (2), 303 (d), 332 (a), 332 (b) (ii), 333 (a) – Criminal Procedure Code (Cap. 14) ss. 3 (1) (2) (3), 121 (2), 123 (a) (iv), 245.
110
Election of accused not to say anything – statement by counsel for accused in presence of assessors concerning his instructions – irregularity – no miscarriage of justice k- Criminal Procedure Code (Cap.14) s. 275 (2) – Court of Appeal Ordinance (Cap. 8) s. 23 (1).
62
Framing of grounds of appeal – avoidance of diffuse and overlapping grounds.
208
Practice and Procedure
Joinder of charges – different persons charged in separate counts – joint trial – Criminal Procedure Code 1961 (British Solomon Islands Protectorate) s. 119 (d) – Indictments Act 1915 (5 & 6 Geo. 5. c.90) (Imp.) Schedule 1, r.3.
172
Joinder of counts – count for assault causing actual bodily harm – joined with the count for murder – series of offences of similar character – no prejudice to accused – Criminal Procedure Code 1963 (Gilbert & Ellice Islands Colony) s. 118 (1).
190
Misdemeanour – necessity for allocutus – effect of omission – Penal Code 1963 (British Solomon Islands Protectorate) ss. 271, 301 – Criminal Procedure Code 1961 (B.S.I.P.) s. 263.
205
Statement by accused person – practice of having accused interviewed by Justice of the Peace – purpose of interview to ascertain whether accused has complaints regarding his treatment by the police – evidence of interview confined to that purpose – rights of accused – Penal Code (Cap. 11) s. 233 – Judges’ Rules (L.N.14 of 1967) rr. 2, 3.
185
Witness–application to declare witness hostile made at end of cross-examination–extent of discretion of trial judge to make the declaration – Penal Code (Cap.11) s.307–Common Law Procedure Act 1854 (17 & 18 Vict., c.125) (Imp.)–Evidence Act 1938 (1&2 Geo.6 c.28) (Imp.) s. 1 (1).
34
Principles and Criminal Liability
Common purpose – intention to “beat up” – deceased killed by spear – use of spear not anticipated by other members of the party – death not caused by any act within common purpose of others – conviction of others of manslaughter not justified – Penal Code 1963 (British Solomon Islands Protectorate) s. 22 – Crimes Act 1961 (New Zealand) s.66 (2).
228
Permitting escape of prisoner from lawful custody – arrangement permitting prisoner to be at liberty for limited period to interview witnesses – due return of prisoner to custody pursuant to arrangement – intended limitation of period of liberty did not absolve officer permitting it – Penal Code (Cap. 11) ss.131 (c), 424.
202
Theft–taking–animus furandi–if original receipt not tortuous or felonious intention to misappropriate subsequently formed does not constitute theft – Court of Appeal Ordinance (Cap. 8) s.22 – Penal Code (Cap.11) ss.291, 307 – Crimes Act 1961 (New Zealand) s. 220 – Larceny Act 1916 (6 & 7 Geo. 5, c.50) (Imp.) s.1 – Theft Act 1968 (16 & 17 Eliz. 2, c.60) (Imp.).
65
Prison Officer
Permitting prisoner to be at liberty for agreed limited period – return to prisoner in accordance with the agreement – officer not absolved from liability for permitting escape from lawful custody – Penal Code (Cap.11) ss. 131 (c), 424.
202
Provocation
Assault by deceased on a man of the same line as the accused but not closely related to him – whether could be provocation – Penal Code 1963 (British Solomon Islands Protectorate) ss. 3, 22, 198, 238.
228
Provocation not relied upon at trial – issue not left to assessors – whether evidence fit to be left – duty of trial judge.
41
Provocation – opposing groups – provocation offered by member of group other than member killed – particular circumstances – family quarrel – whether deceased participated in act of provocation or accused held reasonable belief to that effect – Penal Code (Cap.11) s.235.
41
Sentence
Charges of breaking and entering a dwelling house with intent to steal and actually stealing therein – correct practice is to pass only one sentence – Penal Code (Cap.11) ss.218 (2), 302 (d), 332 (a), 332 (b) (ii), 333 (a) – Criminal Procedure Code (Cap.14) ss. 3 (1), 3 (2), 3 (3), 121 (2), 123 (a) (iv), 245.
110
Matter for court – position of Crown – practice – necessary for allocutus – Penal Code 1963 (British Solomon Islands Protectorate) ss. 271, 301 – Criminal Procedure Code 1961 (B.S.I.P) s. 263.
205
Previous convictions – comparatively minor offence – sentencing court unduly influenced by number of previous convictions – considerations affecting sentencing policy – Penal Code 1963 (British Solomon Island Protectorate) s. 254 (1) – Criminal Procedure Code 1961 (B.S.I.P.) s. 193(A), 193 (A) (3).
197
Theft
See Principles of Criminal Liability
Traffic Offences
Driving motor cycle without safety helmet of type approved under the regulation – approval given by Principal Licensing Authority to certain brands of helmet – whether sufficient indication of type – Traffic Regulations 1967 regs. 53A, 121, 122 – Traffic (Amendment) Regulations 1968, reg. 4 – Traffic (Amendment) Regulations 1970, reg. 24 – Traffic Ordinance (Cap. 152) s.86 – Criminal Procedure Code (Cap.14) s. 290 (2) – Penal Code (Cap.11) s. 38.
74
Trial
Joint trial – discretion of court to order separate trials – interests of justice.
208
Witness
Witness – prejudicial statement volunteered – whether assessors should be discharged – witness not called at preliminary inquiry - statement not necessarily inadmissible because not included in notice of additional evidence – necessity for trail within a trial – Criminal Procedure Code (Cap.14) ss. 246, 270 – Court of Appeal Ordinance (Cap. 8) ss. 23 (1), 23 (2) – Criminal Appeal Act 1968 (Imp. – c.19) s. 2 (1).
235
Witness – privilege – communications between solicitor and client – privilege of client – Waiver – whether duty of judge to advise witness of his rights.
57
ELECTION
Company in liquidation – action by creditor against company pending – proof of debt lodged by creditor – whether adjudicated upon by liquidators – whether election by creditor to accept adjudication by liquidators – Companies (Winding Up) Rules 1929 (Imp.) rr.1, 89, 90, 99, 105, 106, 115, 223 – Companies (Winding Up) Rules 1949 (Imp.) rr. 91, 108, Appendix – Companies Ordinance (Cap. 216) ss. 176, 190 (3), 274 (1).
148
EVIDENCE AND PROOF
Collision between motor vehicles – evidence of judgment by consent in action by one driver against the other – assessment of weight of consent as evidence of negligence in separate action by passenger against driver consenting.
30
Hostile witness – application to declare hostile not made until end of cross-examination extent of discretion of trial judge – Common Law Procedure Act 1854 (17 & 18 Vict., c. 125) (Imp.) – Evidence Act 1938 (1 & 2 Geo. 6, c.28) (Imp.) s.1 (1).
34
Motor Vehicle insurance policy – claim under-statement by assured in claim form – onus on company resisting claim to establish falsity of statement on balance of probabilities.
69
Onus of proof – motor vehicle accident – extent to which proof of ownership of vehicle will affect onus of proof of agency of driver.
8
Privilege – accused cross-examined as to communications at his counsel – questions answered freely and without objection waiver of privilege – no rule of law requiring trial judge to advise witness of his rights.
57
FIJI CONSTITUTION
See Criminal Law
GILBERT AND ELLICE ISLANDS COLONY
See Criminal Law
HUSBAND AND WIFE
Maintenance order – means of husband – potential earnings as well as actual earnings to be considered – Separation and Maintenance (Summary Jurisdiction) Ordinance (Cap.43) s.4 (c).
15
INSURANCE
Claim – motor vehicle insurance policy – insurance company setting up false statement in claim form as ground for assisting claim – onus of proving falsity of statement on company on balance of probabilities.
69
INTERPRETATION
Enactment – meaning not restricted to “Ordinance” or “Act of Parliament” – can include section or part thereof – Criminal Procedure Code (Cap.14) s. 123 (b) (i).
20
Fiji customs legislation a complete statement of Fiji Law on subject – to be construed free from any gloss from expositions of English law – Customs Tariff Regulations 1968 re. 6 (1) – Customs Tariff Ordinance (Cap. 171) – finance Act 1948 (11 & 12 Geo. 6, c.49) (Imp.) s.23.
Comptroller of Customs and Excise v. Burns Philp (S.S.) Co. Ltd.
1
Limitation of actions – construction of Real Property Limitation Act 1833 (3 & 4 Will. 4, c.27) (Imp.) ss. 3, 4, 7.
94
Statute – construction – joinder of charges – persons accused of different offences – meaning – Criminal Procedure Code 1961 (British Solomon Islands Protectorate) s.119 (d) – Indictments Act 1915 (5 & 6 Geo. 5, c.90) (Imp.) Schedule 1 r.3.
172
LAND
Compulsory acquisition sought by Township Board – authority of Ministers essential pre-requisite to application to court – land sought to be acquired native land subject to lease – considerations arising there from – Crown Acquisition of Lands Ordinance (Cap.119) ss.2, 5, 6 – Township Ordinance (kCap.107) ss. 46 (1), 49 (1) – Constitution (Statutory Amendments) Order 1970, ss.68 (n), 78 (h) (i) – Native land Trust Ordinance (Cap.115) ss. 5, 12 – Rules of the Supreme Court 0.29 r.1 – Fiji Independence Order 1970 (Schedule) s.8.
25
LIBEL
Defamatory meaning – words complained of to be considered in context of whole publication – defence of fair comment – words must constitute comment and not statement of fact – Court of Appeal Ordinance (Cap.8) s.13 – Defamation Act 1952 (15 & 16 Geo. 6 & 1 Eliz. 2 c.66).
122
LIMITATION OF ACTIONS
Land – agreement for sale – instalments in arrears – provisions in agreement for vendor’s right to rescind and re-enter – construction of agreement – no election to rescind until shortly before action for possession – time of accrual of right of action equated with time of accrual of right of entry – whether time for purpose of limitation ran from date of breach of condition for payment of instalments – election to rescind condition precedent to right of entry – necessity for election to rescind to be notified to purchaser – Real Property Limitation Act 1833 (3 & 4 Will. 4, c.27) (Imp.) ss.3, 4, 6, 7, 10-13, 34 – Real Property Limitation Act 1874 (37 & 38 Vict., c.57) (Imp.) s.1 – Statute of Limitations Declaration Ordinance (Cap. 135 – 1955) – Revised Edition of the Laws Ordinance 1965 s.5 (1) 1st Schedule – Land (Transfer and Registration) ordinance (Cap. 135 – 1955) s. 14 – Limitation Act 1935 – 1954 (W.A.) ss. 3, 4.
94
LOCAL GOVERNMENT
Township Board seeking to acquire land for public purpose – authority of Minister a pre-requisite to application of court – land sought native land subject to leave – considerations arising there from – Crown Acquisition of Lands Ordinance (Cap.119) ss. 2, 5, 6 – Townships Ordinance (Cap.107) ss. 46 (1) – Constitution (Statutory Amendments) Order 1970 ss.68 (n), 78 (h) (i) – Native Land Trust Ordinance (Cap.115) ss.5, 12 – Rules of the Supreme Court 0.29 r.1 – Fiji Independence Order 1970 (Schedule) s.8.
25
MAINTENANCE
See Husband and Wife
NEGLIGENCE
Collision between motor vehicles – injuries to passenger – right to elect to sue drivers of both or either vehicle – one driver consenting to judgment in action against him by other – assessment of as evidence in action by passenger against consenting driver – election by defendant to call no evidence in negligence action – question of negligence to be decided by judge as one of fact.
30
Onus of proof – personal injury caused by negligent driving - proof of ownership of vehicle – sufficient to place onus of disproof of agency of driver on owner where no evidence of identity of driver – aliter where there is evidence of identity and purpose for which diver se vehicle.
8
PRACTICE AND PROCEDURE
Failure by magistrate to give counsels an opportunity of addressing the court before giving judgment – fatal defect vitiating the proceedings – Magistrates’ Courts Rules (Cap. 10) 0.31 r.4 (b).
18
PRESCRIPTION
See Limitation of Actions
REVENUE
Customs duty – thermo fax paper made in America but cut and repacked in smaller sizes in Preference Territory Australia – whether preference rate of duty applied – whether cutting and repacking in Australia constituted the final process of manufacture – Fiji customs legislation a complete code – English authorities based on different definitions not applicable – Customs Tariff Regulations 1968 reg. 6 (1) – Customs Tariff Ordinance (Cap. 171) – Finance Act 1948 (11 & 12 Geo. 6. c.49) (Imp.) s. 23.
Comptroller of Customs and Excise v. Burns Philp (S.S.) Co. Ltd.
1
ROAD TRAFFIC
See Negligence
TORT
See Libel
Negligence
WORD AND PHRASES
- “adverse possession”
101
- “Escape from lawful custody” – Penal Code (Cap.11 s. 131 (c))
204
- “new owner” – Traffic Ordinance (Cap.152) s. 19 (1) (a).
170
- “type” – Traffic Regulation 1967, reg. 53A
78
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