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Magistrates Court of Fiji |
IN THE MAGISTRATES’ COURT OF FIJI
AT LAUTOKA
EXTENDED CRIMINAL JURISDICTION
High Court Criminal Case No. HAC 173 of 2018
Magistrates’ Court Criminal Case No. 634 of 2018
STATE
v.
For the Complainant: Mr. A. Singh, of counsel, for the Director of Public Prosecutions
For the 1st and 3rd Defendants: Ms. L. Manueli, of counsel, of the Legal Aid Commission
For the 2nd and 4th Defendants: In Person
Date of Hearing: 5th December 2019, 2nd March 2020
Date of Decision: 22nd October 2020
DECISION OF THE RESIDENT MAGISTRATE IN EXTENDED JURISDICTION ON THE PLEA IN BAR OF AUTREFOIS CONVICT
“35. Let me be clear:
“It is most true that this court will not take jurisdiction if it should not; but it is equally true that it must take jurisdiction if it should...With whatever doubts, with whatever difficulties, a case may be attended, we must decide it, if it is brought before us. We have no more right to decline the exercise of the jurisdiction which is given, than to usurp that which is not given...All we can do is exercise our best judgment, and conscientiously to perform our duty.”
Per Chief Justice Marshall of the U.S Supreme Court in Cohen v Virginia, [1821] USSC 18; 6 Wheat 264 – 405, 5 L ed. 257 – 291.
36. *** if a Magistrate has been granted extended jurisdiction to try an indictable offence than he or she sits as the High Court alone and must exercise the jurisdiction of that court whenever the interests of justice and the merits of the case so requires.
Procedural Rules that Apply
37. Another important point that falls to be considered is which procedural rules apply.
38. The accepted position is that the Magistrate sits as a High Court alone and in that sense, he or she, in effect, conducts a bench trial in respect of that indictable matter.
39. In those circumstances, there being no assessors to worry about – it makes sound policy sense to have the defendants in these circumstances tried in accordance with the rules and procedures that govern ordinary trials in the Magistrates’ Court – adopting provisions from the High Court criminal rules that best meets the interests of justice and the merits of the case where ever a lacuna exists.
40. This course of action has certainty, efficacy, and access to all the protections ordinarily available to the defendant had the matter remained in the High Court to commend it.”
“(2) A court may hear and adjudicate upon an application made under this section at any time the court determines....
(3) Upon hearing any application under this section the court may make any necessary order to protect the rights of any party to the proceedings...”
“In giving my reasons for my view that the direction given by the learned judge was entirely correct, I propose to examine some of the authorities and to state what I think are the governing principles. In my view both the principles and the authorities establish – (i) that a man cannot be tried for a crime in respect of which he has previously been acquitted or convicted; (ii) that a man cannot be tried for a crime in respect of which he could on some previous indictment have been convicted; (iii) that the same rule applies if the crime in respect of which he is being charged is in effect the same or substantially the same as either the principal or a different crime in respect of which he has been acquitted or could have been convicted or has been convicted; (iv) that one test whether the rule applies is whether the evidence which is necessary to support the second indictment, or whether the facts which constitute the second offence, would have been sufficient to procure a legal conviction on the first indictment either as to the offence charged or as to an offence of which, on the indictment, the accused could have been found guilty; (v) that this test must be subject to the proviso that the offence charged in the second indictment had in fact been committed at the time of the first charge; thus if there is an assault and a prosecution and conviction, there is no bar to a charge of murder if the assaulted person later dies; (vi) that on a plea of autrefois convict or autrefois acquit a man is not restricted to a comparison between the later indictment and some previous indictment or to the records of the court, but that he may prove by evidence all such questions as to the identity of persons, dates, and facts as are necessary to enable him to show that he is being charged with an offence which is either the same or is substantially the same as one in respect of which he could have been convicted; (vii) that what has to be considered is whether the crime or offence charged in the later indictment is the same or is in effect or is substantially the same as the crime charged (or in respect of which there could have been a conviction) in a former indictment and that is immaterial that the facts under examination or the witnesses being called in the later proceedings are the same as those in some earlier proceedings; (viii) that apart from circumstances under which there may be a plea of autrefois acquit a man may be able to show that a matter has been decided by a court competent to decide it, so that the principle of res judicata applies[20]; (ix) that apart from cases where indictments are preferred and where pleas in bar may therefore be entered the fundamental principle applies that a man is not to be prosecuted twice for the same crime.
These principles, which in my view should be accepted and followed, have been evolved over a long period.”
“For the doctrine of autrefois to apply it is necessary that the accused should have been put in peril of conviction for the same offence as that with which he is then charged. The word offence embraces both the facts which constitute the crime and the legal characteristics which make it an offence. For the doctrine to apply it must be the same offence both in fact and in law ... I would add one further comment. My noble and learned friend [a reference to Lord Morris of Borth-y-Gest] in his statement of the law, accepting what is suggested in some dicta in the authorities, extends the doctrine to cover offences which are in effect the same or substantially the same. I entirely agree with my noble and learned friend that these dicta refer to the legal characteristics of an offence and not to the facts on which it is based see Rex v. Kendrick and Smith. I have no difficulty about the idea that one set of facts may be substantially but not exactly the same as another. I have more difficulty with the idea that an offence may be substantially the same as another in its legal characteristics; legal characteristics are precise things and are either the same or not. If I had felt that the doctrine of autrefois was the only form of relief available to an accused who has been prosecuted on substantially the same facts, I should be tempted to stretch the doctrine as far as it would go. But, as that is not my view, I am inclined to favour keeping it within limits that are precise."
“We consider the question of conviction is not the critical aspect of this appeal and so the question of whether the prison tribunal is a court does not need to be resolved. Neither does the answer lie in a determination whether or not there has been a breach of section 28 of the Constitution. What sections 20, 59 and 82 all provide is the avoidance of double punishment for the same offence.”
“[11] As we have stated, the decision in Tawatatau was after the events to which this appeal relates had taken place. The penalty under the regulations has now been passed and this Court has no power to alter it. However, on the same principle as was stated in Tawatatau’s case, we can remedy the position by reducing the magistrate’s sentence of six months by the period of remission forfeited leaving four months imprisonment consecutive to any sentence the appellant is currently serving.”
“In this case the Appellant was punished again by the Prisons Tribunal and therefore there was a breach of the autrefois convict principle. The decision was endorsed by the Officer-in-Charge of the Korovou Prison, and the right of review is to the Commissioner of Prisons. I have no confidence that the Appellant is able to seek a review on his own.
For that reason I order that a copy of this judgment be sent down to the Commissioner of Prisons, drawing his attention to the contents of it, and inviting him to review the decision of the Prison Tribunal in relation to the Appellant on the 26th of September 2006. I also order that a copy of the decision of the Fiji Court of Appeal in Joeli Tawatatau v. The State be sent for his attention for future cases of escaping. The appeal is otherwise dismissed.”
“The principle “protects against a second prosecution for the same offence after acquittal. It protects against a second prosecution for the same offence after conviction. And it protects against multiple punishments for the same offence.... Where consecutive sentences are imposed at a single criminal trial, the role of the constitutional guarantee is limited to assuring that the court does not exceed its legislative authorisation by imposing multiple punishments for the same offence ...Where successive prosecutions are at stake, the guarantee serves “a constitutional policy of finality for the defendant’s benefit.” United State v. Jorn, [1971] USSC 16; 400 U.S. 470, 479 [1971] USSC 16; 91 S. Ct. 547, 554 [1971] USSC 16; 27 L.Ed.2d 543 (1971) (plurality opinion). That policy protects the accused from attempts to re-litigate the facts underlying a prior acquittal...and from attempts to secure additional punishment after a prior conviction and sentence...”
“The principle of non-bis-in-idem appears in some form as part of the internal legal code of many nations. Whether characterised as non-bis-in-idem, double jeopardy or autrefois acquit, autrefois convict, this principle normally protects a person from being tried twice or punished twice for the same acts...”
“It is now settled law that a constitution is an instrument sui generis requiring special rules of interpretation: Minister of Home Affairs v. Fisher [1989] AC 319. These rules require a broad and purposive approach as was recognised by Mudholker J in Sakal Papers (P) Ltd v. Union of India and Ors [1961] INSC 281; AIR 1982 SC 305 at 311
“It must be borne in mind that the Constitution must be interpreted in a broad way and not in a narrow and pedantic sense. Certain rights have been enshrined in our constitution as fundamental and, therefore, while considering the nature and content of those rights the courts must not be too astute to interpret the language of the constitution in so literal a sense as to whittle tems down. On the other hand the court must interpret the constitution in a manner which would enable the citizen to enjoy the rights guaranteed by it in the fullest measure subject, of course, to permissible restrictions.”
Therefore any consideration of section 25 (now repealed and mirrored at section 11 of the current Constitution) must be approached
with the understanding that any treatment or punishment that impinges upon the inherent dignity of the individual will contravene
the provision.”
“(2) When a prisoner is charged with and punished for a prison offence, nothing shall prevent criminal proceedings being taken against the prisoner arising from the same circumstances, but a court shall take into account any penalty imposed under this Act, when sentencing a prisoner for the criminal offence.”
(Underline added)
“We pay tribute to the researches of counsel on the question of whether R v. Hogan [1960] 2 QB 513 can stand in the light of modern legal developments in and European law. We do not need to formally decide this point but have little doubt in the light of the authorities in such as Engel v. Netherlands [1976] ECHR 3; 1 EHRR 647; Ezeh and Connors v. UK [2003] ECHR 485; (2004) 39 EHRR 1; Zolotukhin v. Russia (2012) 54 EHRR 987; A and B v Norway applications No. 241330/11 and 2978/12 [2016] ECHR 987; R v. McLean [2014] NIQB 124 and R (Napier) v. Secretary of State for the Home Department [2004] EWHC 936; [2004] WLR 3056. In our view the questions admits of one answer. Where a prison adjudication proceeding involves punishment by loss of liberty such proceedings amount to “criminal proceedings” by a body of competent jurisdiction and the rule against double jeopardy applies i.e. the decision in R v. Hogan (supra) no longer stands.”
“These Engel criteria or factors have been continuously applied in the subsequent case law. So much so that, although the Court confined its remarks to the context of military disciplinary proceedings, they must now be regarded as constituting the classic statement of the relevant criteria. They point to three stages in any investigation:
...
In considering the severity of the penalty it will be noted that it is the maximum penalty which could have been inflicted upon the applicant in the disciplinary proceedings that is crucial. For example, one of the successful applicants in Engel had in fact been sentenced to 12 days “aggravated arrest” (not involving loss of liberty). Yet, because he could have been sentenced to several months in a disciplinary unit that was the penalty at risk. The light penalty actually imposed could not, in the words of the Court, “diminish the importance of what was initially at stake.”
“[52] In any event, the indications furnished by the domestic law of the respondent State have only a relative value. The second criterion stated above – the very nature of the offence, considered also in relation to the corresponding penalty – represents a factor of appreciation of greater weight.”
(1) What is the inherent nature of the disciplinary offence? In answering this question, the Court can either look to the manner in which the proceedings were conducted[31]; and it can also look to whether the offences charged were inherently criminal in nature or whether they were mixed offences i.e. offences capable of being both disciplinary and criminal in nature.[32]
(2) Did the disciplinary offence give rise to a “truly penal consequence”? In answering this question the Court can look to whether the punishment was a term of imprisonment or a fine[33]; or whether the consequence formed a part of an arsenal of sanctions to which the accused may be liable in respect of a particular offence and the sanction imposed was one imposed in furtherance of the purpose and principles of sentencing[34]; and it could also look to whether the punishment resulted in loss of liberty or an addition to the days that a prisoner could legitimately have expected to serve.[35]
“[86] In addition, it is the court’s established jurisprudence that the second criteria laid down in Engel are alternative and not necessarily cumulative: for Article 6 to be held applicable, it suffices that the offence in question is by its nature to be regarded as “criminal” from the point of view of the Convention, or that the offence made the person liable to a sanction which, by its nature and degree of severity, belongs in general to the “criminal” sphere (see Öztürk v. Germany, judgment of 21 February 1984, Series A no. 73, p. 21, § 54, and Lutz v. Germany, judgment of 25 August 1987, Series A no. 123, p. 23, § 55). This does not exclude that a cumulative approach may be adopted where separate analysis of each criterion does not make it possible to reach a clear conclusion as to the existence of a criminal charge (see Bendenoun v. France, judgment of 24 February 1994, Series A no. 284, p. 20, § 47; Benham v. the United Kingdom, judgment of 10 June 1996, Reports of Judgments and Decisions 1996-III, p. 756, § 56; Garyfallou AEBE v. Greece, judgment of 24 September 1997, Reports 1997-V, p. 1830, § 33; and Lauko v. Slovakia, judgment of 2 September 1998, Reports 1998-VI, pp. 2504-05, § 57).”
“A single act may have more than one aspect, and it may give rise to more than one legal consequence. It may, if it constituted a breach of the duty a person owes to society, amount to a crime, for which the actor must answer to the public. At the same time, the act may, if it involves injury and a breach of one’s duty to another, constitute a private cause of action for damages, for which the person must answer to the person he injured. And that same act may have still another aspect to it: it may also involve a breach of the duties of one’s office or calling, in which event the actor must account to his professional peers. For example, a doctor who sexually assaults a patient will be liable, at one and the same time, to a criminal conviction at the behest of the state; to a judgment for damages, at the instance of the patient, and to an order of discipline on the motion of the governing council of his profession. Similarly a policeman who assaults a prisoner is answerable to the state for his crime; to the victim for damage he caused; and to the police force for discipline.”
“21. While it is easy to state that those involved in a criminal or penal matter are to enjoy the rights guaranteed by s. 11, it is difficult to formulate a precise test to be applied in determining whether specific proceedings are proceedings in respect of a criminal or penal matter so as to fall within the ambit of the section. The phrase “criminal or penal matters” which appears in the marginal note would seem to suggest that a matter could fall within s. 11 either because of its very nature it is a criminal proceeding or because a conviction in respect of the offence may lead to a true penal consequence. I believe that a matter could fall within s. 11 under either branch.
...
22. In my view, if a particular matter is of a public nature, intended to promote public order and welfare within a public sphere of activity, then that matter is the kind of matter which falls within s. 11. It falls within the section because of the kind of matter it is. This is to be distinguished from private, domestic or disciplinary matters which are regulatory, protective or corrective and which are primarily intended to maintain discipline, professional integrity and professional standards or to regulate conduct within a limited sphere of activity...”
24. This is not to say that if a person is charged with a private, domestic or disciplinary matter which is primarily intended to maintain discipline, integrity or to regulate conduct within a limited private sphere of activity, he or she can never possess the rights guaranteed under s. 11. Some of these matters may well fall within s. 11, not because they are the classic kind of matters intended to fall within the section, but because they involve the imposition of true penal consequences. In my opinion, a true penal consequence which would attract the application of s. 11 is imprisonment or a fine which by its magnitude would appear to be imposed for the purpose of redressing the wrong done to society at large rather than the maintenance of internal discipline within the limited sphere of activity[37]... However, as this was not argued before us in this appeal I shall assumed that it is possible that the “by nature” test can be failed but the “true penal consequence” test passed. Assuming such a situation is possible, it seems to be me that in cases where the two tests conflict the “by nature” test must give way to the “true penal consequence” test. If an individual is to be subject to penal consequences such as imprisonment- the most severe deprivation of liberty known to our law – then he or she, in my opinion, should be entitled to the highest procedural protection known to our law.”
“The appellant was not being called to account to society for a crime violating the public interest in the preliminary proceedings. Rather, he was being called to account to the prison officials for breach of his obligation as an inmate of the prison to conduct himself in accordance with prison rules. If he had been called upon twice to answer to the State for his crime, s. 11 (h) would apply. But section 11 (h) does not operate so as to preclude his being answerable to prison officials for a breach of discipline as well as to the State for his crime.”
“It was noted that misconduct by a prisoner might take different forms; while certain acts were clearly no more than questions of internal discipline, others could not be seen in the same light. Relevant indicators were that “some matters may be more serious than others”, that the illegality of the relevant act might turn on the fact that it was committed in prison and that conduct which constituted an offence under the Rules might also amount to an offence under the criminal law so that, theoretically at least, there was nothing to prevent conduct of this kind being the subject of both criminal and disciplinary proceedings.
102. Moreover, criminal penalties have been customarily recognised as comprising the twin objectives of punishment and deterrence (see Öztürk, Bendenoun and Lauko, judgments cited above, pp. 20-21, § 53, p. 20, § 47, and p. 2505, § 58, respectively).
103. In the present case, the Court notes, in the first place, that the offences in question were directed towards a group possessing a special status, namely prisoners, as opposed to all citizens. However, the Court does not accept the Government's submission that this fact renders the nature of the offences prima facie disciplinary. It is but one of the “relevant indicators” in assessing the nature of the offence (see Campbell and Fell, cited above, p. 36, § 71).
104. Secondly, it was not disputed before the Grand Chamber that the charge against the first applicant corresponded to an offence in the ordinary criminal law (sections 4 and 5 of the 1986 Act). It is also clear that the charge of assault against the second applicant is an offence under the criminal law as well as under the Prison Rules. It is true that the latter charge involved a relatively minor incident of deliberately colliding with a prison officer, which may not necessarily have led to prosecution outside the prison context. It is also true that the extreme gravity of the offence may be indicative of its criminal nature, as indicated in Campbell and Fell (see paragraph 101 above). However, that does not conversely mean that the minor nature of an offence can, of itself, take it outside the ambit of Article 6, as there is nothing in the Convention to suggest that the criminal nature of an offence, within the meaning of the second of the Engel criteria, necessarily requires a certain degree of seriousness (see Öztürk, cited above, pp. 20-21, § 53). The reliance on the severity of the penalty in Campbell and Fell (pp. 37-38, § 72) was a matter relevant to the third of the Engel criteria as opposed to a factor defining the nature of the offence.
Relying on Convention case-law, the Government contested the weight to be attached to this concurrent criminal and disciplinary liability. However, in the case most directly in point, Campbell and Fell (p. 36, § 71), the Court referred to even a “theoretical” possibility of the impugned acts being the subject of concurrent criminal and disciplinary proceedings as a relevant factor in the assessment of the nature of the offence and it did so independently of the gravity of the offences in question. Accordingly, and even noting the prison context of the charges, the theoretical possibility of concurrent criminal and disciplinary liability is, at the very least, a relevant point which tends to the classification of the nature of both offences as “mixed” offences.
105. Thirdly, the Government submit that disciplinary rules and sanctions in prison are designed primarily to ensure the successful operation of a system of early release so that the “punitive” element of the offence is secondary to the primary purpose of “prevention” of disorder. The Court considers that awards of additional days were, from any viewpoint, imposed after a finding of culpability (see Benham, cited above, p. 756, § 56) to punish the applicants for the offences they had committed and to prevent further offending by them and other prisoners. It does not find persuasive the Government's argument distinguishing between the punishment and deterrent aims of the offences in question, these objectives not being mutually exclusive (see Öztürk, cited above, pp. 20-21, § 53) and being recognised as characteristic features of criminal penalties (see paragraph 102 above).
106. Accordingly, the Court considers that these factors, even if they were not of themselves sufficient to lead to the conclusion that the offences with which the applicants were charged are to be regarded as “criminal” for Convention purposes, clearly give them a certain colouring which does not entirely coincide with that of a purely disciplinary matter.
107. The Court finds, as did the Chamber, that it is therefore necessary to turn to the third criterion: the nature and degree of severity of the penalty that the applicants risked incurring (see Engel and Others, pp. 34-35, § 82, and Campbell and Fell, pp. 37-38, § 72, both cited above).”
“Remission with respect to a prison sentence is not a right but is something that reflects good behaviour and the like. Any misbehaviour which in this instance was escaping from lawful custody will always have the potential to impact on the loss of remission. As I said, the remission is effectively a reward for good behaviour. Bad behaviour means you lose the right to that reward. It is not in itself an additional punishment; it is the removal of the benefit.”
“27 (1) All convicted prisoners shall be classified in accordance with the procedures prescribed in Commissioners Orders.
(2) For the purposes of the initial classification a date of release shall be determined which shall be calculated on the basis of a remission of one-third of the sentence for any term of imprisonment exceeding one month.
(3) Notwithstanding subsection (2), where the sentence of the prisoner includes a non-parole period fixed by a court in accordance with section 18 of the Sentencing and Penalties Act 2009, for the purposes of the initial classification, the date of release for the prisoner shall be determined on the basis of a remission of one-third of the sentence not taking into account the non-parole period.
(4) For the avoidance of doubt, where the sentence of a prisoner includes a non-parole period fixed by a court in accordance with section 18 of the Sentencing and Penalties Act 2009, the prisoner must serve the full term of the non-parole period.
(5) Subsections (3) and (4) apply to any sentence delivered before or after the commencement of the Corrections Service (Amendment) Act.”
“permits an inmate who has “applied himself industriously” to the prison program, to serve part of his sentence outside the prison. The privilege of remission (it is not a right) is conferred as a matter of prison administration to provide incentives to inmates to rehabilitate themselves and cooperate in the orderly running of the prison. The removal of that privilege for conduct that violates these standards is equally a matter of internal prison discipline. Forfeiture of remission does not constitute the imposition of a sentence of imprisonment by the superintendent, but merely represents the loss of a privilege dependant on good behaviour....
I conclude that the sanctions conferred on the superintendent for prison misconduct do not constitute “true penal consequences” within the R v. Wigglesworth test.”
“Prisons within prisons have been known to man as long as prisons have existed. As soon as castles had dungeons there were special locations within those dungeons for torture and for solitary confinement. The grievous effects of solitary confinement have been almost instinctively appreciated since imprisonment was devised as a means of punishment. Prisons within prisons exist today, exemplified by solitary confinement.
The complete isolation of an inmate from other is quite different from confinement to a penal institution where some form of contact with people both inside and outside is the norm. Close or solitary confinement is a severe form of punishment. The vast majority of the human race is gregarious in nature. To be deprived of human companionship for a period of up to 30 days can and must have very serious consequences. Literature of yesteryear and today is replete with the deterrent effects of such punishment.
...
I would conclude, therefore, that solitary confinement must be treated as a distinct form of punishment and that its imposition within a prison constitutes a true penal consequence.
...
In my view, the loss of earned remission or of the ability to earn remission which is also contemplated as a possible penalty under s. 31 (2) is likewise a penal consequence attaching to a serious breach of discipline. While the opportunity to earn remission might well be a privilege, once it has been earned it should in the ordinary course of events be viewed as an acquired right. Although it may technically correct to say that earned remission does not reduce the length of a sentence, its true penal effect is to do precisely that. To every inmate the significant portion of the sentence is the time served within the prison. Imprisonment means the denial of freedom of movement and the segregation or isolation of an inmate from society. That being so, then the real termination of a prison sentence, certainly from the perspective of the inmate, is the moment when he or she is permitted to reintegrate into society. It is that freedom of movement and the ability to interact with others which is so very important to every individual. From the point of view of the inmate, any shortening of the period of confinement through earned remission has the same effect as a reduction of sentence.”
“The nature and severity of the penalty which was “liable to be imposed” on the applicants (see Engel and Others, cited above, pp. 34-35, § 82) are determined by reference to the maximum potential penalty for which the relevant law provides (see Campbell and Fell, cited above, pp. 37-38, § 72; Weber v. Switzerland, judgment of 22 May 1990, Series A no. 177, p. 18, § 34; Demicoli v. Malta, judgment of 27 August 1991, Series A no. 210, p. 17, § 34; Benham, cited above, p. 756, § 56; and Garyfallou AEBE, cited above, p. 1810, §§ 33-34).
The actual penalty imposed is relevant to the determination (see Campbell and Fell, cited above, p. 38, § 73, and Bendenoun, cited above, p. 20, § 47) but it cannot diminish the importance of what was initially at stake (see Engel and Others, cited above, p. 36, § 85, together with Demicoli, Garyfallou AEBE and Weber, loc. cit.).
121. Turning therefore to the nature of the penalties in question in the present case, the Court notes that the parties did not dispute the Chamber's observations concerning the effect in domestic law of the award of additional days under the 1991 Act. The Chamber found in this connection that remission of part of a prisoner's sentence was initially considered in domestic law to be a privilege which could be granted and taken away at the discretion of the authorities, and to which the prisoner had no legal entitlement. However, prior to the 1991 Act, the domestic courts had already come to reject the notion that remission was a privilege and that prisoners who had lost remission had not lost anything to which they were entitled. The courts considered that, if remission was not a legal “right”, prisoners had at least a legitimate expectation of release on the expiry of the relevant period (see paragraph 42 above). In Campbell and Fell (pp. 37-38, § 72), the Court accepted that the practice of granting remission, as it existed at that time, was such that it created in the prisoner a legitimate expectation that he or she would recover his or her liberty before the end of the term of imprisonment and that forfeiture of remission had the effect of causing the detention to continue beyond the period corresponding to that expectation. The Court found support for that view in the judgment of Lord Justice Waller in R. v. Hull Prison Board of Visitors, ex parte St Germain and Others (cited above).
The Court does not see any reason to depart from this analysis made by the Chamber of domestic law prior to the 1991 Act.
122. The Court therefore considers, as did the Chamber, that the effect of the 1991 Act was to introduce more transparency into what was already inherent in the system of grants of remission. While it abandoned the term “loss of remission” in favour of “awards of additional days”, the 1991 Act embodied in law what had already been the reality in practice. Accordingly, any right to release did not arise until the expiry of any additional days awarded under section 42 of the 1991 Act. The legal basis for detention during those additional days continued therefore to be the original conviction and sentence.
123. As noted by Lord Chief Justice Woolf in R. v. the Secretary of State for the Home Department, ex parte Carroll, Al-Hasan and Greenfield (see paragraph 52 above), the award of additional days did not increase a prisoner's sentence as a matter of domestic law. The applicants' custody during the additional days awarded was thus clearly lawful under domestic law. Nevertheless, the Court does not consider that this goes to the heart of the question of the precise nature of the penalty of additional days. As recently demonstrated by the Court in Stafford v. the United Kingdom ([GC], no. 46295/99, §§ 64 and 79, ECHR 2002-IV), the Court's case-law indicates that it may be necessary to look beyond the appearances and the language used and concentrate on the realities of the situation. The reality of awards of additional days was that prisoners were detained in prison beyond the date on which they would otherwise have been released, as a consequence of separate disciplinary proceedings which were legally unconnected to the original conviction and sentence.
124. Accordingly, the Court finds that awards of additional days by the governor constitute fresh deprivations of liberty imposed for punitive reasons after a finding of culpability (see paragraph 105 above).”
“1. In situations where a serious criminal offence appears to have occurred the police should be contacted immediately.
2. Where the charge is escape or assault or act of violence, the adjudicator will confirm with the Office of the Director of Public Prosecutions whether the prisoner is or has been prosecuted for the same offence. If so, it would be double jeopardy to continue with the adjudication of that charge.”[44]
................................................
Seini K Puamau
RESIDENT MAGISTRATE
Dated at Lautoka this 22nd day of October 2020.
[1] He must serve a minimum term of 20 years before he is eligible to apply for a pardon from the President of the Republic of Fiji.
[2] See: Rocatikeda v. State [2020] FJCA 47; AAU135.2016 (29 April 2020); State v. Noa – Sentence [2015] FJHC 939; HAC089.2010L (1 December 2015) and Tawatatau v. State [2020] FJCA 58; AAU040.2017 (20 May 2020).
[3] The prison charge incorrectly references provisions from the now repealed Prisons Act, Cap. 86 and the old Prisons Regulations, also now repealed. However, since the prison proceedings are not before me for consideration except insofar as they pertain to the
plea in bar, I have no jurisdiction to consider whether an error was in fact made in respect of the prison charge and what, if any,
remedy is available to these defendants should an error be found in the first place. I put this discrete issue to the side.
[4] See Regulation 16 (1) of the Corrections Service Regulation 2011.
[5] See Regulation 16 (2) of the Corrections Service Regulation 2011.
[6] See Regulation 16 of the Corrections Service Regulations 2011. Each of them complained that the prison tribunal did not adhere strictly to the due process requirements of Regulation 14 but again,
I have no jurisdiction to consider the lack of due process complaint raised. I put this second discrete issue to the side.
[7] See Order No. 7, rule 3 of the Commissioner’s Local Orders 2011.
[8] See section 27 (2) of the Corrections Service Act 2009.
[9] Cf Timo v. State [2019] FJSC 22; CAV 0022.2018 (30 August 2019) at [42].
[10] See section 28 (1) of the Corrections Service Act 2009 and see also Order No. 11, rule 3 of the Commissioner’s Local Orders 2011 and Order No. 7, rule 2 of the Commissioner’s Orders 2011.
[11] See Order 7, rule 2.3 of the Commissioner’s Orders 2011.
[12] Again, I must emphasise that it is not within the jurisdiction of this court at this time to review the prison tribunal proceedings.
The prison tribunal proceedings are referenced and examined in the sole context of determining the validity of the plea in bar raised
in respect of these criminal trial proceedings.
[13] See the definition for “indictable offence” at section 2 of the Criminal Procedure Act 2009 and see also section 198 of the Criminal Procedure Act 2009.
[14] No definitive threshold has been set for the exercise of this discretion.
[15] Cambridge English Dictionary at https://dictionary.cambridge.org/dictionary/english/remit (accessed on 8 October 2020).
[16] For example, in instances where an application implicates the inherent jurisdiction of the High Court: State v. Rajesh Kumar and Atish Vinod 2020] FJMC 106; Criminal Case 142 of 2015 (13 July 2020); or where an application involves a provision under Part XIV of the Criminal Procedure Act 2009: State v. Tawatatau [2017] FJMC 11; Criminal Case 886.2011 (12 January 2017). However, it is well-settled that appeals from the Magistrates’ Court in extended
jurisdiction, like the High Court, will go directly to the Court of Appeal pursuant to section 21 of the Court of Appeal Act 1949: see Sharma v. State [2015] FJCA 174; AAU0012.2015 (23 December 2015); Kirikiti v. State [2014] FJCA 223; AAU00055.2011 (7 April 2014) and State v. Prasad [2019] FJCA 18; AAU123.2014 (7 March 2019).
The question of the applicability of section 151 of the Criminal Procedure Act 2009 to instances where costs are imposed by a Magistrate dealing with an indictable matter under the grant of extended jurisdiction also
falls to be considered and determined. There is no right to an interlocutory appeal in criminal trial cases except and unless specifically provided by statute. There is no right of interlocutory appeal from costs orders in the High Court: see State v. Khan [2019] FJCA 257; AAU069.2013 (28 November 2019). The question, if it is to be answered in the future, may lie the interpretation of the word “Magistrate” at section 151
of the Criminal Procedure Act 2009. Section 101 of the Constitution, section 2 of the Criminal Procedure Act 2009 and section 2 and section 3 of the Magistrates’ Court Act 1944 may become relevant for that purpose.
[17] See State v. Kumar and Vinod [2020] FJMC 106; Criminal Case 142 of 2015 (13 July 2020). See also Caniogo v. State [2011] FJHC 711; HAA019.2011 (30 September 2011); Sharma v. State [2015] FJCA 174; AAU0012.2015 (23 December 2015) at [3]; Boila v. State, Criminal Miscellaneous Case No. HAM 136 of 2019 (unreported, 31 July 2019) at [5], [20] and [21]; Usa v. State [2019] FJCA 179; AAU81.2016 (25 September 2019) at [1] and [2]; and Saukelea v. State [2019] FJSC 24; CAV0030.2018 (30 August 2019) at [10].
[18] As opposed to via the common law. See also: Sawer, G, 'Autrefois Acquit and Decision Not on the Merits', Res Judicatae, vol. 2, no. 3, 1939, p. 203 available online at:
http://classic.austlii.edu.au/au/journals/ResJud/1941/50.pdf (last accessed on 8 October 2020). See also R v. Riddle [1980] 1 S.C.R 380.
[19] See also R v. Ali et al, supra at [29].
[20] R v. Connelly supra at 421E – 423A
[21] See also R v. Ali et al [2011] EWCA Crim 1260 at [70] obiter.
[22] Now abrogated. Its mirror provision is found at section 14 (1) of the Constitution of the Republic of Fiji.
[23] Referring here to the learned High Court judge’s observations that it was “not clear whether the appellants were disciplined
for the same conduct, or whether it was conduct arising from the hostage situation.” Although not remarked upon in Tawatatau v. State supra, it is clear Cerevakawalu v. State (No. 2) supra, that the reality of the matter was that the disciplinary offence was different from the common offence charged.
[24] The respondent being the State.
[25] See Savu v. The State [2004] FJHC 210; HAM0033D.2004S (7 June 2004).
[26] See Blockburger v. United [1932] USSC 4; 284 U.S.299, 304 [1932] USSC 4;, 52 S.Ct 180, 182 [1932] USSC 4;, 76 L.Ed. 306 (1932) and Brown v. Ohio [1977] USSC 108; 432 U.S. 161; 97 S.Ct. 2221; 53 L.Ed.2d.187; No. 75 – 6933 (16 June 1977).
[27] Kidd, C. J. F. “Disciplinary Proceedings and the Right to a Fair Criminal Trial under the European Convention on Human Rights.”
The International and Comparative Law Quarterly, vol. 36, no. 4, 1987, pp. 856–872. JSTOR, www.jstor.org/stable/760357. Accessed 27 May 2020.
[28] Ozturk v. Germany [1984] ECHR 1; (1984) 6 E.H.R.R. 409 at p. 678.
[29] Ibid
[30] Idem, p 678 – 679.
[31] See R v. Wigglesworth [1987] 2 SCR 541
[32] See Engel, supra, Ozturk, supra and Ezeh and Connors v. The United Kingdom: ECHR 9 October 2003; 40086/98, 39665/98, Times 30-Oct-2003, [2003] ECHR 485.
[33] See R v. Wigglesworth, supra.
[34] See R v. Rogers 2006 SCC 15, [2006] 1 S.C.R. 554 at [52] and Canada (Attorney-General) v. Whaling 2014 SCC 20, [2014] 1 SCR 392
[35] See R v Shubley [1990] 1 SCR 3 (minority decision) and Ezeh and Connors, supra.
[36] See R v. Wigglesworth at [16]
[37] In respect of this last, the Supreme Court of Canada distinguished between fines subsequently used to benefit the Force as opposed
to going to the Consolidated Fund. In the case of the former, this was clear indication that the purpose of punishment was to maintain
internal discipline. In the case of the latter, that would be clear indication that the fine was imposed for the purpose of redressing
a wrong done to society.
[38] See R v. Wigglesworth at [26].
[39] See also See also Misioka v. State [2008] FJSC 54; CAV0012.2007 (25 February 2008).
[40] See s. 27 of the Corrections Service Act 2006.
[41] See s. 28 of the Corrections Service Act 2006.
[42] Concise Oxford English Dictionary: 12th Edition.
[43] Memorandums of Understanding of this nature have been signed between prosecuting authorities and Prison Tribunals in the United Kingdom
as can be seen from the domestic decisions from the United Kingdom cited through this decision.
[44] See R v. Robinson supra.
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