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Fiji Islands - FLR Volume 16 - Digest & Index |
THE FIJI LAW REPORTS
of cases decided in
THE FIJI COURT OF APPEAL
and
THE SUPREME COURT OF FIJI1970
VOLUME 16This volume may be cited as “16 F.L.R.”
Editor:
SIR TREVOR GOULD, Kt., LL.M. (N.Z.)
Barrister-at-law, Judge of the Fiji Court of AppealPRICE: $13.00
DIGEST AND INDEX
PAGES
APPEAL
See also British Solomon Islands Protectorate
Criminal appeal – conviction based almost entirely upon supreme Court’s assessment of credibility of main witnesses – assessors properly directed – no interference by Court of Appeal.
109
Evidence – questions of fact – evidence partly oral and partly documentary – position of Court of Appeal.
155
Practice and procedure – powers of Court of Appeal – substitution of conviction under different section – unlawful presence in Fiji – Court of Appeal Ordinance (Cap.8) s.22 (5) – Immigration Ordinance 1962, ss. 14 (2), 21 – Immigration Ordinance (Cap. 70) ss.19 (1) (i), 19 (3).
13
Practice and procedure – separate petitions of appeal from Magistrate’s Court required in respect of each separate offence.
128
BRITISH SOLOMON ISLANDS PROTECTORATE
Appeal – enlargement of time for – appeal to Court of Appeal under section 232 (4) of Lands and Titles Ordinance 1968 – limitation of three months – general power of Court of Appeal to enlarge time not applicable – lease of Land by Crown pursuant to findings of Lands Commission – validating regulation – whether intra vires – Pacific Order in Council 1893, Art. 108 – Solomon’s Land Claims Regulations 1923, regs. 2, 4 – Lands and Titles Ordinance 1968 (B.S.I.P.) ss. 232 (3) (4) (5), 232c – King’s Regulation No. 3 of 1914 – Western Pacific (Courts) Order in Council 1961 ss.19, 22, 23 – Court of Appeal Rules (No.2) 1956, r.23 – Magistrate’s Courts Act 1908 (N.Z.) ss. 3, 153 – Pacific (Amendment) Order in Council 1958, ss. 4, 5 – British Settlements Act 1887 (50 & 51 Vict., c.54) (Imp.) s.2 – Pacific Islanders Protection Act 1875 (38 & 39 Vict., c. 51) (Imp.) ss. 6, 7 – Foreign Jurisdiction Act 1890 (53 & 54 Vict., c. 37) (Imp.) ss. 1, 12.
144
CONSTITUTIONAL LAW
See British Solomon Islands Protectorate - New Hebrides
CRIMINAL LAW
Assessors
Opportunity for accused to object to appointment.
84
Trial – summing up by trial judge – several counts – appropriate
direction to assessors.
84
Charge
Larceny – charge proved in respect of only some of the articles specified in the Particulars of Offence – conviction in respect of those articles – Penal Code (Cap.11) ss. 291 (1), 294 (i), 306 (a) (i).
131
Corroboration
False declaration contrary to Penal Code (Cap.11) s.113 (1) (b) – no conviction solely on evidence of one witness as to falsity – meaning of “solely” – Penal Code s.116.
18
Sexual offence – indecent assault of female – early complaint not corroboration – identity of assailant is issue – whether evidence of distressed condition of complainant can amount to corroboration – failure by court to warn itself of danger of convicting in absence of corroboration – Penal Code (Cap.11) s. 148 (1).
202
Courts
Jurisdiction – shortened procedure prescribed by section 21 of Criminal Procedure Code (Cap. 14) – use by Magistrate’s Court for trial of offence for which not authorised – no jurisdiction to convict and sentence – trial a nullity – proviso not applicable on appeal – Penal Code (Cap. 11) ss. 28 (3), 30 (1) (a), 200 (d) – Court of Appeal Ordinance (Cap. 8) s. 22 (6).
188
Defence
Drunkenness – provocation.
102
Principle that defence case must be put to jury – application in Magistrate’s Court.
23
Self defence – carry offensive weapon – reasonable excuse – Penal Code (Cap. 11) s. 89.
52
EVIDENCE AND PROOF
Confession – persistent questioning by police – held voluntary on ample grounds.
5
Confession – voluntariness – person in authority – Judges’ Rules (L.N. No. 14 of 1967) r. 6.
84
False declaration – requirement of Penal Code s. 116 that no conviction solely on evidence of one witness as to falsity – more witnesses than one not necessarily required – one witness and something more – Penal Code (Cap.11) ss. 113 (1) (b), 116 – Arms and Ammunition Ordinance (cap.164) s. 6.
18
Homicide – evidence against boy of fourteen years confined to his statements to the police – interpretation of statements – whether inference of malice justified – Court of Appeal Ordinance (Cap.8) ss.23 (1), 36 – Penal Code (Cap.11) ss.21, 233 – Children and Young Persons Ordinance (Cap. 15) ss.12, 13 – East African Court of Appeal Rules 1954, r.41.
89
Judges’ Rules of conduct for police – breach of principle in preamble to rules – discretion of court – Judges’ Rules (L.N.No.14 of 1967) Rules 2, 3.
5
Larceny by servant – explanation by accused that he intended to return the articles not specifically rejected by magistrate – conviction quashed Penal Code (Cap.11) ss. 291 (1), 294 (i), 306 (a) (i).
131
Need for close scrutiny of the evidence of the two main prosecution witnesses – proper direction given to assessors – findings of fact depending almost entirely upon assessment of credibility – position of Court of Appeal.
109
Homicide
Evidence and proof – proof of intent – trial within a trial – no reasons given for judge’s ruling – drunkenness – provocation – Penal Code 1965 (Gilbert & Ellice Is. Col.) s. 13 (1) (4).
102
Onus of Proof
Carrying offensive weapon – sheath knife neither made nor adapted for causing injury to the person – onus on prosecution to show intended by accused for causing such injury – knife intended for self-defence – reasonable excuse – Penal Code (Cap. 11) s.89 (1) (2) (3) Criminal Procedure Code (Cap.14) s.201.
52
Practice and Procedure
Appeals by same accused against sentences imposed in respect of separate charges and separate offences – separate petitions of appeal necessary – no provision for consolidation – Penal Code (Cap.11) ss.277, 303.
128
Magistrate’s Court – shortened procedure authorised by section 212 of Criminal Procedure Code – cases to which applicable – Penal Code (Cap.11) ss.28 (3), 30 (1) (a), 200 (d), 276, 294, 313, 314, 315, 360 (1) – Criminal Procedure Code (Cap.14) ss. 33-36, 42, 154, 184, 197, 211 – Court of Appeal Ordinance (Cap.8) s.22 (6).
188
Sentence
Dangerous driving causing death – frequently punished by fine – imprisonment not wrong even in absence of grossly aggravating features – prevalence of offence of dangerous driving.
1
Fine – imprisonment in default – offender destitute widow – first offence – whether fine excessive – principle of capacity to pay – Penal Code (Cap. 11) s.38.
50
Larceny by servant – reduction of term of imprisonment – full confession and plea of guilty.
125
Passing sentence – court entitled to fullest relevant information – duty of Crown Counsel.
181
Summing Up
Onus on prosecution – method of conveying requisite standard of proof to assessors – use of expression “beyond reasonable doubt” approved.
181
Traffic Offences
Dangerous driving causing death – dangerous driving of accused a principal cause of death irrespective of question of speed of other car concerned – sentence – Court of Appeal Ordinance (Cap.8) s.22 (1).
1
Driving motor vehicle – road roller with diesel motor – used for repair of road surface – whether constructed for use on roads – proper test – Traffic Ordinance (Cap. 152) ss.2, 9 (1) (2) x 23 (1), 85 – Motor Vehicles (Third Party Insurance) Ordinance (Cap.153) s. 4 (1) (2).
61
Driving unlicensed vehicle – road to which the public has access – meaning of “public” – road on Rabi Island – status of – Traffic Ordinance (Cap. 152) ss. 2, 9 (1), 23 (1), 85 – Motor Vehicle (Third Party Insurance) Ordinance (Cap.153) s. 4 (1) (2) – Penal Code (Cap.11) s.4 – Banaban Lands Ordinance (Cap.117) s.3.
43
Notice of intended prosecution - possibility of proceedings for one or more of four specified offences – prosecution for one – validity of notice – Traffic Ordinance (Cap. 152) ss. 38 (1), 41 (a), 41 (c) – Road Traffic Act 1930 (20 & 21 Geo. 5, c.43) (Imp.) ss.11, 21 (a), 21 (c) – Criminal Procedure Code (Cap.14) s.200.
192
Trial
Assessors – nature of previous employment whether might militate against impartiality – no objection taken in Supreme Court – objection sought to be taken on appeal.
84
Witness – accused giving evidence – no impropriety in counsel for prosecution putting to him for comment other evidence given earlier.
181
General
Assaulting police officer in the due execution of his duty – intention to search person based on reasonable grounds – actions of police officer within general scope of statutory powers and common law duties – Penal Code (Cap.11) s.279 (b) – Criminal Procedure Code (Cap.14) s.18 (1).
57
Giving false information to a public servant – ingredients of offence – prima facie liability where false information intentionally given to public servant with intent specified in section – question of possible privileged position – public servant – person employed in public service – person appointed “under the provisions of any Ordinance” – Penal Code (Cap.11) ss. 4, 135 (a) – Medical and Dental Ordinance (Cap.229) ss. 3 (2), 17 (2) – Indian Penal Code, s. 182.
32
Giving false information to a public servant – ingredients of offence – to “do or omit anything” – wording of Particulars of Offence – Penal Code (Cap.11) ss. 135 (a), 200.
197
Immigration – whether presence of accused in Fiji unlawful – revised edition of laws – powers of commissioners on revision – section of Ordinance under which presence unlawful omitted from revised edition – Immigration Ordinance (Cap. 67-1955) s. 8 (4) (c) – Immigration Ordinance 1962, ss. 14 (2), 21 – Immigration Ordinance (Cap. 70) ss. 19 (1) (i), 19 (3) – Revised Edition of the Laws Ordinance 1965, ss. 4 (1), 6 (1), 7 (2) – Interpretation and General Clauses Ordinance (Cap.1) s. 13 (2) (c) – Court of Appeal Ordinance (Cap.8) s. 22 (5).
13
CROPS
Agreement for sale of land – application of cane proceeds in reduction of purchase price – effect of deferment of giving of possession of land.
39
EVIDENCE AND PROOF
See also Criminal Law – Evidence and Proof
Moneylending contract – evidence partly oral and partly documentary – appeal misdirection by court below as to weight to be attached to documentary evidence.
155
FIJIAN
Assignment of cane proceeds by Fijians – moneys paid there under – recoverability thereof – Agricultural Produce (Authorities by Fijians) Ordinance – retrospective repeal expressed to be of full force and effect from date selected – accrued rights – pending proceedings – Agricultural Produce (Authorities by Fijians) Ordinance (Cap. 205) s. 2 – Agricultural Produce (authorities by Fijians) (Repeal) Ordinance 1968, ss. 2, 3 – Interpretation Ordinance 1967, ss.18, 18 (3) (b) (c) (e) – Interpretation and General Clauses Ordinance (Cap.1) s. 13 – Agricultural Holdings Act 1908 (8 Edw.7, c.28) (Imp.) s. 11 – Interpretation Act 1889 (52 & 53 Vict., c.63) (Imp.) s.38 – Interpretation Ordinance 1900 (Ceylon c.2) s. 6(3) – Agricultural Holdings Act 1914 (4 & 5 Geo. 5, c.7) (Imp.) – Landlord and Tenant (Rent Control) Act 1949 (13 & 14 Geo. 6, c.40) (Imp.) s.10
112
GILBERT AND ELLICE ISLANDS COLONY
See Criminal Law – Homicide
IMMIGRATION
See Criminal Law – General
INTERPRETATION
Agreement for sale of land – construction – provision for payment of price by purchaser working on the land – provision for application of can proceeds in reduction of purchase price limited to proceeds of cane cut after possession given.
39
Criminal law – Penal Code (Cap.1) s.116 – meaning of “solely on the evidence of one witness.”
18
Ordinance – “motor vehicle” – test of whether constructed for use on roads – Traffic Ordinance (cap. 152) s.2.
61
Ordinance – rating – meaning of “any such overdue amount” in section 124 (2) of Towns Ordinance (Cap. 106).
47
Ordinance – repeal with retrospective effect – repeal expressed to be of full force and effect from date selected – relevant provisions of Interpretation Ordinance not negative – accrued rights – pending proceedings – Agricultural Produce (Authorities by Fijians) Ordinance (Cap.205) s. 2 – Agricultural Produced (Authorities by Fijians) (Repeal) Ordinance 1968, ss. 2, 3 – Interpretation Ordinance 1967, ss. 18 (3), 18 (3) (b) (c) (e) – Interpretation and General Clauses Ordinance (Cap. 1) s.13 – Agricultural Holdings Act 1908 (8 Edw. 7, c.28) (Imp.) s.11 – Interpretation Act 1889 (52 & 53 Vict., c.63) (Imp.) s. 38 – Interpretation Ordinance 1900 (Ceylon c.2) s. 6 (3) – Agricultural Holdings Act 1914 (3 &5 Geo. 5, c.7) (Imp.) – Landlord and Tenant (Rent Control) Act 1949 (13 & 14 Geo. 6, c.40) (Imp.) s.10.
112
Revised edition of laws – omission of section from Ordinance as revised – powers of commissioners – section not having become spent – omission ultra vires – revised edition to be the only Proper Statute Book – meaning of Statute Book – Immigration Ordinance1962, ss. 14 (2), 21 – Immigration Ordinance (Cap.70) ss.19 (1) (i), 19 (3) – Revised Edition of the Laws Ordinance 1965, ss. 4 (1), 6 (1), 7 (2).
13
LAND
See also Native Land
Agreement to lease – floor of building on land subject to the land transfer system – re-entry by lessors for breach of covenant – necessity of giving notice under section 50 (1) of Land (Transfer and Registration) Ordinance – Real Property Act 1900 (N.S.W.) s. 3 (a) – Land (Transfer and Registration) Ordinance (Cap. 136 – 1955) ss. 2, 50 (1), 50 (5) (a).
67
LANDLORD AND TENANT
See also Native Land
Land subject to the Land (Transfer and Registration) Ordinance (Cap. 136 – 1955) – agreement to lease ground floor of building thereon – applicability of section 50 (1) of Ordinance.
67
LOCAL GOVERNMENT
Rates – judgment obtained for overdue rates against earlier owner of property – right by town council to recover unpaid portion from subsequent owner – Towns Ordinance (Cap. 106) s.124 (2).
47
MERGER
Rates – judgment obtained for overdue rates against earlier owner of property – no merger so as to deprive town council of right to recover rates from person subsequently acquiring property – Towns Ordinance (Cap.106) s. 124 (2).
47
MONEYLENDING
Action by moneylender for recovery of money lent on promissory note – copy of promissory note delivered to borrower – failure to adduce affirmative evidence that copy delivered prior to lending of money as required by section 16 of Moneylenders Ordinance – in peculiar circumstances inference of due compliance with section drawn by court – Moneylenders Ordinance (Cap. 210) ss.11, 16, 18, 19, 21.
139
Memorandum of terms of contract – alleged difference between transaction so recorded and actual transaction – initial onus on moneylender – evidential onus devolving on borrower – discharge of onus – evidence – misdirection by trial judge as to weight of documentary evidence – Moneylenders Ordinance (Cap.210) ss. 16(1) (3), 19 – Bills of Sales Ordinance (Cap. 202) – Moneylenders Act 1927 (17 &18 Geo. 5, c.21) (Imp.) s. 6(2).
155
NATIVE LAND
Dealing in land – mother and son owners of native land leasehold – arrangement following upon a panchayat – whether or at what stage it amounted to a dealing in land requiring consent of Native Land Trust Board – application for consent signed by purchaser purporting to be agent of vendor – lack of agential authority – validity of consent – Native Land Trust Ordinance (Cap.115) ss.12, 27 – Native Land (Leases and Licences) Regulations (Cap.115) reg. 35 – Crown Lands Ordinance (Cap.113).
165
NATIVE LAND TRUST BOARD
Application for consent to dealing in native leasehold – application made after agreement between parties implemented – application for consent signed by assignee of leasehold as purported agent of assignor – agential authority in fact lacking – Native Land Trust Ordinance (Cap. 115) ss. 12, 27 – Native Land (Leases and Licences) Regulations (Cap.115) reg. 35 – Crown Lands Ordinance (Cap.113).
165
NEGLIGENCE
See Tort
NEW HEBRIDES
Constitutional law – laws in force – English statutes of general application in force on 1st January 1961 – Matrimonial Causes Act 1950 such a statute – whether in force in the New Hebrides in view of proviso to section 15 (1) of Western Pacific (Courts) Order in Council 1961 – no person appointed as Queen’s Proctor or Attorney-General – power of High Court to remedy deficiency – Western Pacific (Courts) Order in Council 1961 (S.I. 1961 No. 1506) ss. 1 (2), 2, 2 (2), 15 (1) (2) (3), 19, 22 – Pacific Order in Council 1893 – Court of Appeal Rules (No.2) 1956 – New Hebrides Order in Council 1922 (S.I. 1922, No. 717) ss. 2, 6, 10, Schedule – Matrimonial Causes Act 1950 (14 Geo. 6, c. 25) ss. 4, 4 (1), 10, 10 (1) (2), 12 (2) – Matrimonial Causes Rules 1957 (Imp.) r. 38 – Matrimonial Causes Ordinance (Cap.40 – Fiji) Matrimonial Proceedings Act 1963 (N>Z>) – Treasury Solicitors Act 1876 (39 & 40 Vitc., c.18) (Imp.) – Foreign Jurisdiction Act 1890 (53 & 54 Vict., c. 37) (Imp.) s. 4 – Nullum Tempus Act (9 Geo. 3, c.16) (Imp.) – Statute of Mortmain (1391; 15 ric. 2, c.5) – Australia Courts Act 1828 (commonly called the New South Wales Act) (9 Geo. 4, c. 83) (Imp.) – Lotteries Act 1823 (4 Geo. 4, c. 60) (Imp.).
71
POLICE
Assault on constable – whether acting in due course of his duty – power to arrest and search – common law duties – Penal Code (Cap. 11) s. 279 (b) – Criminal Procedure Code (Cap.14) s.18 (1).
57
PUBLIC SERVICE
Giving false information to public servant – prima facie liability where false information intentionally given with intent specified in section – definition of “person employed in the public service” – person appointed “under the provisions of any Ordinance” – Penal Code (Cap.11) ss. 4, 135 (a) – Medical and Dental Ordinance (Cap.229) ss.3 (2), 17 (2) – Indian Penal Code, s.182.
32
RABI ISLAND
Traffic offences alleged in Nuku Rd. – whether Nuku Rd. a road as defined in Traffic Ordinance – meaning of “public” – Traffic Ordinance (Cap.152) ss. 2, 9 (1), 23 (1), 85 – Motor Vehicles (Third Party Insurance) Ordinance (Cap. 153) s.4 (1) (2) – Penal Code (Cap.11) s.4 – Banaban Lands Ordinance (Cap.117) s.3.
43
RATING
See Local Government
REVISION OF LAWS
See Interpretation
ROAD
See Rabi Island
ROAD TRAFFIC
See Criminal Law – Traffic Offences Rabi Island
SALE OF GOODS
Credit sale by retail – pleading by purchaser of non-delivery of particulars of goods – onus on vendor to prove compliance with Sale of Goods Ordinance (Cap.206) s.7.
27
SALE OF LAND
Agreement for sale and purchase – growing crops – benefit of crops passing to purchaser with possession of land – Court of Appeal Ordinance (Cap.8) s.15.
39
TORT
Negligence – collision between motor vehicles – different versions of accident given by the driver of the plaintiff’s vehicle, a passenger in that vehicle, and the defendant’s driver – finding that negligence on defendant’s driver – finding that negligence on defendant’s part not affirmatively proved – whether abdication of jurisdiction by magistrate.
134
VENDOR AND PURCHASER
See Sale of Goods
Sale of Land
WORDS AND PHRASES
- “motor vehicle” – Traffic Ordinance (Cap.152) s.2.
63
- “offensive weapon” – Penal Code (Cap.11) s. 89.
54
- “public” – Traffic Ordinance (Cap.152) s. 2.
45
- “public servant” – Penal Code (Cap.11) s. 135 (a).
36
- “solely” – Penal Code (Cap.11) s.116.
21
- “Statute Book” – Revised Edition of the Laws Ordinance 1965, s.7 (2).
16
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