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Fiji Islands - FLR Volume 18 - Digest & Index |
THE FIJI LAW REPORTS
of cases decided in
THE FIJI COURT OF APPEAL
and
THE SUPREME COURT OF FIJI1972
VOLUME 18This volume may be cited as “18 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
AGRICULTURE
Agricultural produce – assignment of proceeds by Fijian – unincorporated association of Fijians – assignment signed by President and Secretary on behalf of all – whether all members bound by approval given to document – agency – Agricultural Produce (Authorities by Fijians) Ordinance (Cap.205) ss. 2, 3.
75
APPEAL
Admission to practise as barrister and solicitor – power of admission or refusal vested in Chief Justice personally – no right of appeal from his decision – Legal Practitioners Ordinance (Cap.228) ss. 3, 9 (1) (2), 10, 11, 13 (3), 15 (3), 18, 21, 23, 25, 26, 31, 31 (2), 33 ®, 58, 65, 73 (1), 74.
175
Divorce – summary procedure – evidence taken before magistrate – magistrate in best position to assess credibility.
41
Evidence and proof – question of fact – inferences from facts specifically found – position of Court of Appeal in relation to findings of fact.
83
Findings of fact – Court of Appeal drawing different inferences from primary facts found by trial court.
199
Primary facts – magistrate’s findings based on his view of veracity of witnesses – appellate court will not interfere except for convincing and compelling reasons.
116
Second appeal to Court of Appeal on question of law – magistrate’s conclusions from primary facts – findings of Supreme Court that conclusion not supported by fit evidence – question of law – Court of Appeal Ordinance (Cap.8) s.12 (1) (d).
156
BRITISH SOLOMON ISLANDS PROTECTORATE
See Criminal Law
CONSTITUTIONAL LAW
See Public Service Commission
CONTEMPT OF COURT
Practice and procedure – contempt committed otherwise than in connection with any proceedings – criminal contempt – appeal from order under the provisions and procedure governing appeals in criminal cases – Supreme Court Rules 1968, Order 52 (as applied) rr.1 (1) (2) (3) – Supreme Court Rules 1968, r. 6 (20 – Court of Appeal Ordinance (Cap.8) s.21.
90
Real offence is wrong to public by weakening authority and influence of tribunal – temperate and fair criticism permissible – criticism actuated by malice or imputing improper motives is contempt – supreme Court constituted by three judges sitting on application for committal – jurisdiction – sentence – apology – Criminal Procedure Code (Cap.14) s. 246 (1) – Supreme Court Ordinance (Cap.9) ss. 6 (2), 7, 31 (1) – Supreme Court Ordinance (Cap. 4 – Laws of Fiji 1955) s. 45 – Interpretation Ordinance 1967, s.2 (4) – Penal Code (Cap.11) s.128.
90
CRIMINAL LAW
Charge
Duplicity – permissible to include burglary and larceny in same count.
220
Judgment
Whether magistrate’s judgment sufficient to comply with section 154 of the Criminal Procedure Code (Cap.14) – no necessity to state reasons for acceptance of evidence of any particular witness – Minor Offences Act 1971, ss.2, 4 – Penal Code (Cap. 11) s. 98 (b).
129
Evidence and Proof
Confession – earlier statements ruled inadmissible – possibility of continuing effect of earlier occurrences on mind of accused a question of fact for the judge.
68
Confession – trial within trial – suggestion of fabrication of statements put to police witnesses – no evidence given by accused in support – trial judge’s ruling – Court of Appeal Ordinance (Cap. 8) s. 23 (1).
54
Corroboration – nature of – sexual offence
64
Evidence of intoxication – lay witness may give general impression as to whether an accused person has taken drink – Traffic Ordinance (Cap.152) s. 39 (1).
114
Secondary evidence of original document claimed to have been lost – Photostat copies – proof of existence of original – evidence of due and diligent search – Penal Code (Cap.11) s. 340.
1
Statement by accused ruled inadmissible – statement not to be put to accused in cross-examination though information derived from it may be used.
Marika Yalimaiwai v. Reginam
134
Submission of no case to answer – principles applicable.
101
Unsworn statement by accused – trial within trial – cross-examination of person making voluntary statement – meaning of “in custody”.
47
Whether offence proved to have taken place in a “public place” – court entitled to use general information and knowledge of common affairs – inquiry office at police station – Minor Offences Act 1971, ss. 2, 4 – Penal Code (Cap. 11) s. 98 (b) – Penal Code (Cap. 8 – 1955) s.4.
129
Witness refreshing memory – list of banknotes made by witness – no independent memory – list put in as exhibit – not valid ground of appeal.
204
Insanity
Defence of insanity in trial for murder – meaning of “incapable of understanding what he is doing” – Penal Code (Cap. 11) s.12.
171
Plea
On a plea of guilty court should record actual words used by accused – undesirable to accepts as established by plea facts of which the accused may have no personal knowledge – analyst’s and medical reports should be tendered and accused informed of content’s – Dangerous Drugs Ordinance (Cap.95) ss. 8(b), 39 (2) (b).
61
Plea of guilty substituted for not guilty – accused legally represented – claim that freedom of choice destroyed by counsel’s advice – Penal Code (Cap. 11) ss. 218 (2), 277, 360 (1).
23
Practice and Procedure
See also Plea
Judge differing from opinions of assessors – necessity for cogent reasons for doing so founded on evidence and reflected in judgment – judge’s own emphatic conclusion sufficient reason – Penal Code (Cap. 11) ss. 205 (1), 228.
68
Preliminary inquiry – no evidence offered – accused entitled to discharge only – not operating as a bar to further proceedings or as an acquittal – Criminal Procedure Code (Cap.14) ss.71, 192 (1), 222, Part 6, Part 8 – Penal Code (Cap.11) ss.306 © (i), 340 (1).
127
Rule against duplicity – permissible to include a charge of burglary and one of larceny in the same count – Criminal Procedure Code (Cap. 14) s.212 (3), 2nd Schedule Form 9 – Penal Code (Cap.11) ss.302, 332 (a), 332 (b) (ii).
220
Statement by accused ruled inadmissible – may not be put to accused in cross-examination – information derived there from may be used provided source not disclosed – Penal Code (Cap.11) s. 347 91) (a).
Marika Yalimaiwai v. Reginam
134
Trial within trial – knowledge of assessors – discretion of judge – distinction between reference to fact to trial within trial and disclosure of evidence or proceedings thereat – witness – refreshing memory – no independent recollection – practice.
204
View by magistrate in absence of accused – use made in judgment of information so obtained – whether irregularity vitiating trial – Criminal Procedure Code (Cap.14) s.183.
122
Principles of Criminal Liability
Mens rea – manslaughter – unlawful act causing death – must be recognisable as subjecting the other to risk of harm, though not serious harm – Penal Code (Cap.11) s.227.
32
Whether appropriate to base conviction of manslaughter on ground of use of excessive force in self defence – authorities considered – Penal Code (Cap.11) s. 17.
101
Revision
See Sentence
Sentence
Fraudulent application of money by a public servant – special position of trust outweighing personal considerations – appellate court’s function in relation to sentence based on grounds of injustice, not mercy – Penal Code (Cap. 11) ss. 306, 306 (b) (ii), 306 (c) (ii) – Criminal Procedure Code (Cap.14) ss.80 (2), 123 (a) (ii), 123 (a) (iii), 123 (j), 197 (1).
222
Dangerous driving causing death – whether imprisonment appropriate – deliberate acts known to involve danger seriously regarded – Penal Code (Cap.11) s. 269 – Traffic Ordinance (Cap.152) s.38.
167
Order for imprisonment in default of payment of fine – such order not to be made to operate concurrently with a substantive sentence of imprisonment – Minor Offences Act 1971, s.4 – Penal Code (Cap. 11) s.30 (1) (d) (i).
218
Suspended sentence – subsequent offences committed towards end of period of operation of suspension – relevance – sentence activated – appeal out of time against original sentence – observation on intention behind suspension of sentences – Penal Code (Cap.11) ss.28 B (1) (b), 28B (1) (d), 81, 277, 288 – Penal Code (Amendment) Ordinance 1969, s.4.
27
Unlawful possession of drugs – improper to take into consideration in assessing a fine a breach of a bail recognizance – wrong in principle to allow time for payment of a fine and then order that the person concern be held in custody during that time – practice as to plea of guilty – Dangerous Drugs Ordinances (Cap. 95) ss. 9 (b), 39 (2) (b) – Criminal Procedure Code (Cap. 14) ss.117, 197 (2).
61
Sexual Offences
See also Witness
Complaint – absence of specific reference to sexual nature of assault – complaint made to persons not members of complainant’s family – corroboration – function of.
64
Trial
Observation by magistrate on veracity of accomplice witness during his cross-examination – possible infringement of principle that justice must manifestly be seen to be done.
Marika Yalimaiwai v. Reginam
134
Submission of no case to answer – principles applicable – mere scintilla or worthless evidence insufficient – question whether manslaughter verdict appropriate on ground of excessive force in self defence considered – Penal Code (Cap.11) ss.17, 228 (1) – Indian Penal Code, s.300 – Tanganyika Penal Code s.18.
101
Trial within trial – fabrication of statement suggested but not supported by evidence – trial judge’s ruling.
54
View of scene by magistrate – accused not present nor given opportunity to be present – magistrate making use of information so obtained in deciding essential ingredient of offence – trial vitiated – Minor Offences Act 1971, ss. 2, 4 – Criminal Procedure Code (Cap.14) s.183.
122
Witness
Complaint in charge of attempted rape nearly fifteen years at time of giving evidence – evidence given upon oath – whether judge should have made prior enquiry as to her understanding of nature of oath – Criminal Procedure Code (Cap.4 – B.S.I.P. Revised Laws 1969) s.134.
64
Cross-examination to credit – possibility of hearsay answer – statement of witness put in for purposes of cross-examination – warning to assessors.
204
General
Homicide – defence of insanity in trial for murder – meaning of “incapable of understanding what he is doing” – Penal Code (Cap.11) s.12.
171
Preliminary inquiry – no evidence offered – power of magistrate limited to ordering discharge not acquittal – Criminal Procedure Code (Cap 14) ss. 71, 192 (1), 222, part 6, Part 8.
127
Summing up – standard of proof – credibility of witnesses – unsworn statement by accused from dock – direction on weight.
47
DAMAGES
Agreement for sale and purchase of native leasehold – consent of Native Land Trust Board not obtained – agreement inoperative – no damages claimable by purchaser on repudiation by vendor – deposit recoverable with interest – possibility of enforcement of contract by purchaser discussed – Native Land Trust ordinance (Cap.115) s.12 – Law Reform (Miscellaneous Provisions) (Death and Interest) Ordinance (Cap.20).
141
Fatal accident – collision between motor vehicle and train engine – findings of fact – finding of no contributory negligence by Supreme Court reversed on appeal – apportionment of negligence.
199
Libel – matters of aggravation – publication in newspaper – loss of income attributable to the libel.
83
Personal injuries – collision between motor vehicles – loss of earning capacity – future pain and expense from arthritis – loss of amenities of life.
111
DEED
Construction – to be read as a whole – reference to recitals where operative part doubtful.
187
DIVORCE
Summary procedure – evidence taken by magistrate – magistrate in best position to assess credibility – petition on ground of five years’ separation – adultery by petitioner not cause of separation – court’s discretion – whether decree harsh and oppressive or contrary to public interest – petitioner about to emigrate – maintenance – Matrimonial Causes Ordinance 1968, ss. 15 (a), 24 (1) (2) (3).
41
EVIDENCE AND PROOF
Collision between motor vehicles – ownership of defendant’s vehicle proved – no direct evidence that driver servant or agent of owners – presumption arising from ownership in absence of evidence to contrary.
20
Magistrate’s view of primary facts based on his assessment of veracity of witnesses – appellate court will not interfere without convincing and compelling reasons.
116
HUSBAND AND WIFE
Maintenance – decree for dissolution of marriage – husband petitioner about to emigrate – decree not to be pronounced until arrangements for payment of maintenance made to satisfaction of magistrate – Matrimonial Causes Ordinance 1968, s.24 (2).
41
INCOME TAX
Trust deed – whether interests of beneficiaries contingent or vested – construction of deed – Income Tax Ordinance (Cap.176) ss.11 (3) (a), 11 (3) (b) – Court of Appeal Ordinance (Cap.8) s.12 (1) (d).
187
INTERPRETATION
Ordinance – general-purpose of legislation – protective nature – Agricultural Produce (Authorities by Fijians) Ordinance (Cap. 202) ss.2, 3.
75
JUDICIAL NOTICE
See Criminal Law – Evidence and Proof
JURISDICTION
Court – action for money due under a contract – plaintiff company carrying on business in Fiji – nothing in pleadings indicating where payment to be made – debtor’s duty to seek out creditor – defendant acting under business name – personal residence of defendant in Fiji – Magistrates’ Courts Rules (Cap. 10) 0.13 r.1 (a) – Supreme Court Rules 1968, 0.11 4.1 (g).
10
LAND
See also Native Land
Ejectment – summary procedure – basic facts not in dispute – procedure appropriate – Land Transfer Act 1971, ss.39, 169.
152
LANDLORD AND TENANT
Native leasehold – expiry of sublease of part – action for possession – claim to right of renewal based on earlier agreement but not expressed in sub-lease – whether agreement and sublease interdependent – if so, agreement merged in sublease – question of consent of Commissioner of Lands – Native Land Trust Ordinance (Cap. 115) s.12.
14
LIBEL
Publication – proof of annual meeting of society – burning of effigy and display of placards – no evidence that persons concerned acted on behalf of society – inference that secretary and treasurer by mere presence parties to publication unjustified – damages – matters of aggravation – publication in newspaper – loss of income.
83
LAW PRACTITIONERS
See also Contempt of Court
Admission to practise as barrister and solicitor – power to admit or refuse admission vested in Chief Justice personally – exercise of power does not result in decision of court – n right of appeal to Court of Appeal – Legal Practitioners Ordinance (Cap.228) ss.3, 9 (1) (2); 10; 11; 13 (3); 18; 21; 23; 25; 26; 31 (2); 33 (r); 58; 65; 73 (1); 74 – Barristers & Solicitors (Admission) Rules (Cap.228) r.8(2) – Legal Practitioners Ordinance 1965 – Court of Appeal Ordinance (Cap.8) ss.2(1), 12, 12(2) (c) – Supreme Court (Admission of Barristers and Solicitors) Rules r.7 – Supreme Court Ordinance (Cap.4 – 1955) s.7 – Summary Jurisdiction Act 1879 (42 & 43 Vict., c.49) s.50 – Summary Jurisdiction Act 1884 (47 & 48 Vict., c.43) s.7 – Solicitors Act 1843 (6 & 7 Vitc., c.73) s.37 – Solicitors Act 1877 (40 & 41 Vict., c.25) – Solicitors Act 1888 (51 & 52 Vict., c.65) s.10 – Solicitors Act 1932 (22 & 23 Geo. 5, c.37) ss.64 – 7 – Solicitors Act 1957 ( 5 & 6 Eliz. 2, c.27) s.6 – Lands Clauses Consolidation Act 1845 (8 & 9 Vict., c.18).
175
Solicitor – acting for both parties in preparation of agreement for sale and purchase – litigation ensuing some fourteen years later – no duty precluding solicitor from acting for one of the parties in the litigation.
152
MAINTENANCE
See Husband and Wife
NATIVE LAND
Agreement For sale and purchase of native leasehold – deposit paid but no further implementation of agreement – sale subject to consent of Native Land Trust Board – vendor failing to lodge application for consent and making default – legal position of agreement in absence of consent – agreement inchoate and inoperative – whether damages recoverable – Native Land Trust Ordinance (Cap.115) s.12 – Law Reform (Miscellaneous Provisions) (Death and Interest) Ordinance (Cap.20).
141
Native leasehold – sublease – consent of Commissioner of Lands given to sublease – no right of renewal expressed in sublease – earlier agreement alleged containing right of renewal – question of consent – Native Land Trust Ordinance (Cap.115) s.12.
14
NEGLIGENCE
Action for damages for personal injury – negligent driving of motor vehicle – owner not in vehicle – driver using vehicle with consent and permission of owner – purpose of use – whether owners vicariously liable.
137
Collision between motor vehicle and train engine – finding of no contributory negligence on part of driver of motor vehicle reversed on appeal.
199
Collision between vehicles – presumption arising from proof of ownership in absence of rebutting evidence that driver servant or agent of owners.
20
Personal injury – award of damages – loss of earning capacity – future pain and expense from arthritis – loss of amenities of life.
111
PRACTICE AND PROCEDURE
See also Contempt of Court
Amendment of pleadings – may be ordered at any state if no injustice occasioned – Supreme Court Rules, 0.20 r.5.
20
Application to strike out Statement of Claim – difficult and complicated question of law involved – procedure under 0.18 r.19 Rules of the Supreme Court 1968 inappropriate – Constitution of Fiji, ss.104, 105, 105 (10), 127, 136 – Public Service Regulations 1968, re. 4 – Supreme Court Rules 1968, 0.2 r.2, 0.12 r,8, 0.15 r.6, 0.18 r.19 – Fiji Independence Order 1970.
210
Parties – striking out name of defendant – action against Public Service Commission – no power in Commission to sue or be sued in own name – action for wrongful dismissal – Constitution of Fiji ss. 104, 105, 105 (10), 127, 136 – Public Service Regulations 1968, reg. 4 – Supreme Court Rules 1968, 0.2r.2, 0.12 r.8, 0.15 r.6, 0.18 r.19 – Fiji Independence Order 1970.
210
PUBLIC SERVICE COMMISSION
Nature of Commission – government agency – Constitution of Fiji, ss.104, 105, 105 (10), 127, 136 – Public Service Regulations 1968 – Fiji Independence Order 1970.
210
REVENUE
See Income Tax
SOLOCITOR
See Law Practitioners
TORT
See Negligence
TRADE MARKS
Refusal of registration – whether words had “direct reference” to character of goods – burden of proof – Trade Marks Ordinance (Cap.212) s. 8 (1) (d)
58
TRUSTS
Whether interest contingent or vested – distinction between vested in interest and vested in possession – application of income for benefit of beneficiaries by credit in accounts.
187
UNINCORPORATED SOCIETY
Fijians – assignment of cane proceeds – signature by President and Secretary on behalf of all members approved by authorised person – effect of approval – agency – Agricultural Procedure (Authorities by Fijians) Ordinance (Cap. 205) ss.2, 3 – Interpretation Ordinance 1967, s.18 – Agricultural Produce (Authorities by Fijians) (Repeal) (Ordinance 1968.
75
WORDS AND PHRASES
- “in custody”
51
WORKMEN’S COMPENSATION
Permanent partial incapacity – difference between scheduled and other injuries – in case of non-scheduled injury on workman to show reduced earning capacity – question on onus in relation to amount of wages actually received after incapacity – finding of Supreme Court that magistrate’s conclusion not supported by fit evidence – question of law for Court of Appeal – Workmen’s Compensation Ordinance (77) ss.3, 8 (1) (a), 8 (1) (b) – Court of Appeal Ordinance (Cap.8) s.12 (1) (d) – Workmen’s Compensation Act 1925 (15 & 16 Geo. 5, c,84) s.9 (3) – Acts Interpretation Act 1924 (N.Z.) S.5 (J).
156
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