Professional Documents
Culture Documents
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There are several aspects of the function and structure of criminal law that
prevail in all parts of the world including the South Pacific region. Some of
these aspects or themes are outlined here.?
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Criminal law is what determines the boundaries within which the criminal
justice system operates. The criminal justice system is a system of rules and
institutions whose purpose is to ,3 the behaviour of those persons and/or
groups of persons who are subject to the criminal law. Generally, all members
of a society are subject to all of the criminal law although there may be some
aspects of the criminal law that only really apply to particular individuals or
groups within a society.?
The sort of social control that is exerted by the criminal law through the
operation of the criminal justice system could be described as µnegative¶
control because it does not seek to persuade people to act in
socially 5 ways, rather it seeks to them from acting in socially
harmful ways. The means by which it does this is through a combination of
order backed by sanction.?
This is a very general statement of how the criminal law operates and we will
see during this course that not all aspects of criminal law can be analysed in
these terms.?
However, what is true of criminal law is that the means by which it seeks to
govern social behaviour is that of the application of to those persons
or organisations who are found guilty of failing to comply with the law.?
The sanction applied will vary depending on a range of things (such as the
type of offence, the gravity of the offence, the penal policy of the
relevant. The range of sanctions may include such things as:
fines, community service, probation and imprisonment.?
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law, including the criminal law of the South pacific region must be viewed
within its context. Law does not operate within a vacuum and neither should it
be studied in one. cn order to be good students, teachers or practitioners of
law we need to be aware of how the law comes about, what influences its
development and and how it affects, both directly and indirectly,
the members of the society that are subject to its ,3.?
There are several aspects to the context of law within modern societies. cn
some societies some influences may be stronger than others. Some
influences may not be apparent at all in some societies but may be highly
important in others.?
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The law has an impact on each of these spheres and is subject to impact from
each of them from time to time.?
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The philosophies that we shall look at briefly here are those that are most
easily recognisable in estern societies such as the UK, Australia and ew
Zealand. These societies have had and continue to have a considerable
impact on the development of the Law in the Pacific region.?
oelow, you will find a very brief outline of what each of these philosophies
entails. Underlying all rationales or theories of punishment is the aim of
reducing recidivism on the part of those who have committed criminal
offences. Recidivism is another word for repeat offending.?
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cn this course, we shall focus mainly on the laws as they exist in relation to
certain criminal offences. out it is important to remember that law arises out
of ). The policy issues that arise in relation to the criminal law and the
way in which the criminal justice system operates are things for you to think
about throughout this course.?
cn many cases of law reform, the driving force is that of policy; similarly it is
policy which informs how the law is enforced and applied in practical terms.?
The law will change both in terms of substance and operation but
the for change will be one of policy.?
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This means that not all laws will be enforced all of the time; not all offenders
will be charged by the police; not all prosecutions will be carried forward by
prosecutors. Judges may not convict all persons against whom the facts
appear to have been proved and those who have been convicted of the same
or similar offences will not necessarily receive the same sentence.?
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The use of discretion can be 5 both in terms of legal theory and in
terms of how the law is enforced within society.?
cn very basic terms, this means that if the law were to operate in accordance
with such a principle, then all persons against whom there is sufficient
evidence to indicate that they have had involvement in punishable conduct
should be brought before a court for a determination of guilt and (if convicted
punishment.?
The rationale for such a principle is that it promotes equal treatment, prevents
political interference in the criminal process and may also heighten the
effectiveness of the law as a means of , ?
A more interesting question to ask about discretion within the criminal justice
system is not so much whether or not it exists but who exercises it and what
influences the decisions that they make.?
ct is generally considered less acceptable that those who are not held
accountable in any way should exercise a larger degree of discretion than
those who are.?
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oefore we can study Criminal Law, we need to know where to find it. Once we
have identified the relevant sources, we need to determine whether there is
a) to be followed when applying the law.?
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cn nearly all jurisdictions throughout the world, a written constitutional
document has been created and accepted. The constitution operates as a
kind of µhigher law¶ and it will take over any statute
or common law.?
Any legislation which is inconsistent with the terms of the constitution will be
deemed to be void, either in ) or to the extent of its inconsistency with
constitutional provisions.?
The UK does not have a single written constitutional document and therefore
there is no formalised µhigher law¶ against which other laws can be measured.
However, all of the independent countries (and those which are in free
association with some other state: Cook cslands, iue and the Republic of the
Marshall cslands within the South Pacific region have adopted a constitution
and many of these constitutions contain provisions that relate to issues of
criminal law and policy.?
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The primary source of criminal law within the South Pacific region is locally
enacted legislation in the form of a Crimes Act or Penal Code. These
documents set out offences and the relevant penalties.?
The rules that apply to issues of Criminal Procedure are contained in a piece
of legislation such as a Criminal Procedure Code. cn addition, there are
specific pieces of legislation that are relevant to specific aspects of criminal
procedure. Examples are the Magistrates' Courts Act in Fiji cslands (Cap.14,
the oail Act1990 (as amended in Tonga and the Suspension of Sentences
Act in Vanuatu (Cap.67.?
cn this part of the world, there is a preference for adopting a codified approach
to law and so it is possible to look to one source for a comprehensive
statement of what the law is at any one time.?
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This is not the situation in the UK where there is a mixture of common law
offences and those contained in a range of statutes. There have been some
attempts to introduce codification into the Anglo-elsh legal system. Some of
these have been accepted, such as the Theft Acts and others have not, such
as the Draft Criminal Code.?
Most of these regional codes are colonial models that have been retained
further to the various jurisdictions gaining independence. Other versions
of these codes exist elsewhere in the world. The penal codes of Solomon
cslands, Kiribati, Tuvalu and Fiji cslands largely resemble the Criminal Code of
Queensland and estern Australia. The Criminal Code of Queensland applies
in auru by virtue of s.13 of the Laws Repeal and Adopting Ordinance 1922-
1936 (Australia?
See the Queensland Criminal Code Act of 1899. This Code is often referred to
as the µGriffith¶ Code after Sir Samuel Griffith, its drafter although it is largely
based on a draft Code compiled by Stephen which was never enacted in
England and ales but which was exported to several oritish colonies and
protectorates including Fiji cslands and Solomon cslands.?
The Vanuatu Penal Code is a recent and original code, having been enacted
in 1981.?
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During the colonial period, such legislation was deemed to apply in oritish
colonies as well as in the UK. As the colonies attained independence, each
determined a means by which such law would cease to apply within that
particular jurisdiction.?
So, for example, in Kiribati, Solomon cslands and Tuvalu, the µcut-off¶ date that
signified the date after which any new UK legislation would cease to apply
was 1 January, 1961. Pre-1961 legislation continues to apply (in the absence
of relevant local legislation unless it is considered unsuitable to local
circumstances.?
out this does not mean that all UK statutes apply in this jurisdiction. here
Tonga has enacted its own legislation in a particular area then the UK
legislation will have no application. here Tonga has not enacted its own
legislation in a given area, the UK legislation may apply depending on how
well it is suited to the particular circumstances and conditions that prevail at
the time.?
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Common law both from the Pacific region and from the UK (England & ales
continues to have a role to play in the Criminal Law that we shall be studying.?
The impact of common law may vary from jurisdiction to jurisdiction. cn the
absence of a body of local case law it is difficult to identify local case
law )and therefore it may be necessary to continue to rely on
authority from outside the jurisdiction or possibly even from outside the region
(particularly from England & ales in order to help us with the more complex
areas of interpretation.?
See below for more explanation as to how common law decisions may be
dealt with in Pacific jurisdictions.?
The general rules of precedent apply in the courts of the region. cn relation to
Samoa, the doctrine was summarised by St. John CJ as follows:
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Cases that have been decided within the particular jurisdiction and
whose u concerns the interpretation of particular legislative provisions will
constitute5,authority on lower or equivalent courts.?
Cases that have been decided in another jurisdiction within the South Pacific
region may be 3 authority in the absence of any local case-law
decision on a given point. The weight that they carry will depend on several
things including whether one is citing the
of a case or something that
is uand the extent of the similarity between the point addressed by the
decided case and the point under consideration in the current case.?
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cn some jurisdictions of the South Pacific region, it is the case that principles
of common law and equity are automatically in force. For example, s.615 of
theCook cslands Act 1915 ( Z reads:
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This section raises several issues of interest. ct is important to note that this
section does not have the effect of making ' ,
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jurisdictions. Rather, it would appear to make available an additional resource
for making determinations as to how the provisions of the Code are to be
interpreted.
Further, the use of the phrase ' , ' would
appear to be sufficiently wide to include principles that have been
encapsulated in statutory provisions in addition to those enunciated in case
law decisions. Coupled with this, there is nothing in this section to indicate that
the relevant ' ' are those of a particular time, before the relevant
cut-off date.
Finally, such a provision leaves open the possibility of the criminal law in
jurisdictions where it applies developing differently from other jurisdictions that
do not have such a provision, due to a greater reliance on English principles.
The impact of this provision can be seen in the judgment of the Court of
Appeal of Fiji cslands in
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A similar approach to the use of common law has been demonstrated in the
High Court of Solomon cslands. cn the case of Ê8
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,3.the High Court of Solomon cslands considered the issue of voluntary
intoxication in relation to offences of specific intent. cn his judgment, Daly CJ
identified that an issue that required consideration by the court was the
relationship between the common law principle from the UK jurisdiction (as
laid down in (11
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principle from the Australian jurisdiction (as laid down in Ê
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(Emphasis added.?
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Some jurisdictions specifically exclude the possibility of a person being
charged with an offence at common law. An example of such a provision is
s.8 of theCrimes Act 1969 of Cook cslands:?
The same is true of the law in Samoa (s.7 of the Crimes Act 1961, iue
(s.239 of the iue Act 1966 and Tokelau (s.239 of the iue Act 1966 as
adopted under the Tokelau Crimes Regulations 1975.?
However, in other countries common law offences from England & ales will
apply provided that this does not contravene the legislative code of the
country in question.?
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The relationship between customary law and introduced law is one that is very
complex and not easy to describe. There are several factors that contribute to
this. One is that it is not always to determine what custom is; it is not written
down and the well-used phrase µcustom is as custom does¶ indicates that it is
something that is lacking in the sort of formal structures that are associated
with other sorts of law such as statutes and cases.?
Another factor that contributes to the complex nature of the situation regarding
customary law is that it is not always easy to decide where it should come in a
hierarchy of law, if it should figure in such a hierarchy at all. cn Vanuatu, Article
95(3 of the Constitution provides that:?
out this does not give any guidance as to how the weight of customary law
decisions (if such can be identified or principles should be compared with the
weight of statutory provisions or decisions of the Courts.?
ct is generally the case that in the countries of the South Pacific, offences
against custom are not considered to be criminal offences under the terms of
the) , in operation. A partial exception is that of Solomon
cslands as indicated in Schedule 3 of the constitution:?
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ct is not always beneficial to attempt to divide law and legal issues into
categories or compartments as, in many cases, it is the overlap of such issues
and concerns that is of most interest?
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cn some circumstances, the distinction between criminal and civil law may be
less obvious than in others. For example, if A hits o two legal consequences
may arise. o may report the incident to the police who may , a set of
proceedings that may culminate in A being for assault. cn addition
o may bring a private action against A for the tort of assault and may seek to
obtain compensation through the civil courts.?
See Art. 65(1 of the constitution of Cook cslands; s.28 (1(a of the 1998 Fiji
cslands Constitution; s.10(2(a of the constitutions of Kiribati, Solomon
cslandsand Tuvalu; Art. 10(3(a of the constitution of auru; Art. 5(2(b of the
constitution of Vanuatu and Clause 9(3 of the constitution of Samoa.?
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This distinction does not apply any longer in Anglo-elsh Law and has also
been discarded by the crime statutes of Vanuatu, Tonga, Cook cslands and
Samoa.?
However, these terms are retained in the Penal Codes of Fiji cslands, Kiribati,
Tuvalu and the Solomon cslands. Section 4 in each of these statutes defines a
felony as an offence that has been declared by law to be a felony or, if not
declared as such and in the absence of having been declared a
misdemeanour, an offence which is punishable either by death or by
imprisonment of a period of 3 years or more.?
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The importance of this distinction is in determining where a case is to be tried
and by what process.?
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à à: See Electable Offences Decree of Fiji cslands that was enacted in
1988. here a magistrate is of the opinion that a sentence beyond the
maximum that can be applied in the lower court should be passed, the case
can be passed to the High Court for sentencing purposes.?
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cn most jurisdictions, with the exception of Tonga, the regional legislation does
not refer to µsummary¶ and µindictable¶ even though these terms are used
extensively in practice to describe the seriousness of an offence or the nature
of a trial.?
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oingham, Rt. Hon. (1998 "A Criminal Code: Must e ait for Ever?"
in p
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694-696.
Corrin Care, J., ewton, T. & Paterson, D. (1999 cntroduction to South Pacific
Law; Cavendish: London; chaps. 3 & 4.
arokobi, o. (1989 Lo oilong Yumi Yet; cPS & Melanesian cnstitute for
Pastoral & Socio-Economic Service: Garoka; chap.12.
Paterson, D.E. (1995 "South Pacific Customary Law and Common Law: Their
cnterrelationship" in p
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?(April: pp.660-671.
Paterson, D.E. (1986 "Vanuatu Penal Code" in @
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(Vol. 2: pp.119-127.
Powles, G. (n.d. " The Common Law as a Source of Law in the South Pacific:
Experiences in estern Polynesia" in B
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<: 105-135.
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þ hat are the sources of criminal law that are available in your
jurisdiction?
þ hat policies or rationales does the criminal law of your jurisdiction
reflect or promote?
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