State v Seruvatu [1994] FJHC 148; HAJ0002o.1994s (17 October 1994)

IN THE HIGH COURT OF FIJI
AT SUVA
REVISIONAL JURISDICTION

REVISION NO. HAJ002/94S

IN THE MATTER OF SECTION 323 OF THE CRIMINAL PROCEDURE CODE

AND

IN THE MATTER OF KADAVU CRIMINAL CASES
NUMBERS 11/94, 12/94 AND 15/94

Between:

THE STATE
Complainant

-and-

ELIKI SERUVATU
ALIVERETI SIVO
TEVITA MISIDANI
NEMANI ADROTE
Respondents

Ms. L. Laveti for the Complainant
Mr. V. Narayan for Mr. A. Seru for the Respondents

ORDER ON REVISION

On 23 June 1994 the Kadavu Magistrate's Court entered convictions against the respondents on their own pleas and imposed sentences in the following cases:

Criminal Case No. 11/94 - against Eliki Seruvatu and Alivereti Sivo for theft of 12 plants of yaqona valued at $120.00, the property of Jona Waqa who were each sentenced to pay a fine of $70 in default 70 days' imprisonment, out of which $120 by way of compensation was ordered to be paid to Jona Waqa.

Criminal Case No. 12/94 - against Eliki Seruvatu and Alivereti Sivo for stealing 6 plants of yaqona valued at $110, the property of Filipe Sau who were each sentenced to pay a fine of $70 in default 70 days' imprisonment, out of which $110 by way of compensation was ordered to be paid to Filipe Sau.

The Court below also ordered that 8kg of yaqona and $10 cash which was recovered during police investigation be returned to Filipe Sau.

Criminal Case No. 15/94 - against Eliki Seruvatu, Alivereti Sivo, Tevita Misidani and Nemani Adrote for stealing 700 dalo plants valued at $1500, the property of Navitalai Sorovi and who were each sentenced to pay a fine of $380, in default 18 months' imprisonment, out of which $1500 by way of compensation was ordered to be paid to Navitalai Sorovi.

On 30 June 1994 the Roko Tui Kadavu wrote to the Chief Justice requesting if these cases could be reviewed on the grounds (i) that the fines imposed were too heavy for villagers such as the respondents and (ii) that as a result of the presentation of yaqona by the respondents to the wronged people pursuant to Fijian custom and tradition reconciliation over the incidents had been effected. In these circumstances the Roko and all concerned have pleaded this Court to exercise its revisional powers in relation to the sentences passed on the respondents in recognition of the traditional reconciliation that had been reached.

Letters testifying to the reconciliation of the parties have also been received and placed on the file.

The reconciliation was made possible through resort being made to Fijian custom and tradition. The use of Fijian custom and tradition to promote social harmony and goodwill is a feature of native communal life that should be encouraged. This is important because police presence is not usually available to maintain law and order among Fijian rural communities.

The Constitution recognises this by the provision of section 100(3) which makes Fijian customary law formally part of the laws of Fiji. The effect of this is that Fijian custom and tradition is now for the first time recognised constitutionally as part of the legal culture of Fiji. However the proviso to the exercise of such powers is that the application of customary law should not be repugnant to the general principles of humanity. That is to say customary law must not be inhuman in concept and application.

Given the circumstances relating to these cases and the need to give effect to Fijian custom and tradition where relevant and justified this Court is satisfied that revision of the sentences imposed in the Court below in these cases would not only be in order but would be in the public interest.

Accordingly the sentences imposed by the Court below are be set aside and in lieu thereof the following sentences are substituted, namely in -

Kadavu Criminal Case No. 11 of 1994 - Eliki Seruvatu and Alivereti Sivo are each ordered to enter into his own recognizance in the sum of $55 to keep the peace and be of good behaviour for a period of 12 months.

Kadavu Criminal Case No. 12 of 1994 - Eliki Seruvatu and Alivereti Sivo are each ordered to enter into his own recognizance in the sum of $55 to keep the peace and be of good behaviour for 12 months.

Kadavu Criminal Case No. 15 of 1994 - Eliki Seruvatu, Alivereti Sivo, Tevita Misidani and Nemani Adrote are each ordered to enter into his own recognizance in the sum of $55 to keep the peace and to be of good behaviour for a period of 12 months.

At the time of signing the bond, all four respondents must be told plainly and clearly of the consequences to them if they breach any of the conditions of their bond.

Chief Justice

Suva
17 October, 1994

HAJ0002O.94S