R v Lati [1982] FJSC 3; Review 001 of 1982 (5 January 1982)

IN THE SUPREME COURT OF FIJI
Revisional Jurisdiction

Review No. 1 of 1982

IN THE MATTER of the Criminal Procedure Code

AND IN THE MATTER of Criminal Case Number 3712 of 1981
before the Suva Magistrate’s Court

REGINAM

Complainant
v.

1. NETANI LATI
2. MALAKAI CIRIKIDAVETA
3. SETAREKI BALEIRARA
4. SEMITI RAMOSOI
5. SAKARAIA KOROI

Respondents

Mr Sailosi Kepa, Director of Public Prosecutions, for the Complainant
Respondents in Person

ORDER ON REVISION

The respondents were convicted on Thursday 31^st December 1981 in their own plea in the Suva Magistrate’s Court of assault occasioning actual bodily harm contrary to section 245 of the Penal Code and each of them was sentenced to nine months’ imprisonment suspended for twelve months and in addition each of them was fined $60, and out of the total fine $75 was to be paid to the victim of the assault.

The incident, the subject of the charge, occurred in Makadru Village in the island of Matuku in Lau.

The facts of the case was that on Boxing Day some people from Raviravi, a neighbouring village, went to Makadru to greet some friends who had come from Suva for Christmas. A yaqona party was held to celebrate the occasion and this continue until the early hours of the morning. At about 3am one Kolinio Tikoisuva, one of the visiting party from Raviravi was seen talking with first respondent’s sister at a lonely spot some distance from the village. The respondents went to the spot and assaulted Tikoisuva by punching and kicking him until he was rendered unconscious. He was carried to the village and when he came he again assaulted but this was stopped by a villager who came to his aid. Tikoisuva was taken to Yaroi District hospital where he was admitted and remanded for two days.

In the meantime the Makadru people held a village meeting in which the five respondents were reprimanded and each given three strokes of the cane by a village elder as punishment. A tabua was also presented to the Chief of Raviravi village on behalf of the Makadru people by way of making amends and effecting reconciliation. The tabua was duly accepted which signified the complete reconciliation of the two villages. But as the matter had already been reported to the police the police sent a team of investigators from Suva and conducted their own investigation which resulted in the respondents being arrested and charged and brought to Suva where they were dealt with as has been noted.

Respondents 1, 2 and 5 are all seventeen years of age while respondent 3 is 20 and respondent 4 is 19. The fact that they are all young and without any prior police record strong mitigating factors which should be given proper weight in evaluating the circumstances of this case. Furthermore there appeared to have been an element of provocation in the incident concerned arising from a breach of village etiquette on the part of the victim of the assault.

However, the main factor which has given rise to this court exercising its revisional powers in this case is that the sentencing court did not with respect give sufficient credit to the customary sanctions which from time immemorial have always been available within a village community for regulating the social behaviour and conduct of its people. It must be acknowledged that the Makadru villagers had taken great pains, in the absence of any police presence in the island, to settle the problem in the only way known to them which is by their own established customs and traditions. Though these have no legal force as such they are nevertheless entitled, in a suitable case, to recognition by the courts in such a manner so as to uphold their sanctity and moral force within the Fijian society. As observed above all the respondents had been dealt with appropriately in the Fijian customary way and whatever potential strife that might have resulted between the two villages because of the incident had also been taken care of appropriately in the Fijian customary way. One could not wish for a more civilized way of sorting out a potential explosive situation.

In the light of all this for the reasons I have given I am satisfied that his matter has been dealt with somewhat more severely than it need be. Given the information that was available to the police at the time, the respondents perhaps should have been brought to Suva. They could have safely been place on bail in the island to be dealt with in due course by a visiting Magistrate. This applies particularly to cases, such as the present one, where the matter had for all practical purposes been effectively settled in the Fijian traditional and customary way and when there was no likelihood of further trouble from the respondents concerned. However, this is no criticism of the police who did their best under what may have appeared to them as a difficult situation and under circumstances greatly handicapped by poor communications between Suva and the island.

As I have already said, in my view the respondents have sufficiently been dealt with their own village by the village elders so that further punishment particularly one as onerous as was meted out to the respondents could not be justified. In the result the sentences passed by the trial Court upon the respondents are set aside and in their place it is ordered that each of the respondents enter in to his own recognizance in the sum of $50 to keep the peace and be of good behaviour for a period of twelve months.

I think it is right I should point out that the Director of Public Prosecutions fully concurred in the course of action I have taken in this case because of the special background disclosed by the circumstances of the case

Suva
5^th January 1982

Chief Justice