FIJI HUMAN RIGHTS
COMMISSION
Human Rights Case laws in
Fiji
DIGEST
CONSTITUTION OF FIJI 1970
SECTION 3
Sundarjee Brothers Ltd vs. Geoffrey John Coulter
[Court of Appeal] 33 FLR 74
The court applies sections
3 and 12 of the Constitution, and held section 6 of the Debtors Act
unconstitutional for failing to satisfy the ‘public interest’ criteria in
sections 3 and 12.
SECTION 5
Nirmala Wati vs. A.Hussain and Co. Ltd and Asim Hussain
[Supreme Court] 1986
The court applies section
5(1)(a) and section 6 of the Constitution with regard
to causing the detention of a suspect unlawful and unconstitutional. Where a
person complains to the police that an offence has been committed or indicates
to them against whom he may have reasonable cause for suspicion and the
complaint is baseless, but lead to the arrest and detention of the innocent
person, the maker of the complaint must accept full responsibility for the
action taken on his behalf by the police.
[Supreme Court] 1987
The court applies section 5 of the Constitution to an arrest and
detention under regulation 17 of the Public Emergency Regulations 1987 and
declares the arrest and detention unconstitutional for lack of reasonable
suspicion of commission of a crime.
SECTION 9
[Supreme Court] 1973
The court discusses at length the numerous precautions to be observed
when requiring a witness to identify a suspected person, and also when
refreshing the memory of witnesses in and out of court.
Regina vs. Emori Kalou Toloi
and Others
[Supreme Court] 1975
The court explains the meaning of section 9(1) of the Constitution and
applies it to section 18 of the Criminal Procedure Code. The court holds that
section 9(1) of the Constitution is not breached by section 18 of the Criminal
Procedure Code. In this case, the police seized money because they suspected
that the money was part of the proceeds of a robbery, an accepted exception to
a person’s right to freedom from unreasonable search of his/her property or
persons.
[Court of Appeal] 1976
The court discusses and applies section 9(1) of the Constitution to a
search made without any search warrant, but made on reasonable suspicion. It
holds that the evidence was obtained by illegal means, and admits the same in
the interest of justice.
SECTION 10
[Court of Appeal] 1978
The court briefly discusses and applies section 10(9) of the
Constitution. Requesting an appellate to attend to a magistrate in chamber constitutes
‘part of the proceeding’. Despite the irregularity, there was no miscarriage of
justice, thus no breach.
Mam Chand alis John Mam
Chandra
[Supreme Court] 1971
The court explains the
meaning of section 10(2)(c) of the Constitution as applying only if an accused
person pleads guilty to a stated defence, irrespective of the length of time
between making the accused aware of the charge and the time of plea. An
unequivocal guilty plea does not violate section 10(2)(c).
The court holds that the facts do not merit an application of section 5 of the
Constitution, as the accused is required to appear in a court by law.
[Court of Appeal] 1982
The court holds that information required under Part I, 1(1) of the
Fifth Schedule to the Exchange Control Ordinance (Cap. 186) does not offend
section 10(7) of the Constitution, as the supply of information pursuant to the
Act does not amount to giving evidence at trial.
R vs. University of the
South Pacific ex parte Malakai
Tuiulupona
[Supreme Court] 1985
The court applies section 10 of the Constitution to the University
disciplinary procedure, which prohibited the respondent from seeing,
and examining the witnesses appearing against him/her. The court holds the
procedure unconstitutional.
Shardha Nand and Flour Mills of
Fiji vs. Reginam
[Court of Appeal] 1980
Section 10(2)(e) of the Constitution does not create a mandatory
obligation on the prosecution that is consistent with the obligation created
under sections 85 and 136 of the Constitution. Sections 85 and 136 operated
without any control or modification by section 10(2)(e).
In this case, a decision of the DPP to grant immunity
to a prosecution witness does not create a similar obligation to grant immunity
to the main defence witness. As such the court cannot direct the prosecution to
grant such immunity.
Shiu Narayan and Bijay Narayan vs. Regina
[Court of Appeal] 1980
The accused was left unrepresented by his counsel following the ruling
of the court on voir dire due to counsel’s unavailability.
A junior solicitor continued the case. The court notes that the requirement of
section 10 of the Constitution was satisfied and no prejudice was suffered by
the accused. The court also cites Archbold’s Criminal
Pleadings and Practices in outlining the duty of the bar towards his client
following engagement.
Sukh Ram vs. Public Service Appeal Board and Another
[Supreme Court] 1975
The court rules that even in the absence of a right under section 14 of
the Public Service Act 1974, an appellate does not have to be informed and be
heard on his or her appeal, the rule of natural justice demands that he or she
be given the right to be heard.
SECTION 12
Ba Town Council vs. Fiji Broadcasting Commission and
Others
[Supreme Court] 1976
The court briefly discusses and applies section 12(1) of the
Constitution to an administrative decision to forbid the media from
broadcasting news relating to a soccer match. For as long as the media is
exercising its rights of free speech and expression lawfully, the court will
not restrict such rights.
Ratu Sir Kamisese Mara vs.
Fiji Times and Herald Limited, Garry Barker, Vijendra
Kumar
[Court of Appeal] 1984
Applying sections 3 and 12 of Constitution to the laws of defamation
applicable in Fiji, the court holds that sections 3 and 12 do not alter the
laws of Fiji adopted prior to independence.
The sections are merely declaratory of the laws relating to freedom of
speech in Fiji before independence.
CONSTITUTION OF FIJI 1990
GENERAL
Sakeasi Butadroka vs. Attorney
General
[High Court] Civil Action No. HBC 0208 of 1993
The court gives a thorough, detailed and extensive
analysis of the impact of the Bill of Rights contained in Chapter 2 of the
Constitution in the application of the constitutional provisions relating to
the interpretation and application of the Standing Orders of Parliament,
established under sections 61.
H.P Kasabia Brothers Limited
vs. Fakir Mohammed and 3 Ors
[High Court] Action No. 417
of 1993
The court makes brief reference to sections 4, 9,
and 10 of the Constitution.
The State vs. Supervisor of
Elections
[High Court] Judicial
Review No. 0016 of 1997
The court briefly explains
the scope of the right to vote enshrined in sections 41(2) and 50 of the
Constitution, concluding that the right does not require mandatory compliance.
The court also gives similar views on the right to be a candidate in sections
41(3) - (6), and sections 42(3) – (5) of the Constitution.
Litiwai Setevano vs. Attorney
General
Civil Action No. 0119 of
1995
The court discusses at length the laws applying to
the principle of judicial immunity when it wrongly applies a law resulting in
the imprisonment of an accused person, with reference to decided case laws, and
the liability of the Crown in such cases. Relying on case laws, a person’s
right to personal liberty is not breached in such cases.
[High Court] Criminal Appeal No. 94 of 1990
A convicted person’s constitutional right to
adequate time and facilities for the preparation of his defence during the
trial was analysed considering the manner the magistrate deals with the trial
at the Magistrates Court, including last amendment to the charges, and absence
of explanation to the accused of his constitutional rights.
The State vs. Vijay Kapoor
and Kailesh Chandra
[High Court] Criminal Case No.
HAC 0006/94
On an application for bail due to delay, and
affecting an accused’s right to have his case
disposed of within a reasonable time, the court very briefly discusses the
relevant constitutional laws and decided case laws.
SECTION 6
Josefa Koroi Tawakedina Mataika vs. Attorney
General
[High Court] Civil Action No. BHC 0507 of 1992
The court refers to sections 6(1), and 6(6) of the
Constitution in establishing the applicable statutory provisions relating to
false imprisonment.
Romanu Naceva and 4 Ors vs. The State
[High Court] Misc. Action
No. 0008 of 1996
To avoid breach of section 6(5) of the
Constitution, the court advises the Magistrate Court to give urgent attention
to and act swiftly in the completion of the deposition to the High Court.
The State vs. Vijay Kapoor and Kailesh Chandra
[High Court] Misc. No. HAM 0001/95
The court considers a bail
application due to unreasonable delay (more than 12 months) under section 6(5)
of the Constitution. It refers to decided case laws, holding that the judicial
system should not allow a person to remain remanded in custody for 12 months or
more without trial.
The State vs. Ganeshwar Prasad
[High Court] Criminal Case No. HAC 0009 of 1994
Advising on a matter of
procedure impacting on an accused’s freedom of
personal liberty, the court cautions the police against any delay in
interviewing and charging suspects after their removal to the police station.
It also discusses the nature and application of the Judges’ Rules as distinct
from any documents having the force of law. The court also briefly discusses
the right to a solicitor during police interview under the Judges’ Rule and at
common law, and noting that no such right exists in the 1990 Constitution.
[High Court] Criminal Case
No. 9 of 1995
The court briefly discusses
the application of the Judges’ Rules as having the force of law considering
similar provisions in the Constitution. It confirms that the Judges’ Rules are
applicable in Fiji without modification or qualification by the Constitution or
the Criminal Procedure Code. It also discusses the effect of breaches of the
Judges’ Rules on the contents of an interview.
The State vs. Sevanaia Soronaivalu
[High Court] Criminal Case No. HAC 0010 of 1994
In discussing the
application of the Judge’s Rules, the court explains the nature and effects of
the Judge’s Rules and defines the element of oppression that must be present
and satisfied, also referencing to decided case laws.
SECTION 9
Qing Li vs. Johannes Georg Petri
and Sunfruit (Fiji) Limited
[High Court] Action No. HBC 340 of 1995
The court holds as
consistent with section 9 of the Constitution the execution of the Writ of Fieri Facias on the facts.
Suva United Vendors
Association vs. Suva City Council
[High Court] Action No. HBC 0273 of 1997
The court briefly refers to
section 9(1) of the Constitution in outlining the laws relevant to acquisition
of property and the requirements to be met.
SECTION 10
Steven Kamali
and Elenoa Kamali vs. Hem Raj and A.K. Singh
[High Court] Action No. HBC 0442 of 1994
The court considers in the
assessment of general damages, the inconvenience caused to the plaintiff by the
violation of his right to leave in peace and unlawful interference.
SECTION 11
Attorney General vs. Suresh
Sushil Chandra Charan and Anuradha Charan
[High Court] Action No. HBM 16 of 1995
The court discusses a
litigant’s right to fair trial following remarks by the judge concerning the
applicant, which may raise an apprehension of bias on the part of the judge.
[High Court] Criminal Appeal No. HAM 17 of 2000
Following a very brief
discussion of the Criminal Procedure Code and the Constitution, the court rules
that section 203 of the Code and section 11(12) of the Constitution are
complementary in their meaning and effect where a hearing and sentence was made
in the absence of the accused standing trial and convicted for official
corruption, forgery, and uttering a forged document.
Josefa Naivaluwaqa vs. The State
[High Court] Criminal
Appeal No. 0063 of 1996
The court very briefly
applies section 11(2)(c) of the Constitution in
determining an appeal against conviction on the ground that the accused was not
given adequate time to prepare a defence. The court notes that section 11(12)(c) does not provide a minimum time, which an accused must
be given to prepare his defence. The court cautions that the provision must be
examined on a case-by-case basis with particular consideration to the ‘interest
of justice’.
The State vs. Chew Pui Qi
[High Court] 1995
The court must ensure the
attendance of an interpreter in satisfaction of an accused’s
rights under section 11(2)(f) of the Constitution.
The State vs. Jamuna Prasad
[High Court] 1995
The court provides an
extensive analysis, including comparative analysis, of the laws relating to the
right of an accused to be informed as soon as possible and in detail of the
nature of the offence he/she is charged with, as a requirement under section
11(2) (b) of the Constitution. The court also prescribes guidelines for
disclosures by the prosecutor in a criminal trial.
[High Court] Judicial
Review No. 34 of 1997
The court denies a request
to consider and apply section 11(8) of the Constitution with regard to ‘fair
disciplinary proceeding’ and application of principles of ‘natural justice’ as
the same would be considered under ‘natural justice’ and ‘fair play’ under
Regulation 41 of the Public Service Commission (Constitution) Regulations 1990.
It also discusses at length the application of natural justice, with extensive
reference to decided case laws.
The State vs. Waisale Rokotuiwai
[High Court] Criminal Appeal No. HAC 0009 of
1995
The court briefly outlines
the principles of law (common law and constitutional) regarding delay in
prosecution and the consequence of delay in the prosecution of a criminal case,
namely, a permanent stay to the proceeding. It also outlines the number of
possible factors that may give rise to delay in prosecution in determining
whether the delay amounts to unreasonable delay or a failure to try a defendant
within reasonable time.
State vs. Iowane Turaga and Tevita Rosadriwa
[High Court] Criminal Case No. HAC 0015 of 1994
Very briefly, the court
applies section 11 of the Constitution to an application for bail on the ground
of unreasonable delay.
[Court of Appeal] Criminal Appeal No. AAU 0020 of 1994
The court very briefly
applies section 12(2)(c) and (d) of the Constitution
in discussing the ground of appeal that the appellant was not given enough time
to prepare a defence and advice his lawyer.
[High Court] Criminal
Appeal No. 22 and 23 of 1991
The court discusses its
power to vary a sentence pronounced in open court and subsequently submitted by
a higher or a lower sentence when the court was not sitting. It also identifies
the requirements to be met for it to become lawful.
SECTION 13
Attorney General vs. Mahendra Pal Chaudhary
[High Court] Misc. Action
No. 0003 of 1998
The court briefly explains
the meaning and application of section 13(1) of the Constitution,
differentiating between a right and a freedom, and setting out the applicable
limitation.
Ratu Ovini Bokini and Anor vs. Associated
Media Limited and 4 Ors
[High Court] Civil Action
Nos. 0549 and 0550 of 1995
The court provides a
thorough and extensive discussion on the application of the constitutional
‘freedom to hold opinions and to receive and impart ideas and information’ with
its limitations as apply to defamation.
The State vs. Afasio Mua and 6 Ors
[High Court] Criminal
Appeal No. 16 of 1991
The court provides an
extensive discussion and analysis of the interpretation of provisions of the
Penal Code against relevant provisions of the Constitution, particularly
section 13(1), (2), and article 11(1) and (3)(a) of the Protection of
Fundamental Rights and Freedoms of the Individual Decree 1988.
SECTION 14
National Bank of Fiji vs.
Minister for Labour and Industrial Relations and Anor
[High Court] Judicial
Review No. 18 of 1993
The court recognises the
employer breached section 59 of the Trade Unions Act by making it a condition
of employment of any employee that the employee shall not belong to any trade
union, holding that this is inconsistent with section 14 of the Constitution.
State vs. Minister for
Labour and Industrial Relations ex parte National
Bank of Fiji
[High Court] Judicial
Review No. 18 of 1993
The court outlines what
constitutes a trade union under the Trade Disputes Act (Amendment) Decree 1992,
and common laws and discusses at length the meaning and application of section
14 of the Constitution in relating to joining of trade unions.
SECTION 15
The Attorney General and
Minister for Justice and Commissioner for Prisons vs. Dharmendra
Prasad
[Court of Appeal] Civil Appeal No. ABU 0036U.94S
The court briefly discusses
the remedies available under the Constitution, and arising out of breaches of
the Bill of Rights, particularly section 19 of the Constitution.
Dharmendra Prasad vs. The Attorney
General and Commissioner of Prisons
[High Court] Action No. 17
of 1993
The court provides an
extensive discussion on the availability of remedies under the Constitution,
and arising out of breaches of the Bill of Rights, particularly section 19 of
the Constitution. It also makes reference to sections 6(1)(c),
(3)(c), and 15(3)(c) of the Constitution.
SECTION 16
Sakeasi Butadroka vs. The Attorney General and Electoral Commission
[High Court] Civil Action
No. 214 of 1992
The court provides an
extensive discussion of the application of section 14 of the Constitution to
regulation 15(10) of the Electoral (Conduct of Election) Regulations 1992, with
extensive reference to case laws.
Iliesa Duvuloco and 3 Ors vs. The Attorney General and Q.B. Bale
[High Court] Civil Action No. HABC 0014 of 1994
The court provides an
extensive discussion of the application of section 14 of the Constitution to
regulation 15 of the Electoral (Conduct of Election) Amendment Regulations
1994.
Iliesa Duvuloco vs. Attorney
General and Q.B. Bale
[High Court] 1994
Regulation 15(11) of the
Electoral (Conduct of Elections) Regulation 1992 is discriminatory under
section 16 of the Constitution. However, it is not unconstitutional as it is
reasonably justifiable in a democratic society. The court provides an analysis
of regulation 15(11) as it relates to sections 42(2) and 42(4) of the
Constitution. However, Regulation 15(12) of the Electoral (Conduct of
Elections) Regulation 1992 is unconstitutional under section 16 of the
Constitution.
CONSTITUTION AMENDMENT ACT
1997
SECTION 23
Avinash Singh vs. Jofiliti Turaga, Commissioner of Police and Attorney General
[High Court] Action No. HBC 267 of 1998.
The court determines an
application for damages arising out of an act of wrongful imprisonment. It
applies sections 23(1)(e), 26(1) and 27(1)(c) of the
Constitution to determine the lawfulness of the arrest.
Riogi Fimone Turapu vs. Attorney General
[High Court] Civil Action
No. 6 of 2001
An application to strike
out pleadings pursuant to Order 18 Rule 8(1)(d) of the
High Court Rules 1988. In determining whether a cause of action arises against
the defendant, the court applies the Fundamental Rights and Freedom Decree
(Decree No. 7 of 2000) to an act of arrest and detention, citing section
23(1)(e) of the Constitution in support of the argument that personal liberty
may be limited on reasonable suspicion of commission of a crime.
SECTION 25
[High Court] Criminal Appeal No. HAA 0083 of
2001L
The court provides an
extensive discussion of the interpretation and application of section 25(1) of
the Constitution to corporal punishment, citing case laws, sections 3, 21,
43(2) and Chapter 2 of the Constitution. The court also refers to Article 7 of
the International Covenant on Civil and Political Rights.
Serupepeli Cerevakawalu and Osea Baleasavu vs. The State
[High Court] Criminal Appeal No. HAA 0042 of
2001S
The court briefly discusses
and clarifies the human rights implication of a prison disciplinary action. The
court considers section 28 of the Constitution. It also considers section 25(1)
of the Constitution on the punishment awarded.
[High Court] Criminal
Appeal No. 0050 of 1998
The court briefly
interprets the meaning and application of section 25(1)(a)
and (f) of the Constitution to an accused person who elects to give sworn
evidence in court.
Sailasa Naba and Ors vs. The State
[High Court] No. HAC 0012 of 2000L
The court provides an
extensive discussion of the interpretation and application of section 25(1) of
the Constitution to the living conditions at a prison. It cites Article 10 of
the International Covenant on Civil and Political Rights, United Nations
Standard Minimum Rules for the Treatment of Prisoners, Article 11(1) of the
Universal Declaration of Human Rights, section 22(1) and28(1)
of the Constitution. The court also discusses the meaning and application of
section 29(3) of the Constitution to an application for bail pending trial.
[High Court] Misc. Action No. HAM 007 OF 2001S
The court discusses and
interprets section 25(1) in detail with extensive references to case laws. It
also makes brief reference to sections 2, 3 and 43(2) of the Constitution, and
Article 7 of the International Covenant on Civil and Political Rights in the
interpretation of section 25(1).
[High Court] Misc. Action No. HAM 045.04S
A
bail application. The court considers and discusses the various
factors relevant to the chances of the applicant attending trial, while
considering the applicant’s right to freedom from cruel or degrading treatments
under the Constitution.
SECTION 27
[High Court] Criminal Misc. No. HAM 032 of 2002
An
application for bail. The court explains the meaning of section 27(3)(c) of the Constitution as referring to a presumption in
favour of bail.
Penaia Vetaukula Baleinamau vs. Commander Fiji Military Force
[High Court] Misc. Action
No. 14 of 2001
The court interprets and
applies section 27 of the Constitution to an act of detention under military
laws, with reference to decided case laws from around the Commonwealth.
[High Court] Misc. Action No. HAM 011 of 2003S
The court briefly discusses
the relation and understanding between section 27(3) of the Constitution and
section 3 and 19 of the Bail Act 2002. It also discusses the application and
impact in Fiji of the Convention on the Rights of the Child as applying to a
remanded accused with a young child to support.
[Court of Appeal] Criminal Appeal No. AAU 0036 of 1998S
The court applies section
27(1)(b) of the Constitution to an act of police
detention and holds the detention violates of the section.
[High Court] Criminal Misc.
HAM 038.03
The court briefly restates
the human right principles relating to arrested persons under section 27(3).
Orisi Roko and Ors vs. The State
[High Court] Misc. Action No. HAM 022 of 2001S
The court briefly considers
the application of section 27(3)(c) to a bail
application.
Epeli Seniloli and Attorney
General vs. Semi Voliti
[High Court] Civil Appeal No. HBA 0033 of 1999
The court very briefly
states and applies the rights available to a juvenile under section 27 of the
Constitution, the Judges’ Rules, the Juvenile Act and the Convention on the Rights
of the Child in determining the lawfulness of a juvenile’s detention and
treatment at a police station. This case represents one of the earliest cases
in the Fiji High Court to consider a United Nations Convention in its ruling.
Semi Voliti
vs. Epeli Seniloli and
Attorney General
Civil Case No. 771 of 1998
[Magistrate Courts]
The court applies sections
25, 26 and 27 of the Constitution and holds they have been breached when a
child is arrested and detained by the police. It also notes that Article 37 of
the Convention of the Rights of the Child was breached.
The State vs. Lagisoa Delana and 3 Ors
[High Court] Criminal
Action HAC 014.02
The court briefly restates
the human rights principle of an accused person’s right to a lawyer, under
section 27(1)(c).
[High Court] Criminal Case No. HAA 003 of 2002
The court provides at some
length the implications of any breaches to the right of an accused while under
interrogation by the police as contained in section 27(1)(c), including
reference to case laws.
State vs. Peceli Masidole and 2 Ors
[High Court] Criminal Case No. HAC 004 of 2001S
The court explains the
balance to be struck in applying section 27(3) of the Constitution and the
public interest in bringing offenders to justice. The court also briefly
explains circumstances in which section 27(3) may apply.
The State vs. Orisi Roko and Ors
[High Court] Criminal Case No. HAC 0013 of
2000S
The court provides an
analysis of the effect of a breach of section 27 of the Constitution, and
outlines the principles governing the exclusion of admissions.
The State vs. Albertino Shankar and Anor
[High Court] Criminal
Action HAC 014.01S
The court extensively
discusses the meaning and application of sections 27(1)(c),
27(1)(d) and 27(3)(b), (c) of the Constitution and the Judge’s Rules.
[High Court] Misc. Action No. HAM 016 of 2002
Section 27(3)(c) of the Constitution is not breached by the continued
detention of an accused charged with a very serious offence (robbery with
violence), where there was presence of premeditation in the commission of the
offence, where most of the money stolen has not been recovered, and where a
hearing date would be set by the parties and the court soon.
[High Court] Criminal Case No. HAC 010 of 2000S
The court briefly discusses
the available remedy for breach of section 27(1) of the Constitution, and the
Judges Rules, with reference to decided case laws.
[High Court] Criminal Appeal No. HAC 25 of 2004
An
application for bail pending trial. The personal
characteristics and history of the accused displaces the presumption in favour
of bail as contained in section (s. 27(2)(c)) of the
Constitution and the Bail Act.
SECTION 28
[High Court] Misc. Case No. HAM 033 of 2004S
The court extensively
discusses the interpretation and application of section 28(1)(k)
of the Constitution to a subsequent charge when the facts are the same as those
of the first charge for which the accused was convicted.
Thomas Blakelock
vs. The State
[High Court] Criminal Appeal No. HAA 034 of
2001S
An
appeal against conviction. In balancing the rights under section 28(b) and
(d) of the Constitution, and that under section 29(1) of the Constitution, the
court emphasises the latter when the accused’s
preferred counsel has failed to attend court a number of times. The court also
examines the nature of prejudice caused to an accused for conducting a trial
without a lawyer.
Serupepeli Cerevakawalu vs. State
[Court of Appeal] Criminal Appeal No. AAU 0024 of 2001S
An
appeal against sentence. The court briefly discusses the principles of
double jeopardy as applying to the case of the appellate.
[Court of Appeal] Criminal Appeal No. AAU 0036/2001S
The court dismisses the
application for leave to appeal and to appeal out of time as vexatious and
frivolous even where the trial and sentencing of the accused was done in his
absence.
Peter Costa and Savenaca Waqatabu vs. The State
[High Court] Criminal Appeal No. HAA 0065 of
2002S
An
appeal against sentence and conviction. The court discusses the
possibility of a fair trial in the absence of a solicitor for the accused when
the case is based largely on circumstantial evidence. Given the nature of the
evidence presented at the trial, the court rules that the accused would have
benefited greatly if he has been represented, as the course and result of the
trial would have been different.
Inoke Cumutanavanua vs. The State
[High Court] Criminal Appeal No. HAA 086 of
2001
An
appeal against conviction and sentence. The court briefly
discusses the meaning and scope of section 28(1)(d) of
the Constitution. An accused who was not able to secure the service of the
lawyer of his own choice for 7 months was not able to rely on the
constitutional protection under section 28(1)(d) as he was given ample time.
However, given that the accused is not knowledgeable in criminal law, and
discloses a potential defence when interviewed by the police, which they omit to inform the court of, he was prejudiced
for being unrepresented, as representation would have resulted in the accused
entering a not guilty plea.
Epeli Duve and 2 Others vs. The State
[High Court] Criminal Appeal No. HAA 028 of
2002
Peni Nabanivalu
vs. The State
[High Court] Criminal Appeal No. HAA 029 of
2002
An
appeal against conviction and sentence. The court briefly outlines
the principles relating to the application of section 28(1)(d)
of the Constitution: right to be represented be adhered to unless its absence
would not prejudice the accused. The Magistrate’s failure to consider a number
of important issues – whether the accused has a possible defence, whether she
should substitute a guilty plea with not guilty, whether the accused were fully
aware they had a possible defence – amounts to prejudice by lack of
representation.
William Rosa Junior vs. The State
[High Court] Misc. Action
HAM 006.03
A
constitutional redress application under section 28 and 29 of the Constitution. The court discusses at
length the application of regulation 3(2) of the High Court (Constitutional
Redress) Rule 1988, and its potential impact on the application of section
29(2) of the Constitution, with reference also to section 41 of the
Constitution. Noting that the applicant was unrepresented, incarcerated and
without access to a lawyer, such factors justified an extension of the time of
appeal.
Sisa Kanaveilomani vs. The State
[High Court] Criminal Appeal No. HAA 015 of
2001S
An
appeal against conviction and sentence. The court briefly
considers section 28 of the Constitution as the Chief Magistrate failed to
inform the accused of his right to legal representation. However, the court
rules that no prejudice was caused, as the accused understood the charge, and
admitted the elements of the charge. The court also discusses at length the
sentences, bearing on the accused’s right to freedom
from severe or disproportionate punishment.
Mukesh Kumar and Anor vs. Vijayantimala
[High Court] Civil Appeal HBA 0005.00L
The court discusses in some
detail the obligation of counsel towards their client and the court, citing
relevant instruments: Fiji Law Society Code of Ethics, International Code of
Ethics, and the Legal Practitioners Act 1997. The court also discusses the
right of a party to be represented by a lawyer of his/her choice under section
28 of the Constitution and the factors that operate against its application.
B.R. Kwon vs. Suva City Council
[High Court] Criminal Appeal No. HAA 081 of
2000
An
appeal against conviction and sentence. The service of a summons
on a solicitor who subsequently appeared and entered a plea of not guilty on
behalf of the client, constitutes proper service consistent with sections
81(1), 82, 83, and 84 of the Criminal Procedure Code. The appearance of counsel
in court satisfies section 28(1)(h) of the
Constitution.
Messrs. K.W.
March Ltd vs. Suva City Council
[High Court] Criminal Appeal No. HAA of 081 of
2002S
The court clarifies the
application of section 28(1)(h) of the Constitution as
requiring only the satisfaction by the magistrate that the summons was properly
served on the accused. There is no inconsistency between section 28(1)(h) and section 199 of the Criminal Procedure Code.
Ministry of Labour, Industrial
Relations and Productivity vs. The Merchant Bank Fiji
Ltd
[High Court] Criminal Appeal No. HAA 011 of
2002
The dismissal of a charge
under section 198 of the Criminal Procedure Code does not amount to an
acquittal. Fresh charges may be brought without offending section 28(1)(k) of the Constitution. The court provides an extensive
discussion on this issue with reference to case laws. It also provides an
interpretative analysis of section 28(1)(k) with
reference to case laws and the Report of the Constitution Review Commission.
Rajnesh Rajeshwar Prasad vs. The State
[High Court] Criminal Appeal No. HAA 0051 of
2001S
The accused, having been
informed of the adjournment of the hearing and continuation to a stated date,
and having enough time to prepare a defence, does not have his constitutional
rights under section 28(1)(c) violated when the
Magistrate allows a short adjournment [in reply to a request for a long
adjournment] for continuation of the hearing, and for the accused to gather his
witnesses. The court also outlines the appropriate procedure to be followed by
the defence when requesting the production of the complainant’s statement that
the prosecution denies having.
[High Court] Criminal Appeal No. HAA 041 of 2002
An
appeal against conviction and sentence. The court fails to inform
the accused of his right under section 28(1)(d) of the
Constitution. No prejudice was caused to the accused as the charge was read and
explained to the accused, he understood it and his plea was unequivocal. The
facts disclosed by the prosecution were detailed, clear and disclosed all
ingredients of the offence. The court also considers the factors bearing on the
sentence imposed by the lower court.
[High Court] Criminal Appeal No. HAA 0059 of
2001S
An
appeal against sentence. The court fails to inform the accused of his right
under section 28(1)(d) of the Constitution. No
prejudice was caused. The charge was clearly worded,
the accused pleaded not guilty then guilty a month later, and was no stranger
to the court system.
John Yogendra
Singh vs. The State
[Court of Appeal] Criminal Appeal No. AAU 0025/99S
The court rules that it
would not favour the application of the right under section 28(1)(ii) if the applicant refused to subject himself to the
jurisdiction of the court. The right is waived in such a case.
Anthony Graham Smith vs. The State
[Court of Appeal] Criminal Appeal No. AAU 0011 of 2001
The court briefly clarifies
the meaning of section 28(1)(j) of the Constitution as not preventing the
higher court from imposing a higher sentence that originally the case, provided
the sentence is not more severe than the maximum sentence at the time the
offence was committed.
[High Court] Misc. Action
HAM 034.03S
In interpreting section
28(1)(d) of the Constitution, the court must have
regard to sections 3(a), 29, 43(1) and 43(2) of the Constitution. The right to
choose counsel of your choice is not absolute and must be weighed against
other, often-competing, rights. The court also discusses extensively the duty
of counsel to withdraw from cases with greater consideration of the counsel’s
right to practise and their duty to the court. The court rules it has the
jurisdiction to control representation in the interests of justice.
Jope Naucabalavu Seniloli vs. The State
[High Court] Criminal Misc.
Case HAM 029.04
The court briefly discusses
the importance of equality before the law as contained in section 38 of the
Constitution where the applicant for bail is a high chief and the Vice
President.
State vs. Ratu Jope Seniloli
and 5 Ors
[High Court] Criminal Case No. HAC 028 of 2003S
The court provides a
detailed discussion of the right of an accused under section 28(1)(d) of the Constitution in an application for adjournment
to secure a legal representative, with reference to case laws.
The State vs. Albertino Shankar and Francis Narayan
[High Court] Criminal
Action HAM 014.03
A
bail application pending trial. The court refers to section 27(3)(c) of the Constitution and notes that the interests of
justice require that the accused be further remanded, there being no special
personal circumstance present. The court also considers other factors relevant
to the application – delay, likelihood of surrender to custody, public
interest, protection of the community, and attributable
fault.
The State vs. Graham Bruce
Southwick and Visanti Petero
Makrava
[High Court] Criminal Case
No. 018 of 1998
The court discusses at
length the interpretation of section 158(2) of the Criminal Procedure Code for
the purpose of costs. Extensive reference was made to whether the prosecution
has reasonable grounds for bringing the proceedings.
The State vs. Iosefa Sucutuiqaqa and 8 Ors
[High Court] Criminal Appeal No. HAA 0061 of
2001S
An appeal by the
prosecution against the decisions of the magistrate on ‘no case to answer’, referring largely to decided case laws.
The State vs. Ratu Inoke Takiveikata
[High Court] Criminal Case HAC 005.04S
The accused’s
right to choose counsel of his choice is not an absolute right. It is an
obligation to permit, not to ensure, legal representation.
Peni Varawa and 7 Ors vs. The State
[High Court] Criminal
Appeal No. 0002 of 2002
The court very briefly
outlines the procedures available to a defence counsel for application to
withdraw from representation. It also discusses the application of the right
available to an unrepresented accused when a guilty plea is entered. A guilty
plea entered while the accused was represented must be cautiously approached
when counsel has not properly discharged his duties to the accused during his
period of engagement.
Sekove Vatuabete vs. The State
[Court of Appeal] Criminal Appeal No. AAU 0018 of 1998S
The court briefly applies
section 11(1)(e) of the Constitution of Fiji 1990 and
its equivalent under section 28(1)(f) of the Constitution Amendment Act 1997,
to section 211 of the Criminal Procedure Code regarding an appeal against
refusal to grant adjournment.
Graham Bruce Southwick vs. The State
[Supreme Court] Appeal No. CAV 0001 of 2003S
The court interprets the
meaning and application of section 158(2) of the Criminal Procedure Code to
ascertain whether it is consistent with the right to be presumed innocent under
section 28 of the Constitution.
Reginald Alan Lyndon vs.
Legal Aid Commission and The State
[High Court] Misc. Case No. HAM 38 of 2002
The court provides a
detailed analysis of the application of sections 28(1)(c)
and (d), and section 38(1), (2), and (7) of the Constitution to the Legal Aid
Guidelines for providing legal assistance. The court also refers to sections
21(4) and 43(2) of the Constitution for the interpretation of the Bill of
Rights. The court also cites Article 7 of the Universal Declaration on Human
Rights and Article 14(3) of the International Covenant for Civil and Political
Rights.
[High Court] Criminal Appeal No. HAA 063 of
2004
An
appeal against conviction. The court fails to inform the accused of his right
to legal representation [s. 28] at change of plea, when the accused plead
guilty in the absence of lawyer. There was prejudice caused to the accused
following the breach.
[High Court] Criminal Appeal No. HAA 023 of
2004
An
appeal against sentence. The magistrate fails to inform the accused of his
right under section 28(1) of the Constitution before plea was taken. No
prejudice was caused to the accused from the failure. He has consistently
refused legal representation while in police custody, he admitted each and
every count, which were easily understood, charges
were read and explained to him, and he was familiar with court process.
SECTION 29
The Proceeding
Commissioner, FHRC vs. The
Commissioner of Police and Attorney General
[High Court] Civil Appeal No. HBC 0093D of
2002S
The case sets a precedent
that the 30 Days Rule under the High Court (Constitutional Redress) Rules 1988
is inconsistent with sections 29(2) and 41(1) of the Constitution and thus
unconstitutional.
Citizens Constitutional
Forum and 5 Ors vs. His Excellency the President and Attorney General
[High Court] Civil Action
No. 119 of 2001
An
application for disqualification of a judge on the ground of bias. The court briefly refers
to section 29(2) of the Constitution in discussing impartiality.
Rajesh Chand
and Shailesh Kumar vs. The
State
[Court of Appeal] Criminal Appeal No. AAU 0056 of 1999S
The court must exercise a
judicial discretion in determining an application for adjournment. It also outlines
the consideration in determining whether the appellate court should interfere
with the exercise of the judge’s discretion.
Romanu Naceva and 4 Ors vs. The State
[Court of Appeal] Criminal Appeal No. AAU 0014 of 1998S
Five accused are represented
by one counsel. Where counsel withdraws representation in the middle of the
trial from four of the accused, the complexity of the case dictates that the
trial ought to have been commenced de novo with all the accused represented
separately. Such course is consistent with the accused’s
rights under section 28(1)(d) and 28(1) of the
Constitution.
Solomone Naqa and 3 Ors vs. The State
[High Court] Criminal Misc. Case No. HAM 0025 of 2001S
The court outlines the
principles applicable for a permanent stay of proceedings for abuse of process
of the court, including the rights under section 29(3) of the Constitution.
Delay in the conduct of the trial is substantially caused by the defence and
attributable to a very long adjournment by the court. No prejudice would be
caused to the accused right to fair trial.
Apaitia Seru, Anthony Frederick
Stephens vs. The State
[Court of Appeal] Criminal Appeal No. AAU 0041 of 1999 and AAU 0041 of 1999
The court provides a
detailed analysis of the law applicable to the question of whether a single
judge of the Court of Appeal has the jurisdiction to order a stay of the
criminal proceeding pending appeal.
Graham Southwick vs. The State
[Court of Appeal] Criminal Appeal No. AAU 0061 of 1999S
An
application for costs under section 158(2) of the Criminal Procedure Code. The court holds that the
prosecution has reasonable grounds for bringing the proceedings.
Judicial Review No. 0012 of
1998
The court refers to and
applies the principles of natural justice: no one shall be a judge in his own
cause.
The State vs. Anthony
Frederick Stephens
[High Court] Misc. Action
HAM 0004.97S
The court outlines the
category of person who may become surety in a bail application, and stating the
various factors to be considered. It also educates the parties of the
adversarial system of the court in Fiji and its benefits.
The State vs. Ratu Inoke Takiveikata
[High Court] Criminal Case HAC 005.04S
Ruling No. 2
The court provides an
extensive discussion on the meaning and application of section 28(1)(d) of the Constitution relating to the right to counsel of
choice. In passing, the court refers to sections 21(2), 21(4), 29(1), and
37(2), of the Constitution. The court also refers to article 14(3) of the
International Covenant on Civil and Political Rights.
The State vs. Timoci Silatolu and the Attorney
General and Human Rights Commission
[High Court] Criminal Action No. HAC 011 of
2001L
The court extensively
discusses the right of an accused according to sections 28(1(d), 29(1) and 38
of the Constitution while he continued to remain unrepresented on treason
charges, as he is not able to secure a legal representative of his choice.
Timoci Naisake and Anor vs. The State
[High Court] Misc. No. HAM 010D.2000S
In a bail application, the
court interprets ‘within reasonable time’ under section 29(3) of the
Constitution to determine undue delay of prosecution, and considers section
27(3)(c) of the Constitution.
Peni Naduaniwai vs. The Commander, Republic of Fiji Military Force and The State
[High Court] Misc. Case No. HBM 32 of 2004
An application for
constitutional redress under section 41 of the Constitution for possible
violation of human rights if the applicant is tried under Military Law by a
General Court Martial. The court is satisfies that it has jurisdictions to hear
the application under section 41(3) of the Constitution. The application
satisfies the requirement under section 41(4) that no alternative remedy with
purposive outcome is available under the Army Act 1955. The court also
discusses at length the relationship and balance between the rules and
procedures of the military and its courts and protection of human rights,
indicating the duty of the military court to also protect and adhere to the
principles of human rights relating to a fair trial.
SECTION 30
Burns Philip (Fiji) Ltd vs.
Associated Media Ltd and 3 Ors
[High Court] Civil Action
No. 0297 of 1998
The court states its duty
to balance the application of the rights to freedom of expression against
rights to protection of interest from publication of defamatory material.
SECTION 33
Fiji Bank Employees Union
vs. Housing Authority
[High Court] Judicial Review No. HBJ 0022 of
1999
The court briefly clarifies
the proper method for seeking a declaration under the Constitution.
PAFCO Employees Union vs. Pacific Fishing Company
Limited
[High Court] Civil Action No. HBC 543 of 2000
The court provides an
analysis of its duty to uphold the provisions of the Bill of Rights. It further
discusses its obligation to apply public international law in support of the
provision of the Bill of Rights, citing sections 41(1) and 43(2) of the
Constitution Amendment Act 1997. In brief, it refers to sections 33(2) and
33(3) of the Constitution, and Article 8 of the International Covenant on
Economic, Social and Cultural Rights.
Central Manufacturing
Company Limited vs. Yashni Kant
[Supreme Court] Civil Appeal No. CBV 0010 of 2002
The court very briefly
considers section 33(3) of the Constitution as part of labour laws in Fiji.
SECTION 34
Mohammed Kasim vs. Commissioner of Police, Director Immigration and
Attorney General
[High Court] Action No. HBC 471 of 1999
A
case of unlawful detention. The court applies sections 23, 26, 27 and 34
of the Constitution and orders exemplary damages for the breaches.
[High Court] Misc. Action No. HAM 003 of 2001S
The court explains the
meaning and scope of section 34 of the Constitution, and interprets it with the
limitations contained in section 34(6), and the principles applicable to the
determination of bail applications.
Waisea Volavola and 5 Ors vs. The State
[High Court] Misc. Case No. HAM 021 of 2002
In a bail application, the
court discusses the meaning and application of section 34(6)(a)
of the Constitution when an accused applicant has a history of defaulting
appearance before the court.
SECTION 38
Penioni Bulu vs. The Permanent Secretary for Communication, Work and Energy
and Attorney General
[High Court] Action No. HBC 0539.98
An argument advanced under
section 40(1) of the Constitution cannot be sustained where the applicant
contributed largely to the deprivation.
[High Court] Civil Action
No. 0025 of 1999
The court provides an
extensive analysis of the meaning and application of section 38 of the
Constitution to sections 11 and 17 of the Income Tax Act as applying to
non-resident pensioners.
Jope Naucabalavu Seniloli vs. The State
[High Court] Criminal Misc.
Case HAM 029.04
The court very briefly
emphasises the importance of equality before the law as contained in section 38
of the Constitution where the applicant for bail is a high chief and the Vice
President.
Susana Tusawau
vs. Fiji Institute of Technology Council
[Court of Appeal] Civil Appeal No. ABU 0044 of 2000S
The court briefly alluded
to the fact that under section 16 of the Fiji Constitution 1990, restriction
based on age was not unlawful, as it is the case under section 38(6)(d) of the Constitution Amendment Act 1997.
SECTION 40
Nivis Motors and Machinery Company Limited vs. Minister
for Lands an Mineral Resources
[Court of Appeal] Civil Appeal No. ABU 0017 of 1998S
The court compares at
length the scope of the relevant provisions of the Fiji Constitution 1990
(section 9(1)(c)), the Constitution Amendment Act 1997
(section 40) and the State Acquisition of Lands Act (section 6) on the
principles and procedures relating to state acquisition of property.
[High Court] Judicial
Review No. 0033 OF 1997
The court briefly refers to
section 9(1) of the Constitution and the procedures available under the law
(State Acquisition of Lands Act) in the implementation of such exercise by the
State, which must fulfil all minimum constitutional requirements. The court
further discusses the relation between the Constitution and the Act.
Ved Prakash vs. Native Land
Trust Board and Filipe Kubuyawa
[High Court] Action No. HBC 0409D.1996L
The court discusses at
length the application of section 40 of the Constitution in consideration of
the relevant provisions of the Constitution – sections 3, 6, and 7.
H.P. Bulasara vs. Commissioner
of Police and Attorney General
[High Court] Civil Action No. HBC215 of 2000
The court briefly discusses
the powers of the police to search and seize property and the circumstances giving
rise to the exercise of that power, including how they relate to the rights
contained in section 40 of the Constitution.
SECTION 41
Senitiki Naqa vs. Commander of
the Fiji Military Force and 3 Ors
[High Court] Misc. Action
No. 63 of 2003
The court determines a
claim that must not be brought under the High Court (Constitutional Redress)
Rules 1988.
SECTION 43
[High Court] Criminal Trial
No. 8 of 1998
Sentencing Ruling and
Remarks
The court made brief
reference to the Convention on the Rights of the Child and its application in
Fiji through section 43(2) of the Constitution.
Yuen Yei
Ha vs. The State
[High Court] Misc. Case No. HAM 39 of 2004
A
bail application pending trial. The court gives greater consideration to the
best interest of the child of the female accused irrespective of the severity
of the charge. The court relies on section 43(2) of the Constitution in
applying the Convention of the Rights of the Child as relevant to the issue.
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