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.

 

Re Nikhil Naidu

[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

 

Regina vs. Mohammed Hanif

[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.

 

Shiu Ram vs. Regina

[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

 

Jaswant Prasad vs. Reginam

[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. 

 

Peter Batey vs. Reginam

[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.

 

Kepueli Jitoko vs. The State

[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.

 

State vs. Waisale Rokotuiwai

[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.

 

Prem Chand vs. The State

[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.

 

The State vs. The Permanent Secretary for Education and Technology and The Secretary, Public Service Commission ex parte Sokoveti Tuimoala

[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.

 

Sevuloni Tora vs. The State

[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.

 

Waisake Tukana vs. The State

[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

 

Naushad Ali vs. The State

[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.

 

Solomoni Koroi vs. The State

[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.

 

State vs. Audie Pickering

[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).

 

Tawake Cakacaka vs. The State

[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

 

Satish Kumar vs. The State

[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.

 

Sanjana Devi vs. The State

[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.

 

Sudesh Jeet vs. The State

[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.

 

Lepani Maiwaqa vs. The State

[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).

 

State vs. Abhikash Anil Kumar

[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.

 

Jese Tuilaucala vs. State

[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.

 

State vs. Ram Lingham

[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.

 

The State vs. Dharmend Chand

[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

 

Viliame Savu vs. The State

[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.

 

Prem Chand vs. The State

[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.

 

Kaveni Raibono vs. The State

[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.

 

Simione Raura vs. The State

[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.

 

The State vs. Khan and Singh

[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.

 

Faiyaz Ali vs. The State

[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.

 

Esala Vakalasaqere Vacena

[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.

 

The State vs. The Government Printer and the Secretary for Public Service Commission ex parte Dale Tonawai

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.

 

Tak Sang Hao vs. The State

[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. 

 

Uttam Chandra and Fiji Pensioners Association vs. Permanent Secretary for Finance and Attorney General

[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.

 

The State vs. The Minister for Lands and Mineral Resources ex parte Nivis Motors and Machinery Co. Ltd

[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

 

State vs. Mark Lawrence Mutch

[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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