Crimes Decree 2009 (FIJI)

(a) cash and sleeping pills (Fiji)

-> theft s291 then s296 appropriation where (a) a person receives property from or on account of another; and (b) is under a legal obligation to the other to retain & deal with that property/its proceeds in a particular way.

Sexual assault/indecent or assault/indecent act when he kissed as he was trying to urge her to have sex with him there and then Refer to your notes from week 10 tutorial:

->Discuss the offence of indecent assault: Kiribati/Tuvalu s133, Samoa s60, Cooks s148, Tonga s124 for these provisions note arguments with respect to assault, definitions, and issues with consent. ->Vanuatu discuss s98(2) indecent assault. ->Solomons s138: indecent act without consent; s136B defines 'indecent act'. ->Case authorities re: indecency i.e., Drago (unbecoming or offensive to common propriety), McBride (lewd or prurient {prurient=having or encouraging an excessive interest in sexual matters}). ->Discuss the offence of sexual assault: Fiji s210 ->American-based: tends to be included in general sexual assault provisions. ->Lack of consent generally viewed as implied element of these provisions, where it is not expressly stated.

Fiji *Re: murder Did Lote commit murder s237?

->Engaged in conduct (stabbing) ->Conduct caused death Substantial contribution? Yes. Was ambulance delay a novus actus interveniens? No. *Re: provocation ->Liable for murder, unless provocation (s242). Actual loss of self-control? (subjective - probably) Objective loss of self-control: Sudden act of provocation (Wrongful act or insult)? (arguably yes. Publicly disowned son) likely to deprive ordinary person (18y old Stingel) (male, Camplin) of self-control (especially in Pacific with strong family ties, yes.) Done to induce an assault of the kind committed? (probably not... but weak argument that Kini was seeking to induce his son to react rather than simply shame him) Before passion cools (Miller, Pollock).

Rape (s207 Crimes Act/decree)

->For Dick to be found guilty of raping Linda, he must have had carnal knowledge of Jane without her consent (s207(2)(a)) Clear from admissions and facts that there was penetration and that Dick had carnal knowledge of Jane. Consent must be freely and voluntarily given (s206(1)) Not free and voluntary if consent obtained by fear of bodily harm S206(2)(c) "Submission is not consent" (DPP (No 1 of 1993) (1993)) Likely court will find no valid consent and therefore Dick committed Rape. Dick may wish to claim he was under a mistaken belief regarding Jane's consent and may wish to raise the defence of mistake of fact (s34) Must be genuine mistaken belief (arguable, low IQ, mental illness: counter, she was passive throughout) s34(2) in determining whether Dick's mistake negates the fault element the court may, but is not required to consider whether this mistaken belief was reasonable in the circumstances.

Fiji e.g Taking the car - theft

->Theft (s291) of vehicle: ->Appropriation (s293CD) includes taking (of Property (s288CD); belonging to another (s289CD). ->dishonestly defined (s290CD). ->with an intention permanently to deprive (s300CD) - treat as own regardless of owner; (s300(2)) Borrowing is not treating as one's own unless in circumstances equivalent to outright taking. (Arguable, but likely yes because of prior warnings and police intervention).

(b) Liability regarding Meth - drugs offences - possession Fiji

->s5 Illicit Drugs Control Act Possession of illicit substance o In accordance with s4 of the Crimes Decree/Act, 'possession' includes 'knowingly having anything... in any place" Fred had possession and knowledge of possession of package (cannot deny actus reus) o Meth is an illicit substance in Fiji (Illicit Drugs Control Act schedule 1). o Without lawful authority - (Fred had no lawful authority under s11 Illicit Drugs Control Act to possess an illicit drug) o Knowledge/intention s 5 Illicit Drugs Control Act does not specify a fault element, thus s10(2) Crimes Decree/Act directs us to general provisions (s23 Crimes Decree/Act) Possession of drug is a crime of circumstance, thus, s23(2) Crimes Decree/Act liable if recklessly, or by virtue of s21(4) Crimes Decree/Act knowingly, possessed an illicit substance. It is not necessary to prove which drug. Unlikely to establish BRD that Fred had actual knowledge of contents of package. o Recklessness (as to possession of a 'psychotropic substance') Subjective foresight of substantial risk (difficult to argue for Prosecution. Sally's words were fairly reasonable... although a scarf takes a while to knit... where did she knit it? At his house? Surely not her mother's house... did Fred know she was knitting it? Prosecution may be able to pick holes in Fred's story) Objective unjustifiability of taking risk (if (big IF) he had subjective foresight, then it would be objectively unjustifiable having regard to seriousness of consequences of taking risk)

Criminal Law Standard

Beyond reasonable doubt which the Prosecution must prove each elements of the offence. In cases where prosecution wrongfully charged a person it is highly likely that the person charged will be dismissed .

Assault *In other jurisdictions AOBH would be considered as a factor when sentencing. For everywhere else:

Fiji ->Did Dick Commit assault occasioning bodily harm s275? o Application of force to Jane (punch to face) o Conduct was voluntary (s16 ) o The result of Dick's conduct was ABH to Jane (broken nose). Under s23CD for result based offences (occasioning ABH) recklessness will be the fault element. Under s21(4)CD proof of intention will also satisfy fault element, thus did Dick intend, or was Dick reckless as to the causing of ABH to Jane? (s21CD) Intention if he 'meant to engage in conduct'. Yes. Notwithstanding, he was reckless. Dick was aware of a substantial risk that the result (ABH) would occur and was having regard to that it was unjustifiable for him to take the risk. ->Dick will probably not be liable for causing GBH to Jane (s258) because broken nose is not grievous harm (serious or permanent injury to health (s4).

S242 Killing with Provocation

Killing with provocation 242. — (1) When a person who unlawfully kills another under circumstances which, but for the provisions of this section would constitute murder, does the act which causes death in the heat of passion caused by sudden provocation as defined in sub-section (2), and before there is time for the passion to cool, he or she is guilty of manslaughter only. (2) The term "provocation" means (except as stated in this definition to the contrary) any wrongful act or insult of such a nature as to be likely when— (a) done to an ordinary person; or (b) done in the presence of an ordinary person to another person — (i) who is under his or her immediate care; or (ii) who is the husband, wife, parent, brother or sister, or child of the ordinary person — to deprive him or her of the power of self-control and to induce him or her to commit an assault of the kind which the person charged committed upon the person by whom the act or insult is done or offered. (3) When such an act or insult is done or offered by one person to another, or in the presence of another to a person who is under the immediate care of that other, or to whom the latter stands in any such relation as stated in sub-section (2), the former is said to give to the latter provocation for an assault. (4) An act which a person does in consequence of incitement given by another person in order to induce him or her to do the act and thereby to furnish an excuse for committing an assault is not provocation to that other person for an assault. (5) An arrest which is unlawful is not necessarily provocation for an assault, but it may be evidence of provocation to a person who believes and has reasonable grounds for believing the arrest to be unlawful.

S239 Manslaughter

Manslaughter 239. A person commits an indictable offence if— (a) the person engages in conduct; and (b) the conduct causes the death of another person; and (c) the first-mentioned person— (i) intends that the conduct will cause serious harm; or (ii) is reckless as to a risk that the conduct will cause serious harm to the other person Penalty — Imprisonment for 25 years.

S237 Murder

Murder 237. A person commits an indictable offence if — (a) the person engages in conduct; and (b) the conduct causes the death of another person; and (c) the first-mentioned person intends to cause, or is reckless as to causing, the death of the other person by the conduct. Penalty — Mandatory sentence of Imprisonment for life with a judicial discretion to set a minimum term to be served before pardon may be considered.

Criminal negligence amounting to Manslaughter

The death of Kini - Criminal negligence amounting to manslaughter To establish this: ->Firstly, we look to establish that there was a duty of care Remember you cannot breach a duty unless you can identify that a duty is actually owed. The most relevant duty would be to discuss whether the knife was 'dangerous thing' under his care or control. For specific legislative provisions on this duty, Cooks s176, Tonga s 95(4), Samoa s 88, Solomons s 214, Kiribati/Tuvalu s 207, Fiji s 241(5). All other jurisdictions query whether we can read the common law duties into your statute (refer to back to arguments from the Samoa case (Police v Uolo [2003] WSSC 11) then the revision of the Crimes Act in 2013 which incorporated the common law duties thus creating an arguable precedent for other jurisdictions to do the same and read in the common law duties). ->Secondly, was that duty breached? Arguably, Lote had in his possession a dangerous thing which he used to inflict injury. ->Thirdly, was that duty breached to the extent that there was criminal degree of negligence or gross negligence? Was Lote criminally/grossly negligent? In your discussion note and discuss the common law test: *Bateman: 'disregard for life and safety of others as to amount to a crime against the State and conduct deserving punishment? Do we have that here? Note also specific legislative provisions from some jurisdictions, only if they apply to you: *Fiji s22: great falling short of the standard of care.