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There are several aspects of the function and structure of criminal law that
prevail in all parts of the world including the South Pacific region. Some of
these aspects or themes are outlined here.?

Criminal law is an aspect of public law:  are brought by or on

behalf of the  against a person or persons who have
been , or with a criminal offence.?

cn this course, we shall primarily be concerned with the study

of 53criminal law: the law that defines what is or is not a crime.
Related areas of study are moral philosophy which is concerned with the
reasons why some courses of conduct are designated as criminal and
criminology which is concerned with the reasons why people become involved
in criminal activity.?

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Criminal law is what determines the boundaries within which the criminal
justice system operates. The criminal justice system is a system of rules and
institutions whose purpose is to ,3 the behaviour of those persons and/or
groups of persons who are subject to the criminal law. Generally, all members
of a society are subject to all of the criminal law although there may be some
aspects of the criminal law that only really apply to particular individuals or
groups within a society.?

à
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criminal law only really applies to those persons or organisations who are
engaged in activities that are governed by the specific laws which create such
offences.?

The sort of social control that is exerted by the criminal law through the
operation of the criminal justice system could be described as µnegative¶
control because it does not seek to persuade people to act in
socially 5 ways, rather it seeks to  them from acting in socially
harmful ways. The means by which it does this is through a combination of
order backed by sanction.?

This is a very general statement of how the criminal law operates and we will
see during this course that not all aspects of criminal law can be analysed in
these terms.?

However, what is true of criminal law is that the means by which it seeks to
govern social behaviour is that of the application of  to those persons
or organisations who are found guilty of failing to comply with the law.?

The sanction applied will vary depending on a range of things (such as the
type of offence, the gravity of the offence, the penal policy of the
relevant‰. The range of sanctions may include such things as:
fines, community service, probation and imprisonment.?

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law, including the criminal law of the South pacific region must be viewed
within its context. Law does not operate within a vacuum and neither should it
be studied in one. cn order to be good students, teachers or practitioners of
law we need to be aware of how the law comes about, what influences its
development and   and how it affects, both directly and indirectly,
the members of the society that are subject to its ,3.?

There are several aspects to the context of law within modern societies. cn
some societies some influences may be stronger than others. Some
influences may not be apparent at all in some societies but may be highly
important in others.?

Some main aspects of the context of law are:?

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The law has an impact on each of these spheres and is subject to impact from
each of them from time to time.?

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›hilst we are considering the criminal law in a broad sense, we should

examine the possible rationales or philosophies that may be seen to underpin
the way the criminal law is formulated and applied.?

As we have already mentioned, the criminal law seeks to influence or control

the behaviour of a society and what finds its way into the body of criminal law
in any given society is a reflection of the moral, social, cultural, economic and
political concerns that 3 within the societal structure whether on an
ongoing basis or periodically.?

The distinguishing characteristic of the criminal law is that it is ultimately

backed by sanction and the sanctions that it applies may be more severe than
those that may operate in other areas of law such as civil or administrative
law. This is particularly the case if and when the sanction that is applied
involves the deprivation of individual 5). ct is very rare for imprisonment to
be used as a sanction in relation to civil matters.?

oecause of the centrality of sanction or punishment to the formulation and

application of the criminal law, it makes sense to examine the attitudes of a
society towards the concept of punishment and what that society envisages
will be achieved by the application of sanction to those who , the
criminal law.?
There are several possible philosophies that may be identified; at any time in
a given society one or more of these philosophies may take  over
the others.?

The philosophies that we shall look at briefly here are those that are most
easily recognisable in ›estern societies such as the UK, Australia and ew
Zealand. These societies have had and continue to have a considerable
impact on the development of the Law in the Pacific region.?

oelow, you will find a very brief outline of what each of these philosophies
entails. Underlying all rationales or theories of punishment is the aim of
reducing recidivism on the part of those who have committed criminal
offences. Recidivism is another word for repeat offending.?

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5: This is a primary purpose of punishment; an offender is punished

because that is what she deserves. Punishment that is based on retribution
goes some way to satisfying the need for revenge that exists when one
person or group within a society has been victimised by another. This is
sometimes referred to as the µjust desserts¶ theory of punishment.?

: There are 2 types of deterrence. Particular or specific deterrence

seeks to  individual offenders from committing further offences.
General deterrence seeks to dissuade the rest of society from committing
criminal offences by punishing those that do.?

c8cf someone is locked up or incapacitated in some other way

( being subject to a ! they are prevented from committing further
offences and thus the rest of society is safe from that person. This rationale
may be used to justify imposing extended prison sentences on particular types
of offenders such as those convicted of crimes of a sexual or particularly
violent nature.?

5 8Rehabilitation is a µwelfare¶ model of punishment in which the

punishment period is seen as a time during which an offender may be µcured¶
or µeducated¶ to prevent further criminal activity when the offender rejoins
society.?




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cn this course, we shall focus mainly on the laws as they exist in relation to
certain criminal offences. out it is important to remember that law arises out
of ). The policy issues that arise in relation to the criminal law and the
way in which the criminal justice system operates are things for you to think
about throughout this course.?

Particularly when considering how law should be reformed, the importance of

policy is apparent as it is at the policy level that law is most effectively altered
in terms of how the law affects society. Law may be created, widened or
narrowed in its focus or repealed by a society whether through the operation
of the courts or the legislature.?

cn many cases of law reform, the driving force is that of policy; similarly it is
policy which informs how the law is enforced and applied in practical terms.?

à
à:A society which adopts a policy of tolerance towards the use of

drugs can be expected to pass laws that   the possession and/or
sale of the drugs that are to be tolerated. Similarly the police force of such a
society will stop arresting people found to be in possession of the tolerated
drugs.?

The law will change both in terms of substance and operation but
the  for change will be one of policy.?

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 operates throughout the Criminal Justice System and results in

what Findlay calls µselective enforcement¶.?

This means that not all laws will be enforced all of the time; not all offenders
will be charged by the police; not all prosecutions will be carried forward by
prosecutors. Judges may not convict all persons against whom the facts
appear to have been proved and those who have been convicted of the same
or similar offences will not necessarily receive the same sentence.?

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The use of discretion can be 5  both in terms of legal theory and in
terms of how the law is enforced within society.?

From a legal theorist¶s point of view, the use of discretion seems to be in

conflict with the principle of legality which has also been described as the
principle of compulsory prosecution.?

cn very basic terms, this means that if the law were to operate in accordance
with such a principle, then all persons against whom there is sufficient
evidence to indicate that they have had involvement in punishable conduct
should be brought before a court for a determination of guilt and (if convicted
punishment.?

The rationale for such a principle is that it promotes equal treatment, prevents
political interference in the criminal process and may also heighten the
effectiveness of the law as a means of , ?

Of course, even where such a   is adopted by a jurisdiction, it is

recognised that it would be impossible to apply it in practice as the machinery
of criminal justice would break down under such a load.?

And so it is recognised that for , reasons, economic reasons and

administrative convenience that some selective enforcement must apply.?

A more interesting question to ask about discretion within the criminal justice
system is not so much whether or not it exists but who exercises it and what
influences the decisions that they make.?

ct is generally considered less acceptable that those who are not held
accountable in any way should exercise a larger degree of discretion than
those who are.?

Discretion without 5 ) is open to abuse which can lead

to  whether in terms of race, age, gender, class or lifestyle.?

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oefore we can study Criminal Law, we need to know where to find it. Once we
have identified the relevant sources, we need to determine whether there is
a) to be followed when applying the law.?

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cn nearly all jurisdictions throughout the world, a written constitutional
document has been created and accepted. The constitution operates as a
kind of µhigher law¶ and it will take  over any  statute
or common law.?

Any legislation which is inconsistent with the terms of the constitution will be
deemed to be void, either in  ) or to the extent of its inconsistency with
constitutional provisions.?

The UK does not have a single written constitutional document and therefore
there is no formalised µhigher law¶ against which other laws can be measured.
However, all of the independent countries (and those which are in free
association with some other state: Cook cslands, iue and the Republic of the
Marshall cslands within the South Pacific region have adopted a constitution
and many of these constitutions contain provisions that relate to issues of
criminal law and policy.?

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(Article 53 of the Constitution of the Republic of Vanuatu?

cn addition, constitutional documents often include reference to the structures

and jurisdictions of the courts within the country. For example, the Court of
Appeal of Cook cslands is established under Art.56 of the Constitution. cn
iue, the jurisdiction of the Court of Appeal to ')
 ‰,9,' is stipulated in Art.55A(1 of the
Constitution. cn addition, Art.55(A(2 contains provisions more specific to the
Court's criminal jurisdiction such as the provision that an appeal lies as of right
from any conviction of the High Court acting in its criminal jurisdiction and that
appeals may not be lodged against sentence where the sentence passed by
the High Court is fixed by law.?

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The primary source of criminal law within the South Pacific region is locally
enacted legislation in the form of a Crimes Act or Penal Code. These
documents set out offences and the relevant penalties.?

Some minor offences may be contained in other pieces of legislation.

Examples include: the Order in Public Places Act of Tonga (Cap. 37,
the Minor Offences Act of Fiji cslands (Cap. 18, the Police Offences Act 1961
of ›estern Samoa and the Public Order Act of Vanuatu.(Cap. 84. The rules
that apply to issues of Criminal Procedure are contained in a piece of
legislation such as a Criminal Procedure Code.?

The rules that apply to issues of Criminal Procedure are contained in a piece
of legislation such as a Criminal Procedure Code. cn addition, there are
specific pieces of legislation that are relevant to specific aspects of criminal
procedure. Examples are the Magistrates' Courts Act in Fiji cslands (Cap.14,
the oail Act1990 (as amended in Tonga and the Suspension of Sentences
Act in Vanuatu (Cap.67.?

cn this part of the world, there is a preference for adopting a codified approach
to law and so it is possible to look to one source for a comprehensive
statement of what the law is at any one time.?

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This is not the situation in the UK where there is a mixture of common law
offences and those contained in a range of statutes. There have been some
attempts to introduce codification into the Anglo-›elsh legal system. Some of
these have been accepted, such as the Theft Acts and others have not, such
as the Draft Criminal Code.?
Most of these regional codes are colonial models that have been retained
further to the various jurisdictions gaining independence. Other versions
of these codes exist elsewhere in the world. The penal codes of Solomon
cslands, Kiribati, Tuvalu and Fiji cslands largely resemble the Criminal Code of
Queensland and ›estern Australia. The Criminal Code of Queensland applies
in auru by virtue of s.13 of the Laws Repeal and Adopting Ordinance 1922-
1936 (Australia?

See the Queensland Criminal Code Act of 1899. This Code is often referred to
as the µGriffith¶ Code after Sir Samuel Griffith, its drafter although it is largely
based on a draft Code compiled by Stephen which was never enacted in
England and ›ales but which was exported to several oritish colonies and
protectorates including Fiji cslands and Solomon cslands.?

The Vanuatu Penal Code is a recent and original code, having been enacted
in 1981.?

Although these codes have many similarities, it is important to be aware that

there may be significant differences in what they contain and the order in
which the provisions appear. cn addition, some have been amended differently
(either in nature or degree than others. The two main groupings are the ' ew
Zealand' countries (Cook cslands, Samoa, iue and Tokelau and the 'UK'
countries (Fiji cslands, Kiribati, Solomon cslands, and Tuvalu plus auru. The
legislation of Tonga and Vanuatu does not fit easily into either of these
general categories.

Although it may be considered generally beneficial to have a codified

approach to law, the codes of the region are problematic in a number of
respects. First, it is generally the case (with the notable exceptions of Tonga
and Vanuatu that the Codes have been imposed from without the relevant
jurisdictions rather than organically developed within them. Thus, it is not
always evident that they are wholly suited to the context (whether social or
otherwise in which they are applied. Second, law reform is not something that
is of a high priority in most of the South Pacific jurisdictions, largely due to a
lack of available resources. This means that many of the provisions contained
in the Codes appear outdated and possibly archaic. For example, the
term M ,' is used frequently as the  
for murder
rather than 'intention'. Third, there are also significant gaps in some of the
legislation. For example, there is no definition of 'assault' in the Codes of Fiji
cslands, Solomon cslands, Kiribati and Tuvalu. Although within these
jurisdictions, recourse may be made to 'English' law (see below this is not
necessarily the most satisfactory remedy for such a deficiency.?
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During the colonial period, such legislation was deemed to apply in oritish
colonies as well as in the UK. As the colonies attained independence, each
determined a means by which such law would cease to apply within that
particular jurisdiction.?

So, for example, in Kiribati, Solomon cslands and Tuvalu, the µcut-off¶ date that
signified the date after which any new UK legislation would cease to apply
was 1 January, 1961. Pre-1961 legislation continues to apply (in the absence
of relevant local legislation unless it is considered unsuitable to local
circumstances.?

cn Tonga there is no cut-off date.?

See Civil Law Act 1966, s. 4.?

out this does not mean that all UK statutes apply in this jurisdiction. ›here
Tonga has enacted its own legislation in a particular area then the UK
legislation will have no application. ›here Tonga has not enacted its own
legislation in a given area, the UK legislation may apply depending on how
well it is suited to the particular circumstances and conditions that prevail at
the time.?

cn relation to criminal law, the difficulties associated with the applicability of

received legislation are not so marked as this is an area of law in which there
is a great deal of comprehensive locally enacted legislation. cn fact, in most
cases throughout the region, there will be no need to refer to legislation from
outside the jurisdiction because the relevant circumstances will have been
covered by locally enacted statutes.?

This point was considered in the Solomon cslands¶ case of Ê*

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Kingdom no longer applied in Solomon cslands as all issues relating to
homicide were covered in the Penal Code. This makes it clear that where
locally enacted legislation fully and unambiguously deals with an issue, it is
neither necessary nor appropriate to look to extraneous legal sources for
guidance on that matter.?

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Common law both from the Pacific region and from the UK (England & ›ales
continues to have a role to play in the Criminal Law that we shall be studying.?

The impact of common law may vary from jurisdiction to jurisdiction. cn the
absence of a body of local case law it is difficult to identify local case
law )and therefore it may be necessary to continue to rely on
authority from outside the jurisdiction or possibly even from outside the region
(particularly from England & ›ales in order to help us with the more complex
areas of interpretation.?

See below for more explanation as to how common law decisions may be
dealt with in Pacific jurisdictions.?

The general rules of precedent apply in the courts of the region. cn relation to
Samoa, the doctrine was summarised by St. John CJ as follows:


 
 


  





 

 


 


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Cases that have been decided within the particular jurisdiction and
whose u
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constitute5,authority on lower or equivalent courts.?
Cases that have been decided in another jurisdiction within the South Pacific
region may be 3 authority in the absence of any local case-law
decision on a given point. The weight that they carry will depend on several
things including whether one is citing the
 of a case or something that
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uand the extent of the similarity between the point addressed by the
decided case and the point under consideration in the current case.?

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ct is useful to site the consideration of the continuing significance of this sub-

set of 'case law' within the context of interpretation of relevant legislative
provisions. The starting point for such interpretation is the section or sections
of the statute that have been included to give the reader guidance as to how
the whole of the statute is to be interpreted.

cn some jurisdictions of the South Pacific region, it is the case that principles
of common law and equity are automatically in force. For example, s.615 of
theCook cslands Act 1915 ( Z reads:




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Similar provisions apply in Fiji cslands (s.35 of the Supreme Court

Ordinance 1875; Kiribati (s.6 of the Laws of Kiribati Act 1989; auru (s.4 of
the Custom and Adopted Laws Act 1971; iue (s.672 of the iue Act 1966
( Z; Tokelau (s.4A of the Tokelau Act 1948 ( Z and Samoa (Art.111(1 of
the Constitution.

cn the other jurisdictions, the position is less clear cut:









 
 

  


 


  


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cn addition, in some jurisdictions it is specified that, in the absence of local

definitions and interpretations, the relevant piece of legislation should be
interpreted in accordance with English Law. The following is the wording of s.3
of the Penal Codes of Fiji cslands, Kiribati, Solomon cslands and Tuvalu:

 





 


 

 

 



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(The wording of the Kiribati provision differs to the extent of a reference to

the cnterpretation and General Clauses Ordinance (Cap.46.

This section raises several issues of interest. ct is important to note that this
section does not have the effect of making '  , 
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jurisdictions. Rather, it would appear to make available an additional resource
for making determinations as to how the provisions of the Code are to be
interpreted.

Further, the use of the phrase '  , ' would
appear to be sufficiently wide to include principles that have been
encapsulated in statutory provisions in addition to those enunciated in case
law decisions. Coupled with this, there is nothing in this section to indicate that
the relevant ' ' are those of a particular time, before the relevant
cut-off date.

Finally, such a provision leaves open the possibility of the criminal law in
jurisdictions where it applies developing differently from other jurisdictions that
do not have such a provision, due to a greater reliance on English principles.

The impact of this provision can be seen in the judgment of the Court of
Appeal of Fiji cslands in


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cn relation to common law, there may be some question as to whether one

type of common law is considered to be more significant than another. A
degree of ambiguity in this area has arisen as a result of the (non- use of
'English' before the term 'common law and equity' where it is identified as an
available source of law within a given jurisdiction.

The courts of the region have been and continue to be engaged in a

consideration of whether the principles laid down in English cases should be
considered as preferable to those in cases from other common law
jurisdictions, in particular Australia and ew Zealand. cn the Samoan case
of $$1referred to previously, the Chief Justice made
an  statement regarding available sources of law in the jurisdiction of
(›estern Samoa. Art. 111 of the Constitution states:

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A similar approach to the use of common law has been demonstrated in the
High Court of Solomon cslands. cn the case of Ê8

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intoxication in relation to offences of specific intent. cn his judgment, Daly CJ
identified that an issue that required consideration by the court was the
relationship between the common law principle from the UK jurisdiction (as
laid down in (11
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principle from the Australian jurisdiction (as laid down in Ê
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However, it is important to remember that most jurisdictions have a cut-off

date in relation to the common law of England,  the date at which such law
ceased to be binding in that jurisdiction. For example, in Schedule 3 to the
Constitution of Solomon cslands, it is stated that English case law should
cease to be binding on the courts of Solomon cslands with effect from July 7th,
1978. Of course, this does not mean that English cases that have been
decided since that date cannot have persuasive authority and be used as an
aid for interpreting local legislation. Consider the following ruling of the Court
of Appeal of Solomon cslands:?


 

 

  


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Some jurisdictions specifically exclude the possibility of a person being
charged with an offence at common law. An example of such a provision is
s.8 of theCrimes Act 1969 of Cook cslands:?

  


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The same is true of the law in Samoa (s.7 of the Crimes Act 1961, iue
(s.239 of the iue Act 1966 and Tokelau (s.239 of the iue Act 1966 as
adopted under the Tokelau Crimes Regulations 1975.?

However, in other countries common law offences from England & ›ales will
apply provided that this does not contravene the legislative code of the
country in question.?

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The relationship between customary law and introduced law is one that is very
complex and not easy to describe. There are several factors that contribute to
this. One is that it is not always to determine what custom is; it is not written
down and the well-used phrase µcustom is as custom does¶ indicates that it is
something that is lacking in the sort of formal structures that are associated
with other sorts of law such as statutes and cases.?

Another factor that contributes to the complex nature of the situation regarding
customary law is that it is not always easy to decide where it should come in a
hierarchy of law, if it should figure in such a hierarchy at all. cn Vanuatu, Article
95(3 of the Constitution provides that:?

 


 















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out this does not give any guidance as to how the weight of customary law
decisions (if such can be identified or principles should be compared with the
weight of statutory provisions or decisions of the Courts.?

cn addition, the position as to customary law is further complicated by the fact

that there may be more than one kind of custom in operation in relation to any
one case. Even if we could decide how customary law should be determined
and how important it should be in terms of making legal decisions there may
well remain problems where an  , offender considered herself to be
governed by one set of customary laws and the victim of the alleged offence
considered that another set should apply. Or it may be the case that one of
the parties did not recognise that customary law had a role to play at all within
the criminal process. Furthermore, it is not clear whether customary law can
ever be considered to be µpublic¶ law or whether it is a form of law that applies
only to those individuals or groups who recognise it.?

ct is generally the case that in the countries of the South Pacific, offences
against custom are not considered to be criminal offences under the terms of
the) ,  in operation. A partial exception is that of Solomon
cslands as indicated in Schedule 3 of the constitution:?

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cn addition, in Solomon cslands and Vanuatu, the local or island courts

are ! to take custom into account when dealing with criminal
offences. Even in these jurisdictions, it is the case that there are limits to the
extent that customary law will be accepted. This can be seen from the cslands
Courts Act 1983 of Vanuatu. The criminal jurisdiction of the island court is
determined by s.7:?



 


 
 







  



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ct is evident from these provisions that the applicability of customary law to

criminal matters is susceptible to limitations and that some of these limitations
(µ

  = are framed in broad terms. This means that
it is left to the  of these courts to decide when customary law
should be applied and to what extent. However, within Solomon cslands, there
is only one limiting factor on the application of customary law by the local
courts:?





  


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(Section 10 of the Local Courts Act; Cap. 46?

Elsewhere in the region, the penal legislation makes reference to issues

related to the application (or otherwise of custom or customary law. cn Kiribati
and Tuvalu, there are legislative provisions that make specific reference to the
circumstances in which customary law is to apply and the relationship
between customary law and other forms of law within those jurisdictions. The
relevant pieces of legislation are the Laws of Kiribati Act 1989 and the Laws of
Tuvalu Act1987; they are largely identical in content. Of particular note, is
paragraph 3 of Schedule one of these Acts:

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2 
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ct is not always beneficial to attempt to divide law and legal issues into
categories or compartments as, in many cases, it is the overlap of such issues
and concerns that is of most interest?

However, some classifications are of significance and may be of assistance in

describing and applying Criminal Law:?

??

2  3 ?

As we have already noted, criminal law is an aspect of public law in which

the  has a central and highly visible role. Civil law, on the other hand is
an aspect of private law in which the courts are concerned in resolving
disputes between private individuals or other : , ; and in
providing to parties who have suffered some sort of loss. The
criminal law is concerned with the punishment of wrongdoers in order to
uphold values that society considers to be important. The civil law is not so
much concerned with punishment as with providing a framework in order for
individuals to exercise their private rights (in, for example, tort, contract and
land and to seek and obtain redress in the event of those rights being
breached.?

cn some circumstances, the distinction between criminal and civil law may be
less obvious than in others. For example, if A hits o two legal consequences
may arise. o may report the incident to the police who may , a set of
proceedings that may culminate in A being  for assault. cn addition
o may bring a private action against A for the tort of assault and may seek to
obtain compensation through the civil courts.?

A further distinction of which it is important to be aware arises in relation to

the  that applies when determining cases. cn relation to civil
cases the standard is that of µ5 55 ¶ whereas when
dealing with criminal matters, it is required that the case against an accused
person be proved µ5) 5 5¶. ct is thus evident that the
standard which applies in criminal law is significantly higher than that which
applies in civil law. The fact that the criminal standard of proof is more
stringent than the civil standard is a  ) of the 
. This presumption is enshrined in the constitutions of the countries
of the South Pacific region, with the exception of Tonga.?

See Art. 65(1 of the constitution of Cook cslands; s.28 (1(a of the 1998 Fiji
cslands Constitution; s.10(2(a of the constitutions of Kiribati, Solomon
cslandsand Tuvalu; Art. 10(3(a of the constitution of auru; Art. 5(2(b of the
constitution of Vanuatu and Clause 9(3 of the constitution of Samoa.?

??

24 ?

This is a traditional classification that applied in Anglo-›elsh law and in which

felonies were the more serious. Felonies are the more serious offences (such
as murder or rape which are be tried in a superior court and which attract the
more serious penalties in the event of conviction.?

This distinction does not apply any longer in Anglo-›elsh Law and has also
been discarded by the crime statutes of Vanuatu, Tonga, Cook cslands and
Samoa.?

However, these terms are retained in the Penal Codes of Fiji cslands, Kiribati,
Tuvalu and the Solomon cslands. Section 4 in each of these statutes defines a
felony as an offence that has been declared by law to be a felony or, if not
declared as such and in the absence of having been declared a
misdemeanour, an offence which is punishable either by death or by
imprisonment of a period of 3 years or more.?

A misdemeanour is any offence which is neither treason nor a felony.?

cn auru, offences are classified as Crimes, Misdemeanours and Simple

Offences. Crimes and Misdemeanours are indictable offences and a simple
offence may be tried summarily.?

See s. 3 of the Queensland Criminal Code 1899.?

??

2"-)c5 ?
The importance of this distinction is in determining where a case is to be tried
and by what process.?

Summary offences are those that may be tried in ! (magistrates¶

courts, village courts or local courts. These offences are those whose
penalties have a fixed ceiling to be observed by the court when sentencing.?

à
à: cn Fiji cslands, the sentences that can be passed by a resident

magistrate are laid down in s.7 of the Criminal Procedure Code (Cap.21:?

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cndictable offences can only be tried by way of a preliminary hearing (which is

called a committal followed by a referral to a higher court. cn the UK indictable
offences are heard in the Crown Court where the judge sits with a ‰). cn the
Pacific region such offences are tried in the High or Supreme Courts and are
heard before a judge or a judge and jury or lay assessors where such
procedures are provided for.?

However, in some cases, it is possible for a magistrate¶s court to make

summary ‰ in relation to an indictable offence at the close of the
committal stage of the proceedings. For example, this is provided for in s.219
of the Criminal Procedure Code (Cap. 4 of Solomon cslands:?

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Furthermore, there may also be provision for cases relating to summary

offences to be transferred from the ‰ of the magistrates¶ courts to
that of the for sentencing purposes.?

à
à: See Electable Offences Decree of Fiji cslands that was enacted in
1988. ›here a magistrate is of the opinion that a sentence beyond the
maximum that can be applied in the lower court should be passed, the case
can be passed to the High Court for sentencing purposes.?

??

2$,5  1,5 ?

cn most jurisdictions, with the exception of Tonga, the regional legislation does
not refer to µsummary¶ and µindictable¶ even though these terms are used
extensively in practice to describe the seriousness of an offence or the nature
of a trial.?

ct is more common for the statutes to refer to µcognisable¶ and µnon-cognisable¶

offences. Cognisable offences are those where a suspect may be arrested
without the obtaining of a warrant and `non-cognisable¶ offences are those
where a warrant is required before an arrest can be made.?

ÊàààÊ that µcognisable¶ and µnon-cognisable¶ will not necessarily

correspond with `summary¶ and `indictable¶ respectively.?

??

6-)?

 Criminal Law is an aspect of Public Law.?

 ›e shall be studying substantive Law.?
 Criminal Law determines the boundaries within which the Criminal
Justice System operates.?
 Criminal Law acts as a means of social control.?
 Criminal Law is backed by sanction; there are various forms of
sanction available.?
 Criminal Law must be viewed in its context.?
 Ä There are several aspects to the context of Criminal Law.?
 There are several rationales that may be shown to be operating
µbehind¶ the Criminal Law in any society at any time.?
 Law arises out of policy; changes in policy are instrumental in the
processes of Law reform.?
 Discretion operates throughout the Criminal Justice System.?
 The use of discretion can be problematic.?
 ›hen studying Criminal Law, we shall need to refer to a number
of Legal Sources.?
 Criminal Law may be classified in several ways.?

?
 à
à?Ê
àÊ?Êà
 ?

(11*? +,-..0"#Ê,,/?

oingham, Rt. Hon. (1998 "A Criminal Code: Must ›e ›ait for Ever?"
in p 
#
Ê 694-696.

orown, K. (1986 "Criminal Law & Custom in Solomon cslands" in @


>#
A 
 (Vol. 2: pp.133-139.

Corrin, J.C. (1985 "Sources of Law under the Constitution of Vanuatu"

in @
>#
A 
 (Vol. 1: pp. 225-233.

Corrin Care, J., ewton, T. & Paterson, D. (1999 cntroduction to South Pacific
Law; Cavendish: London; chaps. 3 & 4.

Murgason, R. & Mc amara, L. (1997 Outline of Criminal Law; outterworths:

Sydney; chap.1.

arokobi, o. (1989 Lo oilong Yumi Yet; cPS & Melanesian cnstitute for
Pastoral & Socio-Economic Service: Garoka; chap.12.

Paterson, D. (1997 "The application of common law and equity in countries of

the South Pacific" in A 
1
" 6  : 1-31.

Paterson, D.E. (1995 "South Pacific Customary Law and Common Law: Their
cnterrelationship" in p 
#
?(April: pp.660-671.
Paterson, D.E. (1986 "Vanuatu Penal Code" in @

>#
A 
 (Vol. 2: pp.119-127.

Powles, G. (n.d. " The Common Law as a Source of Law in the South Pacific:
Experiences in ›estern Polynesia" in B 

#
Ê 6 
<: 105-135.

Tomaino, J. (1999 "Punishment Theory" in R. Sarre & J. Tomaino

(eds. Exploring Criminal Justice; South Australian cnstitute of Justice Studies:
Adelaide; pp. 151-186.?

??

?

þ Read over the notes again and make sure that

you understand everything that is written. cn
particular, make sure that you know the
meanings of the words that are written in bold
type and underlined.

þ Make a note of anything that you do not

understand and bring it with you to the workshop
so that you can ASK the lecturer/tutor to explain
it to you.
þ Select one or two of the 'Suggested Further
Readings' to read and think about. This will give
you more information about this topic.

þ Prepare outline answers to the "Review

Questions" to assist you with revision of this
topic.?

??

? ?
? 
? ?

þ ›hat are the sources of criminal law that are available in your
jurisdiction?
 þ ›hat policies or rationales does the criminal law of your jurisdiction
reflect or promote?

þ ›hat theory or theories of punishment are most clearly evident in the

criminal law of your jurisdiction?

þ ›hat classifications of offences are used in the criminal law of your

jurisdiction?

þ Give examples of the relationship between law and discretion in your

jurisdiction.

þ How, if at all, should the criminal law of your jurisdiction be reformed?

›ho should be responsible for the reform process? Give reasons for
your answers.?

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