LAW 103

INTRODUCTION TO CRIMINAL LAW

WEEK 3 – THE STRUCTURE OF
CRIMINAL LAW
 TOPIC OVERVIEW
• This topic examines in detail the sources of
criminal law in the South Pacific region, namely
the Constitution, locally enacted legislation, the
common law and customary law.

• It also introduces you to different types of

classification of criminal offences including:
felonies and misdemeanours, summary and
indictable, cognisable and non-cognisable
offences.
 TOPIC OUTLINE
• Sources of criminal law in the South Pacific Region:
– Constitution
– Locally Enacted Legislation
– English Statutes of General Application
– The Common law:
• Case law from within the jurisdiction
• Case law from outside the jurisdiction
• Offences at common law
– Customary law

• Classification of offences:
– Felonies and misdemeanours
– Summary and indictable offences
– Cognisable and non-cognisable offences
 LEARNING OBJECTIVES
• By the time you have completed this unit you
should be able to:

– Explain which sources of law apply to the area of

criminal law;
– Understand the role of common law from
outside and inside the region in the area of
criminal law;
– Explain the differences between different
classifications of offences.
 1. SOURCES OF CRIMINAL LAW
(FIJI & SOUTH PACIFIC)
• There are a number of different sources of
criminal law in Fiji and the region, and we will
look at them in turn commencing with the most
authoritative and ending with the least
authoritative.

• The variety of law sources in criminal law is

synonymous to other fields of law and its
imperative that they are individually considered:
 1(i). CONSTITUTION
• All of the independent countries 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.
• Fiji
- Section 23(1)(a) – (f) – limitation of personal liberty
- Section 25 – freedom from degrading treatment
- Section 26 – rights of detained person (language, released if not
charged, access to legal representation, challenge lawfulness of
detention, communicate with spouse of next of kin & treated
with humanity)
- Section 28 – presumption of innocence/right to bail;
- Section 29 – access to court
 1(ii). LEGISLATION
• 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 or Crimes
Decree 2009.

• These documents set out offences and the

relevant penalties.

• Some minor offences may be contained in other

pieces of legislation for e.g, Minor Offences Act of
Fiji Islands (Cap. 18)
• The rules that apply to issues of Criminal
Procedure are contained in a piece of legislation
such as a Criminal Procedure Code/ Criminal
Procedure Decree 2009.
• In addition, there are specific pieces of legislation
that are relevant to specific aspects of criminal
procedure. Examples are the Magistrates' Courts
Act in Fiji Islands (Cap.14), Sentencing & Penalties
Decree 2009 & Bail Act 2002
 1(iii). COMMON LAW
• Common law both from the Region and from the UK
(England & Wales) 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.
• In the absence of a body of local case law it is difficult
to identify local case law authority 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 & Wales) or
other Commonwealth States in order to help us with
the more complex areas of interpretation.
• (a) Case Law Decisions from within the
Jurisdiction / Region
– Cases that have been decided within the
particular jurisdiction and whose ratio concerns
the interpretation of particular legislative
provisions will constitute binding authority on
lower or equivalent courts.
• (b) Case Law Decisions from Outside the Region,
particular from England
– Cases that have been decided in another jurisdiction
within the South Pacific region may be persuasive
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 ratio of a case or
something that is obiter and the extent of the similarity
between the point addressed by the decided case and the
point under consideration in the current case.
• (c) Offences at Common Law
– specifically exclude the possibility of a person being charged with an
offence at common law. An example of such a provision is s.2 of the
Crimes Decree 2009:

Common law offences cease to apply

2. — (1) No person may be prosecuted for any common law

offence.
(2) The only offences against the laws of Fiji are those
offences created by, or under the authority, of this Decree and
any other Act or Decree or Promulgation or Regulation.
 1(iv). CUSTOMARY LAW
SECTION 186(1) & (2) Constitution 1997:

(1) The Parliament must make provision for the application of

customary laws and for dispute resolution in accordance with
traditional Fijian processes.
(2) In doing so, the Parliament must have regard to the customs,
traditions, usages, values and aspirations of the Fijian and Rotuman
people.

• 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 as it is not written down;
• This means that it is left to the discretion of the courts
to decide when customary law should be applied and
to what extent.

• Solomon Islands – R v Loumia [1986] SILR 158

the Court considered whether a murder could in fact be
regarded as justified by custom requirements. While the
Court recognised that custom law was a body of law
separate to statute law and distinct from other sources, if
it is inconsistent with the Constitution and Statute, it will
be held to be inapplicable. (Connolly JA)
 2. CLASSIFICATION OF OFFENCES
• In your readings about criminal law you will
come across references to different
classifications of offences.

• The purpose of this section is for you to

understand what those different
classifications are when you come across
them.
 2(i). FELONIES & MISDEMEANOURS
• Felonies are the more serious offences (such as
murder or rape) which are to be tried in a
superior court and which attract the more serious
penalties in the event of conviction (murder,
rape/fraud/treason/terrorism/drug related)

• Misdemeanour on the other hand is any offence

which is neither treasonous nor a felony (common
assault/petty theft etc);
 2(ii). SUMMARY & INDICTABLE
OFFENCES
• 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
lower courts (Magistrates’ court).
• These offences are those whose penalties have a
fixed ceiling to be observed by the court when
sentencing. (s211 (abduction of person with
intent to have carnal knowledge), s212 indecent
assault)
• Indictable offences can only be tried by way of a
preliminary hearing (which is called a committal)
followed by a referral to a higher court – sections 191
to 201 of the CPD 2009;
• Examples of such cases - (s207 (rape), s208 (attempt
to commit rape), s209 (assault with intent to commit
rape), s210 (sexual assault), s237 (murder), s239
(manslaughter)
• However, in some cases, it is possible for a
magistrate’s court to make summary adjudication in
relation to an indictable offence at the close of the
committal stage of the proceedings.
 2(iii). COGNISABLE & NON-
COGNISABLE
• Cognisable – where an arrest is made without
a warrant whereas non-cognisable is where a
warrant is required before a warrant is made
 REVIEW QUESTIONS
• How are the terms cognisable, non-cognisable,
summary, indictable, felony and misdemeanour
used in the legislation of your jurisdiction?

• Locate some offences that are classified as

either cognisable or summary or
misdemeanours

• What are some of the advantages of having a

criminal code/ Crimes Decree? Can you think of
any disadvantages?
 READING MATERIALS
• Findlay M Criminal Laws of the South Pacific
IJALS 2000; pp 12 -18;

• Crimes Decree 2009

• Criminal Procedure Decree 2009