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BACK Fiji Islands - Legislation
LAWS OF FIJI Ed. 1978 (also in ed. 1985) CHAPTER 17 PENAL CODE
ARRANGEMENT OF SECTIONS PART I-GENERAL PROVISIONS CHAPTER I-PRELIMINARY SECTION 1. Short title.2. Saving of certain laws. CHAPTER II-INTERPRETATION 3. General rule of construction.4. Definition of certain expressions and terms. CHAPTER III-TERRITORIAL APPLICATION OF THIS CODE 5. Extent of jurisdiction of Fiji Courts.6. Offences committed partly within and partly beyond the jurisdiction. CHAPTER IV-GENERAL RULES AS TO CRIMINAL RESPONSIBILITY 7. Ignorance of law.8. Bona fide claim of right. 9. Intention and motive. 10. Mistake of fact. 11. Presumption of sanity. 12. Insanity. 13. Intoxication. 14. Immature age. 15. Judicial officers. 16. Compulsion. 17. Defence of person or property. 18. Use of force in effecting arrest. 19. Compulsion by husband. 20. Person not to be punished twice for same offence. CHAPTER V-PARTIES TO OFFENCES 21. Principal offenders.22. Offences committed by joint offenders in prosecution of common purpose. 23. Counselling another to commit an offence. CHAPTER VI-PUNISHMENTS 24. Sentence of death.25. Persons under 18 not to be sentenced to death. 26. Record and report to be sent to Governor General. 27. Procedure where woman convicted of capital offence alleges she is pregnant. 28. Imprisonment. 29. Suspended sentences of imprisonment. 30. Power of court on conviction of further offence to deal with suspended sentence. 31. Court by which suspended sentence is to be dealt with. 32. Discovery of further offences. 33. Minimum period on sentence of imprisonment for life. 34. Corporal punishment. 35. Fines. 36. Distress. 37. Suspension of execution of sentence of imprisonment in default of fine. 38. Commitment in lieu of distress. 39. Payment after commitment. 40. Payment after issue of warrant but before commitment. 41. Security for keeping the peace. 42. Security for coming up for judgment. 43. Provisions of Criminal Procedure Code relating to recognisance to apply. 44. Absolute and conditional discharge. 45. Issue of warrants and errors in orders or warrants. 46. Police supervision. 47. General punishment for misdemeanours. 48. Escaped convicts to serve unexpired sentences when recaptured. 49. Forfeiture. PART II-CRIMES Division I-Offences against Public Order CHAPTER VII-TREASON AND OTHER OFFENCES AGAINST THE 51. Instigating invasion. 52. Misprision of treason. 53. Treasonable felonies. 54. Limitations as to trial for treason. misprision of treason, or treasonable felonies. 55. Inciting to mutiny. 56. Aiding soldiers or policemen in acts of mutiny. 57. Inducing soldiers or policemen to desert. 58. Aiding prisoners of war to escape. 59. Definition of overt acts. 60. Definitions for purposes of sections relating to sedition, etc. 61. Power to prohibit importation of publication. 62. Offences in relation to publications, the importation of which is prohibited. 63. Delivery of prohibited publication to police station. 64. Power to examine packages. 65. Seditious intention. 66. Seditious offences. 67. Suspension of newspaper containing seditious matter. 68. Power of Court to prohibit circulation of seditious publications. CHAPTER VIII-GENOCIDE 69. Genocide.CHAPTER IX-OFFENCES AFFECTING RELATIONS WITH FOREIGN STATES AND 71. Foreign enlistment. 72. Piracy. 73. Hijacking. 74. Other offences committed in the course of hijacking. 75. Aircraft operated by joint or international organisation. 76. Aircraft sabotage. 77. Prosecution of offences. 78. Definition of State. CHAPTER X-UNLAWFUL ASSEMBLIES. RIOTS AND OTHER OFFENCES AGAINST PUBLIC TRANQUILITY 79. Unlawful society.80. Managing unlawful society. 81. Being member of unlawful society. 82. Prosecutions under sections 80 and 81. 83. Power of entry, arrest, search. etc. 84. Declaration by Minister. 85. Forfeiture of insignia, etc. 86. Definition of unlawful assembly and riot. 87. Punishment of unlawful assembly. 88. Punishment of riot. 89. Making proclamation for rioters to disperse. 90. Dispersion of rioters after proclamation made. 91. Rioting after proclamation. 92. Preventing or obstructing the making of proclamation. 93. Rioters, demolishing buildings, etc. 94. Rioters damaging buildings, machinery, etc. 95. Riotously interfering with railway, vehicle or vessel. 96. Prohibition of the carrying of offensive weapons without lawful authority or reasonable excuse. 97. Prohibition on manufacture, sale, etc. of flick knives, gravity knives and knuckle dusters. 98. Going armed in public. 99. Forcible entry. 100. Forcible detainer. 101. Affray. 102. Challenge to fight a duel. 103. Threatening violence. 104. Assembling for the purpose of smuggling. 105. Throwing or projecting objects. Division II-Offences Against the Administration of Lawful Authority CHAPTER XI-CORRUPTION AND THE ABUSE OF OFFICE 106. Official corruption.107. Extortion by public officers. 108. Public officers receiving property to show favour. 109. Officers charged with administration of property of a special character or with special duties. 110. False claims by officials. 111. Abuse of office. 112. False certificates by public officers. 113. Unauthorised administration of oaths. 114. False assumption of authority. 115. Personating public officers. 116. Threats of injury to persons employed in public service. CHAPTER XII-PERJURY AND FALSE STATEMENTS AND DECLARATIONS 117. Perjury.118. False statements on oath made otherwise than in a judicial proceeding. 119. False statements. etc. with reference to marriage. 120. False statements. etc. as to births or deaths. 121. False statutory declarations and other false statements without oath. 122. False declarations, etc. to obtain registration, etc. for carrying on a vocation. 123. Aiders, abettors, suborners, etc. 124. Corroboration. 125. Fabricating evidence. 126. Inconsistent or contradictory statements. 127. Proof of certain proceedings on which perjury is assigned. 128. Forms and ceremonies of oath immaterial. CHAPTER XIII-OTHER OFFENCES RELATING TO THE 130. Destroying evidence. 131. Conspiracy to defeat justice and interference with witnesses. 132. Compounding felonies. 133. Compounding penal actions. 134. Advertisements for stolen property. 135. Corruptly taking a reward. 136. Offences relating to judicial proceedings. CHAPTER XIV-RESCUES AND ESCAPES AND OBSTRUCTING 138. Escape. 139. Aiding prisoners to escape. 140. Removal, etc. of property under lawful seizure. 141. Obstructing court officers. CHAPTER XV-MISCELLANEOUS OFFENCES AGAINST 143. False information to public servant. 144. Disobedience of lawful orders. Division III-Offences injurious to the public in general CHAPTER XVI-OFFENCES RELATING TO RELIGION 145. Insult to religion of any class.146. Disturbing religious assemblies. 147. Trespassing on burial places. 148. Writing or uttering words with intent to wound religious feelings. CHAPTER XVII-OFFENCES AGAINST MORALITY 149. Definition of rape.150. Punishment of rape. 151. Attempted rape. 152. Abduction. 153. Abduction of girl under eighteen years of age with intent to have carnal-knowledge. 154. Indecent assaults on and indecently insulting or annoying females. 155. Defilement of girl under thirteen years of age. 156. Defilement of girl between thirteen and sixteen years of age. Defilement of idiots or imbeciles. 157. Procuration. 158. Procuring defilement of women by threats, fraud or drugs. 159. Householder permitting defilement of girl under thirteen years of age on his premises. 160. Householder permitting, defilement of girl under sixteen years of age on his premises. 161. Detention of female in brothel or elsewhere. 162. Selling minors under the age of sixteen years for immoral purposes. 163. Buying minors under the age of sixteen years for immoral purposes. 164. Power of search. 165. Authority of court as to custody of girls. 166. Male person living on earnings of prostitution or persistently soliciting. 167. Women living on earnings of prostitution or aiding, etc. for gain prostitution of another woman. 168. Loitering or soliciting for the purposes of prostitution. 169. Suspicious premises. 170. Brothels. 171. Conspiracy to defile. 172. Attempts to procure abortion. 173. Abortion by woman with child. 174. Supplying drugs or instruments to procure abortion. 175. Unnatural offences. 176. Attempts to commit unnatural offences and indecent assaults. 177. Indecent practices between males. 178. Incest by males. 179. Incest by females. 180. Test of relationship. 181. Sanction of Director of Public Prosecutions. 182. Knowledge of age of female immaterial. 183. Definition of carnal knowledge. CHAPTER XVIII-OFFENCES RELATING TO MARRIAGE 184. Fraudulent pretence of marriage.185. Bigamy. 186. Marriage ceremony fraudulently gone through without lawful marriage. CHAPTER XIX-NUISANCES AND OTHER MISCELLANEOUS OFFENCES 187. Common nuisance.188. Traffic in obscene publications. 189. Offences in connexion with street and house to house collections. 190. Unlawful use of locomotives, etc. 191. Inciting dogs to attack. 192. Wearing of uniform without authority prohibited. 193. Negligent spreading of disease. 194. Adulteration of food. 195. Sale of noxious food or drink. 196. Fouling air. 197. Criminal trespass. Division IV-Offences against the person CHAPTER XX-MURDER AND MANSLAUGHTER 198. Manslaughter.199. Murder. 200. Punishment of murder. 201. Punishment of manslaughter. 202. Malice aforethought. 203. Killing on provocation. 204. Provocation defined. 205. Infanticide. 206. Causing death defined. 207. When child deemed to be a person. 208. Limitation as to time of death. CHAPTER XXI-DUTIES RELATING TO THE PRESERVATION 210. Duty of head of family. 211. Duty of masters. 212. Duty of persons doing dangerous acts. 213. Duty of persons in charge of dangerous things. CHAPTER XXII-OFFENCES CONNECTED WITH MURDER AND SUICIDE 214. Attempt to murder.215. Attempt to murder by convict. 216. Accessory after the fact to murder. 217. Conspiracy to murder. 218. Suicide to cease to be offence. 219. Liability for complicity in another's suicide. 220. Concealing the birth of children. 221. Killing unborn child. CHAPTER XXIII-OFFENCES ENDANGERING LIFE AND HEALTH 222. Disabling in order to commit felony or misdemeanour.223. Stupefying in order to commit felony or misdemeanour. 224. Acts intended to cause grievous harm or to prevent arrest. 225. Preventing escape from wreck. 226. Intentionally endangering safety of persons travelling by railway. 227. Grievous harm. 228. Placing explosive with intent. 229. Maliciously administering poison with intent to harm. 230. Unlawful wounding. 231. Unlawful poisoning. 232. Witchcraft and sorcery. 233. Failure to supply necessaries. 234. Surgical operation. 235. Excess of force. 236. Consent. CHAPTER XXIV-CRIMINAL RECKLESSNESS AND NEGLIGENCE 237. Reckless or negligent acts.238. Causing death by dangerous driving. 239. Other negligent acts causing harm. 240. Negligent dealing with poisons. 241. Endangering safety of persons travelling by railway. 242. Exhibition of false light, mark or buoy. 243. Conveyance by unsafe or overloaded vessel. CHAPTER XXV-ASSAULTS 244. Common assault.245. Assault causing actual bodily harm. 246. Assaults on magistrates and other persons protecting wreck. 247. Assaults punishable with five years' imprisonment. CHAPTER XXVI-OFFENCES AGAINST LIBERTY 248. Definition of kidnapping and abduction.249. Punishment for kidnapping. 250. Kidnapping or abducting in order to murder. 251. Kidnapping or abducting with intent to confine person. 252. Kidnapping or abducting with intent to harm. 253. Wrongfully concealing kidnapped person. 254. Child stealing. 255. Abduction of girls under sixteen. 256. Punishment for wrongful confinement. 257. Unlawful compulsory labour. Division V-Offences relating to property CHAPTER XXVII-LARCENY, EMBEZZLEMENT AND CONVERSION 258. Things capable of being stolen.259. Definition of theft. 260. Stealing and embezzlement by co-partners, etc. 261. Husband and wife. 262. General punishment for theft. 263. Larceny of will. 264. Larceny of documents of title and legal documents. 265. Larceny of electricity. 266. Larceny of ore. 267. Larceny of postal packets. 268. Embezzlement by officer of post office. 269. Definitions relating to larceny and embezzlement of postal packets. 270. Larceny in dwelling-house. 271. Larceny from the person. 272. Larceny from ship, dock, etc. 273. Larceny by tenant or lodger. 274. Larceny and embezzlement by clerks or servants. 275. Larceny of cattle. 276. Larceny of dogs. 277. Larceny of creatures. 278. Larceny of fish. 279. Conversion. CHAPTER XXVIII-STEALING AND DAMAGING TREES, FIXTURES, ETC. 280. Larceny of trees.281. Larceny of fences. 282. Larceny of fruit and vegetables. 283. Damaging fixtures, trees, etc., with intent to steal. CHAPTER XXIX-OTHER OFFENCES ALLIED TO STEALING 284. Fraudulent destruction of documents.285. Fraudulent destruction of documents of title. 286. Fraudulent destruction of wills. 287. Fraudulent destruction of record, writ. etc. 288. Miners removing ore. 289. Killing animals with intent to steal. 290. Larceny of or dredging for oysters. 291. Factor, obtaining, advances on the property of their principals. 292. Unlawful use of vehicles, animals, etc. CHAPTER XXX-ROBBERY AND EXTORTION 293. Robbery.294. Demanding money etc. with menaces. 295. Demanding with menaces with intent to steal. 296. Extortion. CHAPTER XXXI-BURGLARY, HOUSEBREAKING AND SIMILAR OFFENCES 297. Definition of breaking and entering.298. Sacrilege. 299. Burglary. 300. Housebreaking and committing felony. 301. Entering a magazine with intent. 302. Housebreaking with intent to commit felony. 303. Possession of housebreaking implements. 304. Forfeiture of housebreaking instruments. CHAPTER XXXII-FRAUDS BY TRUSTEES AND PERSONS IN A POSITION OF TRUST, AND FALSE ACCOUNTING 305. Conversion by trustee.306. Directors destroying books, etc. 307. Fraudulent falsification of accounts. CHAPTER XXXIII-FALSE PRETENCES 308. Definition of false pretence.309. False pretences. 310. Obtaining credit, etc., by false pretences. 311. Obtaining registration by false pretence. 312. False declaration for passport. CHAPTER XXXIV-RECEIVING PROPERTY STOLEN OR UNLAWFULLY OBTAINED AND LIKE OFFENCES 313. Receiving.314. Receiving goods stolen outside Fiji. 315. Evidence on charge of receiving stolen property. 316. Compulsory disclosures not to afford evidence. Division VI-Malicious Injuries to Property CHAPTER XXXV-OFFENCES CAUSING INJURY TO PROPERTY 317. Arson.318. Attempts to commit arson. 319. Setting fire to crops, etc. 320. Attempting to set fire to crops. etc. 321. Casting away vessels. 322. Attempts to cast away vessels. 323. Injuring animals. 324. Other malicious injuries-general and special punishments. 325. Attempts to destroy property by explosives. 326. Spreading infectious disease among animals. 327. Removing boundary marks with intent to defraud. 328. Wilful damage, etc. to survey and boundary marks. 329. Penalties for damage, etc. to railway works. 330. Criminal Intimidation. Division VII-Forgery, coining, counterfeiting and similar offences CHAPTER XXXVI-INTERPRETATION 331. Definitions for purposes of sections relating to forgery, etc.332. Definition of forgery. 333. False document. 334. Intent to defraud. CHAPTER XXXVII-PUNISHMENT FOR FORGERY 335. Forgery of certain documents with intent to defraud.336. Forgery with intent to defraud or deceive. 337. Making false entries in the books of the Chief Accountant. 338. Forging copies of certificates of records. 339. Forging registers of births, etc. 340. Making false entries in copies of register sent to registrar. 341. Forgery of other documents. 342. Forgery of seals and dies. 343. Uttering. 344. Uttering cancelled documents. 345. Demanding property on forged document. 346. Possession of forged documents, seals and dies. 347. Possession of paper or implements for forgery. 348. Possession of revenue paper, etc. 349. Falsifying warrants for money. 350. Procuring execution of document by false pretences. 351. Letter written for another to be signed by writer. CHAPTER XXXVIII-OFFENCES RELATING TO COIN, 353. Counterfeiting. 354. Gilding, silvering, filing and altering coin. 355. Imparting coin and possession of filing, etc. 356. Uttering and possession with intent to utter counterfeit coin. 357. Buying or selling counterfeit coin. 358. Importing and exporting counterfeit coin. 359. Possession of medals resembling coin. 360. Making, mending and having possession of coining implements. 361. Breaking up coin suspected to be counterfeit. 362. Evidence of coin being counterfeit. 363. Defacing and uttering defaced coin. 364. Melting down of currency. 365. Mutilating or defacing currency notes. 366. Imitation of currency. 367. Evidence of counterfeiting, etc. 368. Forfeiture of forged bank notes, currency notes. etc. CHAPTER XXXIX-PERSONATION 369. General penalty for personation.370. Falsely making acknowledgement. 371. Personation of a person named in a certificate. 372. Lending, etc. certificate for personation. 373. Personation of person named in a testimonial of character. 374. Lending, etc. testimonial for personation. CHAPTER XL-SECRET COMMISSIONS AND CORRUPT PRACTICES 375. Interpretation for purposes of sections dealing with corrupt practices, etc.376. Corrupt practices. 377. Secret commission on Government contracts. 378. Presumption as to corrupt practices. 379. Consent to prosecution. Division VIII-Attempts and conspiracies to Commit Crimes, and Accessories After the Fact CHAPTER XLI-ATTEMPTS 380. Attempt defined.381. Attempts to commit offences. 382. Punishment of attempts to commit certain felonies. 383. Soliciting or inciting others to commit offence in Fiji or elsewhere. 384. Neglect to prevent felony. CHAPTER XLII-CONSPIRACIES 385. Conspiracy to commit felony.386. Conspiracy to commit misdemeanour. 387. Other conspiracies. CHAPTER XLIII-ACCESSORIES AFTER THE FACT 388. Definition of accessories after the fact.389. Punishment of accessories after the fact to felonies. 390. Punishment of accessories after the fact to misdemeanours. ----------------------------------------
AN ACT TO ESTABLISH A CODE OF CRIMINAL LAW Ordinances Nos. 18 of 1944.29 of 1945, 9 of 1946, 11 of 1948, * See Legal Notice No. 112 of 1970 [l May 1945]
PART I-GENERAL PROVISIONS CHAPTER I-PRELIMINARY Short title 1. This Act (hereinafter referred to as this Code) may be cited as the Penal Code.
Saving of certain laws 2. Except as hereinafter expressly provided nothing in this Code shall affect-
Provided that if a person does an act which is punishable under this Code and is also
punishable under another Act or Statute of any of the kinds mentioned in this section, he
shall not be punished for that act both under that Act or Statute and also under this
Code.
CHAPTER II - INTERPRETATION 3. This Code shall be interpreted in accordance with the principles of legal interpretation obtaining in England, and expressions used in it shall be presumed, so far as is consistent with their context, and, except as may be otherwise expressly provided, to be used with the meaning attaching to them in English criminal law and shall be construed in accordance therewith.
Definition of certain expressions and terms 4. In this Code unless the context otherwise requires-
CHAPTER III-TERRITORIAL APPLICATION OF THIS CODE Extent of jurisdiction of Fiji Courts 5. The jurisdiction of the courts of Fiji for the purposes of this Code extends to
every place within Fiji or within *the internal waters, archipelagic waters and
territorial seas thereof.
Offences committed partly within and partly beyond the jurisdiction 6. When an act which, if wholly done within the jurisdiction of the court, would be an offence against this Code, is done partly within and partly beyond the jurisdiction, every person who within the jurisdiction does or makes any part of such act may be tried and punished under this Code in the same manner as if such act had been done wholly within the jurisdiction.
CHAPTER IV-GENERAL RULES AS TO CRIMINAL RESPONSIBILITY Ignorance of law 7. Ignorance of the law does not afford any excuse for any act or omission which would otherwise constitute an offence unless knowledge of the law by the offender is expressly declared to be an element of the offence.
Bona fide claim of right 8. A person is not criminally responsible in respect of an offence relating to property, if the act done or omitted to be done by him with respect to the property was done in the exercise of an honest claim of right and without intention to defraud.
Intention and motive 9.-(1) Subject to the express provision of this Code relating to negligent acts and omissions, a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will, or for an event which occurs by accident. (2) Unless the intention to cause a particular result is expressly declared to be an element of the offence constituted, in whole or part, by an act or omission, the result intended to be caused by an act or omission is immaterial. (3) Unless otherwise expressly declared, the motive by which a person is induced to do or omit to do an act, or to form an intention is immaterial so far as regards criminal responsibility.
Mistake of fact 10. A person who does or omits to do an act under an honest and reasonable, but mistaken, belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist. The operation of this rule may be excluded by the express or implied provisions of the law relating to the subject.
11. Every person is presumed to be of sound mind, and to have been of sound mind at any time which comes in question, until the contrary is proved.
12. A person is not criminally responsible for an act or omission if at the time of doing the act or making the omission he is through any disease affecting his mind incapable of understanding what he is doing, or knowing that he ought not to do the act or make the omission. But a person may be criminally responsible for an act or omission, although his mind is affected by disease, if such disease does not in fact produce upon his mind one or other of the effects above mentioned in reference to that act or omission.
13.-(1) Save as provided in this section, intoxication shall not constitute a defence to any criminal charge. (2) Intoxication shall be a defence to any criminal charge if by reason thereof the person charged at the time of the act or omission complained of did not know that such act or omission was wrong or did not know what he was doing and-
(3) Where the defence under subsection (2) is established, then in a case falling under
paragraph (a) thereof the accused shall be discharged, and in a case falling under
paragraph (b) the provisions of this Code and of the Criminal Procedure Code relating to
insanity shall apply. (4) Intoxication shall be taken into account for the purpose of determining whether the person charged had formed any intention, specific or otherwise, in the absence of which he would not be guilty of the offence. (5) For the purpose of this section "intoxication" shall be deemed to include a state produced by narcotics or drugs.
14.-(1) A person under the age of *ten years is not criminally responsible for any
act or omission. (2) A person under the age of twelve years is not criminally responsible for an act or omission, unless it is proved that at the time of doing the act or making the omission he had capacity to know that he ought not to do the act or make the omission. (3) A male person under the age of twelve years is presumed to be incapable of having carnal knowledge.
Judicial officers 15. Except as expressly provided by this Code, a judicial officer is not criminally responsible for anything done or omitted to be done by him in the exercise of his judicial functions, although the act done is in excess of his judicial authority or although he is bound to do the act omitted to be done. (Amended by 9 of 1946, s. 2.)
Compulsion 16. A person is not criminally responsible for an offence if it is committed by two or more offenders, and if the act is done or omitted only because during the whole of the time in which it is being done or omitted the person is compelled to do or omit to do the act by threats on the part of the other offender or offenders instantly to kill him or do him grievous bodily. harm if he refuses; but threats of future injury do not excuse any offence.
Defence of person or property 17. Subject to any express provisions in this Code or any other law in operation in Fiji, criminal responsibility for the use of force in the defence of person or property shall be determined according to the principles of English common law.
Use of force in effecting arrest 18. Where any person is charged with a criminal offence arising out of the lawful arrest, or attempted arrest, by him of a person who forcibly resists such arrest or attempts to evade being arrested, the court shall, in considering whether the means used were necessary, or the degree of force used was reasonable, for the apprehension of such person, have regard to the gravity of the offence which had been or was being committed by such person and the circumstances in which such offence had been or was being committed by such person.
Compulsion by husband 19. A married woman is not free from criminal responsibility of doing or omitting to do an act merely because the act or omission takes place in the presence of her husband; but, on a charge against a wife for any offence other than treason or murder, it shall be a good defence to prove that the offence was committed in the presence of, and under the coercion of, the husband.
Person not to be punished twice for same offence 20. A person cannot be punished twice either under the provisions of this Code or under the provisions of any other law for the same act or omission, except in the case where the act or omission is such that by means thereof he causes the death of another person, in which case he may be convicted of the offence of which he is guilty by reason of causing such death, notwithstanding that he has already been convicted of some other offence constituted by the act or omission.
CHAPTER V-PARTIES TO OFFENCES Principal offenders 21.-(1) When an offence is committed, each of the following persons is deemed to have taken part in committing the offence and to be guilty of the offence, and may be charged with actually committing it, that is to say-
In the last-mentioned case he may be charged either with committing the offence or with counselling or procuring its commission. (2) A conviction of counselling or procuring the commission of an offence entails the same consequences in all respects as a conviction of committing the offence. (3) Any person who procures another to do or omit to do any act of such a nature that, if he had himself done the act or made the omission, the act or omission would have constituted an offence on his part, is guilty of an offence of the same kind, and is liable to the same punishment, as if he had himself done the act or made the omission; and he may be charged with doing the act or making the omission.
Offences committed by joint offenders in prosecution of common purpose 22. When two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence.
Counselling another to commit an offence. 23. When a person counsels another to commit an offence, and an offence is actually committed after such counsel by the person to whom it is given, it is immaterial whether the offence actually committed is the same as that counselled or a different one, or whether the offence is committed in the way counselled or in a different way, provided in either case that the facts constituting the offence actually committed are a probable consequence of carrying out the counsel. In either case the person who gave the counsel is deemed to have counselled the other person to commit the offence actually committed by him. If the facts constituting the offence actually committed are not a probable consequence of carrying out the counsel, the person who gave the counsel is not deemed to be responsible.
CHAPTER VI-PUNISHMENTS Sentence of death *24.-(1) When any person is sentenced to death, the form of sentence shall be to the effect only that he is to -suffer death in the manner authorised by law". (Substituted by 6 of 1959, s. 2.) (2) A certificate under the hand of the Chief Registrar or other officer of the court
that sentence of death has been passed, and naming the person condemned, shall be
sufficient authority for the detention of such person.
Persons under 18 not to be sentenced to death *25.-(1) Sentence of death shall not be pronounced on or recorded against a person convicted of an offence if it appears to the court that at the time when the offence was committed he was under the age of eighteen years, but in lieu thereof the court shall sentence such person to be detained during the Governor-General's pleasure, and if so sentenced he shall be liable to be detained in such place and under such conditions as the Governor-General may direct, and whilst so detained shall be deemed to be in legal custody. (Amended by 24 of 1952, s. 2, 17 of 1966, s. 2, and 28 of 1972 s. 2.) (2) When a person has been sentenced to be detained during the Governor-General's pleasure under subsection (1) the presiding judge shall forward to the Governor-General a copy of the notes of evidence taken on the trial, with a report in writing signed by him containing any recommendation or observations on the case he may think fit to make. (3) Any person so detained as aforesaid may at any time be discharged by the Governor-General on licence. Such licence may be in such form and may contain such conditions as the Governor-General may direct and may at any time be revoked or varied by the Governor-General. Where a licence has been revoked the person to whom the licence relates shall return to
such place as the Governor-General may direct and if he fails to do so may be
apprehended without warrant and taken to that place.
Record and report to be sent to Governor-General 26.-(1) As soon as possible after action has been taken in accordance with the provisions of subsection (6) of section 88 of the Constitution, the Commission on the Prerogative of Mercy shall communicate to the presiding judge or his successor in office the terms of any decision reached by the Governor- General under such provisions and such judge shall cause the tenor and substance thereof to be entered in the records of the Court. *(2) The Governor-General shall issue a death warrant, or an order for the sentence of death to be commuted, or a pardon, under his hand and the public seal of Fiji, to give effect to the said decision. If the sentence of death is to be carried out, the warrant shall state that the person to be executed shall be hanged by the neck until he is dead, and the place where and the time when the execution is to be had, and shall give directions as to the place of burial or cremation of the body of the person executed. If the sentence is commuted for any other punishment the order shall specify that punishment. If the person sentenced is pardoned, the pardon shall state whether it is free, or to what conditions, if any, it is subject: (Amended by 6 of 1959, s. 3.) Provided that the Governor-General's warrant may direct that the execution shall take place at such time and at such place and that the body of the person executed shall be buried or cremated at such place, as shall be appointed by some officer specified in the warrant. *(3) The warrant or order, or pardon of the Governor-General shall be sufficient
authority in law to all persons to whom the same is directed to execute the sentence of
death or other punishment awarded, and to carry out the directions therein given in
accordance with the terms thereof.
Procedure where woman convicted of capital offence alleges she is pregnant *27.-(1) Where a woman convicted of an offence punishable with death alleges that she is pregnant, or where the court before whom she is convicted thinks fit so to order, the question whether or not the woman is pregnant shall, before sentence is passed on her, be determined by the trial judge. (2) The question whether the woman is pregnant or not shall be determined by the judge on such evidence as may be laid before him on the part of the woman or on the part of the Crown, and the judge shall find that the woman is not pregnant unless it is proved affirmatively to his satisfaction that she is pregnant. (3) Where a woman convicted of an offence punishable with death is found in accordance
with the preceding provisions of this section to be pregnant, the sentence to be passed on
her shall be a sentence of imprisonment for life instead of sentence of death.
Imprisonment 28.-(1) No person shall be sentenced by a court to imprisonment with hard labour; and every enactment conferring power on a court to pass a sentence of imprisonment with hard labour in any case shall be construed as conferring power to pass a sentence of imprisonment for a term not exceeding the term for which a sentence of imprisonment with hard labour could have been passed immediately before the date of coming into force of this section; and so far as any enactment required or permits prisoners to be kept to hard labour it shall cease to have effect. (Substituted by 25 of 1957, s. 3.) (2) A person liable to imprisonment for life or any other period may be sentenced for any shorter term. (3) A person liable to imprisonment for an offence may be sentenced to pay a fine in addition to or instead of imprisonment. (4) Where a person after conviction for an offence is convicted of another offence, either before sentence is passed upon him under the first conviction or before the expiration of that sentence, any sentence of imprisonment which is passed upon him under the subsequent conviction shall be executed after the expiration of the former sentence, unless the court directs that it shall be executed concurrently with the former sentence or any part thereof: Provided that it shall not be lawful for a court to direct that a sentence of imprisonment in default of payment of a fine shall be executed concurrently with a former sentence. (5) A warrant under the hand of the judge or magistrate by whom any person is sentenced to imprisonment, ordering that the sentence be carried out in any prison within Fiji, shall be issued by the sentencing judge or magistrate, and shall be full authority to the officer in charge of such prison and to all other persons for carrying into effect the sentence described in such warrant, not being a sentence of death. Subject to the provisions of this section every sentence shall be deemed to commence from and to include the whole of the day on which it was pronounced except where otherwise provided in this Code or otherwise ordered by the court.
*Suspended sentences of imprisonment 29.-(1) A court which passes a sentence of imprisonment for a term of not more than two years for an offence, may order that the sentence shall not take effect unless, during a period specified in the order, being not less than one year nor more than three years from the date of the order, the offender commits in Fiji another offence punishable with imprisonment and thereafter a court having power to do so orders under the provisions of section 30 that the original sentence shall take effect; and in this and in sections 30, 31 and 32 "operational period" in relation to a suspended sentence means the period so specified in the order. (2) A court which passes a suspended sentence on any person for an offence shall not make a probation order in his case in respect of another offence of which he is convicted by or before the court or for which he is dealt with by the court. (3) A court which passes a sentence of imprisonment for a term of not more than six months in respect of one offence shall not make an order under the provisions of subsection (1) where-
(4) On passing a suspended sentence the court shall explain to the offender in ordinary language his liability under the provisions of section 30 if during the operational period he commits an offence punishable with imprisonment. (5) Subject to any provision contained in any written law-
*Power of court on conviction of further offence to deal with suspended sentence 30.-(1) Where an offender is convicted of an offence punishable with imprisonment committed during the operational period of a suspended sentence and either he was convicted by or before a court having power under the provisions of section 31 to deal with him in respect of the suspended sentence or who subsequently appears or is brought before a court, then, unless the sentence has already taken effect, that court shall consider his case and deal with him by one of the following methods-
(2) Where a court orders that a suspended sentence shall take effect with or without any variation of the original term, the court may order that that sentence shall take effect immediately or that the term thereof shall commence on the expiry of another term of imprisonment passed on the offender by that or any other court. (3) For the purposes of any written law conferring rights of appeal in criminal cases,
any order made by a court under the provisions of subsection (1) shall be treated as a
sentence passed on the offender by that court for the offence for which the suspended
sentence was passed.
*Court by which suspended sentence is to be dealt with 31.-(1) An offender shall be dealt with in respect of a suspended sentence by the Supreme Court or, where the sentence was passed by a magistrate's court. by any magistrate's court before which he appears or is brought. (2) Where an offender is convicted by a magistrate's court of an offence punishable with imprisonment and the court is satisfied that the offence was committed during the operational period of a suspended sentence passed by the Supreme Court-
(3) For the purposes of this and section 32 a suspended sentence passed on an offender
on appeal shall be treated as having been passed by the court by which he was originally
sentenced.
*Discovery of further offences 32.-(1) If it appears to a judge or a magistrate on whom jurisdiction is conferred by subsection (2) that an offender has been convicted in Fiji of an offence punishable with imprisonment committed during the operational period of a suspended sentence and that it has not been dealt with in respect of this suspended sentence, the judge or magistrate may issue a summons requiring the offender to appear at the place and time specified therein or may issue a warrant for his arrest. (2) The following persons shall have jurisdiction for the purpose of subsection (1):-
*Minimum period on sentence of imprisonment for life 33. Whenever a sentence of imprisonment for life is imposed on any convicted person
the judge who imposes the sentence may recommend the minimum period which he considers the
convicted person should serve. Corporal punishment 34.-(1) A sentence of corporal punishment shall be to suffer corporal
punishment once only and shall specify the number of strokes which shall not exceed
twelve in any case. (2) No sentence of corporal punishment shall be carried out unless it has been confirmed by the Supreme Court, and no such sentence shall be executed publicly or by instalments. (3) The following provisions shall govern the carrying out of a sentence of corporal punishment-
(Subsection substituted by 16 of 1960, s. 2 and amended by 4 of 1976, s. 3 and 24 of 1976, s. 2.) (4) No sentence of corporal punishment shall be passed upon any of the following persons:-
(5) Where a person is convicted at one trial of two or more distinct offences any two or more of which are punishable by corporal punishment under the provisions of this Code or any other Act, the combined sentences of corporal punishment awarded by the court shall not exceed, twelve strokes. (Amended by Ordinance 12 of 1969, s. 5) (6) In determining the age of an offender for the purposes of this section the court may in the absence of direct evidence or medical testimony of age adjudge such age according to the appearance of the offender. (7) A sentence of corporal punishment shall not be carried out except in the presence of a medical officer or a duly qualified medical practitioner, nor before such medical officer or practitioner has after examination certified that in his opinion the prisoner is physically fit to undergo the sentence of corporal punishment about to be inflicted upon him. (8) The medical officer or practitioner may at any time during the carrying out of the sentence of corporal punishment intervene and prohibit the remainder of the sentence from being carried out if in his opinion the prisoner is unable to bear such sentence without risk of grave or permanent injury. (9) If any person has been sentenced to corporal punishment, and such sentence is, wholly or partially, prevented from being carried out, such person shall be kept in custody, and shall as soon as possible be taken before the court which passed the sentence of corporal punishment and such court shall either remit such sentence or substitute for such sentence, or the balance thereof, any sentence to which such person might have been liable. (Amended by 16 of 1960, s. 2.) (10) An offender sentenced to undergo corporal punishment may be detained in a prison or some other convenient place for such time as may be necessary for carrying the sentence into effect, or for ascertaining whether the same shall be carried into effect. (11) A sentence of corporal punishment shall be carried out with an instrument of a
size and pattern approved by the *Minister.
Fines *35.-(1) Where a fine is imposed under any law, then in the absence of express provisions relating to such fine in such law the following provisions shall apply:
(2) The term of imprisonment to which a person may be sentenced by a court in default of payment of a fine shall be such term as in the opinion of the court will satisfy the justice of the case but shall not exceed the maximum fixed by the following scale:-
(3) Notwithstanding the provisions of subsection (5) of section 28
but subject to the provisions of subsection (4) of that section, the imprisonment which is
imposed in default of payment of a fine shall commence on the day on which the person so
in default was arrested by virtue of the sentence of the court and shall terminate
whenever the fine and all expenses are either paid or levied by process of law.
Distress *36.-(1) When a court orders money to be paid by an accused person or by a
prosecutor or complainant for fine, penalty, compensation, costs, expenses or otherwise,
the money may be levied on the real and personal property by distress or sale under
warrant. If he shows sufficient personal property to satisfy the order his
real property shall not be sold. (2) Such persons may pay or tender to the officer having the execution of the warrant the sum therein mentioned, together with the amount of the expenses of the distress up to the time of payment or tender, and thereupon the officer shall cease to execute the same. (3) A warrant under the provisions of this section may be executed anywhere in
Fiji. (4) Any person claiming to be entitled to or to have a legal or equitable interest in the whole or part of any property attached in execution of a warrant issued under this section may, at any time prior to the receipt by the court of the proceeds of sale of such property, give notice in writing to the court of his objection to the attachment of such property. Such notice shall set out shortly the nature of the claim which such person (hereinafter in this section referred to as the objector) makes to the whole or part of the property attached, and shall certify the value of the property claimed by him. Such value shall be deposed to upon affidavit which shall be filed with the notice. (5) Upon receipt of a valid notice given under subsection (4), the court shall by an order in writing addressed to the officer having the execution of the warrant, direct the stay of the execution proceedings. (6) Upon the issue of an order under subsection (5), the court shall, by notice in writing, direct the objector to appear before such court and establish his claim upon a date to be specified in the notice. (7) A notice shall be served upon the person whose property was, by the warrant issued under subsection (1), directed to be attached, and, unless the property is to be applied to the payment of a fine, upon the person entitled to the proceeds of the sale of such property. Such notice shall specify the time and place fixed for the appearance of the objector and shall direct the person upon whom the notice is served to appear before the court at the same time and place if he wishes to be heard upon the hearing of the objection. (8) Upon the date fixed for the hearing of the objection, the court shall investigate the claim and, for such purpose, may hear any evidence which the objector may give or adduce and any evidence given or adduced by any person served with a notice in accordance with the provisions of subsection (7). (9) If, upon investigation of the claim, the court is satisfied that the property was not, when attached, in the possession of the person ordered to pay the money or of some person in trust for him or in the occupancy of a tenant or other person paying rent to him, or that, being in the possession of the person ordered to pay the money at such time it was so in his possession not on his own account or as his own property but on account of or in trust for some other person or partly on his own account and partly on account of some other person, the court shall make an order releasing the property, wholly or to such extent as it thinks fit from attachment. (10) If, upon the date fixed for his appearance, the objector fails to appear, or if, upon investigation of the claim in accordance with the provisions of subsection (8), the court is of opinion that the objector has failed to establish his claim, the court shall order the attachment and execution to proceed, and shall make such order as to cost as it deems fit. (11) Nothing in this section shall be deemed to deprive a person who has failed to comply with the requirements of subsection (4) of the right to take any other proceedings which, apart from the provisions of this section, may lawfully be taken by a person claiming an interest in property attached under a warrant. (12) No distress made under this section shall be deemed unlawful, nor shall any person
making the same be deemed a trespasser, on account of any defect or want of form in the
summons, conviction, warrant of distress or other proceedings relating thereto.
Suspension of execution of sentence of imprisonment in default of fine *37.-(1) When a convicted person has been sentenced to a fine only and to imprisonment in default of payment of a fine, and whether or not a warrant of distress has been issued under section 36 the court may make an order directing the fine to be paid on or before a specified date, not being more than thirty days from the date of the order, and in the event of the fine not being paid on or before that date may, subject to the other provisions of this section, forthwith issue a warrant of committal. The court may, before making such order, require the convicted person to execute a bond, with or without sureties, conditioned for his appearance before the court on the specified date if the fine be not in the meantime paid. Upon the making of an order under this subsection the sentence of imprisonment shall be deemed to be suspended and the convicted person shall be released from custody. (2) In any case in which an order for the payment of money has been made, on non-recovery of which imprisonment may be awarded, and the money is not paid forthwith, the court may require the person ordered to make such payment to enter into a bond as prescribed in subsection (1), and in default of his so doing may at once pass sentence of imprisonment as if the money had not been recovered. (3) The court may in its discretion direct that any money to which this section applied may be paid by instalments at such times and in such amounts as the court may deem fit; but so nevertheless that in default of payment of any such instalment as aforesaid the whole of the amount outstanding shall become and be immediately due and payable, and all the provisions of this Code applicable to a sentence of fine and to imprisonment in default of payment thereof shall apply to the same accordingly. (4) A warrant of commitment to prison in respect of the non-payment of any sum of money by a person to whom time has been allowed for payment under the provisions of subsection (1), or who has been allowed to pay by instalments under the provisions of subsection (3), shall not be issued unless the court shall first make inquiry as to his means in his presence: Provided that a court may issue such a warrant of commitment without any further inquiry as to means if it shall have made such inquiry in the presence of the convicted person at the time when the fine was imposed or at any subsequent time and the convicted person shall not before the expiration of the time for payment have notified the court of any change in his means or applied to the court for an extension of time to pay the fine. (Proviso inserted by 25 of 1957, s. 7.) (5) After making inquiry in accordance with the provisions of subsection (4), the court may, if it thinks fit, instead of issuing a warrant of commitment to prison, make an order extending the time allowed for payment or varying the amount of the instalments or the times at which the instalments were, by the previous order of the court, directed to be paid, as the case may be. (6) For the purpose of enabling inquiry to be made under the provisions of subsection
(4), the court may issue a summons to the person ordered to pay the money to appear before
it and, if he does not appear in obedience to the summons, may issue a warrant for his
arrest or, without issuing a summons, issue in the first instance a warrant for his
arrest.
Commitment in lieu of distress *38.-(1) If the officer having the execution of a warrant of distress reports that he could find no property or not sufficient property whereon to levy the money mentioned in the warrant with expenses, the court may by the same or a subsequent warrant commit the person ordered to pay to prison for a time specified in the warrant, unless the money and all expenses of the distress, commitment and conveyance to prison, to be specified in the warrant, are sooner paid. (2) When it appears to the court that distress and sale of property would be ruinous to the person ordered to pay the money or his family, or (by his confession or otherwise) that he has no property whereon the distress may be levied, or other sufficient reason appears to the court, the court may if it thinks fit, instead of or after issuing a warrant of distress, commit him to prison for a time specified in the warrant, unless the money and all expenses of the commitment and conveyance to prison, to be specified in the warrant, are sooner paid. (3) The period for which a person may be committed to prison in default of or in lieu of distress under this section shall be-
Payment after commitment *39.-(1) Any person committed for non-payment may pay the sum mentioned in the warrant, with the amount of expenses therein authorised (if any), to the person in whose custody he is, and that person shall thereupon discharge him if he is in custody for no other matter. (2) If any person committed to prison for non-payment shall pay any sum in part
satisfaction of the sum adjudged to be paid, the term of his imprisonment shall be reduced
by a number of days bearing as nearly as possible the same proportion to the total number
of days for which such person is committed, as the sum so paid bears to the sum for which
he is liable. The calculation shall be made by the officer in charge of the prison in
which such person is confined, who shall forthwith give notice in writing to such person
and to the court which passed sentence on him, stating the sum paid and the number of days
by which the term of imprisonment originally awarded is reduced. The reduction of sentence
shall be as so notified unless the court otherwise orders. (Amended by 16 of 1960 s. 3.)
*Payment after issue of warrant but before commitment 40. Where a warrant has been issued under the provisions of this Code for
non-payment of a fine, any payment made after the issue of such warrant but before the
person in respect of whom the warrant has been issued has been taken into custody, being a
payment insufficient to satisfy the sum mentioned in the warrant together with the amount
of the expenses therein mentioned, shall be deemed to be appropriated primarily in
satisfaction, or part satisfaction, of such expenses.
Security for keeping the peace 41.-(1) A person convicted of an offence not punishable with death may, instead of or in addition to any punishment to which he is liable, be ordered to enter into his own recognizance, with or without sureties, in such amount as the court thinks fit, conditioned that he shall keep the peace and be of good behaviour for a time to be fixed by the court, not exceeding two years, and may be ordered to be imprisoned until such recognizance, with sureties if so directed, is entered into; but so that the imprisonment for not entering into the recognizance shall not extend for a term longer than six months: Provided that no order shall be made under this section where the person convicted has been sentenced to a term of imprisonment of more than six months. (2) In addition to the powers conferred by sub-section (1), any magistrate shall have power in any trial before him, whether or not the complaint be dismissed, to bind both the complainant and defendant with or without sureties, to keep the peace and be of good behaviour for a period not exceeding one year and may order any person so bound, in default of compliance with the order, to be imprisoned for three months or until such earlier time as he so complies: Provided that:
(3) In this section "complainant" includes a person who makes complaint, or
on behalf of whom complaint is made, to the police. (Section amended by 30 of 1958, s. 2.)
Security for coming up for judgment 42.-(1) In any case in which a person is convicted before any court of any offence not punishable with death, if it appears to the court before which he is convicted that having regard to the circumstances, including the nature of the offence and the character of the accused, it is expedient to release the offender on probation, the court may, instead of sentencing him at once to any punishment, direct that he be released on his entering into a bond, with or without sureties, *for such period not exceeding two years as the court may order, to appear and receive sentence when called upon and, in the meantime, to keep the peace, to be of good behaviour and to comply with such conditions as the court may impose. *Inserted by Ordinance No. 12 of 1969. (2) If at any time the court which convicted the offender is satisfied that the offender has failed to observe any of the conditions of his recognizance, it may issue a warrant for his apprehension. (3) An offender when apprehended on any such warrant shall be brought forthwith before the court by which the warrant was issued and such court may either remand him in custody until the case is heard or admit him to bail with a sufficient surety conditioned for his appearing for sentence. Such court may after hearing the case, pass sentence. (4) Where an order under subsection (1) is made by a court, the order shall for the
purpose of revesting or restoring stolen property and for the purpose of enabling the
court to make any order under the provisions of sections 164 and 165 of the
Criminal Procedure Code, have the like effect as a conviction.
Provisions of Criminal Procedure Code relating to recognizance to apply *43. The provisions of sections 113,114 and 116 of the Criminal
Procedure Code shall apply mutatis mutandis to recognisances taken under section 41
or section 42.
Absolute and conditional discharge 44.-(1) Where a court by or before which a person is found guilty of an offence,
not being an offence for which a fixed sentence is prescribed by law, is of opinion,
having regard to the circumstances including the nature of the offence and the character
of the offender, that it is inexpedient to inflict punishment and that a probation order
under the Probation of Offenders Act is not appropriate, the court may, with or without
proceeding to conviction, make an order discharging him absolutely, or, if the court
thinks fit, discharging him subject to the condition that he commits no offence during
such period, not exceeding twelve months from the date of the order, and subject to such
other conditions, if any, including the payment of costs or compensation, or the
restitution of goods or the payment of money in lieu of goods, as may be specified in such
order. (2) Before making an order discharging a person subject to the conditions referred to in subsection (1), the court shall explain to the offender in ordinary language that if during the period of conditional discharge he commits another offence or fails to comply with such conditions, if any, which may have been imposed he will be liable to be sentenced for the original offence. (3) Where an order discharging an offender is made under the provisions of this section the court may |