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Vanuatu Magistrates Bench Book

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Vanuatu Magistrates Bench Book Vanuatu Magistrates Bench Book Produced by the Pacific Judicial Education Programme, in collaboration with the Vanuatu National Judicial Education Committee, and with generous assistance from the governments of Australia, New Zealand and Canada. CANADA FUND FOR LOCAL INITIATIVES Foreword This Bench Book is a welcome assistance for Magisterial work. It is intended to be a practical, user-friendly and informative guide to many aspects of the jurisdiction of the Magistrates’ Courts. I urge every Magistrate to use it often, to add to it and become part of developing and improving it further in the years ahead. The Bench Book is an important milestone in the work of the National Judicial Education Committee and I am confident that it will lead to greater uniformity and consistency in the approach of Magistrates’ Courts throughout Vanuatu. I gratefully acknowledge the initiative and commitment on the part of the Pacific Judicial Education Programme (PJEP) to produce this Bench Book, and the financial backing by the Governments of Australia and New Zealand through their respective aid agencies, AusAID and NZAID. In addition, the assistance provided by the Government of Canada through the Canada Fund, the Department of Foreign Affairs and International Trade as well as the University of Saskatchewan Native Law Centre. I particularly commend the outstanding work of Magistrate Jerry Boe; Tina Pope, the Bench Book Consultant; and Paul Logan, the Legal Researcher. They collaborated tirelessly in true team spirit to prepare and produce this Bench Book. I appreciate the valuable contributions of PJEP Co-ordinator, Afioga Tagaloa Enoka Puni and PJEP Administration Manager, Mrs Vere Bakani; and the Vanuatu National Judicial Training Committee. The Bench Book has been produced in loose leaf format to enable on-going revision and improvement. Comments are invited and should be referred to Magistrate Jerry Boe, Tina Pope or PJEP. This joint effort has resulted in a Bench Book of which we can all be proud and which will go a long way towards improving the standards and quality of services provided by the Magistrates Court to members of the public. Hon. Vincent Lunabek Chief Justice Vanuatu Magistrates Bench Book July 2004 Table of Contents PART I: GENERAL MATTERS 1: Constitutional and Court Framework 1 The Constitutional Framework of Vanuatu 1.1 The Constitution of the Republic of Vanuatu 1.2 The Branches of Government 2 The Court System 2.1 General Characteristics of the Court System 2.2 The Structure of the Vanuatu Court System 2.3 A Brief Description of the Courts 2: The Law 1 Sources of Law 1.1 The Constitution 1.2 Legislation 1.3 Customary Law 1.4 Common Law 1.5 Pre-existing Joint Regulations 1.6 Pre-existing British and French Laws 2 Interpreting Legislation 3: Jurisdiction 1 Jurisdiction Defined 1.1 Original Jurisdiction 1.2 Territorial Jurisdiction 1.3 Appellate Jurisdiction 1.4 Criminal Jurisdiction 1.5 Civil Jurisdiction 2 Jurisdiction of the Magistrate’s Courts 2.1 Territorial Jurisdiction 2.2 Criminal Jurisdiction 2.3 Civil Jurisdiction 2.4 Lands Jurisdiction 2.5 Appellate Jurisdiction Vanuatu Magistrates Bench Book July 2004 2.6 Other Jurisdiction 3 Transfer of Cases 3.1 Criminal Jurisdiction Problems 3.2 Civil Jurisdiction Problems 4: Human Rights and Natural Justice 1 Introduction 2 Right to Personal Liberty 2.1 Procedure on Arrest 3 Right to Protection of Law 3.1 The Right to a Fair Hearing 3.2 The Presumption of Innocence 3.3 The Right to be Informed of the Offence Charged 3.4 The Right to an Interpreter 3.5 The Right to be Present During Trial 3.6 Protection against Retrospective Laws 3.7 Protection against Greater Penalty 3.8 The Right Not to be Tried Twice for the Same Offence 4 Protection from Inhuman Treatment and Forced Labour 5 Freedom of Movement 6 Protection for Privacy of Home and Property and from Unjust Deprivation of Property 7 Equal Treatment Under the Law 8 Natural Justice 8.1 Principle that Affected Parties have the Right to be Heard 8.2 Principle that No Person Should be a Judge in His or Her Own Cause 5: Judicial Conduct 1 Appointment 1.1 All Magistrates 1.2 Senior Magistrates 1.3 Chief Magistrates 2 Ethical Principles 2.1 “To the Best of My Knowledge, Judgement and Ability Discharge the functions of My Office” 2.2 “Do Right” Vanuatu Magistrates Bench Book July 2004 2.3 “All Manner of People” 2.4 “After the Laws and Usages of the Republic of Vanuatu” 2.5 “Without Fear and Favour, Affection or Ill-Will” 3 Code of Conduct 4 Conduct in Court 4.1 Preparing for a Case 4.2 Courtroom Conduct 4.3 Maintaining the Dignity of the Court 4.4 Communication in Court 5 Actions Against Magistrates PART II: CRIMINAL MATTERS 6: Criminal Responsibility 1 Introduction 2 Principles of Criminal Law 2.1 Innocent Until Proven Guilty 2.2 Burden and Standard of Proof 2.3 What Must be Proved 2.4 Intention 3 Exemptions to Criminal Responsibility under Part 1 Penal Code 3.1 Ignorance of the Law 3.2 Mistake of Fact 3.3 Insanity 3.4 Intoxication 3.5 Immature Age 3.6 Superior Orders 3.7 Judicial Officers 3.8 Defence of Person or Property or Prevention of Offence 4 Diminished Responsibility 4.1 Failure of Plea of Insanity 4.2 Compulsion and Coercion 4.3 Provocation 4.4 Withdrawal Vanuatu Magistrates Bench Book July 2004 5 Parties 5.1 Principal Offenders 5.2 Co-offenders 5.3 Accomplices 5.4 Foreseeable Consequences 5.5 Conspiracy 5.6 Accessories After the Fact 6 Attempts 7 Lesser Offences 8 Alternative Offence 7: Evidence 1 Introduction 2 Classification of Evidence 2.1 Classification by Form 2.2 Classification by Content 3 Documentary Evidence 4 Real Evidence 5 Exhibits 6 Oral Evidence 7 Taking Evidence 7.1 Power to Summon and Examine Witness 7.2 Evidence on Oath 7.3 Evidence in Absence of Accused 7.4 Interpretation of Evidence 7.5 Recording of Evidence 7.6 Admissions 7.7 Expert Evidence 7.8 Competency of Accused and Spouse 7.9 Evidence Partly Heard by Two Courts 8 Evidentiary Issues Relating to Witness Testimony 8.1 Competence and Compellability of Witnesses 8.2 Examination of Witnesses 8.3 Leading Questions 8.4 Witness Credibility 8.5 Refreshing Memory Vanuatu Magistrates Bench Book July 2004 8.6 Lies 8.7 Self Incrimination Evidence 8.8 Identification Evidence by Witnesses 9 Rules of Evidence 9.1 Introduction 9.2 Burden and Standard of Proof 9.3 Presumptions 9.4 Evidence of Mens Rea 9.5 Admissibility of Evidence 9.6 Best Evidence Rule 9.7 Hearsay Rule 9.8 Opinion Evidence 9.9 Character Evidence 8: Management of Proceedings 1 General Organisation for Court 2 Order of Calling Cases 3 Bail 3.1 Bail after Arrest Without Warrant 3.2 Court Imposed Bail Conditions 3.3 Relevant Factors for Bail 3.4 Refusal of Bail 4 Adjournments 4.1 Adjourning a Case 5 Dealing with the Accused 5.1 Rights of the Accused 5.2 The Unrepresented Accused 5.3 The Mentally Ill Accused 6 Victims 6.1 Consideration of Victim’s Statement 7 Child Witnesses 8 The Prosecution 8.1 Conduct of the Prosecution 8.2 Expectations on Prosecution 8.3 Nolle Prosequi 9 Misbehaviour in Court 9.1 Contempt of Court 9.2 Refractory Witness Vanuatu Magistrates Bench Book July 2004 10 Search Warrants 10.1 Granting the Search Warrant 11 Civil Claim During Criminal Proceeding 11.1 Conduct of Civil Claim 12 Case Management 9: Pre-Trial Matters 1 The Criminal Process 2 How a Case Comes to the Magistrate’s Court 3 Dealing with the Charge 3.1 Personal Interest 3.2 Transferring the Case 3.3 Validity of the Charge 3.4 Joined Charges 3.5 Joined Parties 4 Ensuring Attendance of the Accused 4.1 Summons 4.2 Warrant 5 Ensuring Attendance of Witnesses 5.1 Summons 5.2 Warrant 10: Preliminary Enquiries 1 Introduction 2 Role of the Magistrate 3 The Process 5.1 Summons 5.2 Warrant 11: First Appearance 1 General Matters at First Appearance 1.1 Complainant (Prosecution) Does Not Appear 1.2 Accused Does Not Appear 2 Offences Requiring a Preliminary Enquiry Vanuatu Magistrates Bench Book July 2004 3 Offences to be Heard in the Magistrate’s Courts 3.1 Identifying the Accused and Putting the Charge 3.2 Unrepresented Accused 3.3 Reconciliation 3.4 Taking a Plea 4 Adjournments 5 Guilty Plea – Next Steps 6 Not Guilty Plea – Next Steps 6.1 Immediate Hearing 6.2 Hearing at a Later Date 6.3 Warrants/Summons for Witnesses to Attend 12: The Criminal Trial 1 Introduction 1.1 Role of Prosecution 1.2 Defence Counsel 2 Proving an Offence 2.1 Innocent Until Proven Guilty 2.2 Burden and Standard of Proof 3 Open Court 4 Legal Representation 5 Evidence 5.1 Evidence to be Taken in the Presence of the Accused 5.2 Interpretation of Evidence 5.3 Recording Evidence 5.4 Remarks Respecting Demeanour of Witnesses 5.5 Recording Minor Offences 6 Non-Appearance 6.1 Prosecution Does Not Appear 6.2 Accused Does Not Appear 6.3 Witness Does Not Appear 7 Defended Hearing 8 Amending the Charge 9 Withdrawal of Complaint 10 Adjournments Vanuatu Magistrates Bench Book July 2004 13: Judgment 1 Decision Making 1.1 Principles Governing Decision Making 2 A Structured Approach to Making a Decision 3 Note Taking 4 The Judgment 5 Delivering Your Judgment 6 Tips for Writing Good Judgment 7 Criminal Judgement Format 14: Sentencing and Orders 1 Introduction 2 Jurisdiction 3 Sentencing Principles 4 Sentencing Discretion 4.1 Factors Influencing Sentence 4.2 Previous Convictions 4.3 Plea in Mitigation 4.4 Compensation by Custom 4.5 Further Information and Reports 4.6 Consistency 5 A Structured Approach to Sentencing 6 Sentencing and Orders 6.1 Dismissal of Charge 6.2 Probation 6.3 Community Service Orders 6.4 Fines 6.5 Periodic Detention 6.6 Imprisonment 6.7 Sentence if Called Upon 6.8 Suspended Sentence 6.9 Confiscation of Property 6.10 Restitution of Property 6.11 Confinement of Addicts or Partially Insane Persons 6.12 Recognisance to Keep the Peace Vanuatu Magistrates Bench Book July 2004 6.13 Compensation 6.14 Restoration of Property 7 Costs 7.1 Costs Against the Accused 7.2 Costs Against a Private Prosecutor 7.3 Costs Against the State 7.4 Recovery of Costs 8 Enforcement of Fines, Penalty, Costs, Compensation and other Expenses.
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