Fiji Magistrates Bench Book - Federal Court of Australia
Fiji Magistrates Bench Book - Federal Court of Australia
Fiji Magistrates Bench Book - Federal Court of Australia
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3 Intoxication must also be taken into account for determining whether the defendant had<br />
formed any intention, specific or otherwise, for <strong>of</strong>fences which, if intention were absent, he<br />
or she would not be guilty <strong>of</strong> the <strong>of</strong>fence: s13(4) Penal Code.<br />
• The question is whether the defendant’s mind was so affected by alcohol that he or she<br />
could not have formed the intention to do what he or she did or that his or her mind was<br />
so affected by alcohol that he or she did not know what he or she was doing at the time: R<br />
v Kenneth Iro (Unrep. Criminal Case No. 66 <strong>of</strong> 1993).<br />
• See R v Kauwai [1980] SILR 108, which considered the identical provision in the<br />
Solomon Islands.<br />
Intoxication under s13 Penal Code includes a state produced by narcotics or drugs: s13(5) Penal<br />
Code.<br />
The onus <strong>of</strong> pro<strong>of</strong> lies with the prosecution which in the case <strong>of</strong> intoxication, must prove beyond<br />
reasonable doubt that the defendant did know what he or she was doing or that it was wrong: R v<br />
Warren Godfrey Motui (Unrep. Criminal Case No. 20 <strong>of</strong> 1997).<br />
2.7 Immature Age: s14 Penal Code<br />
A person who is under the age <strong>of</strong> 10 is not criminally responsible for any act or omission: s14<br />
Penal Code.<br />
A person under the age <strong>of</strong> 12 is not criminally responsible for an act or omission, unless it is<br />
proved that at the time <strong>of</strong> the act or omission, he or she had the capacity to know that he ought<br />
not to do the act or make the omission: s14 Penal Code.<br />
A male person under the age <strong>of</strong> 12 is presumed to be incapable <strong>of</strong> having sexual intercourse: s14<br />
Penal Code.<br />
Evidence <strong>of</strong> age<br />
In cases where the defence <strong>of</strong> “immature age” is raised, evidence as to the child’s age should be<br />
given.<br />
The defendant should be able to point to some kind <strong>of</strong> evidence as to age, although the onus <strong>of</strong><br />
pro<strong>of</strong> is on the prosecution to show that such evidence ought to be excluded. See R v Rakaimua<br />
[1996] Criminal Case No. 24 <strong>of</strong> 1995.<br />
Capacity to know and understand for children between 10 and 12 years<br />
From R v Sheldon [1996] 2 CrAppR 50.<br />
<strong>Fiji</strong> <strong>Magistrates</strong> <strong>Bench</strong> <strong>Book</strong> April 2004