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Fiji Sessional Legislation |
FIJI
MUTUAL ASSISTANCE IN CRIMINAL MATTERS ACT, 1997
ARRANGEMENT OF SECTIONS
SECTION
Part I - PRELIMINARY
1. Short title
2. Commencement
3.
Interpretation
4. Act not to limit other provision of assistance
5.
Application of Act
6. Refusal of assistance
7. Assistance may be provided
subject to conditions
8. Requests by Fiji
9. Request by foreign
country
Part II - ASSISTANCE IN RELATION TO TAKING OF EVIDENCE AND PRODUCTION OF DOCUMENTS OR OTHER ARTICLES
10. Requests by Fiji
11. Requests by foreign
countries
Part III - ASSISTANCE IN RELATION TO SEARCH AND SEIZURE
12. Requests by Fiji for search and seizure
13.
Requests by foreign countries for search and seizure
Part IV - ARRANGEMENTS FOR PERSONS TO GIVE EVIDENCE OR ASSIST INVESTIGATIONS
Division 1 - Requests by Fiji
14. Requests for removal of certain persons to Fiji
15.
Custody of certain persons to Fiji
16. Immunities
17. Status of person
prosecuted for offence committed after departure from foreign country
18.
Limitation on use of evidence given by certain persons
19. Conditions of
imprisonment
20. Release of certain persons upon request by foreign
country
21. Arrest of person who has escaped from custody
22. Aiding
person to escape etc.
Division 2 - requests by foreign countries
23. Requests for giving of evidence at hearings in foreign
countries
24. Requests for assistance in relation to investigations in
foreign countries
25. Effect of removal to foreign country on prisoner's term
of imprisonment
Part V - CUSTODY OF PERSONS IN TRANSIT
26. Transit
27. Arrest of person in transit
28.
Aiding person to escape etc.
Part VI - PROCEEDS OF CRIME
Division 1 - Requests by Fiji
29. Requests for enforcement of orders
30. Requests for
issue of orders in foreign countries
Division 2 - Request by Foreign Countries
31. Requests for enforcement of orders
32. Requests for
search and seizure warrants in respect of tainted property
33. Requests for
restraining orders
34. Requests for information gathering orders
Part VII - REQUESTS ON BEHALF OF DEFENDANT
35. Requests by Attorney-General on behalf of a
defendant
36. Certificate by Attorney-General if foreign country refuses
request
Part VIII - ADMISSIBILITY OF FOREIGN EVIDENCE
Division 1 - Preliminary
37. Interpretation
38. Proceedings to which this Part
applies
Division 2 - Obtaining Foreign Material
39. Requests for foreign material
40. Requirements for
testimony
41. Form of testimony
Division 3 - Using Foreign Material
42. Foreign material may be adduced as evidence
43.
Direction to prevent foreign material being adduced
Division 4 - Miscellaneous
44. Certificates relating to foreign material
45. Right
to examine witnesses
46. Operation of other laws
Part IX - MISCELLANEOUS
47. Delegation
48. Authentication of documents
49.
Restriction
50. Requests for international assistance not to be
disclosed
51. Regulations and Court rules
---------------------------------------
FIJI
ACT NO. 28 OF 1997
I assent.
[L.S.]
K.K.T. MARA
President
[24 December 1997]
AN ACT
TO REGULATE THE OBTAINING OF INTERNATIONAL ASSISTANCE IN CRIMINAL MATTERS RELATING TO TAKING OF EVIDENCE, ASSISTANCE IN INVESTIGATIONS AND PROCEDURES FOR FORFEITURE OR CONFISCATION OF PROPERTIES USED IN THE COMMISSION OF A SERIOUS OFFENCE AND RELATED MATTERS
ENACTED by the
Parliament of Fiji.
Part I-PRELIMINARY
1.
Short
title
This Act may be cited as the Mutual Assistance in Criminal
Matters Act, 1997.
2. Commencement
This Act shall come into force on a date the Minister may,
by notice in the Fiji Republic Gazette
appoint.
3. Interpretation
In this Act, unless the context otherwise
requires:
"appropriate authority" means a person or body authorised under an enactment of, or duly appointed or authorised by, a foreign country to make or receive requests for the purpose of this Act or the Proceeds of Crime Act, 1997;
"confiscation order" means a confiscation order within the meaning of the Proceeds of Crime Act, 1997;
"Court" means the High Court of Fiji;
"criminal matter" includes -
(a) a criminal matter relating to revenue (including taxation and customs duties);
(b) a criminal matter relating to foreign exchange control;
(c) a matter relating to the forfeiture or confiscation of property in respect of an offence; or
(d) a matter relating to the restraining of dealings in property that may be forfeited or confiscated, in respect of an offence, whether arising under Fiji law or a law of a foreign country;
"criminal proceeding", in relation to an offence, means a trial of a person for the offence or a proceeding in respect of the offence to determine whether a persons should be tried for the offence (whether or not a particular person is specified at the commencement of that proceedings as the person in relation to whom the determination is to be made);
"facsimile copy" means a copy obtained or sent by facsimile transmission;
"foreign confiscation order" means an order made under the law of a foreign country for a person to pay to the foreign country an amount representing the value (or part thereof) of the person's benefits from an offence against the law of that country;
"foreign forfeiture order" means an order, made under the law of a foreign country, for the forfeiture of property in respect of an offence against the law of that foreign country;
"foreign law immunity certificate" means a certificate given, or a declaration made, by a foreign country or under a law of a foreign country, certifying or declaring that, under the law of the foreign country, persons generally or a specified person could or could not, either generally or in specified proceedings and either generally or in specified circumstances, be required-
(a) to answer a specified question; or
(b) to produce a specified document;
"foreign prisoner" means a persons who is being held in custody pending trial for, or sentence for, or is under a sentence of imprisonment for, an offence against a law of a foreign country, but does not include a person who is at large after having escaped from lawful custody;
"foreign restraining order" means an order, made under the law of a foreign country, restraining a person, or persons, from dealing with property, being an order made in respect of an offence against the law of that foreign country;
"forfeiture order" means a forfeiture order within the meaning of the Proceeds of Crime Act, 1997;
"money laundering offence" means an offence under section 69 or 70 of the Proceeds of Crime Act, 1997;
"offence" includes an offence against a law relating to taxation, customs duties or other revenue matters or relating to foreign exchange control;
"prisoner" means a person who is being held in custody pending trial for, or sentence for, or is under a sentence of imprisonment for, an offence against a law of Fiji, but does not include a person who is at large after having escaped from lawful custody;
"prison" includes a gaol, lock-up or other place of detention;
"proceeds" has the same meaning as in the Proceeds of Crime Act, 1997;
"proceeding" in relation to a criminal matter, includes a proceeding before a judicial officer for the purpose of -
(a) gathering evidential material that may lead to the laying of a criminal charge; or
(b) assessing evidential material in support of the laying of a criminal charge;
"property" has the same meaning as in the Proceeds of Crime Act, 1997;
"property-tracking document" has the same meaning as in the Proceeds of Crime Act, 1997;
"restraining order" means a restraining order within the meaning of the Proceeds of Crime Act, 1997;
"serious offence" means an offence for which the maximum penalty prescribed by law is death, or imprisonment for not less than 12 months;
"tainted property" has the same meaning as in the Proceeds of Crime Act, 1997;
"trial" in relation to an offence in a foreign country, includes any proceedings to determine whether a person should be convicted of the offence;
"video link" means a video and sound system that enables person assembled in a place in a country to see, hear or talk to persons assembled in a place in another country.
4. Act not to limit other provision of assistance
This Act does not prevent the provision or obtaining of
international assistance in criminal matters other than assistance of a kind
that may be provided or obtained under this Act.
5. Application of Act
This Act extends to any foreign country that has an
arrangement or has entered into a reciprocal agreement on assistance in criminal
matters with Fiji.
6. Refusal of assistance
A request by a foreign country for assistance under this
Act may be refused if, in the opinion of the Attorney-General, the assistance
would prejudice the national, essential or public interests of Fiji or would
result in manifest unfairness or a denial of human rights
or it is otherwise
appropriate, in all the circumstance of the case, that the assistance requested
should not be granted.
7. Assistance may be provided subject to conditions
Assistance under this Act may be provided to a foreign
country subject to conditions as the Attorney-General determines.
8. Requests by Fiji
(1) A request for international assistance in a criminal
matter that Fiji is authorised to make under this Act, unless otherwise
provided,
shall be made by the Attorney-General.
(2) Subsection (1) does
not prevent the Attorney-General on behalf of Fiji from requesting international
assistance in a criminal
matter of a kind that may be requested under this
Act.
9. Requests by foreign country
(1) A request by a foreign country for international
assistance in a criminal matter may be made to the Attorney-General or a person
authorised by the Attorney-General to receive requests by foreign countries
under this Act.
(2) A request shall be in writing and include the
following information-
(a) the name of the authority concerned with the criminal matter to which the request relates;
(b) a description of the nature of the criminal matter and a statement setting out a summary of the relevant facts and laws;
(c) a description of the purpose of the request and of the nature of the assistance being sought;
(d) any information that may assist in giving effect to the request;
Provided that the failure to comply
with this subsection is not a ground for refusing the request.
(3) Where
a request by a foreign country is made to a person authorised under subsection
(1), the request shall be taken, for the
purposes of this Act, to have been made
to the Attorney-General.
(4) If a foreign country makes a request to
another person or body in Fiji for international assistance in a criminal matter
-
(a) that other person or body shall refer the request to the Attorney-General; and
(b) the request is then to be taken, for the purposes of the Act, to have been made to the Attorney-General.
Part II - ASSISTANCE IN RELATION TO TAKING OF EVIDENCE AND PRODUCTION OF DOCUMENTS OR OTHER ARTICLES
10. Requests by Fiji
(1) The Attorney-General may, in writing, request the
appropriate authority of a foreign country to arrange for -
(a) evidence to be taken in the foreign country under the law of that country; or
(b) a document or other article in the foreign country to be produced under the law of that country;
for the purposes of a
proceedings or investigation in relation to a criminal matter in
Fiji.
(2) When making a request under subsection (1), the
Attorney-General may also request that an opportunity be given to the person
giving
the evidence, or producing the document or other article, to be examined
or cross examined, through a video link, from Fiji by -
(a) any party to the proceedings or that person's legal representative; or
(b) any person being investigated or that person's legal representative.
11. Requests by foreign countries
(1) Where a request is made by a foreign country
(requesting country) that -
(a) evidence be taken in Fiji, or
(b) documents or other articles in Fiji be produced, for the purposes of a proceedings or investigations in the requesting country or another foreign country, the Attorney-General may, in writing, authorise the taking of the evidence or the production of the documents or other articles, and the transmission of the evidence, documents or other articles to the requesting country.
(2) Where the Attorney-General
authorises the taking of evidence or the production of documents or other
articles under subsection
(1) -
(a) in the case of the taking of evidence, a Magistrate may take the evidence on oath of each witness appearing before the Magistrate to give evidence in relation to the matter, and a Magistrate who takes any such evidence shall -
(i) cause the evidence to be put in writing and certify that the evidence was taken by the Magistrate, and
(ii) cause the writing so certified to be sent to the Attorney-General; or
(b) in the case of the production of documents or other articles, a Magistrate may, subject to subsection (6), require the production of the documents or other articles and, where the documents or other articles are produced, the Magistrate shall send the documents, or copies of the documents certified by the Magistrate or the other articles, to the Attorney-General.
(3) The evidence of such a
witness may be taken in the presence or absence of the person to whom the
proceeding in the requesting
country relates or of his or her legal
representative.
(4) A Magistrate conducting a proceedings under
subsection (2) may permit -
(a) the person to whom the proceedings in the requesting country relates;
(b) any other person giving evidence or producing documents or other articles at the proceedings before the Magistrate; and
(c) the relevant authority of the requesting country, to have legal representation at the proceedings before the Magistrate.
(5) If the requesting country has
so requested, the Magistrate conducting a proceedings under subsection (2) may
permit -
(a) any person to whom the proceedings in the requesting country relates or that person's legal representative; or
(b) the legal representative of the relevant authority of the requesting country, to examine or cross-examine, through a video link, from the requesting country any person giving evidence or producing a document or other article, at the proceeding.
(6) The certificate by the
Magistrate under subsection (2) shall state whether, when the evidence was taken
or the documents or other
articles produced, any of the following persons were
present -
(a) the person to whom the proceeding in the requesting country relates or his or her legal representative;
(b) any other person giving evidence or producing documents or other articles or his or her legal representative.
(7) Subject
to subsections (8) and (9), laws with respect to the compelling of persons to
attend before a Magistrate, and to give
evidence, answer questions and produce
documents or other articles, upon the hearing of a charge against a person for
an offence
against the law of Fiji apply, so far as they are capable of
application, with respect to the compelling of persons to attend before
a
Magistrate, and give evidence, answer questions and produce documents or other
articles, for the purposes of this section.
(8) For the purposes of this
section, the person to whom the proceedings in the requesting country relates is
competent but cannot
be compelled, to give evidence.
(9) For the purposes
of this section, a person who is required to give evidence, or produce documents
or other articles, for the purposes
of a proceedings in relation to a criminal
matter in the requesting or another foreign country, is not compellable to
answer a question
or produce a document or article, that the person is not
compellable to answer or produce, as the case may be in the proceeding in
that
country.
(10) A duly authenticated foreign law immunity certificate is
admissible in proceedings under this section as prima facie evidence
of the
matters stated in the certificate.
Part III - ASSISTANCE IN RELATION TO SEARCH AND SEIZURE
12.
Requests by Fiji
for search and seizure
(1) This section applies to a proceedings or investigation
relating to a criminal matter involving a serious offence against the law
of
Fiji if there are reasonable grounds to believe that a thing relevant to the
proceeding or investigation may be located in a foreign
country.
(2) If
this section applies to a proceedings or investigation, the Attorney-General may
request the appropriate authority of the foreign
country -
(a) to obtain a warrant or other instrument that, in accordance with the law of the foreign country, authorises -
(i) a search for a thing relevant to the proceedings or investigation; and
(ii) if the thing, or any other thing that is or may be relevant to the proceedings or investigation is found as a result of the search, the seizure of that thing.
(3) If the
appropriate authority of the foreign country has obtained any thing relevant to
the proceedings or investigation by means
of a process authorised by the law of
that country other than the issue (as requested by Fiji) of a warrant or other
instrument authorising
the seizure of the thing, the thing -
(a) is not inadmissible in evidence in the proceedings, or
(b) is not precluded from being used for the purposes of the investigation, on the ground alone that it was obtained otherwise than in accordance with the request.
13. Requests by foreign countries for search and seizure
(1) Where -
(a) a proceedings or investigation relating to a criminal matter involving a serious offence has commenced in a foreign country;
(b) there are reasonable grounds to believe that a thing relevant to the investigation or proceedings is located in Fiji; and
(c) the foreign country requests the Attorney-General to arrange for the issue of a search warrant under this section in relation to that thing, the Attorney-General may, in writing, authorise a police officer to apply to a Magistrate for the search warrant requested by the foreign country.
(2) A police officer authorised under
subsection (1) may apply to a Magistrate for the issue of a warrant to search
land or premises
for the things to which the request relates in the same way as
a police officer may apply for the issue of a search warrant under
Part IV of
the Criminal Procedure Code.
(3) Where an application is made under
subsection (2) for a warrant to search land or premises in Fiji for a thing
relevant to an
investigation or proceedings in a foreign country, the Magistrate
may issue a warrant of the kind in the same manner, and subject
to the same
conditions, as the Magistrate could issue a search warrant under Part IV of the
Criminal Procedure Code and, subject to this Part, the warrant may be executed
in the same manner as if it has been issued under the Criminal Procedure
Code.
(4) If, in the course of searching, under a warrant issued under
this section, for a thing of a kind specified in the warrant, the
police officer
finds another thing that the police officer believes on reasonable grounds
-
(a) to be relevant to the proceedings or investigation in the foreign country or to afford evidence as the commission of a Fiji criminal offence, and
(b) is likely to be concealed, lost or destroyed if it is not seized, the warrant is deemed to authorise the police officer to seize the other thing.
(5) Where the police officer finds, as
a result of a search in accordance with a warrant issued under this section, a
thing which
the police officer seizes wholly or partly because the police
officer believes the thing on reasonable grounds to be relevant to
the
proceeding or investigation in the foreign country, the police officer shall
deliver the thing into the custody and control of
the Commissioner of
Police.
(6) Where a thing is delivered into the custody and control of
the Commissioner, of Police under subsection (5), the Commissioner
of Police
shall without delay inform the Attorney-General that the thing has been so
delivered and arrange for the thing to be kept
pending a direction in writing
from the Attorney-General as to the manner in which the thing is to be dealt
with (which may include
a direction that the thing be sent to an authority of a
foreign country).
Part IV-ARRANGEMENTS FOR PERSONS TO GIVE EVIDENCE OR ASSIST INVESTIGATIONS
Division 1 - Requests by Fiji
14.
Requests for
removal of certain person to Fiji
(1) Where-
(a) a proceedings relating to a criminal matter has commenced in Fiji, and
(b) the Attorney-General is of the opinion that a person who is in a foreign country-
(i) is a foreign prisoner,
(ii) is capable of giving evidence relevant to the proceedings, and
(iii) has given his or her consent to being removed to Fiji for the purpose of giving evidence in the proceedings, the Attorney-General may, in writing, request the foreign country to authorise the attendance of the person at a hearing in connection with the proceedings.
(2) Where-
(a) an investigation relating to a criminal matter has commenced in Fiji, and
(b) the Attorney-General is of the opinion that a person who is in a foreign country -
(i) is a foreign prisoner,
(ii) is capable of giving assistance in relation to the investigation, and
(iii) has given his or her consent to being removed to Fiji for the purpose of giving assistance in relation to the investigation, the Attorney-General may, in writing, request the foreign country to authorise the removal of the person to Fiji for the purpose of giving assistance in relation to the investigation.
(3) Where the
Attorney-General makes a request under subsection (1) or (2), the
Attorney-General may make arrangements with an appropriate
authority of the
foreign country for the purposes of-
(a) the removal of the person to Fiji;
(b) the custody of the person while in Fiji;
(c) the return of the person to the foreign country; and
(d) other relevant matters.
15.
Custody of certain
persons brought to Fiji
(a) a person is to be brought to Fiji from a foreign country pursuant to a request under section 14; and
(b) the foreign country requests that the person be kept in custody while he or she is in Fiji,
the person shall, while the
person is in Fiji or travelling to or from Fiji pursuant to the request, be kept
in custody as the Attorney-General
directs in writing.
16. Immunities
(1) Where a person is in Fiji pursuant to a request under
section 14, or to give evidence in a proceedings, or to give assistance
in
relation to an investigation, pursuant to a request made by or on behalf of the
Attorney-General (not being a request under section
14) for international
assistance in a criminal matter, the person, subject to subsection (2), shall
not-
(a) be detained, prosecuted or punished in Fiji for any offence that is alleged to have been committed, or that was committed, before the person's departure from the foreign country pursuant to the request;
(b) be subjected to any civil suit in respect of any act or omission of the person that is alleged to have occurred, or that occurred, before the person's departure from the foreign country pursuant to the request, being a civil suit to which the person could not be subjected to if the person were not in Fiji;
(c) be required to give evidence in any proceedings in Fiji other than the proceedings to which the request relates;
(d) be required, in the proceedings to which the request relates, to answer any question that the person would not be required to answer in a proceeding in the foreign country relating to a criminal matter; or
(e) be required, in the proceedings to which the request relates, to produce any document or article that the person would not be required to produce in a proceedings in the foreign country relating to a criminal matter.
(2) A duly authorised foreign law
immunity certificate is admissible in proceedings as prima facie evidence of the
matters stated
in the certificate.
(3) Subsection (1) ceases to apply to
a person if -
(a) the person has left Fiji; or
(b) the person has had the opportunity of leaving Fiji and has remained in Fiji otherwise than for-
(i) the purpose to which the request relates;
(ii) the purpose of giving evidence in a proceeding in Fiji certified by the Attorney-General, in writing, to be a proceedings in which it is desirable that the person give evidence; or
(iii) the purpose of giving assistance in relation to an investigation in Fiji certified by the Attorney-General, in writing, to be an investigation in relation to which it is desirable that the person give assistance.
(4) A certificate
given by the Attorney-General under subparagraph (3)(b)(ii) or (iii) is
effective from the date of the certificate.
17. Status of person prosecuted for offence committed after departure from foreign country
(1) Where a person has come to Fiji pursuant to a request
under section 14, the person shall be taken, for the purposes of this Act,
to be
in Fiji pursuant to the request during any period during which the person
remains in Fiji for the purpose of being tried for
a criminal offence against
the law of Fiji that the person is alleged to have committed after the person's
departure from the foreign
country.
(2) Without limiting the generality
of subsection (1), the person shall be kept in custody as the Attorney-General
directs under section
15.
18. Limitation on use of evidence given by certain persons
(1) Where -
(a) a person is in Fiji to give evidence in a proceedings pursuant to a request-
(i) under subsection 14 (1), or
(ii) (other than a request under subsection 14(1)) made by the Attorney-General for international assistance in a criminal matter, and
(b) the person has given evidence in the proceedings to which the request related or in a proceedings certified by the Attorney-General under subparagraph 16(3)(b)(ii) in relation to the person,
that
evidence shall not be admitted or otherwise used in any prosecution of the
person for an offence against Fiji law, other than
the offence of perjury in
relation to the giving of that evidence.
(2) If -
(a) a person is in Fiji to give assistance in relation to an investigation pursuant to a request-
(i) under subsection 14 (2), or
(ii) (other than a request under subsection 14(2)) made by the Attorney-General for international assistance in a criminal matter, and
(b) the person has given assistance in relation to the investigation to which the request related or in relation to an investigation certified by the Attorney-General under subparagraph 16(3)(b)(iii) in relation to the person,
anything said or done by the person
when giving the assistance is not to be admitted or otherwise used in any
prosecution of the person
for an offence against Fiji law.
19. Conditions of imprisonment
The laws of Fiji with respect to-
(a) the conditions of imprisonment of persons imprisoned for offences against the law of Fiji;
(b) the treatment of persons during imprisonment; and
(c) the transfer of persons from prison to prison,
apply, so far as they are capable of
application, in relation to a person who is in Fiji pursuant to a request under
section 14 and
who has been committed to prison in Fiji in accordance with the
directions of the Attorney-General under this Act.
20. Release of certain persons upon request by foreign country
Where-
(a) a person is being held in custody in accordance with the directions of the Attorney-General under section 15, and
(b) the foreign country from which the person has been brought requests, in writing, the release of the person from custody,
the Attorney-General shall, in
writing, direct that the person be released from custody.
21. Arrest of person who has escaped from custody
(1) Any police officer may, without warrant, arrest a
person, if the police officer has reasonable grounds to believe that the
person-
(a) has been brought to Fiji under section 14; and
(b) has escaped from lawful custody while in Fiji.
(2) The police officer shall, within 24
hours or as soon as practicable, take the person before a Magistrate.
(3)
If the Magistrate is satisfied that the person has escaped from lawful custody,
the Magistrate may issue a warrant authorising
any police officer to return the
person to lawful custody.
22. Aiding person to escape etc.
Section 139 of the Penal Code and section 79 of the
Prisons Act relating to harbouring an escapee apply while a person is in custody
in Fiji pursuant to a request to a foreign country by Fiji under
this
Act.
Division 2 - Requests by foreign countries
23.
Requests for giving
of evidence at hearings in foreign countries
(1) Where-
(a) a proceedings relating to a criminal matter has commenced in a foreign country;
(b) the foreign country requests the attendance at a hearing in connection with the proceeding of a prisoner who is in Fiji (whether or not in custody);
(c) there are reasonable grounds to believe that the prisoner is capable of giving evidence relevant to the proceeding; and
(d) the Attorney-General is satisfied that-
(i) the prisoner has consented to giving evidence in the foreign country, and
(ii) the foreign country has given adequate (whether or not unqualified undertakings in respect of the matters referred to in subsection (3),
the Attorney-General
may-
(A) where the prisoner is being held in custody, direct, in writing, that the prisoner be released from prison for the purpose of travelling to the foreign country to give evidence at the proceedings and, subject to the making or giving of any necessary directions or approvals in relation to the release of the prisoner, make arrangements for the travel of the prisoner to the foreign country in the custody of a police or prison officer appointed by the Attorney-General for the purpose; or
(B) in a case where the prisoner, having been released from custody on a parole or other order or licence to be at large, is not being held in custody, approve the travel of the prisoner to the foreign country to give evidence at the proceeding and obtain approvals, authorisation, permissions or variations to the parole or other order or licence to be at large as may be required and, subject to the obtaining of any necessary approvals, authorisation, permissions or variations of the parole or other order or licence to be at large, make arrangements for the travel of the prisoner to the foreign country in the custody of a police or prison officer appointed by the Attorney-General for the purpose.
(2) Where-
(a) a criminal proceedings has commenced in a foreign country;
(b) the foreign country requests the attendance at a hearing in connection with the proceedings of a person (not being a prisoner) who is in Fiji; and
(c) there are reasonable grounds to believe that the person is capable of giving evidence relevant to the proceedings; and
(d) the Attorney-General is satisfied that-
(i) the person has consented to giving evidence in the foreign country, and
(ii) the foreign country has given adequate (whether or not unqualified) undertakings in respect of the matters referred to in subsection (3),
the Attorney-General may
make arrangements for the travel of the person to the foreign
country.
(3) The matters in relation to which undertakings are to be
given by a foreign country for the purpose of a request that a person
give
evidence in the foreign country are-
(a) that the person shall not-
(i) be detained, prosecuted or punished for any offence against the law of the foreign country that is alleged to have been committed, or that was committed, before the person's departure from Fiji;
(ii) be subjected to any civil suit in respect of any act or omission of the person that is alleged to have occurred, or that occurred, before the person's departure from Fiji, being a civil suit to which the person could not be subjected to if the person were not in the foreign country; or
(iii) be required to give evidence in any proceedings in the foreign country other than the proceedings to which the request relates, unless-
(A) the person has left the foreign country; or
(B) the person has had the opportunity of leaving the foreign country and has remained in that country otherwise than for the purpose of giving evidence in the proceedings to which the request relates;
(b) that any evidence given by the person in the proceedings to which the request relates is inadmissible or otherwise disqualified from use in the prosecution of the person for an offence against a law of the foreign country other than the offence of perjury in relation to the giving of that evidence;
(c) that the person shall be returned to Fiji in accordance with arrangements agreed by the Attorney-General;
(d) where the person is being held in custody in Fiji and the Attorney-General requests the foreign country to make arrangements for the keeping of the person in custody while the person is in the foreign country-
(i) the making of appropriate arrangements for that purpose;
(ii) that the person shall not be released from custody in the foreign country unless the Attorney-General notifies an appropriate authority of the foreign country that the person is entitled to be released from custody under Fiji law; and
(iii) if the person is released in the foreign country as mentioned in subparagraph (ii), that the person's accommodation and expenses pending the completion of the proceeding to which the request relates shall be paid for by the foreign country; and
(e) other matters as the Attorney-General thinks appropriate.
24. Requests for assistance in relation to investigation in foreign countries
(1) Where-
(a) an investigation relating to a criminal matter has commenced in a foreign country;
(b) the foreign country requests the removal of a prisoner who is in Fiji (whether or not in custody) to the foreign country for the purpose of giving assistance in relation to the investigation;
(c) there are reasonable grounds to believe that the prisoner is capable of giving assistance in relation to the investigation; and
(d) the Attorney-General is satisfied that-
(i) the prisoner has consented to being removed to the foreign country for the purpose of giving assistance in relation to the investigations, and
(ii) the foreign country has given adequate (whether or not unqualified) undertakings in respect of the matters referred to in subsection (3), the Attorney-General may-
(A) where the prisoner is being held in custody, direct that the prisoner be released from prison for the purpose of travelling to the foreign country to give assistance in relation to the investigation and, subject to the making or giving of any necessary directions or approvals in relation to the release of the prisoner, make arrangements for the travel of the prisoner to the foreign country in the custody of a police or prison officer appointed by the Attorney-General for the purpose; or
(B) where the prisoner, having been released from custody on a parole or other order or licence to be at large, is not being held in custody, approve the travel of the prisoner to the foreign country for the purpose of giving assistance in relation to the investigation and obtain approvals, authorisation, permission or variations to the parole or other order or licence to be at large as may be required and, make arrangements for the travel of the prisoner to the foreign country in the custody of a police or prison officer appointed by the Attorney-General for the purpose.
(2)
Where-
(a) a criminal investigation has commenced in a foreign country;
(b) the foreign country requests that a person (not being a prisoner) who is in Fiji travel to the foreign country to give assistance in relation to the investigation;
(c) there are reasonable grounds to believe that the person is capable of giving assistance in relation to the investigations; and
(d) the Attorney-General is satisfied that-
(i) the person has consented to travel to the foreign country for the purpose of giving assistance in relation to the investigations, and
(ii) the foreign country has given adequate (whether or not unqualified) undertakings in respect of the matters referred to in subsection (3),
the Attorney-General may,
make arrangements for the travel of the person to the foreign
country.
(3) The matters in relation to which undertakings are to be
given by a foreign country for the purpose of a request that a person
be removed
to, or travel to, the foreign country for the purpose of giving assistance in
relation to an investigation are-
(a) that the person shall not-
(i) be detained, prosecuted or punished for any offence against the law of the foreign country that is alleged to have been committed, or that was committed, before the person's departure from Fiji;
(ii) be subjected to any civil suit in respect of any act or omission of the person that is alleged to have occurred, or that occurred, before the person's departure from Fiji, being a civil suit to which the person could not be subjected to if the person were not in the foreign country; or
(iii) be required to give in any proceedings in the foreign country, unless-
(A) the person has left the foreign country; or
(B) the person has had the opportunity of leaving the foreign country and has remained in that country otherwise than for the purpose of giving assistance in relation to the investigation to which the request relates;
(b) that the person shall be returned to Fiji in accordance with arrangements agreed by the Attorney-General;
(c) where the person is being held in custody in Fiji and the Attorney-General requests the foreign country to make arrangements for the keeping of the person in custody while the person is in the foreign country-
(i) the making of appropriate arrangements for that purpose;
(ii) that the person shall not be released from custody in the foreign country unless the Attorney-General notifies an appropriate authority of the foreign country that the person is entitled to be released from custody under Fiji law; and
(iii) if the person is released in the foreign country as mentioned in subparagraph (ii), that the person's accommodation and expenses pending the completion of the investigation to which the request relates shall be paid for by the foreign country; or
(d) other matters as the Attorney-General thinks appropriate.
25. Effects of removal to foreign country on prisoner's term of imprisonment
Where a prisoner who is serving a term of imprisonment for
an offence against a law of Fiji is released from a prison pursuant to
a request
by a foreign country under section 23 or 24, the prisoner, while in custody in
connection with the request (including custody
outside Fiji), is deemed to be
continuing to serve that term of imprisonment.
Part V-CUSTODY OF PERSONS IN TRANSIT
26.
Transit
(1) Where a person is to be transported in custody from a
foreign country through Fiji to another foreign country for the purpose
of
giving evidence in a criminal proceedings, or giving assistance in relation to a
criminal investigation, the person -
(a) may be transported through Fiji in the custody of another person; or
(b) if an aircraft or ship by which the person is being transported lands or calls at a place in Fiji, shall be kept in custody as the Attorney-General directs in writing until his or her transportation is continued.
(2) Where a person is held in
custody under paragraph (1)(b) and the person's transportation is not, in the
opinion of the Attorney-General,
continued within a reasonable time, the
Attorney-General may direct that the person be transported in custody back to
the foreign
country from which the person was first transported.
27. Arrest of person in transit
(1) Any police officer may, without warrant, arrest a
person if the police officer has reasonable grounds to believe that the person
was being kept in custody pursuant to a direction under paragraph 26(1)(b) and
has escaped.
(2) The police officer shall, within 24 hours or as soon as
practicable, take the person before a Magistrate.
(3) If the Magistrate
is satisfied that the person has escaped from lawful custody, the Magistrate may
issue a warrant authorising
any police officer to return the person to lawful
custody.
28. Aiding person to escape etc.
Section 139 of the Penal Code relating to aiding a
prisoner to escape and section 79 of the Prisons Act relating to harbouring an
escapee apply while a person is in custody in Fiji under the provisions of this
Act.
Part VI-PROCEEDS OF CRIME
Division 1-Requests by Fiji
29.
Requests for
enforcement of orders
Fiji may request an appropriate authority of a foreign
country to make arrangements for the enforcement of -
(a) a forfeiture order made in Fiji against property that is believed to be located in that foreign country,
(b) a confiscation order made in Fiji where some or all of the property available to satisfy the order is believed to be located in that foreign country, or
(c) a restraining order made in Fiji against property that is believed to be located in that foreign country, if the order was made in respect of a serious offence.
30. Requests for issue of orders in foreign countries
Where a criminal proceedings or investigation has
commenced in Fiji in relation to a serious offence, Fiji may request an
appropriate
authority of a foreign country to obtain the issue, in respect of
the offence, of a warrant, order or other instrument similar in
nature to any of
the following warrants and orders under the Proceeds of Crime Act, 1997-
(a) a search warrant for tainted property;
(b) a restraining order;
(c) a production order in respect of a property-tracking document; or
(d) a search warrant in respect of a property-tracking document.
Division 2 - Requests by foreign countries
31.
Requests for
enforcement of orders
(1) Where-
(a) a foreign country requests the Attorney-General to make arrangements for the enforcement of -
(i) a foreign forfeiture order, made in respect of a serious offence, against property that is believed to be located in Fiji; or
(ii) a foreign confiscation order, made in respect of a serious offence, where some or all of the property available to satisfy the order is believed to be located in Fiji; and
(b) the Attorney-General is satisfied that-
(i) a person has been convicted of the offence; and
(ii) the conviction and the order are not subject to further appeal in the foreign country,
the
Attorney-General may authorise the Director of Public Prosecutions, in writing,
to apply for the registration of the order in
the Court.
(2) Where a
foreign country requests the Attorney-General to make arrangements for the
enforcement of a foreign restraining order,
made in respect of a serious
offence, against property that is believed to be located in Fiji the
Attorney-General may, authorise
the Director of Public Prosecutions, in writing,
to apply for the registration of the order in the Court.
(3) Where the
Director of Public Prosecutions applies to the Court for registration of a
foreign order under this section, the Court
may register the order.
(4) A
foreign forfeiture order registered in the Court under this section has effect,
and may be enforced, as if it were a forfeiture
order made by the Court under
the Proceeds of Crime Act, 1997 at the time of registration.
(5) A
foreign confiscation order registered in the Court under this section has
effect, and may be enforced, as if it were a confiscation
order made by the
Court under the Proceeds of Crime Act, 1997 at the time of registration and
requiring the payment to the State
of the amount payable under the
order.
(6) A foreign restraining order registered in the Court under this
section has effect, and may be enforced, as if it were a restraining
order made
by the Court under the proceeds of Crime Act, 1997 at the time of
registration.
(7) Where a foreign confiscation order or a foreign
restraining order is registered in the Court under this section, a copy of any
amendment made to the order (whether before or after registration) may be
registered in the same way as the order and the amendment
does not, for the
purposes of this Act and the Proceeds of Crime Act, 1997 come into effect until
registered.
(8) An order or an amendment of an order shall be registered
in the Court by the registration, in accordance with the rules of the
Court,
of-
(a) a copy of the appropriate order or amendment sealed by the Court or other authority making that order or amendment; or
(b) a copy of that order or amendment duly authenticated under subsection 48(2).
(9) A facsimile copy of a sealed or
authenticated copy of an order or an amendment of an order shall be regarded for
the purposes
of this Act as the same as the sealed or authenticated copy but
registration effected by means of the facsimile copy ceases to have
effect at
the end of 21 days unless the sealed or authenticated copy has been registered
by then.
(10) The Attorney-General may, in writing, direct the Director
of Public Prosecutions to apply to the Court for cancellation of the
registration of a foreign confiscation order or a foreign restraining order
which has been registered in the Court.
(11) Where the Director of Public
Prosecutions applies to the Court under subsection (10), the Court shall cancel
the registration
accordingly.
(12) Section 73 of the Proceeds of Crime
Act, 1997 does not apply to an order registered under this section.
32. Requests for search and seizure warrants in respect of tainted property
Where-
(a) a criminal proceedings or investigation has commenced in a foreign country in respect of a serious offence;
(b) there are reasonable grounds to believe that tainted property in relation to the offence is located in Fiji; and
(c) the foreign country requests the Attorney-General to obtain the issue of a search warrant in relation to the tainted property,
the Attorney-General may, in
writing, authorise a police officer to apply to a Magistrate under section 103
of the Criminal Procedure Code for a search warrant in relation to that tainted
property.
33. Requests for restraining orders
Where-
(a) a criminal proceedings has commenced, or there are reasonable grounds to believe that a criminal proceedings is about to commence, in a foreign country in respect of a serious offence;
(b) there are reasonable grounds to believe that property that may be made or is about to be made the subject of a foreign restraining order is located in Fiji; and
(c) the foreign country requests the Attorney-General to obtain the issue of a restraining order against the property,
the
Attorney-General may, in writing, authorise the Director of Public Prosecutions
to apply to the Court for a restraining order
under the Proceeds of Crime Act,
1997 against that property in respect of the offence.
34. Requests for information gathering orders
Where-
(a) a criminal proceeding or investigation has commenced in a foreign country in respect of a serious offence;
(b) a property-tracking document in relation to the offence is reasonably believed to be located in Fiji; and
(c) the foreign country requests the Attorney-General to obtain the issue of-
(i) an order requiring the documents to be produced or made available for inspection in accordance with the law of Fiji; or
(ii) a search warrant in respect of the offence,
the Attorney-General
may, in writing, authorise a police officer to apply to a Judge for-
(A) a production order under the Proceeds of Crime Act in respect of the offence for the purpose of obtaining possession of the property-tracking document; or
(B) a search warrant under Section 103 of the Criminal Procedure Code in relation to the property-tracking document.
Part VII-REQUESTS BY OR ON BEHALF OF A DEFENDANT
35.
Requests by
Attorney-General on behalf of a defendant
(1) If a defendant in a proceedings (original proceedings)
relating to a criminal matter thinks that it is necessary for the purposes
of
the proceedings that requests be made for-
(a) evidence to be taken in a foreign country;
(b) a document or other article in a foreign country to be produced;
(c) a thing located in a foreign country to be seized; or
(d) arrangements to be made for a person who is in a foreign country to come to Fiji (pursuant to a request to a foreign country by Fiji under this Act) to give evidence relevant to the criminal proceeding,
the defendant may apply to the
Court for a certificate that it would be in the interests of justice for the
Attorney-General to make
the appropriate request to the foreign country under
Part II, III or IV.
(2) Before making a decision on the application, the
Court shall give an opportunity to any party to the original proceedings, and
the Attorney-General to appear before the Court and be heard on the merits of
the application.
(3) In deciding whether to issue a certificate, the
Court shall have regard to the following matters-
(a) whether the foreign country is likely to grant a request made by the Attorney-General on behalf of the defendant;
(b) he extent to which the material (whether it is evidence, a document, an article or a thing) that the defendant seeks to obtain from the foreign country would not otherwise be available;
(c) whether the Court hearing the original proceedings would be likely to admit the material into evidence in the proceedings;
(d) the likely probative value of the material, if it were admitted into evidence in the proceedings, with respect to any issue likely to be determined in the proceedings; or
(e) whether the defendant would be fairly prejudiced if the material were not available to the Court.
(4) Subsection (3)
does not prevent the Court from taking any other matter into account that it
considers relevant.
(5) If the Court issues a certificate-
(a) the Court shall send a copy of the certificate to the Attorney-General; and
(b) the Attorney-General shall, in accordance with the certificate, make a request on behalf of the defendant to the foreign country for international assistance unless he or she is of the opinion, having regard to the special circumstances of the case, that the request should not be made.
36. Certificate made under section 35
(1) If a foreign country refuses a request made under
subsection 35(5), the Attorney-General shall give a certificate in writing to
that effect.
(2) A certificate under subsection (1) is prima facie
evidence of the facts stated in it.
Part VIII-ADMISSIBILITY OF FOREIGN EVIDENCE
Division 1 - Preliminary
37.
Interpretation
In this Part, unless the context otherwise
requires-
"civil proceedings" means proceedings other than criminal proceedings;
"criminal proceedings" includes-
(a) prosecutions for an offence;
(b) proceedings for the committal of a person for trial for an offence; or
(c) a proceedings for the sentencing of a person convicted of an offence;
"foreign law" means a law (whether written or unwritten) of, or in force in, a country other than Fiji;
"foreign material" means-
(a) the testimony of a person that-
(i) was obtained as a result of a request of a kind referred to in section 39; and
(ii) complies with the requirements of section 41;
(b) any exhibit annexed to the testimony; or
(c) any part of the testimony or exhibit;
"Fiji court" means-
(a) the Court;
(b) a Magistrate's Court;
(c) a judge or arbitrator acting under Fiji law; or
(d) a person or body authorised by a Fiji law, or by consent of parties, to hear, receive and examine evidence;
"Fiji law" means law (whether written or unwritten) of, or in force in, Fiji;
"related civil proceedings", in relation to a criminal proceedings, means any civil proceedings arising from the same subject matter from which the criminal proceedings arose.
38. Proceedings to which this Part applies
This Part applies to proceedings, before a Fiji court,
namely -
(a) a criminal proceedings for an offence against the law of Fiji; or
(b) a related civil proceedings.
Division 2 - Obtaining Foreign Material
39.
Requests for
foreign material
This part applies to-
(a) testimony obtained as a result of a request made by or on behalf of the Attorney-General to a foreign country for the testimony of a person; and
(b) any exhibit annexed to any testimony.
40. Requirements for testimony
(1) The testimony shall be taken before a court-
(a) on oath or affirmation; or
(b) under caution or admonition as would be accepted, by courts in the foreign country concerned, for the purposes of giving testimony in proceedings before those courts.
(2) The testimony may be taken
in Chambers.
41. Form of testimony
(1) The testimony may be recorded-
(a) in writing;
(b) on audio tape; or
(c) on video tape.
(2) The testimony need
not:
(a) be in the form of an affidavit; or
(b) constitute a transcript of a proceedings in a foreign Court.
(3) The testimony shall be endorsed
with, or be accompanied by, a certificate to the effect that-
(a) it is an accurate record of the evidence given; and
(b) it was taken in the manner specified by section 40.
(4) The certificate shall-
(a) be signed or certified by a Judge, Magistrate or Court officer of the foreign country to which the request was made; and
(b) bear an official or public seal of -
(i) the country; or
(ii) an authority of the country responsible for matters relating to justice, being a Minister of State, a Ministry or Department of Government, or an officer of the Government.
Division 3 - Using Foreign Material
42.
Foreign material
may be adduced as evidence
(1) Subject to subsection (2) and section 43, foreign
material may be adduced as evidence in a proceedings to which this Part
applies.
(2) The foreign material is not to be adduced as evidence
if-
(a) at the hearing of the proceeding, it appears to the Court's satisfaction that the person who gave the testimony concerned is present in Fiji and is able to testify at the hearing; or
(b) the evidence would not have been admissible had it been adduced from the person at the hearing.
43. Direction to prevent foreign material being adduced
(1) The Court may direct that foreign material not be
adduced as evidence if it appears to the Court's satisfaction that the interests
of justice would be better served if the foreign material were not adduced as
evidence.
(2) Without limiting the matters that the Court may take into
account in deciding whether to give a direction, it shall take into
account-
(a) the extent to which the foreign material provides evidence which would not otherwise be available;
(b) the probative value of the foreign material with respect to any issue that is likely to be determined in the proceedings;
(c) the extent to which statements contained in the foreign material would, at the time they were made, be challenged by questioning the persons who made them;
(d) whether exclusion of the foreign material would cause undue expense or delay; and
(e) whether exclusion of the foreign material would prejudice-
(i) the defence in criminal proceedings; or
(ii) any party to a related civil proceedings.
Division 4 - Miscellaneous
44.
Certificates
relating to foreign material
(1) The Attorney-General may certify that specified
foreign material was obtained as a result of a request made to a foreign country
by or on behalf of the Attorney-General.
(2) It is presumed (unless
evidence sufficient to raise reasonable doubt is adduced to the contrary) that
the foreign material specified
in the certificate was obtained as a result of
that request.
45. Right to examine witnesses
(1) Subject to this section, nothing in this Part shall be
taken to limit the right of the defendant in any criminal proceedings to
which
this Part applies (in this section referred to as "the defendant") to examine in
person or by his legal representative any
witness whose testimony is admitted in
evidence in those proceedings.
(2) If the defendant requests that the
person who gave the testimony concerned be present at the hearing in Fiji for
the purposes
of cross-examination, the court shall warn the defendant that he or
she may be ordered to pay any expenses incurred by the State
in making the
person available before the court.
(3) If -
(a) as a result of the request, the person appears before the court as a witness; and
(b) it appears to the court that the cross-examination of the person was unnecessary, of a trivial nature or irrelevant to the matters in issue in the proceedings,
the court may order that the
defendant pay any expenses incurred by the State in obtaining the attendance of
the person as a witness.
(4) A certificate signed by the Attorney-General
shall be evidence of the expenses incurred by the State for the purposes of
subsection
(3).
(5) An amount payable by a person to the State under
subsection (3) is a civil debt due by the person to the State.
(6) An
order against a person under subsection (3) may be enforced as if it were an
order made in civil proceedings instituted by
the State against the person to
recover a debt due by the person to the State and the debt arising from the
order shall be taken
to be a judgement debt.
46. Operation of other laws
This Part does not limit the ways in which a matter may be
proved, or evidence may be adduced, under any other Fiji law.
Part IX -MISCELLANEOUS
47. Delegation
The Attorney-General may delegate to the Solicitor-General
any of his or her powers under this Act.
48. Authentication of documents
(1) In a proceedings under this Act or the Proceeds of
Crime Act, 1997 arising directly or indirectly from a request made under this
Act, any document that is duly authenticated is admissible in
evidence.
(2) A document is duly authenticated for the purposes of
subsection (1) if -
(a) it is signed or certified by a Judge, Magistrate or officer in or of a foreign country; and
(b) it is sealed with an official or public seal of the foreign country or of a Minister of State, or of a Department or officer of the Government, of the foreign country.
(3) Nothing in this section
prevents the proof of any matter, or the admission in evidence of any document,
under any other law of
Fiji.
49. Restriction on use of information etc.
(1) If, as a result of a request made by the
Attorney-General under this Act, any material (whether it is evidence, a
document, an
article or a thing) has been sent to Fiji by a foreign country for
the purposes of a proceedings or investigation in relation to
a criminal matter,
the material is not to be used intentionally for any other purpose without the
approval of the Attorney-General.
(2) The material is inadmissible in
evidence in any proceedings other than the proceedings in respect of which it
was obtained unless
the Attorney-General has approved its use for the purposes
of that other proceedings.
(3) Any information, document, article or
thing obtained directly or indirectly from a person by making use of the
material-
(a) otherwise than for the purpose of the proceedings or investigation in respect of which it was obtained; and
(b) without the approval of the Attorney-General,
is inadmissible in evidence
in any other proceedings and may not be used for the purposes of any other
investigation.
(4) A person who contravenes subsection (1) commits an
offence and is liable, on conviction, to-
(a) if the person is a natural person-a fine not exceeding $12,000 or imprisonment for a period not exceeding 2 years, or both; or
(b) if the person is a body corporate-a fine not exceeding $60,000.
(5) For the purposes of this section,
disclosure of any material is taken to be a use of that material.
50. Requests for international assistance not to be disclosed
(1) A person who, because of his or her office or
employment, has knowledge of -
(a) the contents of a request for international assistance made by a foreign country to Fiji under this Act;
(b) the fact that the request has been made; or
(c) that fact that the request has been granted or refused, shall not intentionally disclose those contents or that fact except if-
(d) it is necessary to do so in the performance of his or her duties; or
(e) the Attorney-General had given his or her approval to the disclosure of those contents or that fact.
(2) A person who
contravenes subsection (1) commits an offence and is liable, on conviction,
to-
(a) if the person is a natural person-a fine not exceeding $12,000 or imprisonment for a period not exceeding 2 year, or both; or
(b) if the person is a body corporate-a fine not exceeding $60,000.
51. Regulations
(1) The Minister may make Regulations to give effect to
the provision of this Act.
(2) The Chief Justice may make rules of Court
prescribing practice and procedures of the Court, namely-
(a) summoning of witnesses;
(b) production of documents;
(c) taking of evidence on oath;
(d) administering of oaths;
(e) payment of expenses and allowances of witnesses;
(f) protection and immunity of Magistrates, barristers and solicitors and witnesses; or
(g) procedures for registration of any foreign order;
(h) any other practice or procedure necessary to give effect to the provisions of this Act.
Passed by House of
Representatives this third day of December, in the year of our Lord one
thousand, nine hundred and ninety-seven.
Passed by the Senate this
seventeenth day of December, in the year of our Lord one thousand, nine hundred
and ninety-seven.
<http://www.unodc.org/unodc/en/legal_library/fj/legal_library_1998-04-28_1998-55.html>
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