A Practitioner’s Perspective
I have practiced in the criminal courts in Fiji for over 20 years. There are criminal lawyers in Fiji with more years and experience than me and I am certain, they would share my views.
Assessor trials in the High Court is essential. They are essential because they bring community wisdom, expectations, standards and experience.
They are permitted by statute to judge the facts, as they see, occasion during a criminal trial. Their role as judges of facts are of course, subject to the direction of the judge, who is the judge of the law.
Ultimately, he gets to pass the judgment of the court, after taking into account, the opinions expressed by the assessors, as to the guilt or innocence of an accused person.
That role of the judge, even if the assessors didn’t apply the law correctly, is immune from any insinuation of miscarry, should it happen, among the assessors.
Nevertheless, the assessor system of criminal justice has proven itself of much use in our criminal justice system.
Apart from the perceptional balance it provides in a criminal trial, two things are more important.
Fairness as a constitutional issue is given credence with an assessor trial through an accused knowing that there are community peers who are part of the justice system that will opine his guilt or innocence.
Secondly, it allows the court to focus on the law and how the law affects the evidence given at trial. This compartmental approach of fact (for the assessors) and law (for the judge) has never been questioned for its impropriety in many past decades of criminal practice.
Of course there are times when assessors get it wrong! Who doesn’t! That is why the law gives the ultimate decision to the judge to pass judgment, even if the assessors unanimously get their application wrong.
But what they offer, community experience, capability, knowledge, efficiency and involvement far outweighs any views that the time to end assessor trials has come.
I know of no instance of assessor shopping. None has been reported. If it has, it has never come to the knowledge of practitioners at the criminal bar.
I now turn to whether there is a need for specialized corruption courts or tribunals in Fiji.
The long and short answer is, there isn’t any justification for such a modification or extension.
Our criminal courts, magistrates and judges alike, are well equipped to deal with the less than handful of cases brought by FICAC yearly. Fiji simply doesn’t have the volume to warrant the creation of specialized courts to deal with corruption cases.
If there is a need to deal with a ‘type of offence’, it would be to deal with sexual offences. Fiji needs no reminder of the influx of sexual offences cases and the intricacies of dealing with such offences, witness protection orders, specialized need for witnesses especially for the vulnerable.
Sexual offences cases far outweigh those of corruption by mile and a half. Why not create specialized courts for sexual offences and domestic violence, offences that go to the root of our society’s fabrics.
This is not to suggest that corruption cases are not any less devious. I am merely addressing the issue of ‘which’ of these cadres of offences needs specialized attention.
In my view, specialized courts to deal with sexual offences, domestic violence and associated offences fuels more justification.
To the more interesting part of the whole week’s attention!
Why Standing Order 51? What is the urgency? More suitably, why the urgency and why now?
Assessor trials are costly. They involve allowances. Now, by any simple arithmetic, if all the 5 criminal high courts in Suva are running trials in a week, with each of the courts having three assessors sitting, a week’s expense for the judiciary would come to approximately $6,000 per week.
That is approximately, $24,000 per month for Suva High Court assessor trials only. With cost cutting measures of government witnessed at every quarter, perhaps the urgency is really, not of justice but of economic? I think it is!
The justification of ridding assessor trial based on the worldview that 17 countries need qualification.
Hong Kong non-jury trial practice is a recent policy direction from Beijing and I wonder if that is a model we would want to be known worldwide, to have been the impetus of the remodeling of our criminal justice system.
Urgent or not, let it not be lost to us that a wider imposition has just occurred. I gathered that no one was consulted in the development of these bills and no meaningful input from the public, CSOs, Fiji Law Society and even practitioners at the criminal bar who may not be part of the FLS.
Public consultation to an integral part of justice should have been done throughout Fiji.
There was no urgency in getting these bills passed by Parliament in the month of February 2021 and as a practitioner in these courts, it would be sad to see community experience lost from our collective justice forever!
This is, in effect, a decree (by its definition) shaded by parliamentary process!
