State v Naisake [2001] FJHC 3; Hac0001d.2000s (31 January 2001)

Fiji Islands - The State v Naisake - Pacific Law Materials

IN THE HIGH COF FIJI

AT SUVA

CRIMINAL JURISDICTION

CRIMINAL CASE NO: HAC 0001 OF 2000

STATE

-v-

TIMOCI NAISAKE

& SAULA MATAVUCU

Ms A. Prasad with R. Schuster for the State

Mr I. Fa with U. Ratuvili vili for the Accused Persons

Hearing: 31st January 2001

Ruling: 31st January 2001

RULING

Counsel for the Defence makes an application that one of the assessors be disqualified from sitting in this case, to be replay a male Fijian. The groundround on which he makes this application is that the accused should be judged by his peers, and that the female Fijian assessor will have no understanding of the accused’s background or circumstances. In essence, his application is that there should be a gender balance on the assessor panel but that a male assessor should also be a Fijian.

The State objects saying that there is nothing to suggest that the three female assessors will rtial in the decision they make, and that all male assessoressors invariably sit on criminal trials without objection from anyone.

As a general rule, the criminal registry is required to achieve, an ethnic anender balance in its choice of assessors. It is therefore dore desirable to have a Fijian, an Indian and a Part-European or a European sitting as assessors at one time. It is also desirable to have a gender mix, although inevitably with a panel of three, one gender will be under-represented. However, the Registry in this case was unable to obtain the services of a male assessor of any ethnic group. Indeed the Officer-in-Charge has no knowledge of when a man will be available and said that an adjournment of a week or a fortnight might be inevitable.

The question therefore is whether the panel of three women, representing the three largest ethnic groups in Fiji, can sit and render its opinion impartially and fairly.

The objection of counsel, that there is no one on the panel who appreciates lient’s social status, is of course not based on any evidenvidence of economic status. Indeed, we do not know the background of any of the assessors, except for their current residential address.

Nor can we stereotype any assessor by assuming that he/she was born to a privileged background and has no knowledge of the social status of the under-privileged. Assessors very rarely share the same social status as accused persons, or many witnesses. This is because they are required to be fluent in the English language. Some degree of education is therefore required. As such, it is unrealistic to expect assessors to share the same economic background as the accused.

This is not to say that they do not understand how the under-privileged live.

Indeed, counsel for Defence submits that the Fijian female assessor will not have such an understanding. I cannot accept that the Fijssessor chosen, does not unot understand Fijian village or settlement life simply because she is a woman. Indeed such a submission could be seen as suggesting that only Fijian men can represent or understand Fijian life, or Fijian people.

Nor can I accept that the Indian and Part-European assessors should be replaced by assessors of oraces.

The ethnic make up of Fiji is well-represented on this panel of asse and I decline to disqualify any of them.

On the question of gender balance, I note that Mr Fa says that the gender issues in this case are that the accused are male, and the facts relate to a group of men. There are no male/female gender issues relating to this case. Even if there were, I doubt that my decision would be different. Just as men can be and are trusted to judge impartially in affairs relating to women, so are women to be trusted to judge impartially the affairs of men. Although a gender balance is always desirable on a panel of assessors, I am reluctant to adjourn this trial for an unknown length of time to allow a man to replace a woman on this panel.

This application is dismissed.

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Nazhat Shameem

JUDGE

At Suva

31st January 2001

HAC0001d.00s