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Judges
12 October, 2007  
Goings on ...

Local lawyers “distain” acting Fiji CJ, who is now a litigant in his own court … Judge Greg Woods enters the fray on pokies and vice dens … According to Spiggsy CJ, it was Adam, Eve and the Snake who sowed the seeds of sentencing controversy


Fiji CJ “appeals”

imageMore news of judicial distress in Fiji, following Justinian’s story about Justice Anthony Harold Cumberland Thomas Gates’ (pic) indiscretion during the Bastille Day knees-up at the French Ambassador’s maison de Suva.

Gates told startled guests at the Frog’s cocktail party that Ratu Inoke Takiveikata, who was facing trial on a charge of incitement to mutiny, would be “put away”.

What made the comment particularly piquant was that Gates would be presiding at Ratu Inoke’s trial a few months hence.

The court of appeal (Ellis, Penlington and McPherson) didn’t believe Gates’ denial that he promised to put away the accused – instead preferring the evidence of two witnesses who heard the remark, Donald and Margaretha Brodie.

The appeal judges thought that Gates had prejudiced the case, quashed the verdict and ordered a new trial.

Despite the fact that Gates was not a party to the Ratu Inoke case he has petitioned the Supreme Court to vacate Ellis, Penlington and McPherson’s judgment handed down last June.

In January Gates was appointed acting chief justice by coup leader Commodore Bain-Marie.

He claims that the court of appeal breached natural justice, as his counsel was not given an opportunity to cross-examine the Brodies, and its decision was perverse because it gave no proper reasoning for disbelieving him.

In the meantime, the contracts for the Australian and New Zealand judges who sit as the Court of Appeal have not been extended. Provision has been made for judicial appointments from other Commonwealth countries whose judiciaries have proved more amenable to hard line regimes, viz. Singapore and Malaysia.

At the moment no one seems have accepted the attractive offer to sign-on as a Fiji appeal judge and work is backing-up.

On top of that there are some stressful cases underway.

Ousted Prime Minister Laisenia Qarase is challenging the military’s coup against his government last December and Fiji navy commander Francis Kean, brother-in-law of Commodore Frank Bain-Marie, is up on a charge of murder.

In the interim, the Fiji Indigenous Lawyers Association has called on Gates to resign.

“The association views with distain his appointment as acting chief justice.”

Enough poncing around as the appointee of an illegal regime, is what the lawyers seem to be telling him.

There oughta be a law

imageNSW District Court judge Greg Woods clearly is not a fan of pokies.

In a blistering recent judgment Woods laid down a few urgently needed policy and law reform prescriptions.

The case involved one Thi Thu Huynh, a 41-year-old Australian citizen of Vietnamese origin, who was caught at Sydney airport with four chunky packages of heroin “secreted internally in her bowel”.

After a trip to the loo at St George Hospital, Huynh pleaded guilty. She faced the prospect of 25-years in prison.

What disturbed Woods was Huynh’s evidence that she owed some $40,000 to $50,000 in gambling debts. This was money offered by agents of Vietnamese drug dealing syndicates. She said she agreed to smuggle heroin under pressure to settle the debt and because “she was worried about her family”.

Woods accepted that Huynh did indeed have a “pathological interest in gaming, whether by poker machines or roulette or otherwise”.

However, he described her crime as part of a scenario that had become all too common in NSW over the past ten years.

“This is yet another case which illustrates the disastrous consequences flowing from the epidemic of poker machines in NSW and its interaction with the illegal drug trade.”

Warming to his theme (and dismissing any suspicion that Huynh was involved in money laundering) Woods characterised the widespread availability of poker machines and other means of gambling as a “blight on the community”.

While clubs could be seen as “palaces of social equality where members of the general community mingle and socialise”, the judge said they also concealed “real vices”.

He had a rather good suggestion.

“It ought to be a criminal offence, punishable by imprisonment for a maximum of 10 years, to make an offer to lend money for the purposes of gambling in the circumstances which occurred in this case and which I have no doubt occur frequently.”

He sentenced Huynh to four years jail, in consideration of “duress coupled with the gambling”.

It’s the snake’s fault

imageChief Justice Spiggsy Spigelman was in good form at the Judicial Conference of Australia corroboree in Sydney last week when he launched a guide to sentencing called “Judge for Yourself”.

Actually, the judges don’t want you to judge anything for yourself – they still want to be doing all the judging.

The booklet is really a nifty bit of propaganda to explain to the great unwashed what a terrific job judges do in sentencing crims, how difficult a task it is and how you shouldn’t believe everything you read in the knuckle-headed meeja.

Yet, Spiggsy was all sweetness and understanding about the ferals who beat-up the sentencing stories:

“The general media are an important source of information for the public but, space limitations and an understandable focus on high profile cases and controversy, necessarily means that the public cannot be informed by the media about what judges actually do.”

The CJ went on to explain that the infliction of publishment has long been a highly controversial matter:

“In all of recorded history there has never been a time when crime and punishment has not been the subject of debate and difference of opinion. This is not likely to change in the future.

“The problem seems to have started in the Garden of Eden itself, when God called Adam to account for his transgression. He, of course, blamed his wife. She, more imaginatively, blamed the snake.

“All three were the subject of retributive punishment, as were their descendants. However, the descendants of Adam and Eve were given some prospects of rehabilitation.

“Animal rights activists will, no doubt, be concerned about discrimination against the snake.”