2007 PROSECUTION CONFERENCE THE WARWICK, 5 DECEMBER 2007
CLOSING REMARKS BY HE MR JAMES BATLEY AUSTRALIAN HIGH COMMISSIONER

Let me begin by thanking you for the invitation to close the 2007 Prosecution Conference. I can only assume that this invitation is on the basis of the fact that I am not a lawyer.

Although I am not a lawyer, we live in days when all of us – lawyer and non-lawyer alike - have a keen appreciation of the challenges the profession faces, especially in relation to broader currents and developments in society.

Before coming to Fiji as Australian High Commissioner I spent two years working as Special Coordinator of the Regional Assistance Mission to Solomon Islands, or RAMSI as it is better known. I hope you’ll forgive me if I draw on aspects of that experience tonight, as it is of relevance both to the theme of your conference and, I think, to your professional interests more generally.

As you may know, Solomon Islands went through a debilitating period of internal conflict in the early part of this decade, which led to a serious deterioration in law and order, in the rule of law, and in the delivery of government services. This situation led to the appeal from the then government of Solomon Islands for a regional intervention which materialised, in the form of RAMSI, in mid-2003.

From the outset, RAMSI has had a very strong focus on law and justice issues. For most of RAMSI’s history, its largest component has been the police contingent; but in addition to this RAMSI also provides support to the Solomon Islands High Court, to the Magistracy, to the Ministry of Justice, to the Public Solicitor and to the Office of the DPP. As you may be aware, one of the current judges of the High Court of Solomon Islands, supported by RAMSI, is a Fijian: Justice Sekove Naqiolevu.

Is it estimated that, in the first two years of RAMSI’s work, around 4,000 individuals were arrested for various offenses including murder, rape, robbery and fraud. This placed an unprecedented burden on the courts and officers of the court in Solomon Islands.

Managing this burden has required considerable levels of assistance to most parts of the system, but also some innovative thinking. One such innovation was the creation of the Case Support Unit. In RAMSI’s early days, with a large number of complex trials about to get underway simultaneously, and against the background of Solomons’ poor communications and transport networks, it quickly became clear that important and high profile cases risked stalling or even falling over unless witnesses were actively supported.

The CSU was therefore set up by RAMSI, with the active support of the Chief Justice, to coordinate all witness services - for both prosecution and defence – in cases relating to the period of civil conflict, or “Tension Trials” as they became known.

In the early days, one of the CSU’s main functions was to educate witnesses on court process as many of them had been told inaccurate information coupled with little or no exposure to the criminal justice system and were in fear of what it meant to be a witness. Many witnesses had not only never been in a court before, they had never even been to Honiara. Stories of possible arrest and even murder upon arrival into Honiara were widespread amongst witnesses summonsed to attend the Tension Trials. The CSU was able to dispel these rumours through a series of orientation briefings.

Eventually, the services provided by the CSU came to encompass locating and transporting witnesses to court, providing translation services, and often accommodation, subsistence as well as other ad hoc services.

The CSU has proved to be a significant success, increasing the efficiency of the court system, reducing the number of persons held on remand while at the same time caring for witnesses’ security, health and dignity. International surveys of RAMSI have acknowledged the CSU as a welcome innovation in a post-conflict environment.

Sometimes pressures on the system emerged in unexpected ways. One of the more harrowing cases to come to court following RAMSI’s arrival was that of the cold-blooded murder, in August 2002, of a Catholic priest and government Minister, Fr Augustine Geve, by a militant group on the inaccessible Weathercoast of the island of Guadalcanal. The case was a key test of the credibility of Solomon Islands’ judicial system, and of the credibility of RAMSI’s support for that system. It was a key case in the restoration of public confidence in the rule of law.

Most of the witnesses in the case had to be transported from the Weathercoast to give evidence. Their extreme poverty meant that they required assistance from the Case Support Unit in the form of subsistence, lodging and even clothing.

In addition, however, the witnesses argued that in their own villages, betel nut was freely available from their own trees; but this was clearly not the case in Honiara. They therefore sought a betel nut allowance for the duration of their stay in Honiara. They threatened to go home if this demand was not met.

This situation posed a dilemma for stakeholders. The Chief Justice was concerned to avoid a situation in which people could come to believe that they were being paid to give evidence, or be perceived as doing so. The DPP believed there was nevertheless a reasonable case for agreeing to pay the betel nut allowance. RAMSI was prepared to provide the funds to support such an allowance, but not if the Chief Justice opposed it. In the end, agreement was reached on the provision of a modest betel nut allowance through the Case Support Unit – a good example of the kind of flexibility and creativity that is required in post-conflict situations. For the record, the case went to court and convictions were recorded.

Solomon Islands provides a case study of the way that a country’s legal system can come under pressure in a crisis, but more importantly, of the way that public confidence in a country’s legal system can and must play a key role in the way a country emerges from a crisis.

That theme is not irrelevant in this country. As the President of your own Law Society stated recently, and I quote:

“The takeover of government by the military has brought the legal profession to the forefront of events in this country as our members are the only line of defence for the protection of individual rights and the upholding of the rule of law during this period of uncertainty and challenges.”

Of course the idea that lawyers are put on the spot when legitimate authority is challenged is not a new one. Indeed, no less a figure than William Shakespeare had something to say about this. His play Henry VI depicts events which took place in England over 500 years ago. One of the sub-plots of the play is a popular rebellion against King Henry led by a real-life character by the name of Jack Cade. Cade, who came from an obscure and humble background, assembled a motley band of rebels in the year 1450. He eventually formed the wild idea that he might take over the legitimate government of England and make himself king. He was nothing if not a dreamer.

In the play, Shakespeare has Cade make some extravagant promises to his supporters about what would happen if he was king:

“Be brave, then; for your captain is brave, and vows reformation. There shall be in England seven halfpenny loaves sold for a penny; the three-hooped pot shall have ten hoops; and I will make it felony to drink small beer. All the realm shall be in common, and … when I am king — as king I will be — there shall be no money; all shall eat and drink on my score; and I will apparel them all in one livery, that they may agree like brothers, and worship me their lord.”

At which point one of Jack Cade’s supporters, Dick the butcher, pipes up with the immortal line:

“The first thing we do, let's kill all the lawyers.”

It’s a funny line, but the humour disguises an important truth: that lawyers do represent a fundamental bulwark against people taking the law into their own hands, against arbitrary rule, ultimately against chaos and disorder.

As stated by the President of your Law Society, this is the burden of responsibility you carry as a profession. That burden has become heavier for you in recent times.

But lawyers must not shrink from the Jack Cades of this world and their supporters like Dick the butcher, who want to kill all the lawyers. I wish you well as you discharge your responsibilities to the law and to the citizens of this country.