IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL CASE NO.: HAA0111 OF 2004

BETWEEN:

ILIVELETI SAVOU
Appellant

AND:

STATE
Respondent

Counsel: Mr. D. Sharma & Ms Y. Fatiaki – for Appellant
Ms P. Madanavosa – for Respondent

Hearing: 12th January, 2005
Judgment: 21st January, 2005

JUDGMENT

Background

The appellant was an Inspector with the Prices and Incomes Board (‘P.I.B.’). As part of his job he carried out random checks on retail shop owners to inspect their pricing and sale of goods.

In the course of his duties on the 21st of February last year he was confronted by a reluctant shop owner who clearly “got in the inspector’s face”. There was a scuffle. As a result the appellant was charged under section 245 of the Penal Code for assault occasioning actual bodily harm. He pleaded not guilty to that charge. Under the skilful guidance of the learned Magistrate the matter was disposed off under section 163 of the Criminal Procedure Code. After apologies and reconciliation between the victim and accused the proceedings were terminated.

In a strange twist of events neither the appellant nor the State respondent sought to interfere with that decision. Rather, the appeal was brought because the appellant’s employer is apparently of the opinion that the disposal of the matter pursuant to section 163 of the code is a clear indication that their employee pleaded guilty to the charge of assault.

I am advised from the bar and accept that the employer finds such a conviction during the course of employment a serious matter that could lead to either discipline or dismissal. The only point at issue between the appellant and the respondent is the appropriate procedure to be applied when section 163 is invoked.

In short, is a guilty plea required before the court can dispose of the matter pursuant to that section of the code. I am advised by counsel for both the appellant and respondent that there is apparently some confusion in the Magistrate’s Courts practice concerning the need for a guilty plea before the provisions of section 163 are applied.

Decision

Section 163 of the Act reads:

“In the case of any charge or charges brought under any of the provisions of subsection (1) of section 197 or of section 244 or of section 245 or of subsection (1) of section 324 of the Penal Code, the court may, in such cases which are substantially of a personal or private nature…… and which are not aggravated in degree, promote reconciliation and encourage and facilitate the settlement in an amicable way of the proceedings, on terms of payment of compensation or on other terms approved by the court, and may thereupon order the proceedings to be stayed or terminated.”

This intelligent and useful provision common to the Fijian Criminal Code for some decades has only recently been copied in other Pacific and Commonwealth Jurisdictions where settlement and reconciliation on Criminal Proceedings has become fashionable.

In New Zealand for example the District Courts have an informal but codified system of “diversion”. In appropriate circumstances, with some limitations where the victim is prepared to reconcile and settle the point at issue with the accused, the Court’s sanction that settlement with the assistance of the police. The system thereby “diverts” otherwise good citizen first offenders from obtaining a conviction against their name. The orders are often accompanied by a short period of voluntary community work or donation to a charity of the victim’s choice. However, the accused must first plead guilty to the charge. Upon proof of completion of his voluntary tasks the proceedings are terminated by way of a discharge without conviction. This is deemed an acquittal.

Therein lies the difference between the system promoted by section 163 of the Criminal Code and other Commonwealth systems. In other countries the courts with or without a regulated procedure use conviction and discharge provisions similar to the discharge provisions contained in section 44 of the Fijian Penal Code to dispose of the matter.

In my view it would be best if the provisions of section 163 are discreetly engaged on appropriate occasion without the absolute need for a guilty plea or a discharge after a guilty plea under section 44 of the Penal Code. 

The process of settlement and reconciliation needs to stand alone and be activated by the freewill of citizens in an open and transparent process motivated towards the best public outcome from a criminal prosecution. A guilty plea is not required by the statutory provision. Requiring a guilty plea may frustrate the good objects of the section. An accused will often be prepared to settle and reconcile a criminal complaint made by another citizen, shake hands and move on. However, that motivation may be dulled where the accused is not prepared as a matter of principle to plead guilty to a reconcilable charge and have his name blemished by an unnecessary state record. 

Equally pleas of convenience, used only to engage the section 163 provisions and seek termination of the proceedings, challenge the administration of justice by blurring the reality of a guilty plea. Encouragement of convenience pleas creates an unnecessary third category of plea commonly termed “guilty BUT.”

In my view pleas should remain either “guilty” or “not guilty” where the consequences of plea are clearly understood. There is no room for the often confusing “Guilty BUT” plea. Such pleas are often a failure to recognize true culpability or indicative of a genuine defence to the offence that is abandoned for convenience. In the first instance a failure to recognize culpability frustrates a true reconciliation. True reconciliation first requires a genuine objective assessment of personal wrong doing then a determination to right that wrong. In the second example a justified “not guilty” plea may properly remain reconcilable but the parties must on occasion genuinely recognize the accused’s point of view and available defences for the settlement process to be both durable and meaningful. At the end of the day justice can only be served by meaningful and durable settlements.

The wisdom of the 163 provision is that it does not require a plea. It simply empowers the courts to encourage and facilitate settlement by reconciliation and then stay or terminate the proceedings.

A stay or termination of proceedings should be deemed an acquittal because it is as if the prosecution was never commenced. In appropriate circumstances where genuine reconciliation has promoted a just result the parties should be allowed to settle their differences, reconcile and move on without the baggage of accusation and conviction.

Conclusion

Accordingly, for these reasons having made the observations I dismiss the appeal but leave the orders as made in the court below. Mr. Savou can consider as a result that he has no conviction against his name.

Gerard Winter
JUDGE

At Suva
21st January, 2005