BY TESS NEWTON
LECTURER
SCHOOL OF LAW
UNIVERSITY OF THE SOUTH
PACIFIC
Title: Criminal Laws of the South Pacific
Author:
Findlay, M.
Published by: Institute of Justice and Applied Legal
Studies (USP), Suva (1996)
ISBN: 982-352-001-1
pp:
326
This volume is the first to have been published in the 'Laws of
the South Pacific' series by the Institute of Justice and Applied Legal Studies.
As such it not only provides an introduction to the development of Criminal Law
and Procedure within the South Pacific region but also gives an insight into how
the USP law degree has developed to date, some of its aims and objectives and
some of the challenges (and even frustrations) that are faced by the students
and academics who are working within the Law School.
The volume is
designed primarily for students from the South Pacific as a much needed means of
access to `local’ law. It covers a wide range of issues in reference to
substantive criminal law and associated rules of criminal procedure. It is also
a useful introductory text for anyone wishing to engage with the law of the
region within the criminal field who might otherwise feel daunted by a
combination of numerous jurisdictions and difficulty in obtaining primary source
materials, not to mention a dearth of secondary source material in this area. It
is particularly useful to those who come from a jurisdiction which does not have
a codified approach to criminal law as all the jurisdictions of the USP region
operate under a penal code of one sort or another.
The text deals
primarily with the introduced and adopted law that operates in the South Pacific
although mention is also made of some aspects of the impact of custom law and
how, if at all, it might intersect with introduced law. In the earlier part of
the book, some of the references to the various codes are inaccurate in terms of
the section numbers that are cited and these need to be checked against the
actual legislation. This is not necessarily a bad thing as it should highlight
to students that this text is not to be read in place of the legislative
provisions, but alongside them.
It is impossible to teach and study the
law that exists within the South Pacific region without engaging at some level
in a comparative exercise. This text should provide students with an
introduction to how this might be done in one or more ways. Students are
encouraged to compare the development of the law in differing jurisdictions
within the region, rather than focusing solely on the law as it operates within
their own. They should be aware not only that some jurisdictions have different
starting points in terms of the basic legislative framework that is adopted but
also that, even where two jurisdictions have penal codes that are formulated in
exactly the same terms, it is possible that the jurisprudence of each
jurisdiction will develop in differing ways as the legislation is subjected to
localised judicial interpretation. Similarly, students are encouraged to note
points of comparison between the codified approach to criminal law that pertains
in the jurisdictions of the South Pacific and the non-codified approach that may
exist elsewhere, particularly in England and Wales. A further area of comparison
that is flagged for students’ attention within this text is that of the
scope and imperatives of customary law in relation to those of introduced
law.
The text is more than simply a 'black letter' exposition of the
criminal laws that exist in the various jurisdictions of the USP region. It
grounds its examination of criminal law and procedure within a wider historical,
political and social context that students should find pertinent and
challenging. Similarly, the author makes frequent references to issues of
gender, sexuality, class and culture that may be considered contentious in any
part of the world and raise questions that should stimulate and provoke all
students of criminal law. The particular cultural dimension(s) that pertain
within the context of the study of law in the South Pacific should be viewed as
an enrichment of the debates and concerns that arise globally in conjunction
with issues of criminal law and procedure.
In addition to considering the
substantive criminal laws that pertain in the jurisdictions of the South
Pacific, this text also serves as an introductory guide to aspects of the
criminal justice systems of the region, with particular focus on the pre-trial
and trial stages. The author acknowledges that much of this material is based on
the work done by Prof. Don Patterson and Alan Marsh of USP in the development of
materials for para-legal certificate courses that have been offered by USP for
several years.
This text should be used alongside other texts that cover
issues of criminal law principle and theory in more detail, in order that
students can approach the material that this book contains (as well as the
material that they will be directed to as a result of using it) with a thorough
grounding in the concepts that form the core of `classical’ criminal law.
This commentary will be welcomed by those who work in the field of South Pacific
law as a much needed safety net to assist in the otherwise daunting task of
identifying and analysing the criminal laws of the South Pacific
region.
Tess Newton,
School of Law,
University of the South
Pacific,
Port Vila, Vanuatu