RECONCILIATION AND THE CRIMINAL PROCESS IN THE SOLOMON ISLANDS
NICK
GOODENOUGH[*]
Abstract: Reconciliation is a fundamental part of the
Solomon Islands. This article examines how that process sits with the criminal
justice system and suggests that the proper role for reconciliation is only as
an adjunct to the formal court process.
INTRODUCTION
The
concept of reconciliation and compensation is very important in the Solomon
Islands way of life. From the policy perspective it makes good sense that where
a small population live in the finite reality of an island that a mechanism
exists to enable continuous harmonious living. Both policy and anecdote suggest
a role for reconciliation in Solomon Islands society.
Fifi’i, a
Solomon Islander, referred to the value of this traditional method of resolving
disputes as opposed to the imported British adversarial system when he stated
that:
Our customary laws work better than (the criminal court process) - at least for us, and our way of life and the things we value. When compensation is paid, in shell money or whatever, then the two sides are joined together again. Both sides are satisfied and nobody is angry afterwards.[1]
He
goes on to say that after the matter is settled “people can go back to
being friends
again”[2].
Reconciliation in
a matter such as assault involves the parties who were involved getting
together, usually with a moderator and family and friends present. The process
varies but generally involves apologies, often prayer and a feast, as well as
the exchange of valuables such as shell money as compensation. Cash is often
used in modern society. Compensation is often paid to the family rather than to
the specific victim. Once this process is gone through the matter is completed
as far as the traditional concept is concerned, however it is not necessarily
finished so far as the Court system is concerned.
This paper examines how
reconciliation fits with the adversarial nature of the criminal justice system
in general. It also considers the issue with particular reference to the
problems specific to the Solomon Islands. As discussed below, over a period of
some years the Solomon Islands descended into the ethnic tensions (“the
tensions”) and it is apparent that customary reconciliation was not able
to cope with the significant crimes which arose during that period.
Reconciliation works through the acquiescence and support of the community
in which it exists, and where it is undermined from within that community the
relevance and force it has is similarly reduced. Reconciliation works as a
bridge to repair damaged relationships between individuals, families and
communities. It is a very powerful tool for maintaining harmonious relationships
when it is used in a genuine spirit of cooperation and friendly relations.
A
major problem during the tensions was that many decisions of reconciliation were
made at the point of a gun. It was more akin to demanding money with menaces
than traditional resolution of conflict. The fact that reconciliation was able
to be manipulated for personal enrichment by many suggests that it is a system
open to abuse. This personal enrichment and abuse extended to the highest levels
of Government.[3]
Fifi’i
acknowledges the need for other means than traditional ones when he says that
murder and other serious crimes should be dealt with in the
Court.[4]
HISTORY OF THE SOLOMON ISLANDS LEADING TO THE TENSIONS
The origin of the tensions can be traced back through the history of the
country, even before it became a British Protectorate in 1893. It is fair to
say, then as now, “kinship was the cement of each society, binding the
individual to the group.”[5]
This overarching Melanesian trait is important when considering the recent
history of the Solomon Islands.
The Solomon Islands has a history, even
before independence in 1978, of migration amongst the islands. After World War
II Honiara became the capital and large numbers of migrants, especially from
Malaita, came to Guadalcanal. This led to a perception, and perhaps a reality,
that Guadalcanal had a “monopolisation of services and
facilities.”[6] This further led
to the development of Honiara, as well as resentment in outlying regions.
Limited economic growth and development, together with Governmental corruption,
meant that within a few years of independence the Solomon Islands became a
“weak, rotting state.” [7]
Increasing pressure of population, limited arable land and lack of
opportunity for young people, including education, made fertile ground for
rebellion. Liloqula states that exploitation of natural resources also played a
significant role.[8] She points out as
significant the failure of successive Governments to develop just and effective
policies, while still failing to address fundamental differences between the
different cultures of the Solomon
Islands.[9]
The Preamble to the
Townsville Peace Agreement (“TPA”), which was intended to resolve
the crisis of the tensions, describes how from April 1998 armed groups of
Guadalcanal youths began evicting some 20,000 Malaitans from Guadalcanal land.
The Guadalcanal Revolutionary Army (which later became the Isatabu Freedom
Movement) and other organisations began to grow within the community and
contributed to the build up of tension and violence.
Arkwright notes that:
“What began as a small trickle of displaced Malaitans turned over 6 months
into a river of
refugees....”[10]
In
response, the Malaita Eagle Force (“MEF”) was formed to respond and
retaliate. It consisted of many members of the Royal Solomon Islands Police
Force (“RSIP”) whose numbers were overwhelmingly from Malaita.
Hostilities continued, and a coup occurred on 5 June 2000. There was a ceasefire
on 2 August 2000 and ultimately the TPA on 15 October 2000. Although a ceasefire
came into operation, “(it) failed to solve many of the problems emanating
from the civil unrest or to address the underlying causes...(such that) law and
order continued to be a
problem.”[11]
In the small
community which is the Solomon Islands the effects of the tensions were
widespread. Rape, murder, robbery and intimidation were commonplace, at least in
Honiara. Offences were committed by both sides, the MEF and Guadalcanal
equivalents.
Even the TPA, which formally ended the fighting, failed to
bring stability[12]. What followed
the tensions and the coup were years of unrest. This was only ended by the
arrival of the Regional Assistance Mission to the Solomon Islands
(“RAMSI”) in 2003. RAMSI has provided military and police personnel
from countries throughout the Pacific region to assist and strengthen law and
order in the Solomon Islands.
Following on from the arrival of RAMSI have
been an increase in the workload of the Courts for criminal prosecutions. Many
of the matters before the Courts relate to offences during and after the ethnic
tensions.
CUSTOMARY LAW, RECONCILIATION AND THE COURTS
Customary law is recognised by Schedule 3 to the
Constitution.[13] The Schedule
states that the rules and common law of England have effect in the Solomon
Islands save as, inter alia, they are inconsistent with customary
law.[14] The Schedule also
specifically states that customary law has effect as part of the law of the
Solomon Islands, although declaring that it does not apply in so far as it is
inconsistent with either statute or the
Constitution.[15]
Reconciliation,
as part of customary law, therefore has specific recognition in the Supreme Law
of the Solomon Islands. Of course, the difficulty arises in determining where
the lines are drawn. Corrin Care and Zorn argue that Judges in the Pacific
should be encouraged to find customary law in the same way that ordinary law is
found.[16] Corrin Care states
that:
To insist that customary law is to be proved as a matter of fact is to derogate from the constitutional status of customary law as a recognised, formal source of law as provided by Schedule 3.[17]
However,
the immediate problem presented is which custom? The Solomon Islands consists of
disparate people spread over a vast archipelago, with differing languages and
religions. To determine which custom to apply, if such a thing is possible, is a
difficult matter and open to
argument.[18]
In Tutala
& Anor v R[19] Kabui J
observed that:
The criminal law system in custom is individual or tribe biased in that (p. 4) the strongest survives. I think that is the general distinction between the two systems and this is why ordinary Solomon Islanders are mystified about the operation of the criminal law system in Solomon Islands. In custom, there were only three methods of punishment, namely, death, compensation, or banishment. There were no niceties at play. Compensation has survived the other two methods to this present day.[20]
This
suggests that custom, including reconciliation, is still evolving, perhaps
analogously to the common law, which then creates further difficulty in
identifying what custom is. This is particularly so when there is a matter of
great significance at issue. Nevertheless, custom will be used by the courts in
cases where it is
applicable.[21]
a) The Magistrates’ Court
The Magistrates’ Court
Act[22] provides for the Court to
have a role in reconciliation in certain cases. Section 35(1) of that Act
provides that:
In criminal cases a Magistrates’ Court may promote reconciliation and encourage and facilitate the settlement in an amicable way of proceedings for common assault, or for any offence of a personal or private nature not amounting to felony and not aggravated in degree, on terms of payment of compensation or other terms approved by such court, and may thereupon order the proceedings to be stayed or terminated.
There is no definition of what is ‘of a personal or
private nature’ or what amounts to ‘not aggravated in degree’.
This provision is used often in domestic violence cases.
It is not clear
from the wording of the section whether a plea of guilty needs to be indicated,
or what potential use could be made of admissions made in an unsuccessful
reconciliation attempt outside of court. The practical approach appears to be
that an admission of guilt is at least implicit in acceptance of
reconciliation.
In a Practice Direction by a former Chief Justice of the
High Court[23] guidelines were
issued to the court on how to deal with this section. In particular they note
that a court should never automatically allow reconciliation, regardless of
which party applies for it, unless it has considered the relevant facts for
itself and also that there is “clear evidence of the payment (of
compensation, if
appropriate).”[24]
Compensation
often does not go directly to the victim, it is often payable to the family of
the victim. In the case of women, this can mean payments go to her father or
brothers and nothing goes to her. This demonstrates the complexities of a
traditional concept being used in an adversarial context.
The result of a
case may be that an offender has no criminal history recorded against him, and
compensation is paid to people other than the victim. On the other hand, it is
beneficial to a community that harmony be restored as soon as is practicable and
with the least amount of disruption.
b) The High
Court
There are no reconciliation provisions available in the High
Court, nor for more serious offences in the Magistrates’ Court. However,
the High Court has recently emphasised the importance of reconciliation. In the
case of Timo v R[25] where
the Court was required to consider an application for bail where there was
alleged to have been a breach of a specific condition that the defendant not
approach witnesses. It was alleged that there had been such an approach, in
spite of the order of the court.
Palmer CJ, in granting fresh bail,
said:
...reconciliation ceremonies are entrenched in our culture but also within the context of our civil society whose laws are based on Christian principles. Reconciliation does have a place in our society. It looks to the future even after an accused had been punished by the courts under the law, it enables that accused to be able to re-settle back into a community after serving his/her time in prison.[26]
The
Court went on to conclude that: “...apart from his attempts to effect
reconciliation and compensation payments to the complainant, he has complied
with the other bail
conditions.”[27]
The
prosecution argued that it was an attempt to pervert the course of justice by
attempting to influence the key prosecution witness, despite a specific court
order in his bail conditions. This was rejected by the court in favour of
express recognition of the role of customary law and reconciliation.
What
the judgment does not mention is the fact that the offences were alleged to have
occurred on 3 and 6 September 2001. There was no suggestion in the judgment that
there were efforts to ‘reconcile’ prior to the arrival of RAMSI,
after which the charges were laid.
Such a traditional system, imbued as it
is with a clearly appropriate social element, is open to abuse. In R v
Faufane & Ors[28] Lodge PM,
in dealing with a charge of demanding with menaces, said:
...if the accused honestly believed that they had a good claim in custom they would not have approached Elijah in the way that they did. They would have approached him openly and would have followed up the claim.[29]
Similarly, in Loumia v
DPP,[30] the Court considered
whether a murder could in fact be regarded as justified by custom requirements.
While the Court recognised that custom law was a body of law separate to statute
law and distinct from other sources, if it is inconsistent with the Constitution
and Statute, it will be held to be
inapplicable.[31]
Connolly JA
noted:
The court should not, by its decision, give any encouragement to the view that an alleged duty to maim or otherwise injure the person or property of others can render lawful that which is expressly made unlawful by the Statute Law of Solomon Islands.[32]
It
is sometimes suggested that custom law should be given greater weight than it
is.[33] If that were the case, then
the sovereign Parliament of the Solomon Islands, independent for over a quarter
of a century, could have made greater provision for dealing with criminal
prosecutions, taking into account custom and the process of reconciliation. Of
course, this is more problematic where the ‘custom’ varies from
village to village and from island to island, and is exacerbated where the
dispute is between people from different custom areas.
SENTENCING AND RECONCILIATION
As stated by Corrin Care and others, it is in the field of sentencing
that custom law is the most
visible.[34] It is submitted that
it is also the most appropriate place for it to be used by the courts.
In
R v Asuana [35] Ward CJ said:
It should always be remembered that compensation is an important means of restoring peace and harmony in the communities. Thus the courts should always give some credit for such payment and encourage it in an appropriate case.... Thus, any custom compensation must be considered by the court in assessing sentence as a mitigating factor but it is of limited value. The court must avoid attaching such weight to it that it appears to be a means of subsequently buying yourself out of trouble.[36]
There can be no doubt that traditional reconciliation is
regarded positively in the sentencing process. Although it is not a
defence,[37] it is a significant
mitigating matter. The prospect that a fine imposed by a court will be paid by
relatives has been held to be permissible within the Solomon Islands as it
involves the “customary support
system”,[38] even if that
would be seen as unusual in other jurisdictions.
The recognition of
reconciliation and compensation by the courts is an important link between
traditional society and the modern state. It reflects community values and the
approach of an individual to a crime and as such is important to be considered
by courts on sentence.
RECONCILIATION AND THE TOWNSVILLE PEACE
AGREEMENT
Part 5 of the TPA requires that there be reconciliation at
“community, village, family, individual and organisational levels”
and that there be “public displays” of forgiveness organised by the
Government.[39] A Peace and
Reconciliation Committee was also created to promote this.
Reconciliation
sits uneasily beside criminal prosecutions in serious matters. On the one hand
the Amnesty Acts of 2000 and
2001[40] do not provide amnesty for
persons charged with criminal offences except in those circumstances where all
conditions precedent have been complied with. On the other, the reconciliation
provisions of the TPA would clearly evince an intention to reconcile and forgive
the past. While emphasis is given to reconciliation, it also recognises a role
for criminal prosecutions.
The “Winds of Change” Conference,
held in Honiara in June 2004 provided graphic illustration of reconciliation in
the Solomon Islands. It was front page news that there was reconciliation, and
apologies, for a woman whose cousin-brother was beheaded by Malaitans during the
tensions.[41] The Conference also
heard speakers from South Africa talk about the reconciliation which had
occurred in that country.[42] It is
clear that within the general community there is a process of reconciliation
which continues to play an important role in the community.
In his speech to
the Parliament introducing the Amnesty Act 2000 the Minister in his second
reading speech said: “the people of the nation are now ready to reconcile,
forgive and
forget.”[43]
It is
apparent that the process of reconciliation continues throughout the community.
It exists outside of the formal structure of the courts and plays an important
role in the functioning of the society.
Judicial dicta suggests that there has been a breakdown of the
traditional means of settling disputes. This is particularly so in respect of
tension related matters. Palmer J, in sentencing remarks for an assault in a
domestic setting, said:
Even the so-called ethnic tension could have been averted if people had been prepared to resort to other means to settling their grievances and arguments rather than resorting to weapons and fighting.[44]
Clearly, reconciliation was not able to deal with the
difficulties opened up before and during the ethnic tensions. It is a fine line
to tread between respect for traditional ways and maintaining a consistent and
equitable criminal justice system, able to deal with the extraordinary. The
debilitating and far reaching effects of the tensions are reflected in the
judgments of courts dealing with the relevant period and
subsequently.
Officers of the Director of Public Prosecutions were subjected
to harassment by a group of men, even though they were in the presence of police
officers.[45] Drunken armed gangs
were commonplace[46], and the
organisation which was supposed to do the policing, the RSIP, was bereft and
often the very people responsible for the criminal
activities.[47] Exhortations by
women’s groups to the RSIP to do their jobs failed to have an
impact.[48] This climate meant that
the functioning of the criminal law system was severely hampered. The then
current Director of Public Prosecutions, a Guadalcanal man, was forced to flee
Honiara due to the
tensions.[49]
Where the law was
still able to operate, the procedure and the laws were not followed in the same
manner as in the ordinary case. For example, the felony/tort rule was not
followed[50], bail applications that
would “normally be thrown out” were
granted[51] and other applications
for bail which might ordinarily be granted were
refused.[52]
Subsequently, in
dealing with matters from the tensions Brown J stated that:
I propose...to include the obvious national cultural imperative to recognise “ethnicity” as a factor in those types of bail applications.[53] (in particular he was considering Malaitan influence in the police force)
The
criminal process was clearly affected by the serious and ongoing problems
brought about by the tensions. The fact that there are still reported decisions
shows that prosecutions were able to continue after a fashion, but this was in
very diminished circumstances and not in accordance with the ordinary practice
of the law of the Solomon Islands.
These cases demonstrate a general
breakdown of law and order, as well as a breakdown in the process of
reconciliation. Neither process was able to neither control the situation nor
deal with the immediate problems that arose. The arrival of RAMSI and the
arrests following has calmed the situation and restored functional Government
and society. Traditional reconciliation could not.
THE BREAKDOWN OF
RECONCILIATION AND THE CRIMINAL PROECESS
Case Study #1[54]
D
was charged with malicious damage of two small items. He was given twelve months
by the aggrieved party to reconcile and pay for the damage. He failed to do so
and was charged. Upon being charged he sought the provisions of Section 35 and
the court permitted reconciliation.
If reconciliation is genuine then
why does it await the institution of charges? If reconciliation is regarded with
sincerity and held as an admirable approach to conflict then why does it still
not succeed, even in the absence of the tensions? In my view cases such as this
suggest that reconciliation does not appear to have the significance it once
did, particularly in urban areas. In rural areas where there may not be access
to police, the traditional ways may still be stronger, often because of this
necessity.[55]
Many commentators
express the view that traditional practices, in particular reconciliation and
compensation, have been corrupted in recent
years.[56] Corrin Care goes further
and states that “The compensation mentality is a serious obstacle to
restoration of law and order and progress to economic
recovery.”[57]
The period
of the tensions enabled some people to enrich themselves rapidly at the expense
of others. Compensation from bogus reconciliation was seen by some as a
legitimate means of wealth generation, at the expense of the legitimacy of the
concept of reconciliation itself. The ongoing effect of this is significant and
is reflected in the case study above.
Further, the fact of the tensions
and the necessity of the arrival of RAMSI demonstrates that the traditional
means of reconciliation were not coping in the atmosphere in which they existed.
Even today, what might once have been regarded as a civil responsibility to
abide by proper reconciliation, and thereby avoid the criminal process, is not
always adopted.
DOMESTIC VIOLENCE AND RECONCILIATION
Case Study
#2[58]
D was
charged with three counts of assault occasioning actual bodily harm to his wife.
There were independent witnesses to the assault but not to the extent of injury
caused. The wife refused to give evidence. The charges were reduced by the
prosecution to common assault and then reconciled under s.35 of the Magistrates
Court Act.
A prime criticism of reconciliation is in respect of
domestic violence cases. It is in cases such as this that economic inequality
and cultural norms can have the strongest impact in a negative way upon women.
The Practice Direction in respect of s. 35(1) of the Magistrates’ Court
Act specifically states that where there is an allegation of matrimonial
violence then “the court should be especially careful before it is
satisfied the victim has really
agreed.”[59]
As Imrana
Jalal notes: “Numerous cases reveal the enormous pressure put on women to
reconcile with their husbands”, and further that, “(w)omen are
bullied and harassed by the magistrate, prosecutor and defence counsel in court
to withdraw all criminal
charges.”[60]
Other
commentators note that the customary approach can impact adversely to the human
rights of a woman[61], and that it
can lead to an absence of meaningful
sanction.[62]
Findlay also
notes that:
...because of the unequal power positions of persons negotiating domestic reconciliations, the private nature of their terms, and the application of expectations that may go well beyond the immediate issue of the assault or future threats of violence, reconciliation may become more of an avoidance of penalty, rather that a penalty.[63]
The
position of a prosecutor becomes problematic because the woman, usually the only
witness, often will not give evidence and there is no legal bar to a
reconciliation taking place. A suspicion of further threats, or simply economic
necessity, is not sufficient to avert reconciliation. It is possible to summons
her to court, but there is no prospect of being able to force her to give
evidence unless she chooses to do so.
The High Courts Practice Direction
suggests in cases such as this that the perpetrator be ‘bound over’
for a period of time. Although this is not a sentence as such, as the
proceedings are ‘stayed’, it may in theory at least allow for
further deterrence and possible retribution. Whether this in fact occurs cannot
be tested by statistics, and anecdote suggests otherwise.
Reconciliation in
the criminal process does not necessarily protect women from further violence.
It does deal with matters quickly and avoids the shame of public family
disharmony but it does not deal with the fundamental issues. It does not address
fundamental attitudes and societal views of women, nor their economic
vulnerability. It does not make the society safer. It is a pragmatic solution
which papers over the deep cracks and permits the person with the strong hand,
the man, to get his way.
CONCLUSION
Reconciliation undoubtedly has a place
in the criminal legal system of the Solomon Islands, as it does within the
framework of that society. However, the difficulty comes in applying a remedy
which is not intended for the English adversarial system. The two do not sit
well together.
While reconciliation undoubtedly provides an opportunity
for parties to deal with their differences outside of court, it is an open
question as to how far this should translate into the criminal justice system.
It is submitted that it should be limited to a mitigatory matter to be taken
into account on sentence. The tensions demonstrated that reconciliation was not
able to deal with the larger issues which were unleashed, although to be fair
nor was the Court system, and should not be relied upon to the exclusion of the
criminal process. That is, while reconciliation should be relevant to
determining outcomes, it should not be permitted to overrule the rule of law in
other cases, in particular domestic violence.
In my view the tensions
vividly demonstrated how the traditional practices of reconciliation could be
usurped by self interest. This pattern of self interest has survived the
tensions and still exists. In my view, a strong, independent judiciary is a
vital bulwark against the excesses of enforced unfair reconciliation which is
neither sincere nor lasting. For this reason, if for no other, reconciliation
should not be permitted to exclude the actions of the criminal courts, although
it has an appropriate ancillary role to play.
[*] Nick Goodenough BA, LLB, GDLP, LLM (Monash), Senior Solicitor with Victoria Legal Aid in Melbourne, Australia.
[1] Jonathan Fifi’i (Roger Keesing, Editor and Translator) ‘From Pig Theft to Parliament: My Life between Two Worlds’ (1989) 148.
[2] Above n 1 at
157.
[3] J Bennett, ‘Roots of
Conflict in Solomon Islands Though Much is Taken, Much Abides: Legacies of
Tradition and Colonialism’, State Society and Governance in Melanesia,
Discussion Paper 2002/5 at
11.
[4] Above n 1 at
166.
[5] Above n 3 at
2.
[6] Above n 3 at
8.
[7] Above n 3 at
10.
[8] R Liloqula,
‘Understanding Conflict in Solomon Islands: A Practical Means to
Peacemaking’, State Society and Governance in Melanesia, Discussion
Paper 00/7 at 4.
[9] Above n
8 at 5ff.
[10] Father N Arkwright, ‘Restorative justice in the Solomon Islands’, in Dinnen & Ors (ed) A kind of mending: Restorative Justice in the Pacific Islands (2003) 177 at 182.
[11] T T Kabutaulaka,
‘‘Failed State’ and the War on Terror: Intervention in Solomon
Islands’, Analysis from the East-West Center, No 72, March 2004 at p.
3.
[12] B R Vaughn,
‘Australia's Strategic Identity Post-September 11 in Context: Implications
for the War Against Terror in Southeast Asia’ (2004) 26(1) Contemporary
Southeast Asia 94.
[13] See
also s. 76 of the Constitution which permits amendment by Parliament of the
Schedule.
[14] S. 2(1)(c) of
Schedule 3. The common law is the common law of England: s. 16(1)
Interpretation and General Provisions (Cap
85).
[15] Section 3(1) and (2) of
Schedule 3.
[16] J G Zorn and J
Corrin Care ‘Proving Customary Law in the Common Law Courts of the South
Pacific’(2002) British Institute of International and Comparative
Law 68.
[17] J Corrin
Care ‘Customary Law in Conflict: The Status of Customary Law and
Introduced Law in Post-colonial Solomon Islands’ (2001) 21 UQLJ 167
at 175.
[18] Above n 8 at
6.
[19] Unreported, High Court of
the Solomon Islands, Criminal Case No 22 of 2000, 5 May
2004.
[20] Above n 19 at p.
3.
[21] Sukutaona v
Houanihou [1981] SILR 12 at 13, per Daly CJ
.
[22] Cap
20.
[23] Practice Direction No 1
of 1989, per Ward CJ.
[24] Above
n 23.
[25] Unreported, High Court
of the Solomon Islands, Criminal Case 189/2004, 19 May
2004.
[26] Above n 25 at p.
3.
[27] Above n 25 at p
4.
[28] [1987] SILR
88.
[29] Above n 28 at
90.
[30] [1986] SILR
158.
[31] Above n 30 at 167 and
170, per Kapi JA.
[32] Above n30
at 163.
[33] Above n 16 at 70.
[34] Corrin Care and Ors (ed)
Introduction to South Pacific Law (1999)
142.
[35] Unreported, High Court
of the Solomon Islands, Criminal Case No 34 of 1990, 12 October
1990.
[36] Above n 35 at p.
2.
[37] See Loumia v DPP above fn 30 and also R v Sura and Ors Crim Case 46/1993, 4 August 1993 per Palmer J where it was held that threats could not accompany a demand for money even if it was genuinely believed that money as compensation was payable; see also Fefele v DPP [1987] SILR 2 at 2, per Ward CJ.
[38] Inito v R [1983] SILR
177 at 178 per Daly CJ.
[39] TPA
Part 5 [1](a) and (b).
[40] No 8
of 2000. Commencement 23 July 2001 by Supplement to Solomon Islands Gazette SI
No 28, 13 August 2001 and No 3 of
2001.
[41] ‘Winds of
forgiveness blow strong’, no author, Solomon Star, 25 June
2004, 1.
[42] G Herming ‘In
forgiveness lies our redemption’, Solomon Star, Weekend Magazine,
25 June 2004, 3.
[43] Parliament
of Solomon Islands Hansard 18 December 2000 at p.
10.
[44] R v Kana,
unreported, High Court of the Solomon Islands, Criminal Case #161 of 2001, 31
July 2001 per Palmer J at p. 1.
[45] Buarafi v R,
Unreported, High Court of the Solomon Islands, Criminal Case No 200 of 2002, 23
August 2002 per Palmer J at p.
3.
[46] R v Funubana &
Ors Unreported, High Court of the Solomon Islands, Criminal Case 297/2003 29
June 2004 per Brown PJ at p.
2.
[47] Timo Mike v Tavake and
Ors Unreported, High Court of the Solomon Islands, Criminal Case No 134 of
2003, 6 November 2003 per Brown J at p. 2.
[48] A Aruhe’eta
Pollard ‘The ‘Women for Peace’ Analysis and
Approach’, State Society and Governance in Melanesia, Discussion
Paper 00/7 at 9.
[49] R v
Talu, unreported, High Court of the Solomon Islands, Criminal Case Number 21
of 2000, per Palmer J at 1.
[50]
Above n 47.
[51] R v Robu and Ors ,
unreported, High Court of the Solomon Islands, Criminal Case 28 of 1998, 14 June
2000 per Palmer J at 2.
[52]
Above n 45.
[53] Oeta and Maelalia v
R, unreported, High Court of the Solomon Islands, Criminal Case No 294 of
2003, 4 December 2003.
[54] Case
was prosecuted by the writer in the Magistrates’ Court at
Honiara.
[55] Above n 17 at
176.
[56] D Hegarty and Ors ‘State Society and Governance in Melanesia’, Discussion Paper 2004/2, Research School of Pacific and Asian Studies at p 5; see also above n 8 at 189.
[57] J Corrin Care,
‘‘Off the Peg’ or ‘Made to Measure’: Is the
Westminster system of government appropriate in Solomon Islands’ (2002) 27
Alt L J 207 at 211.
[58] Case was
prosecuted by the writer at the Magistrates’ Court at
Honiara.
[59] Above n
23.
[60] I Jalal, ‘Law
for Pacific Women: A Legal Rights Handbook’ (1998)
161.
[61] Above n 34 at 40.
[62] A Jowitt and Cain (ed), T N
‘Passage of Change: Law, Society and Governance in the Pacific’
(2003) 170; see also Jalal n 60 at
108.
[63] M Findlay ‘Crime,
community penalty and integration with legal formalism in the South
Pacific’ (1997) 21 The Journal of Pacific Studies 145 at 157.