 Battling it out: Martin Daubney and Lavi Rokoika When the Suva High Court heard Manoa Kamikamica’s stay application, his Australian counsel Martin Daubney advanced a detailed legal argument that the prosecution should not proceed. |   |
His submission, as presented in court, focused on the proposition that the case is affected by conflict of interest, institutional irregularity, and apprehended bias, particularly in light of developments within FICAC and the contested position of Acting Commissioner Lavi Rokoika.
On that basis, the Court was invited to consider whether continuing the prosecution would amount to an abuse of process, warranting a stay.
This is a recognised and serious legal pathway. Where established, it goes to the integrity of the proceedings themselves.
The doctrine relied upon
The argument rests on the well-established principle of apprehended bias. The test is objective: whether a fair-minded and informed observer might reasonably apprehend that the process is not impartial. It is a doctrine concerned not only with actual fairness, but with public confidence in the administration of justice.
A broader question of application
The submissions made in court necessarily invite careful consideration of how that principle is to be applied.
In that context, one structural feature of the present case may prompt wider reflection. Martin Daubney, who appeared for the applicants Manoa Kamikamica (and Biman Prasad), is also listed as a visiting judge on Fiji’s Court of Appeal, the appellate court which ordinarily reviews decisions of the High Court.
There is nothing inherently improper in this arrangement:
Accordingly, no issue of automatic disqualification arises.
The question of consistency
However, where a stay application is grounded in perceived institutional conflict, the scope of the principle becomes important.
The doctrine of apprehended bias is objective and general in application. It is not confined to any one category of actor within the justice system.
In that sense, the argument advanced in court may be seen as raising a broader, and more abstract, question: how consistently should standards of perceived independence and institutional separation be applied across different roles within the legal system? This is not a question directed at any individual.
Rather, it reflects the inherent breadth of the doctrine itself, which is concerned with maintaining confidence at all levels of the judicial process.
Institutional context
Fiji’s use of visiting appellate judges is well established and serves an important function in the administration of justice. At the same time, such arrangements necessarily involve individuals who may, in different contexts, occupy both judicial and professional roles.
In most cases, this operates without difficulty, particularly where clear recusal practices are observed.
However, in proceedings where the central issue is perception of institutional integrity, those structural features may attract closer scrutiny.
Conclusion
The High Court will determine the stay application on the legal merits of the submissions made.
Those submissions place the doctrine of apprehended bias at the forefront of the case. In doing so, they also highlight a wider point: that principles relating to perceived fairness and institutional independence are, by their nature, system-wide in application.
How those principles are framed, and the extent to which they are applied consistently, remains an important aspect of maintaining confidence in the administration of justice.
On that basis, the Court was invited to consider whether continuing the prosecution would amount to an abuse of process, warranting a stay.
This is a recognised and serious legal pathway. Where established, it goes to the integrity of the proceedings themselves.
The doctrine relied upon
The argument rests on the well-established principle of apprehended bias. The test is objective: whether a fair-minded and informed observer might reasonably apprehend that the process is not impartial. It is a doctrine concerned not only with actual fairness, but with public confidence in the administration of justice.
A broader question of application
The submissions made in court necessarily invite careful consideration of how that principle is to be applied.
In that context, one structural feature of the present case may prompt wider reflection. Martin Daubney, who appeared for the applicants Manoa Kamikamica (and Biman Prasad), is also listed as a visiting judge on Fiji’s Court of Appeal, the appellate court which ordinarily reviews decisions of the High Court.
There is nothing inherently improper in this arrangement:
- Visiting judges are commonly drawn from overseas jurisdictions
- Such appointments are often part-time
- Established practice requires recusal from any appeal in which the judge has had prior involvement
Accordingly, no issue of automatic disqualification arises.
The question of consistency
However, where a stay application is grounded in perceived institutional conflict, the scope of the principle becomes important.
The doctrine of apprehended bias is objective and general in application. It is not confined to any one category of actor within the justice system.
In that sense, the argument advanced in court may be seen as raising a broader, and more abstract, question: how consistently should standards of perceived independence and institutional separation be applied across different roles within the legal system? This is not a question directed at any individual.
Rather, it reflects the inherent breadth of the doctrine itself, which is concerned with maintaining confidence at all levels of the judicial process.
Institutional context
Fiji’s use of visiting appellate judges is well established and serves an important function in the administration of justice. At the same time, such arrangements necessarily involve individuals who may, in different contexts, occupy both judicial and professional roles.
In most cases, this operates without difficulty, particularly where clear recusal practices are observed.
However, in proceedings where the central issue is perception of institutional integrity, those structural features may attract closer scrutiny.
Conclusion
The High Court will determine the stay application on the legal merits of the submissions made.
Those submissions place the doctrine of apprehended bias at the forefront of the case. In doing so, they also highlight a wider point: that principles relating to perceived fairness and institutional independence are, by their nature, system-wide in application.
How those principles are framed, and the extent to which they are applied consistently, remains an important aspect of maintaining confidence in the administration of justice.
Blurred Lines Beyond the Bench: The Franzi–Malimali Episode in Tuvalu and the Risks When Judicial Boundaries SlipThe need for clear judicial boundaries is not theoretical. Past episodes have shown how quickly public confidence can be shaken when those lines appear to blur. In the widely discussed case involving Justice Norman Franzi and Barbara Malimali, in Tuvalu, concerns arose after it was alleged that social interaction, including drinking, coincided with ongoing proceedings in which Malimali’s client was before the court. The episode served as a reminder that justice depends not only on actual impartiality but on the appearance of independence. For visiting and part-time judges in particular, who may move between professional roles, the obligation to maintain visible and uncompromised boundaries is especially acute. Malimali was banned from Tuvalu. |  |
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