Silatolu v State - Joint Judgment [2008] FJSC 28; CAV0002.2006 (17 October 2008)

IN THE SUPREME COURT OF THE FIJI ISLANDS
AT SUVA

CRIMINAL APPEAL NO. CAV0002 OF 2006
(Fiji Court of Appeal Criminal No AAU0024 of 2003S)

BETWEEN:

TIMOCI SILATOLU
Petitioner

AND:

THE STATE
Respondent

CRIMINAL APPEAL NO. CAV0005 OF 2007
((Fiji Court of Appeal Criminal No AAU0079 of 2005)

BETWEEN:

WAISALE WAQANIVALU
Petitioner

AND:

THE STATE
Respondent

CRIMINAL APPEAL NO. CAV0002 OF 2007
(Fiji Court of Appeal Criminal No AAU0064 of 2005S)

BETWEEN:

JOSUA RAITAMATA
Petitioner

AND:

THE STATE
Respondent

CRIMINAL APPEAL NO. CAV0020 OF 2007
(Fiji Court of Appeal Criminal No AAU0052 of 2005S)

BETWEEN:

EMIRAMI SAURARA
Petitioner

AND:

THE STATE
Respondent

Coram: The Hon Justice, Keith Mason, Judge of the Supreme Court
The Hon Justice Kenneth Handley, Judge of the Supreme Court
The Hon Justice Mark Weinberg, Judge of the Supreme Court

Hearings: Monday, 13th October 2008, Suva
Tuesday, 14th October 2008, Suva

Counsel: The Petitioners in person
Ms A Prasad for the Respondent

Date of Judgment: Friday, 17th October 2008, Suva

JUDGMENT OF THE COURT

1. The Court has heard in this session four applications for the review of decisions given during the February session of this Court. Section 122(5) of the Constitution provides:
   

"The Supreme Court may review any judgment, pronouncement or order made by it."

2. In view of the number of such applications the Court has taken the opportunity to formulate the relevant principles before considering the individual cases. The power conferred by s 122(5) is twer that all coul courts have, during the period between the oral pronouncement of their orders and their formal entry, to re-opd review their orders. However s 122(5) enables the Supreme Court to review its ordersrders even after they have been perfected by formal entry.
   
3. The cases establhat the power of appellate late courts to re-open and review their orders is to be exercised with great caution. The power, and the occasions for its exercise were considered in In Re Transferred Civil Servants (Ireland) Compensation [1929] AC 242, 248-52; and State Rail Authority NSW v Codelfa Construction Pty Ltd [1982] HCA 51; (1982) 150 CLR 29, 38-9, 45-6, where earlier Privy Council cases are referred to. The principles were summarised in Smith v NSW Bar Association (1992) 176 CLR 252, 265 where the High Court of Australia said:
   

"The power is discretionary and, although it exists up until the entry of judgment, it is one that is exercised having regard to the public interest in maintaining the finality of litigation. Thus, if reasons for judgment have been given, the power is only exercised if there is some matter calling for review ... these considerations may tend against the re-opening of a case, but they are not matters which bear on the nature or the review ... once the case is re-opened ... the power to review a judgment ... where the order has not been entered will not ordinarily be exercised to permit a general re-opening ... But ... once a matter has been re-opened, the nature and extent of the review must depend on the error or omission which has led to that step being taken."

4. The principles were further considered in Autodesk Inc v Dyason (No 2) [1993] HCA 6; (1993) 176 CLR 300, 303 where Mason CJ said:
   

"What must emerge, in order to enliven the exercise of the jurisdiction, is that the Court has apparently proceeded according to some misapprehension of the facts or the relevant law and this ... cannot be attributed solely to the neglect of the party seeking the rehearing. The purpose of the jurisdiction is not to provide a backdoor method by which unsuccessful litigants can seek to reargue their cases."

5. These principles also apply in criminal appeals: R v Cross [1972] QB 937 CA, 941. In Grierson v The King [1938] HCA 45; (1938) 60 CLR 431, 435 Dixon J said:
   

"... a second appeal from a conviction could not be entertained after the dismissal, on the merits, of an appeal or application for leave to appeal and ... the first appeal could not be reopened after a final determination."

6. This is the established position in England even where the second application, after the dismissal of the first on the merits, is based on the discovery of fresh evidence: R v Grantham [1969] 2 QB 574; R v Pinfold [1988] QB 462 CA.
   
7. The power of a final appellate court to review its final judgments before entry was exercised by the House of Lords in Reg v Bow Street Magistrate ex parte Pinochet (No 2) [1999] UKHL 1; [2000] 1 AC 119 where a differently constituted Appellate Committee set aside a decision of the House because of the ostensible bias of a member of the previous Appellate Committee. The House held that as a final appellate court it had jurisdiction to set aside its own orders which had been improperly made: ibid at 132. A court of final appeal has power in truly exceptional circumstances to recall its orders even after they have been entered in order to avoid irremediable injustice. This was established by decisions of the Privy Council, particularly in Indian appeals, Maharajah Pertab Narain Singh v Maharanee Subhao Koer ex parte Trilokinath (1878) LR 5 Ind App 171, 173; Venkata Narasimha Appa Row v The Court of Wards [1886] UKLawRpAC 40; (1886) 11 App Cas 660; State Rail Authority NSW v Codelfa Construction Pty Ltd [1982] HCA 51; (1982) 150 CLR 29, 38-9.

TIMOCI SILATOLU

8. The petitioner was convicted of treason in the course of what is known as the Speight Coup of 19 May 2000 and sentenced on 20 March 2003 to nine years imprisonment. His appeal against his conviction was dismissed by the Court of Appeal in February 2006 and his petition for special leave was dismissed by the Court on 29 February this year. The petitioner was represented by counsel at his trial, in the Court of Appeal, and on the hearing of the petition.
   
9. On 27 March the petitioner lodged an application for a review of this Court’s decision under s 122(5) of the Constonution and short written submissions in support. This was followed by a twenty-nine page written submission on 22 August and a ten page submission in rto the submissions for the State.
   
10. The petitioner’s written and oral submissions repeat arguments considered and rejected by this Court in the extended reasons given for its earlier decision. The matters raised include the evidence of Mr Drole, vidence which could ould and could not corroborate his evidence, the rule in Browne v Dunn, the selection of the assessors, the alleged incompeten his counsel at the trial, and the evidence about phone cale calls made on the mobile phones and land lines of the petitioner and others, during the twenty-four hours immediately before 11 am on 19 May.
    
11. The petitioner also sought to distance himself from the events after the coup by raising the defence of duress, a new issue which was not raised at the earlier hearing in this Court, and reliance was also placed on s 54 of the Penal Code which in brief requires a charge of treason to be supported by the evidence of two witnesses, another matter not raised at the earlier hearing in this Court. The new points are without substance and do not establish any error or mistake by the Court in its reasons for judgment of 29 February.
    
12. The petitioner has attempted to use s 122(5), in ords of Mason&#1on CJ of the Higrt of Australitralia in Autodesk Inc v Dyason (No 2), as a "backdoor method by which unsuccessful liti can to re-argue their cases". He repeated arguments pnts put on his behalf at the hearing in Fein February this year with a slightly different emphasis, and in greater detail but arguments of this kind do not support a review under s 122(5) of the Constinution. The petitioner had failed to establish that this Court proceeded on some misapprehension of the facts and the ret law having regard to the submissions then before it.
    
13. As the Court said in its February judgment the State’s case against the petitioner as a whole was powerful, if not overwhelming, and the petitioner has entirely failed to make out a case for the review of this Court’s earlier decision. The application under s 122(5) is dismissed

WAISALE WAQANIVALU

14. On 22 February 2005 the petitioner pleaded guilty te counts of murder and one one count of attempted murder and was sentenced to five terms of life imprisonment and a concurrent sentence of ten years for the attempted murder. He applied to the Court of Appeal for leave to appeal from his convictions and sentences but Ward P granted leave to appeal against sentence only.
    
15. The petitioner renewed his application for leave to appeal from his convictions before a Full Court but leave was again refused and his appeal against sentence was dismissed.
    
16. This Court dismissed the petitioner’s application for special leave on 27 February this year. He then applied for a review of this Court’s decision pursuant to s 122(5) of the Constitution. In support of this application he filed written submissions dated 11 April and 26 Auand further ther submissionreply dated 22 September. The petitioner’s submissions were based on his understandinanding of the effect of s 12 of the and s 33 of the P>Penal Code as amended in 2003. His submissions attempt to re-ae arguments that were considered and rejected by this Court in February this year and do nodo not raise any matter calling for review application under s 1160;122(5)ismissed.
    

JOSUA RAITAMATA

17. The petitioner was sentenced in the Magistrates Court to four years imprisonment for robbery with violence to two and a half years for shop breaking, entering and larceny. The High Court and Court of Appeal refused to disturb his convictions and sentences. He sought special leave to appeal to this Court from the summary dismissal of his appeal to the Court of Appeal under s 35(2) of the urt of Appe Appeal Act but his petition was dismissed on 25 February. The petitioner subsequently filed an application for the review of this Court’s decision under s 1 of the Coution.
    
    
    
18. He has filed wn submissions in support of this application dated 5 April, 21&#ugust, and 22&#122&#162 Septembereply to the State&tate’s submissions.
    
19. The petitione17;s ipal complaint rent relates to his imprisonment for a totaltotal of 18 months before trial for b oach of his bail conditions. He did not appeal to the High Court from these convictions or the custodial sentences imposed for them.
    
20. When he appealed to the High Court from his convictions and sentences for the substantive offences he did not rely upon the sentences he had earlier received for breach of his bail conditions.
    
21. The petitioner did not rely on his sentences for breach of bail conditions at the hearing of his petition in February this year and a new ground of this nature cannot be raised for the first time on an application for review. He has not identified any other matter in the decision of this Court which calls for review. The application for review is dismissed.
    

EMIRAMI SAURARA

22. On 4 July 2005 the petitioner pleaded guilty to charges of robbery with violence and unlawful use of a motor vehicle based on the robbery of employees of Tappoos Limited in a company vehicle in Sigatoka in broad daylight. He was sentenced in the High Court to imprisonment for nine years, and six months respectively to be served concurrently. His application under s 21(1)(c) of the Cof A of Appeal Act for leave to appeal from his sentence was refused by Ward P and againhe Full Court unrt under s 35(3)
23. Special leave to appeal to this Court was granted on 26 ary 2n a limited grounground but the appeal was dismissed. On 3 On 3 March the petitioner acting on the grant of special leave and ignoring the dismissal of his appeal, purported to lodge a notice of appeal to this Court.
    
24. This action was clearly misconceived but his appeal can be treated as an application under s 122(5) ofConstitutionution for review of this Court’s decision of 26 February 2008 toiss his apps appeal.
    
25. The petiti#8217;s written and oral arguments in support of his application were an attempt to reargueargue the case on the same grounds that the Court rejected in its decision of 26 February. No case has been shown for a review and the petitioner’s application is dismissed.
    

Procedure in s 122(5) cases

26. The Court will now have heard and dismissed five applications for review under s 122(5) e nstitution<, one in the July session, and the other four in this session. All were without substance because thtempted to rerun arguments which had already been considered and rejected by the Court, alt, although in some cases the argument has been presented in a more detailed and focused fashion. All five applications were therefore vexatious and an abuse of the process of this Court. They involved an unnecessary waste of time and resources by the Prison Department, the Director of Public Prosecutions, and the Court.
    
27. A court has an inherent jurisdiction to prevent the abuse of its process by the making of unwarranted and vexatious applications in existing proceedings: Commonwealth Trading Bank v Inglis [1974] HCA 17; (1974) 131 CLR 311. A petition for special leave to appeal to this Court that has been dismissed remains an existing proceeding for this purpose while the decision remains subject to review under s 122(5).
    
style='tex='text-indent:0pt; margin-top:0pt; margin-bottom:0pt;' value='28' value="28">Applications by an unrepresented litigant for review, under s 122(5) of b>Constitutionution, of this Court’s decision to dismiss his or her petition are proceedings which are likely to constitute an abuse of process whether the underlying proceedire civil or criminal. In orIn order to prevent such abuses in future such applicants are at risk of having their proceedings summarily dismissed on the papers.

29. The Court in the first instance will deal with such applications without an oral hearing. The applicant must lodge written submissions in support of the application, and the respondent will be given an opportunity to answer those submissions in writing, and the applicant may lodge a written reply. If the application is not summarily dismissed on the papers it will be listed for an oral hearing at the same or a later session of the Court.
    

Hon Justice Keith Mason
Judge of the Supreme Court

Hon Justice Kenneth Handley
Judge of the Supreme Court

Hon Justice Mark Weinberg
Judge of the Supreme Court

Solicitors:

The Petitioners in person
Office of the Director of Public Prosecutions, Suva for the Respondent