Mototabua v State [2009] FJSC 8; CAV0006.2006S (10 February 2009)

IN THE SUPREME COURT OF THE FIJI ISLANDS
AT SUVA

CRIMINAL APPEAL NO. CAV0006 OF 2006S
(Fiji Court of Appeal No.AAU00 21 of 2006S)

BETWEEN:

ELIKI MOTOTABUA
Petitioner

AND:

THE STATE
Respondent

CRIMINAL APPEAL NO. CAV0005 OF 2008S
(Fiji Court of Appeal No.AAU0057 of 2006S)

BETWEEN:

ABHAY KUMAR SINGH
Petitioner

AND:

THE STATE
Respondent

CRIMINAL APPEAL NO.CAV0003 OF 2006S
(Fiji Court of Appeal No. AAU0044 of 2005S

BETWEEN:

VIDALI YABA
Petitioner

AND:

THE STATE
Respondent

CRIMINAL APPEAL NO. CAV0008 OF 2007S
(Fiji Court of Appeal No. AAU0036 of 2004S)

BETWEEN:

NAVAU LEBOBO
Petitioner

AND:

THE STATE
Respondent

CRIMINAL APPEAL NO. CAV0001 of 2005S
(Fiji Court of Appeal No. AAU0061 of 2004S)

BETWEEN:

PAULA VURA
Petitioner

AND:

THE STATE
Respondent

Coram: The Hon Justice Kenneth Handley, Judge of the Supreme Court
The Hon Justice David Ipp, Judge of the Supreme Court
The Hon Justice Ronald Sackville, Judge of the Supreme Court

Counsel: Petitioners in Person
A Driu for the Respondents

Date of Judgment: Tuesday, 10th February 2009, Suva

JUDGMENT IN SECTION 122(5) CASES

1. The list of matters called over by the Acting Chief Justice for the session of this Court fixed to commence on 9 Febr2009 included four appl applications under s122 (5) of the Constitution for review of considered decisions of this Court refusing special leave and one applicatnder the section for review of the Court’s decision tion to dismiss the applicant’s appeal. They are all criminal cases.
   
2. On 17 October 2008 the Court dismissed four such applications in criminal cases in a single judgment (Silatolu & Ors v The State) which considered the principles that apply in such cases. The Court cited decisions of the High Court of Australia which established that a power of this nature (para [3]) "is only exercised if there is some matter calling for review", that it must appear that (para [4]) "the Court has apparently proceeded according to some misapprehension of the facts or the relevant law", and (para [4]) the jurisdiction is not "a backdoor method by which unsuccessful litigants can seek to reargue their cases".
   
3. The Court noted that the five applications for review (5) by unrepresented petitioners up to that time had been dismissed. All of them were without merit and an abuse of process. The Court continued (paras [28]-[29]):
   

"In order to prevent such abuses in the future such applicants are at risk of having their proceedings summarily dismissed on the papers. The Court in the first instance will deal with such applications without an oral hearing ... If the application is not summarily dismissed on the papers it will be listed for an oral hearing."

4. The five matters in the present list have not been given a hearing date in the session because the Court wished to review the papers. Each will now be considered.
   

Eliki Mototabua

5. This applicant’s petition for special leave was dismissed on 26 February 2008 at the f the the hearing and reasons were published later. He had been convicted by a magistrate of being in possession of Indian hemp and was fined $100. On 17 Janua06 his appeal to the High Court was dismissed but his sentesentence was increased to 18 months imprisonment backdated to 29 December 2003. His appeal to the Court of Appeal was dismissed on 23 March 2007.
   
6. This Court dismissed the applicant’s petition because (para [3]) no basis for special leave had been made out and there had been no substantial miscarriage of justice. The applicant’s written submissions in support of the present application dated 20 October and 30 December 2008 and 7 January 2009 relied principally on the delays that occurred at various stages of the proceedings which are said to entitle him to a permanent stay, the admission of unlaw obtained and inadmissible evidence, and a factual error inor in this Court’s reasons.
   
7. The applicant obtained leave to appeal to the Court of Appeal on the sole ground that his arrest was unlawful and the evidence of the special constable unlawfully obtained para [10]).
   
8. This Court affirmed the decision of the Court of Appeal that the evidence has not been obtained unlawfully and no basis for a review of this decision has been shown.
   
9. Although this Court was mistaken in thinking that the magistrate did not rule on the applicant’s submission of no case to answer (para [5]), this mistake is utterly irrelevant. It does not matter now why the applicant gave sworn evidence before the magistrate. The point was not taken in the High Court, and it is not within the leave granted by the Court of Appeal.
   
10. There is nothing disclosed which calls for a review of this Court’s decision and the application is summarily dismissed as an abuse of process.
    

Abhay Kumar Singh

11. This is an application for the review of the Court’s decision of 18 Der 2008 to dismiss the appe applicant’s appeal.
    
12. The applicant, a legal practitioner, was convicted on his plea of guilty of an attempt to pervert the course of justice following the ruling of Gates J that an electroncording oing of a conversation with the principal State witness was admissible. The Court of Appeal unanimously dismissed his appeal, but granted leave to appeathis Court on the questions raised under ss26, 28(1) (e) ane) and 37 of the Constitution. This Court unanimously dismissed the appeal.
    
13. The conversation recorded by the witness took place the day before the hearing of the underlying proceedings. The applicant intended to speak to the witness and the reliability of the recording is not challenged. There was no eavesdropping and a third party was not involved. The applicant acknowledged that the witness’ oral evidence of the conversation was admissible.
    
14. Section 26(1) of the Constitution confers a right on every person to be protected from unreasonable search of his person or unreasonable search or seizure of his property. Unsurprisingly this Court held that the electronic recording of a conversation by one of the parties to that conversation was neither a search nor a seizure. Relevant case law from other jurisdictions was considered. The Court held that the appellant’s rights under s26 (1) had not been infringed.
    
15. The Court also held that the recording did not infringe the appellant’s constitutional right under s37 (1) to privacy including the privacy of his personal communications. There were two parties to the relevant conversation. Each knew that he was communicating with the other and intended to do so. The conversation was private as between the participants and any outsider but was not private as between the participants.
    
16. The Court also held that the interests of justice required the admission of the evidence. Contrary to the applicant’s submission they include the interest of the public in the conviction of the guilty.
    
17. Following the last call over by the Chief Justice on 15 January 2009 the applicant lodged with the Court a draft notice of motion, his own affidavit of 23 January in support, and a 53 page "Synopsis" of his submissions dated 26 January.
    
18. The applicant sought an order vacating the listing of his s122 (5) application in the current session, an adjournment for a further 42 days, and the listing of the matter before a different bench than the one that had dismissed his appeal.
    
19. The 53 page synopsis repeats in greater detail, and with some additional foreign decisions, his arguments in the appeal which were rejected by this Court in its decision of 18 December 2008. Many of the submissions are new and relate to matters outside the limited leave to appeal granted by the Court of Appeal.
    
20. The new submissions do not disclose an arguable case that the Court in its decision of 18 December "apparently proceeded according to some misapprehension of the facts or the relevant law". The Court is not prepared to hear oral argument on the notice of motion which is frivolous and vexatious and the orders sought are refused.
    
21. The application under s122 (5) is a blatant attempt to reargue the merits of the appeal after it has failed. Nothing has been disclosed which calls for a review of this Court’s decision and the application is dismissed as an abuse of process.
    

Vidali Yaba

22. The applicant was convicted of murder and robbery with violence. He was sentenced on 16 September 1997 to life imprisonment for the former and to 7 years imprisonment for the latter. On 24 November 2003 he was granted leave to appeal against his conviction, but his appeal was dismissed on 15 November 2005. His application for special leave was dismissed by this Court on 25 February 2008. He now seeks a review under s122 (5) of the Constitution.
    
23. His written submissions are dated 30 July and 18 December 2The cThe critical evidence against him at his trial was his confession to the police. The applicant claimed that he had been reply assaulted by the police while in custody. As a result his confession was involuntary andy and should be excluded on that ground or in the exercise of the judge’s discretion.
    
24. The trial judge conducted a lengthy voir dire hearing in which 17 prosecution witnesses were called and the applicant and each of his co-accused gave evidence. Although some of the records of interview were excluded the applicant’s was admitted.
    
25. The Court of Appeal upheld the judge’s ruling on the voir dire and his conviction for murder. In the absence of clear error an appellate court is bound by the primary judge’s findings on credibility. There was no such error in this case and the Court noted (para [15]) that the applicant had been examined by a doctor the day after his confession and no signs of injury had been found.
    
26. The applicant relies on a number of grounds. Those relating to his sentence are inadmissible because the Court of Appeal only granted leave to appeal from his conviction.
    
27. His grounds in support of a conviction for the lesser crime of manslaughter based on ss9(1) and 202(b) of the Penal Code were fully considered by this Court which affirmed the decision of the Court of Appeal that it was murder or nothing: para [25].
    
28. Some of the applicant’s submissions were based on the suggestion that he had only been charged with robbery with violence. He was arrested for that offence when the victim was still alive, but was charged with murder following her death: para [7], and not interviewed again. He was indicted on both charges: para [2]. There is nothing in this point.
    
29. The applicant raised for the first time in the Court of Appeal an argument that his interview had been conducted in breach of the Constitution. The Court assumed that he was relying on s27 (1) of the 1997 Constitution, and rejected the point because it was not in force at the relevant time.
    
30. The applicant has now argued for the first time that the Court of Appeal and this Court were in error in assuming he was relying on the 1997 Constitution. The 1990 Constitution which was in force at the relevant times contained similar provisions.
    
31. This new point should not be entertained on this application for review. The trial judge found that the applicant’s confession was voluntary, and that there were no grounds, in the exercise of his discretion, for rejecting it.
    
32. The relevant provisions in both Constitutions substantially adopt the common law. In view of the concurrent findings there is no basis for a claim that the applicant’s rights under the 1990 Constitution were infringed.
    
33. There is nothing disclosed which calls for a review of this Court’s decision and the application is dismissed as an abuse of process.
    

Navau Lebobo

34. This is an application for the review of the Court’s decision on 23 Ju08 to refuse special leav leave. This Court confirmed the decision of the Court of Appeal that the applicant’s sentences were not affected by any error ofciple.
    
35. On 6 April 2004 he was sentenced to life imprisonment for murder, with a recommendation that he serve a minimum of 20 years, 13 years for rape, and 10 years for robbery with violence, to be served concurrently.
    
36. The applicant has lodged written submissions dated 30 July 2008 and 15 January 2009 in support of the present application. His submissions based on s12 (2) (a) of the Criminal Procedure Act are misconceived because, as this Court said in its earlier reasons: para [3] the section only applies to sentences imposed in the magistrates court and these were imposed by the High Court.
    
37. The essential basis for this Court’s decision to refuse special leave was that (para [6]) "the sentences involved no error in principle as the Court of Appeal has already determined".
    
38. The reasons of this Court of 23 July did contain a verbal slip. The Court referred in para [4] to the applicant’s submission that "the term of 13 years imprisonment recommended to be served for the murder offence was excessive". The recommendation was that he serve a minimum of 20 years on the sentence for murder, not 13 years, which was his fixed sentence for rape. It is unfortunate that the slip occurred. It does not entitle the applicant to any relief in his application.
    
39. When read in the context of the actual sentences imposed on the applicant the slip and the Court’s intention are both clear. There is no reason for concluding that the slip affected or could possibly have affected the result.
    
40. There is nothing which calls for a review of this Court’s decision and the application is dismissed as an abuse of process.
    

Paula Vura

41. The applicant was sentenced in the magistrate’s court to 9 years imprisonment for offences committed during and after a home invasion. His appeal o the High Court was dismissed by Shameem J on 15 October 2004. His further appeal to the Court of Appeal was dismissed as incompetent by Ward P on 19 December 2004 because it did not raise any arguable question of law. This Court refused special leave on 21 October 2005.
    
42. On 23 July 2008 this Court dismissed an application for review of its earlier decision. The applicant invoked the parity principle, but the disparities with the sentences of his co-offenders have arisen since the judgment of Shameem J. The existence of these disparities does not establish that her decision was affected by legal error.
    
43. All of this was explained in detail in the reasons given on 23 July 2008.
    
44. The Court suggested that the Commission on the Prerogative of Mercy established by the Constitution may be willing to review the applicant’s case.
    
45. The applicant now suggests that no such review will occur. However the absence of any remedy in the Commission in 2008 and 2009 cannot establish legal error on the part of Shameem J in her decision on 15 October 2004. There is nothing disclosed which calls for a review of this Court’s decisions, and the prisoner’s third application to this Court is dismissed as an abuse of process.
    

Hon Justice Kenneth Handley
Judge of the Supreme Court

Hon Justice David Ipp
Judge of the Supreme Court

Hon Justice Ronald Sackville
Judge of the Supreme Court

Solicitors:
Petitioners in Person
Office of the Director of Public Prosecution, Suva for the Respondents