Deo v State [2011] FJSC 1; CAV0017.2008 (8 April 2011)

IN THE SUPREME COURT OF THE FIJI ISLANDS
AT SUVA

CIVIL APPEAL NO. CAV0017 of 2008
(Fiji Court of Appeal No. AAU0045 of 2006)

BETWEEN:

TEJ DEO
Applicant

AND:

THE STATE
Respondent

Coram: The Hon. Justice Saleem Marsoof, Judge of the Supreme Court
The Hon. Justice Sathyaa Hettige, Judge of the Supreme Court
The Hon. Justice Paul K. Madigan, Judge of the Supreme Court

Hearing: Wednesday, 30th March 2011, Suva

Counsel: Ms B. Malimali (instructed by Mr. A. J. Singh) for the Appellant
Mr. P. Bulamainaivalu for the Respondent

Date of Judgment: Friday 8th April 2011, Suva

JUDGMENT OF THE COURT

[1] The applicant herein makes application pursuant to section 8(5) of the Administration of Justice Decree 2009 to review our decision made on 18 October 2010 to refuse him special leave to appeal his conviction for murder.

[2] Section 8(5) repeats an earlier provision under section 122(5) of the Constitution (Amendment) Act 1997 which was abrogated on 9 April 2009. It reads:

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

[3] This Court (differently constituted) said in Timoci Silatolu and Others v.The State (Crim. App. No. CAV0002 of 2006) "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" (emphasis added). We came to that conclusion after examining many judgments from the Privy Council, the House of Lords and the High Court of Australia. What represents truly exceptional circumstances is of course not able to be defined but would include the discovery of matters proving the occurrence of a substantial miscarriage of justice and proof to the Court that it had previously acted under a misapprehension of the facts or the relevant law.

[4] In setting such a high bar for an applicant to negotiate, the Court was and remains anxious to prevent abuse of process by hearing unwarranted and vexatious applications for review.

[5] This applicant was found guilty in the High Court by a panel of assessors presided over by Mr. Justice Gates (as he then was) of murder of his mother and was sentenced to the mandatory term of life imprisonment. The defence raised at trial was one of accident, which was obviously rejected by the assessors.

[6] An appeal against conviction was made to the Fiji Court of Appeal on the grounds that –

(i) The learned trial Judge failed to direct the assessors on the offence of intoxication.

(ii) The learned trial Judge failed to direct the assessors on the defence of accident.

(iii) The learned trial judge failed to direct the assessors on a not guilty verdict.

[7] The Court of Appeal after addressing these grounds dismissed the appeal.

[8] The applicant applied to this Court for leave to appeal that dismissal. In reviewing the grounds of the then application (relating solely to intoxication and intent) this Court refused to grant leave to appeal. We said then that the Court of Appeal had "correctly explained the applicable legal principles then examined in detail all the evidence relating to intoxication that had been adduced in the trial".

[9] In the present application for us to review that decision, the applicant relentlessly pursues his ground of intoxication and the lack of intent and the fact that that was not left to the assessors to consider.

[10] Counsel appearing for the applicant herein, allows that the analysis of the law relating to intoxication was comprehensively and fairly dealt with by the Court of Appeal, but that that analysis led to a conclusion that did not please the applicant.

[11] In conclusion, we can do no more than to remind future applicants under section 8(5) that since our judgment in Silatolu (supra), followed in 2006 by Eliki Mototabua v. The State (CAV 006 of 2006), we will not accede to any application for review that raises previously determined issues.

[12] As we have said on many occasions, we do not sit to hear vexatious and abusive applications. The "wrongs" complained of have already been addressed and this application is summarily dismissed as an abuse of process.

Hon. Justice Saleem Marsoof
Judge of the Supreme Court

Hon. Justice Sathyaa Hettige
Judge of the Supreme Court

Hon. Justice Paul K. Madigan
Judge of the Supreme Court

Solicitors:

Anil J. Singh Lawyers, Nadi for the Petitioner/Applicant
Office of the Director of Public Prosecutions