Prasad v State [2011] FJSC 13; CAV0007.2009 (19 August 2011)

IN THE SUPREME COURT OF THE FIJI ISLANDS
AT SUVA

Review of Petition for Special Leave to Appeal Number
CAV0007 of 2009

BETWEEN:

SUKENDRA PRASAD
Petitioner

AND:

THE STATE
Respondent

In Court: 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

Petitioner in Person
Ms S. Puamau for the Respondent

Hearing: 30 March 2011
04 August 2011

Date of Judgment: 12 August 2011

JUDGMENT OF THE COURT

[1] On the 27th September 2010, this Court (differently constituted) refused special leave to the Petitioner to appeal out of time a decision of the then President of the Court of Appeal on 22nd February 2006. The petition then was 2 years and 6 months out of time.

[2] The Petitioner now seeks to review the decision of this Court to refuse him leave.

[3] This Petitioner had been charged with murder of his de facto wife in an information dated 25 November 2004. Represented by Counsel, he entered a plea of guilty to this count before Shameem J. on the 14th September 2005. The learned Judge asked him appropriate questions about the plea and whether he understood the consequences. He said he admitted the facts, understood what he did at the time and knew it was wrong. He was subsequently sentenced by Gates J. (as he then was) to the mandatory sentence of life imprisonment with no minimum term imposed.

[4] One of his grounds of appeal was that he was insane at the time of the killing. A medical report had been obtained before trial which concluded that the Petitioner was "delusional" not that he was insane or unfit to plead. In any event Shameem J. being alive to the issue, was careful enough to question him on his state of mind and his answers precluded the issue of insanity being a matter of concern.

[5] These facts are irrelevant to the present application to review but they do set out the background to the case.

[6] A review of our decisions is available to any Petitioner under section 8(5) of the Administration of Justice Decree 2009 but section 7(2) of that Decree limits the grant of special leave to cases where:

"(a) a question of general legal importance is involved;

(b) a substantial question of principle affecting the administration of criminal justice is involved; or

(c) substantial and grave injustice may otherwise occur."

[7] With these legislative limitations in place and having regard to our previous decisions on the question of review, we are firmly of the opinion that a section 8(5) review should never be a means of re-opening a case to rehearse submissions already decided upon.

[8] In the recent case of Tej Deo – CAV00017 of 2008 we said, after reviewing the relevant authorities, that we will not accede to any application for review that raises previously determined issues.

[9] In his submissions (by way of reply to the Respondent) the Petitioner incorrectly claims that he was certified insane, and therefore the High Court should have followed procedures dealing with the insane; in particular soliciting Presidential intervention to have him detained in an asylum. The medical report does not go so far as to certify him to be insane or even to be unfit to plead and this ground was adequately and appropriately dealt with by this Court in its original judgment.

[10] In his oral submissions before us on 4th August 2011, the petitioner was unable to be made to understand the nature of a review of our decision. He even went so far as asking us to allow his appeal and order a retrial.

[11] This Court's judgment in Timoci Silatolu – Cr. App. CAV0002 of 2006, examined in detail English and Commonwealth authorities on the power of appellate courts to re-open and review their orders. All of the cases we then looked at cautioned against re-opening the appeal, save in very exceptional circumstances.

[12] In no part of the present application has the Petitioner been even close to persuading us that he has raised a question of general legal importance, that principles affecting the administration of criminal justice are involved, or that substantial and grave injustice has been done. As a consequence the application to review is an abuse of process and it demonstrates a refusal by the Petitioner to accept finality of judgment legitimately made.

[13] The application is dismissed.

_____________________________

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:
Office of the Director of Public Prosecutions.