Namulo v State [2012] FJCA 23; AAU20.2010 (30 March 2012)

IN THE COURT OF APPEAL
ON APPEAL FROM THE HIGH COURT OF FIJI

CRIMINAL APPEAL NO. AAU 20 of 2010
(High Court Criminal Action HAC 9 of 2008)

BETWEEN:

PAULIASI NAMULO
Appellant

AND:

THE STATE
Respondent

Coram : Hon. Mr Justice Calanchini AP

Counsel: Appellant in person
Mr Bulamainaivalu for the Respondent

Date of Hearing : 20 March 2012
Date of Ruling : 30 March 2012

RULING

On 3 March 2009 the Appellant Pauliasi Namulo and seven other accused were convicted of one count of conspiracy to murder. On 5 March 2009 the Appellant was sentenced to a term of imprisonment of three years. On 23 April 2010 Byrne AP granted to the Appellant and the other seven applicants leave to appeal out of time

On 29 April 2010 the Appellant filed his Notice of Appeal against conviction and sentence.

By letter dated 12 March 2012 addressed to the Registrar the Appellant applied to withdraw his appeal. The application was listed before me sitting as a single judge of the Court. During the course of the hearing the Appellant informed the Court that he wanted to withdraw his appeal as he had recently been released.

The application is made pursuant to rule 39 of the Court of Appeal Rules. This rule states:

"An appellant, at any time after he has duly served notice of appeal may abandon his appeal by giving notice of abandonment thereof to the Registrar and upon such notice being given the appeal shall be deemed to have been dismissed by the Court of Appeal."

Under section 23 (1) of the Court of Appeal Act Cap 12 (the Act) the Court of Appeal shall on any appeal against conviction allow the appeal if it is satisfied as to certain matters "and in any other case shall dismiss the appeal."

Although Rule 39 refers to an appeal being deemed to be dismissed by the Court, it is apparent from section 23 (1) that the power to dismiss an appeal "in any other case" is vested in the Court of Appeal. As such the dismissal of an appeal cannot be ordered by a single judge of the Court except in the circumstances set out in section 35(2) of the Act.

After I had heard the Appellant and Counsel for the State I indicated that I was prepared to make the necessary orders. The Appellant requested that there be a written ruling to that effect.

As a result, after having considered the Act and the Rules, I am of the opinion that the application should be placed before the Court of Appeal at the next session to enable the Court to formally dismiss the appeal.

I therefore direct that the Appellant's application to abandon his appeal be listed before the Court at its next session commencing on 15 May 2012.

Order

1. The application by the Appellant to abandon his appeal is to be listed before the Court of Appeal at its next session commencing 15 May 2012.

.....................................................
HON. MR JUSTICE CALANCHINI AP