Matairavula v State [2013] FJCA 13; AAU0032.2010 (15 February 2013)

IN THE COURT OF APPEAL, FIJI ISLANDS
APPELLATE JURISDICTION

CRIMINAL APPEAL NO: AAU0032 of 2010

BETWEEN:

PENI MATAIRAVULA
Appellant

AND:

THE STATE
Respondent

CRIMINAL APPEAL NO: AAU0124 of 2011

BETWEEN:

DALIP CHAND
Appellant

AND:

THE STATE
Respondent

CRIMINAL APPEAL NO. AAU0029 of 2011

BETWEEN:

RAJNESH PRATAP SINGH
Appellant

AND:

THE STATE
Respondent

Coram: Goundar JA
Basnayake JA

Hearing: 14th February 2013
Counsel: No appearance by 1st Appellant
Mr. M. Raza for 2nd Appellant
Mr. G. Driscoll (on instructions from Mr. I. Khan) for 3rd Appellant
Mr. M. Korovou, Ms N. Tikoisuva & Ms M. Fong for State

Date of Judgment: 15th February 2013

JUDGMENT

GOUNDAR JA:

[1] These three appellants have applied in writing for abandonment of their appeals. Their applications have been referred to the Full Court by single justices of appeal. The procedure for abandonment of criminal appeals is governed by Rule 39 of the Court of Appeal Rules. Rule 39 states:

An appellant, at any time after he has duly served notice of appeal or for application for leave to appeal, or of application for extension of time within which, under the Act, such notices shall be given, may abandon his appeal by giving notice of abandonment thereof in the form 3 in the Second Schedule to the Registrar, and upon such notice being given the appeal shall be deemed to have been dismissed by the Court of Appeal.

[3] For an appeal to be abandoned under Rule 39, the first requirement is that the appeal has to exist. In these cases, Notices of Appeal have been duly filed under the Court of Appeal Act either in person or through counsel. The second requirement under Rule 39 is for the appellants to give a notice of abandonment (Form 3) to the Registrar.

[3] Form 3 reads:

NOTICE OF ABANDONMENT OF APPEAL

To: The Registrar of the Court of Appeal.

I, .......................................having been convicted by the Supreme Court of Fiji on the .........................day of ..............................., 19..............., of the offence of ................and having been desirous of appealing and having duly sent notice of that appeal to the Court of Appeal against my said conviction (or sentence of passed upon me on my said conviction) do hereby give you notice that I do not intend to prosecute my appeal but that I hereby abandon all further proceedings in regard thereto as from the date hereof.

Dated this .....................day of ...........................19........

Appellant or his Barrister and Solicitor.

[4] No doubt Form 3 is outdated and should be revised. The Form appears to restrict abandonment to those appeals arising from conviction by the Supreme Court (now the High Court). However, Rule 39 contains so such restriction. Appeals against judgments by the High Court in its appellate jurisdiction are covered by Rule 39.

[5] Upon receipt of Form 3 by the registrar, the appeal is deemed to have been dismissed by the Court of Appeal. According to section 23(1) of the Court of Appeal Act the power to dismiss an appeal lies with the Full Court.

[6] In Pauliasi Namulo v the State Criminal Appeal No. AAU 20 of 2010 (30 March 2012), Calanchini AP, considered the effect of abandonment under Rule 39 and concluded:

"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."

[7] In Kelepi Serukalou v the State Criminal Appeal No.AAU 61/2011, the Full Court considered the approach to abandonment of appeals and adopted the guidleines laid down by the Supreme Court in Jone Masirewa v the State Criminal Appeal No. CAV0014 of 2008S.

[8] In Masirewa, the Supreme Court stated at paragraph 11:

Where written or oral applications are made by an unrepresented petitioner seeking leave to withdraw an appeal, appellate courts should proceed with caution. It would be prudent for instance to ask the petitioner, on the day the matter is listed for hearing, why the petition was to be withdrawn, whether any pressure had been brought to bear on the petitioner to do so, and whether the decision to abandon had been considered beforehand. This inquiry should be made of the petitioner personally and recorded even in cases where the petitioner is represented. The purpose of the inquiry is to establish that the decision to withdraw has been made deliberately, intentionally and without mistake.

[9] Rule 18 of the Supreme Court Rules 1998 governs the procedure for withdrawal of appeals in the Supreme Court. Rule 18 provides:

Withdrawal of appeal

(1) If an appellant who has lodged a notice of appeal or petition desires to withdraw the appeal or petition, the appellant or petitioner, as the case may be, must give notice to that effect to the registrar and to any respondent upon whom a copy of the notice of appeal or, petition has been served in accordance with those Rules.

(2) Subject to any agreement to the contrary between the appellant or petitioner and the respondent, the respondent is entitled to apply for costs to the Court by motion supported by affidavit.

[10] Under Rule 18, like Rule 39, there is a requirement for a petitioner to give notice to the registrar and to the respondent if the petition was duly served on him or her. No particular form is prescribed for the notice. But if the registrar is to be notified then obviously the notice has to be in writing. Rule 18 is silent has to the effect of the notice on the appeal. There is a residual jurisdiction, if a notice of withdrawal is given under Rule 18(1), to award costs to the respondent who has applied pursuant to Rule 18(2).

[11] Having said that; this Court is not concerned about the procedure under Rule 18 of the Supreme Court Rules. This Court is concerned about the procedure applicable to abandonment of appeals as provided by Rule 39 of the Court of Appeal Rules.

[12] Rule 39 is identical to Rule 23 of the English Criminal Appeal Rules 1908. The procedure under Rule 23 has been subject of discussion by the English Court of Appeal in a number of cases, which I find to be persuasive.

[13] In Regina v Moore [1957] 1 WLR 841, the appellant applied for leave to withdraw his notice of abandonment given under Rule 23. Lord Goddard CJ who wrote the judgment for the court said at p. 842:

There have been from quite early days in the history of the court, applications for leave to withdraw a notice of abandonment, and it is exceedingly difficult to understand what power the court has to give leave to withdraw a notice of abandonment, considering that by the rules, which have the force of a statute, the appeal has been dismissed. An examination of the cases has shown that, except in one case at any rate, the court has only allowed notice of abandonment to be withdrawn if they are satisfied that there has been some mistake. No doubt if a case could be made out that an appellant had in some way or another been fraudulently led or induced to abandon his appeal, the court in the exercise of its inherent jurisdiction would say that the notice was to be regarded as a nullity; but where there has been a deliberate abandonment of an appeal, in the opinion of the court there is no power or right to allow the notice of abandonment to be withdrawn and the appeal reinstated, because the appeal having been dismissed the court has exercised its powers over the matter and is functus officio. Accordingly, the court is not going to entertain applications for the withdrawal of notices of abandonment unless something amounting to mistake or fraud is alleged, which, if established, would enable the court to say that the notice of abandonment should be regarded as a nullity.

[14] A useful summary of cases where the English Court of Appeal has allowed withdrawal of notice of abandonment is provided by Taylor on Appeals (2000) at pp 262-263:

[15] In Keating [1982] Crim. L.R.228, the initial application for leave had been abandoned after the applicant was advised by counsel that he was jeopardising his chances of parole by pursuing an appeal. Whilst the abandonment was deliberate, it was based on bad advice and the decision was thus uninformed.

[16] In Read (Unreported) January 25, 1990, there was a delay in obtaining the transcript from the shorthand writers and the applicant abandoned his application to the single judge on the mistaken belief that it would affect his parole. The Court stressed that this was an exceptional case.

[17] In Morley The Times, January 25, 1990, erroneous advice was given to the appellant by a prison officer to the effect that even though the appellant had been granted leave to appeal, he still risked losing credit for time served. But also see, Wright (94/5709/W5) October 23, 1995 where the Court refused to treat as a nullity an abandonment made after a single judge's refusal of leave on grounds that he has been told by counsel that he had no grounds of appeal and was wrongly told by a prison officer that he might get an increased sentence. The fact that there was no evidence in support of these matters may have affected this decision.

[18] In Mohammed (95/4384/Y5) March 4, 1996, the applicant lodged a notice of abandonment before he was notified that he had been granted leave to appeal against sentence. He was a Somali national with limited English and no experience of the English legal system. A fellow inmate told him that if he pursued the application his sentence would be likely to be increased. Ignorance of a material fact, namely that he was a successful applicant at the time of his notice, constituted a mistake or mistake or misapprehension sufficient to demonstrate that when he had abandoned his "mind had not gone with his pen".

[19] In Noble (1971) 55 Cr. App. R. 529, the Court stated that ignorance of a material fact may constitute a sufficient mistake or misapprehension to treat the abandonment as a nullity. In this case a postal strike delayed receipt of the notification that leave to appeal had been granted until after the appeal had been abandoned.

[20] In Barnett (1967) Unreported but cited in Medway at p. 93, the application was based upon an improvement, since abandonment, in the applicant's mental and physical condition. The Court stated that "In the very exceptional circumstances of this case this Court thinks it would be fair to treat the notice of abandonment as a nullity, it having been given for the medical reasons clearly set out (which this Court accepts) in the solicitors' letter, and in the changed circumstances which now prevail the Court gives the applicant quite exceptional indulgence, and we grant him leave to withdraw his notice of abandonment."

[21] In La Plante (Unreported) May 19m 1972, CA counsel's advice to renew the application was received at the wrong prison after notice of abandonment sent.

[22] It is also clear from these cases that the English Court of Appeal required the appellants to seek leave of the Court to abandon appeals, a requirement that was not expressly prescribed by Rule 23.

[23] In De Courcy (1964) 48 Cr.App.R323 Sachs J said at p.328:

Here it is apposite to note that an appeal once opened cannot be abandoned in the sense that that word is used in the above Rule. This point was recently decided by this court, when presided over by the Lord Chief Justice, in TOOL, (unrep.) October 23, 1961 – to which reference is made in the Sixth Cumulative Supplement to Archbold (35th ed.) at para. 909. That case related to an appeal against sentence, but the same principle applies to all appeals under the Act of 1907. It is to be noted that any other interpretation of that Rule would result in an appellant being able to make the court a platform for opening a number of criticisms of the trial judge, of counsel, of the jury, of the procedure or any other subject, and then, when those criticisms had been widely publicised, to say to the court as of right that he abandoned the appeal and preferred to leave those publicised charges unresolved. That is not an interpretation which could have been intended and it is not one which this court considers can be adopted.

[24] In John Spicer (1988) 87 Cr.App.R. Staughton J said at p.299:

It is apparent from the case of de Courcy (1964) 48 Cr. App. R. 323, that once an application for leave to appeal has been made it cannot be abandoned without the leave of the Court. No doubt that is very desirable in order to prevent mischievous applications.

[25] In Masirewa, the Supreme Court expressed similar concerns regarding the appellate procedures being abused by the litigants, although the case concerned an unrepresented petitioner. Unrepresented appellants in criminal appeals pose many challenges. Most appellants appeal while being incarcerated in prison. They do not have access to prescribed forms and rules for filing appeals. Some of them draft their grounds of appeal with some assistance from fellow inmates and without any legal advice. Their documents are sanctioned by the Department of Corrections before filing at the registry. Delay occurs in forwarding the documents to the registry. Due to these challenges the appellate courts have expressed some flexibility regarding compliance with the rules when the appellants are incarcerated and unrepresented. Once the appeal has been filed at the registry, due process must take its course and the unrepresented appellant should be heard. If an unrepresented appellant wishes to withdraw his appeal, then the court must ensure that not only his decision is an informed decision but he is freely and voluntarily making the decision to withdraw.

[26] It must be borne in mind that Masirewa guidelines equally apply to the appellants who are represented by counsel. The guidelines are not only to protect the administration of the appellate process from misuse but also the legal practitioners against attacks on their integrity by their clients. Appellate courts will require compelling grounds to reinstate appeals where appellants blame their lawyers for their predicaments.

[27] On these principles, this Court proceeded to hear the three appellants on their notices to abandon their appeals.

[28] Matairavula filed his appeal in person on 4 June 2010. His appeal is against a judgment of the High Court in its original jurisdiction refusing stay of a criminal prosecution in the Magistrates' Court. The High Court judge found the stay application to be frivolous and accordingly refused it. There is an issue regarding whether Matairavula has a further right of appeal to this Court when his substantive case was pending in the Magistrates' Court. On 26 April 2012, the appellant appeared with his counsel from Legal Aid Commission and informed the court of his desire to abandon his appeal. Apparently, Matairavula was later sentenced to a term of imprisonment in the Magistrates' Court. He has served his sentence and was released from prison last year. The registry is unaware of his residential address. Further, Matairavula has not made any contact with the registry after his release from prison. In these circumstances, it would not be unjust to allow his application for abandonment in his absence.

[29] Singh and Chand filed their appeals through their respective counsel.

[30] Singh timely filed his Notice of Appeal on 6 April 2011. His appeal is against conviction and sentence for fraud related offences, pronounced by the High Court at Suva. On 19 November 2012, Singh was refused leave to appeal on all grounds except one by Madigan JA.

[31] Chand timely filed his Notice of Appeal on 23 December 2011. His appeal is from a judgment of the High Court in its appellate jurisdiction. Section 22 of the Court of Appeal Act confines the appeals from High Court in its appellate jurisdiction on any ground of appeal which involves a question of law only. There is no requirement for him to seek leave under section 22 of the Court of Appeal Act.

[32] Singh and Mr Raza on behalf of his client informed the Court that their decisions to abandon their appeals were freely and voluntarily made without pressure, promise or mistake. They have further told the Court that they understood the consequences of abandoning their appeals.

[33] In these circumstances, I grant the appellants leave to abandon their appeals. The appeals are dismissed.

BASNAYAKE JA: I concur.

Result

Leave is granted to the appellants to abandon their appeals.
Appeals dismissed.

.......................................
Justice Daniel Goundar
Judge of Appeal

.......................................
Justice Eric Basnayake
Judge of Appeal

Solicitors:
Iqbal Khan & Associates for 2nd Appellant
Mehboob Raza & Associates for 3rd Appellant
Office of Director of Public Prosecution for State