Chand v State [2013] FJCA 28; AAU61.2010 (12 March 2013)

IN THE COURT OF APPEAL
On appeal from the High Court

CRIMINAL APPEAL AAU 61 of 2010
(High Court HAC 18 of 2010)

BETWEEN:

ASHWIN CHAND
Appellant

AND:

THE STATE
Respondent

Coram : Calanchini AP
Chandra JA

Counsel : Appellant in person.
Mr M Korovou for the Respondent.

Date of Hearing : 14 February 2013
Date of Ruling : 12 March 2013

RULING

[1]. When the Appellant's application for leave to appeal the decision of the High Court exercising its appellate jurisdiction came before a single Judge of the Court on 11 October 2012, the learned Judge was informed by the Appellant that he wanted to withdraw his appeals. By notice dated and filed on 1 March 2013 the Appellant confirmed his application.

[2]. As a result the application was transmitted to the Court of Appeal for its consideration pursuant to Rule 39 of the Court of Appeal Rules (the Rules).

[3]. Pursuant to the authority given under section 6(2) of the Court of Appeal Act Cap 12 the application was listed before two judges as a duly constituted Court for the hearing of the application.

[4]. The Appellant was convicted in the Magistrates Court on 14 May 2010 on one count of theft and sentenced to a term of imprisonment of 3 years. On appeal to the High Court against conviction and sentence, the appeal against conviction was dismissed. The appeal against sentence was allowed and the sentence varied to 30 months imprisonment with a non-parole term of 2 years.

[5]. When the application was called before the Court of Appeal the Appellant confirmed that he was applying to withdraw his appeal against conviction and sentence. The procedure to be followed by the Court in the present application was outlined by the Supreme Court in Jone Masirewa –v- The State (unreported criminal appeal CAV 14 of 2008 delivered 17 August 2010) 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be prudent for instance to ask the (appellant), on the day the matter is listed for hearing, why the (appeal) was to be withdrawn, whether any pressure had been brought to bear on the (appellant) to do so, and whether the decision to abandon had been considered beforehand.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. Ideally, the decision should be informed also."

[6]. Under Rule 39 the Court of Appeal is empowered to order that an appeal should be deemed dismissed presumably, upon it granting an application by an appellant to abandon or withdraw his appeal. In my view the fact that it is the Court of Appeal that deems the appeal to be dismissed indicates that the procedure is more than a routine administrative task capable of being performed by the Registry. The effect of the words used in Rule 39 when considered with the decision of the Supreme Court in Masirewa –v- The State (supra) is that the application must be placed before the Court of Appeal. The Court of Appeal is required to hear the application in accordance with the procedure set out by the Supreme Court. In the event that the Court of Appeal is satisfied that the Appellant's application is bona fide, voluntary and informed, the Court will grant the application and the appeal will then be dismissed by the Court of Appeal.

[7]. The Appellant informed the Court that the reason for wanting to withdraw the appeals was because he had now served the sentence imposed. Although still in custody, he is serving a sentence for unrelated matters. As for these appeals, he said he understood the consequences of his application based on legal advice received. He stated that his decision to withdraw both appeals had been made voluntarily and without any pressure or coercion.

[8]. As a result the application is granted and the appeals against conviction and sentence to this Court are dismissed.

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Hon. Justice W. D. Calanchini
Acting President

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Hon. Justice S. Chandra
Justice of Appeal