Kaverevere v State [2013] FJCA 96; AAU106.2010 Kaverevere v State (3 October 2013)

IN THE COURT OF APPEAL
On appeal from the High Court

CRIMINAL APPEAL AAU 106 of 2010
(High Court HAC 155 of 2010)

BETWEEN:

NEMANI KAVEREVERE
Appellant

AND:

THE STATE
Respondent

Coram : Chandra JA
Kumararatnam JA
Bandara JA

Counsel : Appellant in person.
Mr. L. Fotofili for the Respondent.

Date of Hearing : 20 September 2013
Date of Judgment : 3 October 2013

JUDGMENT

[1]. When the Appellant's application for leave to appeal against sentence came before a single Judge of the Court on 4 April 2013, the learned Judge was informed by the Appellant that he wanted to withdraw his appeal. The Appellant expressed his intention to abandon his appeal by letter dated 3 May 2013.

[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 three judges as a duly constituted Court for the hearing of the application.

[4]. The Appellant had been convicted and sentenced to a period of 14 years with a non parole period of 11 years on three counts of rape by the High Court.

[5]. When the application was called before the Court of Appeal the Appellant confirmed that he was applying to withdraw his appeal. 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be prudent for instance to ask the (appellant), on the day the matter is listed for hearing, why the (appeal) was to be withdrawn, whether any pressure had been brought to bear on the (appellant) to do so, and whether the decision to abandon had been considered beforehand.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 be deemed to have been dismissed by the Court of Appeal.

[7]. The Appellant informed the Court that he wanted to withdraw his appeal. He confirmed that his decision was voluntary and had been made without coercion or pressure. He indicated that he understood the consequences of his decision.

[8]. As a result the Court is satisfied that the application made by the Appellant has been made voluntarily, in good faith and with full knowledge of its consequences. The application is granted and the appeal is dismissed.

Hon. Justice S. Chandra
Justice of Appeal

Hon. Justice P. Kumararatnam
Justice of Appeal

Hon. Justice J. Bandara
Justice of Appeal