Rafiq v State [2015] FJCA 129; AAU0076.2010 (2 October 2015)

IN THE COURT OF APPEAL
[On Appeal from the High Court]

CRIMINAL APPEAL NO. AAU 0076 OF 2010
[High Court No. HAC 02 of 2014]

BETWEEN:

MOHAMMED RAFIQ
Appellant

AND:

THE STATE
Respondent

Coram : Calanchini P
Basnayake JA
Prematilaka JA

Counsel : Appellant in Person
Mr. S. Vodokisolomone for the Respondent

Date of Hearing : 21 September 2015
Date of Ruling : 02 October 2015

RULING

Calanchini P

[1] I agree that the application should be allowed and the appeal dismissed.

Basnayake JA
[2] I too agree that the application should be allowed and the appeal dismissed.

Prematilaka JA

[3] The Appellant along with Mr. Viliame Bitu was charged with conspiracy to murder under section 217 and attempted murder under sections 214 & 380 of the Penal Code of Anila Devi Singh d/o Karan Singh on 26 October 2009.

[4] On 25 August 2010 the Appellant and Mr. Viliame Bitu pleaded guilty to the charges against them and were convicted on their pleas by the High Court sitting at Labasa. Having given due consideration to the matter of sentence the High Court Judge on 02 September 2010 imposed 04 years imprisonment on the first count and 09 years imprisonment on the second count: both sentences to run concurrently.

[5] The Appellant and Mr. Viliame Bitu sought leave to appeal against the convictions and sentences and a single judge of the Court of Appeal refused leave to appeal against the sentences by its ruling dated 01 February 2013.

[6] The Appellant had then filed an application for leave to appeal against the refusal of leave to the full court of the Court of Appeal on 20 May 2014 and a Notice of Additional Grounds too had been tendered on 19.03.2015.

[7] However, by a letter dated 24 July 2015: not in the Form 3 in the Second Schedule, the Appellant had sought to abandon his appeal which was considered by this Court on 21 December 2015 under Rule 39 of the Court of Appeal Rules which states that:

"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."

[8] The Appellant was present in person and upon being questioned by the Court he stated that he wanted to withdraw the appeal as he has got less than a year to serve his sentence. He informed court that he had not sought or obtained legal advice. However, he said that he was withdrawing the appeal voluntarily and not due to any pressure brought upon him by any party. He said that he was aware that if the Court allows his application to withdraw the appeal it will be deemed to be a dismissal of the appeal by the Court of Appeal and he would not be entitled to prosecute the appeal once again before this Court.

[9] I am satisfied that the Appellant's application to abandon his appeal is deliberate, intentional, and unmistakable and a considered decision that had been taken on his own free will, being fully conscious of the consequences of the withdrawal.

[10] In the circumstances I allow the withdrawal of the appeal and the appeal should be deemed to have been dismissed by this Court.

Hon. Justice W. Calanchini
PRESIDENT, COURT OF APPEAL

Hon. Justice E. Basnayake
JUSTICE OF APPEAL

Hon. Justice C. Prematilaka
JUSTICE OF APPEAL