Morell v State [2015] FJCA 137; AAU125.2014 (2 October 2015)

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

CRIMINAL APPEAL NO. AAU 125 OF 2014
[Magistrate Court Crim.Case No. HAC 322 of 2014]

BETWEEN:

SAMUEL SOLOMON SIMPSON MORELL
Appellant

AND:

THE STATE
Respondent

Coram : Basnayake, JA
A.Fernando, JA
Prematilaka, JA

Counsel : Mr. M. Yunus for the Appellant
Mr. M. D. Korovou for the Respondent

Date of Hearing : 21 September 2015
Date of Judgment : 2 October 2015

JUDGMENT

Basnayake JA
[1] I agree that the application to abandon the appeal is allowed.

Fernando JA

[2] This was an application by the Appellant in Criminal appeal No. AAU 125 of 2004, for Abandonment of the Appeal filed against the sentence of 24 months with a non-parole period of 16 ½ months, imposed on him on his conviction by the Suva Magistrate's Court on the 10th of July 2014. The learned Magistrate had ordered that the Appellant's remand period of 1 ½ months shall be counted against the sentence and thus the Appellant was left to serve a period of 22 ½ months.

[3] The Appellant had been convicted on his own plea of guilt for aggravated robbery, and two charges of theft.

[4] The Appellant was represented by Mr. M. Yunus at the hearing of this application for abandonment of appeal and Mr. M. Korovou represented the State. The Appellant was questioned by Court in the presence of his Counsel. On being asked as to why he wants to abandon his appeal the Appellant stated that his prison term was to expire shortly and thus sees no reason to pursue the appeal. He informed Court that he was making this application out of his own free will and that no promise, threat or inducement has been made to him by anyone to abandon the appeal. He informed Court that he had given due consideration before he decided to make this application and discussed the matter with his Counsel.

[5] Court informed the Appellant of the consequences of abandoning his appeal by stating that once the Court makes a decision to allow the Appellant's application it will be a final decision of the Court and he will not be able to retract the abandonment and re-agitate the matter again. Court requested of his Counsel to explain this again to the Appellant and the Appellant informed Court that he was certain about his decision.

[6] I am satisfied that the Appellant's decision to abandon his appeal has been made by him out of his own free will and with a proper understanding of the consequences of such abandonment. I also find that has given a valid reason for the abandonment of his appeal. I therefore allow the application for abandonment of appeal and dismiss the appeal.

Prematilaka JA
[7] I also agree that the application to abandon the appeal is allowed.

The Orders of the Court are:

1. Application to abandon the appeal is allowed.
2. The Appeal is dismissed
   

Hon. Justice E. Basnayake
JUSTICE OF APPEAL

Hon. Justice A. Fernando
JUSTICE OF APPEAL

Hon. Justice C. Prematilaka
JUSTICE OF APPEAL