Masirewa v State [2010] FJSC 5; CAV0014.2008S (17 August 2010)

IN THE SUPREME COURT OF THE FIJI ISLANDS
AT SUVA

CRIMINAL APPEAL NO. CAV0014 OF 2008S
(Court of Appeal No. AAU0086 of 05)

BETWEEN:

JONE MASIREWA
Petitioner

AND:

THE STATE
Respondent

Coram: The Hon Chief Justice Anthony Gates, President
The Hon Mr Justice William Marshall, Justice of the Supreme Court
The Hon Mr Justice Daniel Goundar, Justice of the Supreme Court

Counsel: Petitioner in Person
Mr Aca Rayawa, Director of Public Prosecutions
and Ms N. Tikoisuva for the Respondent

Hearing: Tuesday 3rd August 2010
Date of Judgment: Tuesday 17th August 2010, Suva

JUDGMENT OF THE COURT

[1] This is an appeal by way of a Petition for Special Leave to the Supreme Court from a decision of the then Hon. President of the Court of Appeal Mr Justice Gordon Ward made on 13th March 2006, in which he refused leave to appeal against sentence. Ward P dismissed the application pursuant to section 35(2) of the Court of Appeal Act Cap 12 Ed. 1978 as amended by the Court of Appeal (Amendment) Act 1998 finding the petitioner's appeal was bound to fail because in the circumstances before him there was no right of appeal against sentence.

[2] Ward P's finding was on the basis that the sentence was not either unlawful or one that had been passed in consequence of an error of law. On 28th June 2005 the petitioner had pleaded guilty before a Resident Magistrate at Lautoka to a series of offences, including burglary, larceny from dwelling house, school breaking, shop breaking and house breaking and been sentenced to 7 years imprisonment in total with a minimum term fixed of 6 years.

[3] The petitioner filed his petition to this court on 16th March 2008, outside of the 42 day period permitted for bringing an appeal. His petition was 1 year 10½ months late. The case was therefore listed as an application for enlargement of time within which to appeal.

[4] However on 28th July 2010 the Registry received a letter from the applicant which stated that it was his "uttermost desire to withdraw" his application for leave to appeal against sentence. He further wrote that he did not wish to pursue the matter any further.

[5] At the listed hearing on 3rd August 2010 the petitioner appeared before us in person. He informed the court he had applied for Legal Aid which had been rejected. No-one had pressured him, he said, to withdraw. He repeated he did not wish to go ahead with the appeal or with the application to enlarge time. It appeared he was due for release from prison within less than a year.

[6] The court noted that the application to withdraw was clearly voluntary, considered and maintained. The court therefore ordered that leave was to be given for the application and the petition to be withdrawn.

[7] Before parting with this matter the court considers it appropriate to make some brief observations on the procedure for withdrawal of appeals. It is clearly desirable that all litigation reaches finality. Unless there is provision for statutory referral, such as in England with the Attorney-General's reference, an appellant's or petitioner's appeal against conviction and sentence should normally proceed and be heard together.

[8] Petitioners who are not represented before the court, sometimes write to the court after the filing of their petitions, as here, seeking to abandon or withdraw their appeals. Some petitioners act through solicitors, and in these cases appellate courts have treated such letters or notices of abandonment as informed and as demonstrating a true intention not to pursue the appeal. In such cases, an appellate court has not permitted later, following a change of heart, a withdrawal of such abandonment, nor found a jurisdiction for so doing: R v Myha Grant [2005] EWCA Crim 2018; 149 SJ 1186; R v Medway [1976] QB779.

[9] Appellate courts will ensure as far as possible that their procedures are not abused and be on guard to avoid "mischievous applications" John Spicer (1988) 87 Cr. App. R 297 at 299. Once an appeal is orally entered upon, it cannot as of right be abandoned: R v de Courcy (1964) 48 Cr. App R. 323. However leave may be given to abandon parts of an appeal.

[10] The matter had been extensively considered in Medway. Only in cases where the proceedings are to be treated as a nullity could the court consider allowing the retraction of an abandonment. There exists no inherent jurisdiction to grant leave to withdraw a notice of abandonment on the ground of special circumstances. Withdrawal could only be permitted in cases where there was some misapprehension or mistake of fact: Rex v Van Dyn (1932) 23 Cr. App. R 150.

[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. Ideally, the decision should be informed also. That aspect is not always an easy matter to achieve in a jurisdiction such as Fiji with limited access to appellate advice, and occasionally if rarely, will give rise to difficulty.

[12] A prima facie view of the appeal papers in this matter would indicate that there existed very little likelihood of the petitioner being granted leave to appeal out of time or of meeting the necessary thresholds for the grant of special leave to appeal.

The Hon Chief Justice Anthony Gates
President

The Hon Mr Justice William Marshall
Justice of the Supreme Court

The Hon Mr Justice Daniel Goundar
Justice of the Supreme Court