Roqica v State [2015] FJSC 18; CAV0010.2014 (20 August 2015)

IN THE SUPREME COURT OF FIJI
APPELLATE CRIMINAL JURISDICTION

Criminal Petition No. CAV 0010 Of 2014
(On appeal from Court of Appeal No. AAU 0034 of 2012)

BETWEEN:

KELEPI ROQICA
Petitioner

AND:

THE STATE
Respondent

CORAM : Hon. Justice Saleem Marsoof, Judge of the Supreme Court
Hon. Madam Justice Chandra Ekanayake, Judge of the Supreme Court
Hon. Justice William Calanchini, Judge of the Supreme Court

COUNSEL : Mr. M. Yunus for the Petitioner
Mr. L. J. Burney for the Respondent

Date of Hearing : 5 August 2015
Date of Judgment : 20 August 2015

JUDGMENT OF THE COURT

Justice Saleem Marsoof

I have perused the judgment of Justice Ekanayake in draft and agree with her reasoning, conclusions and proposed orders.

Justice William Calanchini

I also have read the draft judgment of Justice Ekanayake and agree with her proposed orders.

Justice Chandra Ekanayake

1. The petitioner, Kelepi Roqica, by his undated document has sought special leave to appeal from this Court against the ruling made by the single Judge of Appeal dated 14th April 2014, in which he dismissed the appeal pursuant to Section 35(2) of the Court of Appeal Act.
   
2. The dismissal by the Court of Appeal appears to be based on the following findings:-
   
   • (a) That the individual terms of imprisonment imposed for the two counts namely – Robbery with violence and unlawful use of motor vehicles were lawful;
     
   • (b) The Magistrate and the Learned High Court Judge had the jurisdiction to impose those sentences and those are within the maximum prescribed by the Penal Code;
     
   • (c) As such he was satisfied that sentences were not passed in consequence of an error of law and thus the appeal was bound to fail as there was no right of appeal.
     
3. The petitioner was charged for one count of robbery with violence and one count of unlawful use of motor vehicle contrary to Section 293 (b) and Section 29 of the Penal Code respectively. The Petitioner having pleaded guilty to both charges before the Magistrate on 20 January 2010 was convicted accordingly. By the sentencing order of the Magistrate dated 8 February 2011, a term of 7 years imprisonment was imposed for the 1st count and a term of 12 months imprisonment was imposed for the second count to be served concurrent to count number one with a non-parole period of 6 years.
   
4. It would be pertinent to note that the learned Magistrate, having duly considered the petitioner's submissions in mitigation, had fixed the starting point for Robbery with violence as 10 years and had added 5 years for the aggravating factors which were outlined in that order. Thereafter a reduction of 5 years was made having taken into account the early guilty plea and further 3 years for the mitigating factors.
   
5. The petitioner's appeal filed in the High Court of Fiji (against sentence only) was dismissed on 28 February 2012 with a variation namely – quashing the 12 months imprisonment given for the 2nd count and imposing a sentence of 3 months for that count concurrent to the 7 years imprisonment on Count No. 1, as the maximum available for that offence was 6 months imprisonment leaving the total head sentence and the non-parole period to remain the same.
   
6. Being aggrieved by the learned High Court Judge's decision the petitioner filed a Notice of Appeal on 6/5/2012. This notice was a notice filed outside the prescribed time as set out in Section 26(1) of the Court of Appeal Act (as amended), and had to be filed within 30 days of the impugned decision to wit - 28 February 2012. The learned Justice of the Court of Appeal, in his judgment dated 14 April 2014 whilst remarking that no reasons were given for the delay had proceeded to consider the grounds of appeal urged by the petitioner. He had concluded that he was satisfied that the sentences were not passed in consequence of an error of law and the appeal is bound to fail because there is no right of appeal. The appeal was dismissed under Section 35(2) of the Court of Appeal Act.
   
7. The aforesaid judgment of the Court of Appeal was assailed in this Court by petitioner's undated application for special leave to appeal on the grounds of appeal enumerated under Paragraph 9 of the said document. In the absence of the date stamp of the registry on the above document or any other material the date of receipt cannot be ascertained. Thus no inference could be drawn as to whether it is a timely application or not.
   
8. However a notice of abandonment of petition for special leave to appeal dated 16 July 2014, addressed to the Registrar of this Court had been received by the registry and same is filed on record. But no material is available to ascertain the date of receipt of the same. For ease of reference the said notice is reproduced below:-
   

"To : The Registrar of the Supreme Court of Fiji.

I, KELEPI ROQICA having been convicted by the Magistrates' Court of Fiji, Suva on the 8th day of February, 2011 of the offences of robbery with violence contrary to Section 293 (1) (b) of the Penal Code, and unlawful use of motor vehicle contrary to Section 292 of the Penal Code having been desirous of petitioning and having duly sent petition of that appeal to the Supreme Court of Fiji against my said conviction and sentence do hereby give you notice that I do not intend to prosecute my appeal but that I hereby abandon all further proceedings in regard thereto as from the date hereof.

Dated this 16th day of July, 2014.

Signed.

Kelepi Roqica

(The Petitioner)"

9. It would be pertinent to note that Rule 18 of the Supreme Court Rules 1998 governs the procedure for withdrawal of appeals in the Supreme Court. Rule 18 thus reads as follows:-
   

'Withdrawal of Appeal'

18. – (1) If an appellant who has lodged a notice of appeal or petition desires to withdraw the appeal or petition, the appellant or petitioner, as the case may be, must give notice to that effect to the registrar and to any respondent upon whom a copy of the notice or appeal or, petition has been served in accordance with those Rules.

(2) Subject to any agreement to the contrary between the appellant or petitioner and the respondent, the respondent is entitled to apply for costs to the Court by motion supported by affidavit.

10. In the case in hand at the listed hearing on 5/8/2015, the petitioner was present before Court and represented by counsel also. The notice of abandonment having being served on the respondent, the respondent too was represented. Although the petitioner was represented the Court proceeded to verify from the petitioner personally the reason for withdrawal and also whether the decision to abandon was considered by him before hand. His clear response was as he does not intend to prosecute his appeal any further he abandons all further proceedings with regard to his appeal. In our view this would suffice to establish that the decision to abandon has been made by the petitioner deliberately, intentionally and without any mistake.
    
11. It is needless to stress that the purpose of an inquiry of this nature is to ascertain:-
    
    1. Why was it to be withdrawn,
    2. Was any pressure brought to bear on him, and
    100. The decision to abandon had been considered beforehand.
         
12. It is appropriate to note from the answers given to court by the petitioner, that there is nothing to imply that his abandonment was occasioned due to any pressure being brought to bear on him to do so. Further it could be safely inferred from his response that the decision to abandon had been considered before hand and it was a decision taken at his own free will.
    
13. The guidelines formulated by Gates, P in Jone Masirewa v The State; Criminal Appeal No. CAV 0014 of 2008S would lend assistance to the case at hand. At Paragraph 11 of this case it states:
    

"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."

14. Further we are of the view that guidelines formulated in the aforecited 'Masirewa' case will equally apply to the appellants represented by counsel as well.
    
15. For the foregoing reasons we are satisfied that the decision of the petitioner to abandon the appeal has been deliberate, intentional and without mistake. The application for abandonment of the appeal is therefore allowed and the appeal is hereby dismissed.
    

16. The provisions dealing with costs in regard to abandonment applications are embodied in Rule 18 (2) of the Supreme Court Rules 1998. In terms of the said Rule – 18(2) subject to any agreement to the contrary between the parties, the respondent is entitled to apply for costs by motion supported by affidavit to Court. In this case the respondent has not made such application to court. Even at the hearing respondent's counsel refrained from moving for costs and / or making any submissions in that regard. Having given due consideration to the facts and circumstances of this case, we are of the view that no grounds exist enabling us to grant costs to the respondent.

The Orders of the Court:

1. The petitioner's application to withdraw the appeal is allowed.
2. The appeal is dismissed without costs.
3. The sentence imposed by the Magistrate on 8/2/2011 subject to the variation spelt out in the judgment of the learned High Court Judge in Criminal Appeal No. HAA 021 of 2011S dated 28/2/2012 is affirmed.
   

................................................
Hon. Justice Saleem Marsoof
Justice of the Supreme Court

..................................................
Hon. Justice Chandra Ekanayake
Justice of the Supreme Court

.......................................................
Hon. Justice William Calanchini
Justice of the Supreme Court