Baba v State [2022] FJSC 20; CAV0010.2018 (28 April 2022)

IN THE SUPREME COURT OF FIJI
APPELLATE JURISDICTION

CRIMINAL PETITION NO. CAV 0010 of 2018
[On Appeal from the Court of Appeal No. AAU 0097 of 2015]

BETWEEN

FILIPE BABA

Petitioner

AND

THE STATE

Respondent

Coram : The Hon. Mr. Justice Kamal Kumar

President of the Supreme Court

The Hon. Mr. Justice Anthony Gates

Judge of the Supreme Court

The Hon. Mr. Justice Brian Keith

Judge of the Supreme Court

Counsel : Petitioner in person
Mr R. Kumar for the Respondent

Date of Hearing : 8 April, 2022

Date of Judgment : 28 April, 2022

JUDGMENT

Kumar, J

[1] I agree with the judgment of Keith J.

Gates, J

[2] I have had the opportunity of reading the draft of Keith J’s judgment. I agree with it and with the orders proposed. If a litigant genuinely needs to make a change in the conduct of his or her case such a change will usually prove acceptable. But the appellant courts cannot allow effective administration to be undermined by seemingly arbitrary conduct, a constant chopping and changing, as referred to in Keith J’s judgment.

Keith, J

[3] It sometimes happens that an appellant wishes to abandon an appeal. The court will usually let him do that. It would not be right to force an appellant to press on with his appeal when he no longer wishes to do so. But the court always tries to make sure that abandoning his appeal is what the appellant really wants to do. It does not do that on paper. A hearing takes place to enable the court to satisfy itself that the appellant has received legal advice, that the appellant knows the implications of abandoning his appeal, and that the appellant was not pressurized in any way to do something he did not want to do. It is only when the court is satisfied about all that that it will allow the appellant to abandon the appeal. The order the court makes is to dismiss the appeal on its abandonment by the appellant.

[4] More rarely, an appellant has a further change of mind. The appellant wants to resurrect an appeal which he has previously abandoned. The court will not usually allow that. A notice abandoning an appeal is irrevocable, unless that notice can be treated as a nullity. It has been said that it will only be a nullity if the appellant’s “mind does not go with the notice”, and that will depend on the circumstances of each case: R v Smith [2003] EWCA Civ 1044; [2014] 2 Cr App R 1. For example, if an appellant abandons his appeal as a result of receiving incorrect legal advice, that may mean that his mind did not go with the notice, but the advice has to have been positively wrong. It is not sufficient for the advice to have been expressed in the form of an opinion on a difficult point, with which some may agree but others may not.

[5] With that introduction, I turn to this case. The petitioner is Filipe Baba. I intend no discourtesy to him if I call him Baba from now on for convenience. He was convicted of rape at Suva Magistrates’ Court. He appealed to the High Court, but his appeal was filed out of time and the High Court refused his application to extend his time for filing it. So he appealed against that ruling to the Court of Appeal. Prior to the hearing of that appeal, he said that he wished to abandon his appeal. The Court of Appeal allowed him to do that, and his appeal to the Court of Appeal was dismissed. But Baba then had second thoughts about that, and he appealed to the Supreme Court against the dismissal of his appeal. In effect he wanted to resurrect the appeal which he had abandoned. His petition to the Supreme Court, which was filed on 7 June 2018, was listed for hearing in the Supreme Court on 8 April 2022.

[6] That is not the end of the story. Three days before the hearing in the Supreme Court was due to take place, Baba wrote to the Supreme Court saying that he wished to withdraw his appeal. He gave as his reason the fact that he has now served much of his sentence. He has been given a release date of 29 November 2023. He says that he is withdrawing his appeal “on his own free will and nothing whatsoever has influenced [his] decision or manipulated [his] choice to abandon this appeal”. The question for the Court is whether he should be allowed to do that. On the hearing of his application to withdraw his appeal, the Court informed Baba that he would be allowed to withdraw his appeal. The Court told him that it would give its reasons in due course. That we now do.

[7] This is the third time that Baba has had a change of mind. The first was when he wanted to abandon his appeal to the Court of Appeal. The second was when he wanted to resurrect that appeal by appealing to the Supreme Court against its dismissal. The third time is now, when he wants to abandon that appeal. Many people would say that there comes a time when enough is enough.

[8] Any court case involves much work for the court staff. They have to prepare the papers for the use of the judge – indeed, prepare them in triplicate if the case is proceeding before three judges in the Court of Appeal or the Supreme Court. Most court cases also involve preparatory work by the judge. That is especially the case in the higher courts. Hearings in the higher courts are relatively brief because the judges will have read the papers before the hearing takes place. So when a litigant wants to abandon a case at the 59^th minute of the 11^th hour, the time of the court’s staff and its own time will have been wasted. In those circumstances, the court will invariably want to know why the appeal was not abandoned earlier. Late abandonment of appeals should be avoided. Of course, there will be times when the late abandonment of an appeal will be unavoidable, but our experience is that in most cases where an appellant wishes to abandon an appeal, the appellant could have done so much earlier.

[9] At present, there is no real sanction for appellants who play fast and loose with the system by filing appeals, abandoning them, resurrecting them and then abandoning them again. It may be that once Baba’s case is looked at in detail, each change of mind was a proper one, made on rational grounds. I am sceptical about that in the light of what I have read about the history of the case, but it would not be right to give effect to that scepticism without a detailed examination of the history of the case, and since there is really no reason to refuse Baba’s application to withdraw his appeal, it would serve no purpose to explore the course of this litigation. It was for that reason that I concluded that Baba should be permitted to withdraw his petition for leave to appeal to the Supreme Court, and that his petition for leave to appeal to the Supreme Court should be treated as having been refused.

[10] I add one thing to that. Something needs to be done, I think, to discourage would-be appellants from filing notices for leave to appeal, confident that if they decide in due course to abandon their appeal they will be allowed to do so with impunity. A sensible sanction would be for the court to have the power to order that all or part of the time during which the appellant was in custody pending the determination of his appeal should not count towards his sentence. Such a sanction exists in England: see section 29 of the Criminal Appeal Act 1968. Indeed, the Court of Appeal already has the power, where it changes the sentence passed by the lower court, to order that the time when the sentence should run from can be a date other than the date on which the original sentence was passed: see section 33(5) of the Court of Appeal Act 1949. The introduction of such a sanction in Fiji would require primary legislation, and I invite the relevant authorities to give serious consideration to such a proposal.

Order:

1. Leave to the petitioner to withdraw his petition for leave to appeal to the Supreme Court.
2. Petition for leave to appeal to the Supreme Court refused.
   

The Hon. Mr. Justice Kamal Kumar

PRESIDENT OF THE SUPREME COURT

The Hon. Mr. Justice Anthony Gates

JUDGE OF THE SUPREME COURT

The Hon. Mr. Justice Brian Keith

JUDGE OF THE SUPREME COURT