Deuce Derrick Junior Evo Savage v The Queen - [2016] NZSC 19

IN THE SUPREME COURT OF NEW ZEALAND

SC 134/2015
[2016] NZSC 19

BETWEEN	DEUCE DERRICK JUNIOR EVO SAVAGE Applicant
AND	THE QUEEN Respondent

Court:	William Young, Glazebrook and O'Regan JJ
Counsel:	J C Gwilliam for the Applicant M D Downs and J D Slankard for the Respondent
Judgment:	1 March 2016

JUDGMENT OF THE COURT

The application for leave to appeal is dismissed.

____________________________________________________________________

REASONS

Mr Savage was convicted of two counts of discharging firearms with intent to cause grievous bodily harm, one count of aggravated robbery and one count of demanding with menaces.
His appeal against conviction and sentence was dismissed by the Court of Appeal.[1] He now seeks leave to appeal to this Court with regard to the convictions. He says that:
(a)the verdict of demanding with menaces was unreasonable; and
(b)there was an inadequate identification warning by the trial judge.

Demanding with menaces

[1]Savage v R [2015] NZCA 550 (Harrison, Heath and Collins JJ).

It is submitted that the conviction on this charge cannot be sustained as, absent a duty to intervene, mere presence at the time of the threats (made by another person, Mr Ngaheu) does not suffice. It is submitted further that the Judge failed to direct the jury adequately on this point.

Decision of the Court of Appeal

The Court of Appeal noted that Mr Savage had arrived at the victim’s house shortly before Mr Ngaheu. The Crown case was that, while he did not make direct threats against the victim, his presence at the time of the threats was intended to act as an intimidating factor in order to assist Mr Ngaheu.[2] The victim’s evidence was that he had felt intimidated by Mr Savage’s “manner, size and the way he was standing against the wall with his arms folded, watching what was happening”.[3]
[2]At [4].
[3]At [38].
The Court of Appeal was satisfied that, when all the circumstances are taken into account, Mr Savage’s presence provided an adequate evidential foundation for an inference that he was there to assist and encourage Mr Ngaheu.[4]
[4]At [39].
As to the judge’s direction the Court considered that the directions given were correct. The Court summarised the directions given as follows:[5]
[The Judge] identified it in the question trail as whether the jury was satisfied that Deuce Savage intentionally assisted and/or encouraged Mr Ngaheu to demand the sum of $200 from [the victim] with intent to steal that sum. He emphasised that the jury must be satisfied that Deuce Savage knew what Mr Ngaheu was doing. He referred to the Crown case that Deuce Savage’s bulk, muscle and presence, and the way that he stood in the room, provided the evidential foundation for the necessary inference. There was [the victim’s] uncontradicted evidence that he felt intimidated not just by Deuce Savage’s presence but by his manner, his size and the way he was standing against the wall with his arms folded, watching what was happening. The Judge also referred to the defence case that Deuce Savage’s…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2016] NZSC 19
Decision Date: 1 March 2016

CaseChat Overview and Summary

Deuce Derrick Junior Evo Savage applied for leave to appeal against his conviction for two counts of discharging firearms with intent to cause grievous bodily harm, one count of aggravated robbery, and one count of demanding with menaces. The Court of Appeal had dismissed his appeal against conviction and sentence. Savage argued that the verdict on the charge of demanding with menaces was unreasonable and that there was an inadequate identification warning by the trial judge. The Supreme Court considered the submissions and concluded that the Court of Appeal's approach was correct and that there was no error of principle or risk of a miscarriage of justice. The directions given by the trial judge were sufficient, and the jury was adequately cautioned about the need for care and caution in approaching the evidence. The application for leave to appeal was dismissed.

Orders