Savage v The the Queen
[2022] NZCA 406
•30 August 2022 at 9:30 am
| IN THE COURT OF APPEAL OF NEW ZEALAND I TE KŌTI PĪRA O AOTEAROA |
| CA108/2021 [2022] NZCA 406 |
| BETWEEN | TEWI DANIEL SAVAGE |
| AND | THE QUEEN |
| Hearing: | 18 August 2022 |
Court: | Katz, Wylie and Palmer JJ |
Counsel: | D S Niven for Appellant |
Judgment: | 30 August 2022 at 9:30 am |
JUDGMENT OF THE COURT
The appeal against conviction and sentence is dismissed.
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REASONS OF THE COURT
(Given by Wylie J)
Introduction
In March 2020, the appellant, Tewi Savage, was found guilty of murdering his two-year-old daughter following a trial in the High Court at Tauranga. On 29 September 2020, Mr Savage was sentenced to life imprisonment with a minimum period of imprisonment of 14 years by Davison J.[1] Some six months later, on 11 March 2021, Mr Savage filed a notice of appeal against both conviction and sentence.
[1]R v Savage [2020] NZHC 2553.
Mr Savage did not file grounds of appeal, even though he has been represented by counsel — Mr Niven — since at least 6 August 2021.
On 26 October 2021, Mr Niven sent an email to the Court, recording that he had spoken to Mr Savage and that he had obtained verbal instructions from him to discontinue his appeal against both conviction and sentence. The same stance was taken at a case management conference on 4 March 2022.
Notwithstanding these indications, Mr Savage has declined to sign a notice of abandonment. Mr Niven has endeavoured on more than one occasion to speak to Mr Savage. It seems that Mr Savage is reluctant to talk to him.
On 3 June 2022, this Court sent an email to the prison in which Mr Savage is detained. It read as follows:
Good afternoon
I would be grateful if a copy of this email could be passed to Mr Savage as soon as possible.
Justice Collins has directed that if the appellant, Mr Savage, fails to take any steps to prosecute his appeal within the next 14 days (by 20 June 2022), or file a notice of abandonment of appeal within that time frame, then the Court will set his appeal down for determination under s338 of the Criminal Procedure Act 2011.
I would be grateful if receipt of this email could be confirmed.
No steps were taken and the appeal was set down for hearing. On 27 July 2022, the Court sent notice of the fixture to Mr Savage. It read as follows:
Justice Collins of the Court has considered the above case and has directed as follows:
If the appellant, Mr Savage, fails to take any steps to prosecute his appeal within 14 days (by 20 June 2022), or file a notice of abandonment of appeal within that timeframe, then the Court will set down his appeal for determination under s338 of the Criminal Procedure Act [2011].
Notice of fixture
As there has been no compliance with the above direction, a fixture to determine the appeal under s 338 of the Criminal [P]rocedure Act 2011 is allocated for Thursday 18 August 2022 …
There was no response from Mr Savage.
When the matter was called before us on 18 August 2022, Mr Niven appeared and confirmed that there had been no fresh developments. We are grateful to him for the courtesy of his appearance. He did not take issue with the Crown’s contention that the appeal should be dismissed under s 338 of the Criminal Procedure Act 2011.
Section 338 of the Criminal Procedure Act
Section 338 of the Criminal Procedure Act provides as follows:
338Power of appeal court to dismiss appeal for non-compliance with procedural orders
(1)Despite anything in subparts 2 to 10, an appeal court may dismiss an appeal if the appellant fails to comply with a timetable or other procedural orders fixed for the appeal.
(2)Before dismissing an appeal under subsection (1), the appeal court must give the appellant 10 working days’ notice of its intention to dismiss the appeal.
(3)The appeal court must not dismiss an appeal under subsection (1) if the appellant, after having been given notice under subsection (2), rectifies the non-compliance within the notice period given by the court.
(4)A reference in any enactment other than this section to the abandonment of an appeal under this Act must, unless the context otherwise requires, be read as including a reference to a dismissal under subsection (1).
(5) In this section, appeal includes an application for leave to appeal.
The appropriate approach to this provision was discussed by this Court in Mitchell v Police.[2] The Court said as follows:[3]
[28] Section 338 applies if three pre-requisites are met. These are:
(a)the appellant failed to comply with a procedural order or timetable;
(b)the appeal Court gave the appellant 10 working days’ notice of its intention to dismiss the appeal; and
(c)the appellant failed to rectify the non-compliance within that period.
[29] The appeal court then has a discretion to dismiss the appeal for non‑compliance under s 338. The discretion is guided by the interests of justice, balancing the right of appeal affirmed by s 25(h) of the New Zealand Bill of Rights Act 1990 (NZBORA) with Parliament’s intention when enacting s 338. In other words, the right to appeal is not untrammelled. Finality, particularly for victims, is also important.
[30] These principles were discussed by this Court in Rakuraku v R. In considering the limits of the right affirmed by s 25(h) of NZBORA, this Court observed that the power to dismiss an appeal for non-compliance recognises that there are countervailing considerations relevant to the interests of justice including the Crown’s legitimate expectation that it should be provided with adequate particulars of the grounds of appeal to enable a proper response and the public interest in the finality of court proceedings. The orderly and efficient administration of the court is also a relevant consideration although an appeal would not normally be dismissed under s 338 unless there had been serious, repeated and continuing non‑compliance with the court’s directions.
[2]Mitchell v Police [2019] NZCA 497.
[3]Footnotes omitted.
Each of the statutory prerequisites for dismissal of the appeal is met in this case. Mr Savage has failed to file his grounds of appeal or otherwise take any steps to prosecute the appeal as directed by the Court in its email dated 3 June 2022. More than 10 days’ notice of the Court’s intention to dismiss the appeal has been given. Notice of the fixture was given on 27 July 2022. No steps have been taken by Mr Savage to rectify the position by filing grounds of appeal or by taking other steps to prosecute the appeal.
As a result, it is open to the Court to dismiss Mr Savage’s appeal. In our view, it is appropriate to do so. Almost two years have passed since Mr Savage was sentenced. He has had counsel but he has taken no steps since the appeal was filed. It does not appear that Mr Savage intends to pursue the appeal or that he is interested in engaging with his counsel. Finality is important, for the public generally, and in particular, for the family of the deceased and others affected by her death.
Result
Mr Savage’s appeal against conviction and sentence is dismissed.
Solicitors:
Crown Law Office, Wellington for Respondent
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