Savage v The the Queen - [2022] NZCA 406

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA108/2021
[2022] NZCA 406

BETWEEN	TEWI DANIEL SAVAGE Appellant
AND	THE QUEEN Respondent

Hearing:	18 August 2022
Court:	Katz, Wylie and Palmer JJ
Counsel:	D S Niven for Appellant M R L Davie for Respondent
Judgment:	30 August 2022 at 9:30 am

JUDGMENT OF THE COURT

The appeal against conviction and sentence is dismissed.
____________________________________________________________________

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…

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.

Continue reading Savage v The the Queen

Details

AGLC: Savage v The the Queen [2022] NZCA 406
Case: [2022] NZCA 406
Decision Date: 30 August 2022 at 9:30 am

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, the appellant, Tewi Savage, sought to appeal his conviction and sentence for the murder of his two-year-old daughter. The appeal was dismissed by the Court, which found that Mr Savage had failed to comply with procedural orders and had not taken any steps to prosecute the appeal. The Court was required to decide whether it was appropriate to dismiss the appeal under s 338 of the Criminal Procedure Act 2011. The Court found that all of the statutory prerequisites for dismissal of the appeal were met, including that Mr Savage had failed to file his grounds of appeal or otherwise take any steps to prosecute the appeal as directed by the Court. The Court also found that it had given Mr Savage more than 10 days' notice of its intention to dismiss the appeal and that no steps had been taken by Mr Savage to rectify the position. The Court dismissed the appeal, finding that it was appropriate to do so given that almost two years had passed since Mr Savage was sentenced and that he had taken no steps to prosecute the appeal. The Court emphasised the importance of finality for the public generally, and in particular, for the family of the deceased and others affected by her death. The Court dismissed Mr Savage's appeal against conviction and sentence.

Orders