SAVAGE v R [2022] NZCA 406

SAVAGE v R [2022] NZCA 406 [30 August 2022]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA108/2021[2022] NZCA 406BETWEEN TEWI DANIEL SAVAGEAppellantAND THE QUEENRespondentHearing: 18 August 2022Court: Katz, Wylie and Palmer JJCounsel: D S Niven for AppellantM R L Davie for RespondentJudgment: 30 August 2022 at 9:30 amJUDGMENT OF THE COURTThe appeal against conviction and sentence is dismissed.____________________________________________________________________REASONS OF THE COURT(Given by Wylie J)Introduction[1] In March 2020, the appellant, Tewi Savage, was found guilty of murdering histwo-year-old daughter following a trial in the High Court at Tauranga.On 29 September 2020, Mr Savage was sentenced to life imprisonment with aminimum period of imprisonment of 14 years by Davison J.1 Some six months later,1 R v Savage [2020] NZHC 2553.on 11 March 2021, Mr Savage filed a notice of appeal against both conviction andsentence.[2] Mr Savage did not file grounds of appeal, even though he has been representedby counsel — Mr Niven — since at least 6 August 2021.[3] On 26 October 2021, Mr Niven sent an email to the Court, recording that hehad spoken to Mr Savage and that he had obtained verbal instructions from him todiscontinue his appeal against both conviction and sentence. The same stance wastaken at a case management conference on 4 March 2022.[4] Notwithstanding these indications, Mr Savage has declined to sign a notice ofabandonment. Mr Niven has endeavoured on more than one occasion to speak toMr Savage. It seems that Mr Savage is reluctant to talk to him.[5] On 3 June 2022, this Court sent an email to the prison in which Mr Savage isdetained. It read as follows:Good afternoonI would be grateful if a copy of this email could be passed to Mr Savage assoon as possible.Justice Collins has directed that if the appellant, Mr Savage, fails to take anysteps to prosecute his appeal within the next 14 days (by 20 June 2022), or filea notice of abandonment of appeal within that time frame, then the Court willset his appeal down for determination under s338 of the Criminal ProcedureAct 2011.I would be grateful if receipt of this email could be confirmed.[6] 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 asfollows:If the appellant, Mr Savage, fails to take any steps to prosecute his appealwithin 14 days (by 20 June 2022), or file a notice of abandonment of appealwithin that timeframe, then the Court will set down his appeal fordetermination under s338 of the Criminal Procedure Act [2011].Notice of fixtureAs there has been no compliance with the above direction, a fixture todetermine the appeal under s 338 of the Criminal [P]rocedure Act 2011 isallocated for Thursday 18 August 2022 [7] There was no response from Mr Savage.[8] When the matter was called before us on 18 August 2022, Mr Niven appearedand confirmed that there had been no fresh developments. We are grateful to him forthe courtesy of his appearance. He did not take issue with the Crown's contention thatthe appeal should be dismissed under s 338 of the Criminal Procedure Act 2011.Section 338 of the Criminal Procedure Act[9] Section 338 of the Criminal Procedure Act provides as follows:338 Power of appeal court to dismiss appeal for non-compliance withprocedural orders(1) Despite anything in subparts 2 to 10, an appeal court may dismiss anappeal if the appellant fails to comply with a timetable or otherprocedural orders fixed for the appeal.(2) Before dismissing an appeal under subsection (1), the appeal courtmust give the appellant 10 working days' notice of its intention todismiss 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 bythe court.(4) A reference in any enactment other than this section to theabandonment of an appeal under this Act must, unless the contextotherwise requires, be read as including a reference to a dismissalunder subsection (1).(5) In this section, appeal includes an application for leave to appeal.[10] The appropriate approach to this provision was discussed by this Court inMitchell v Police.2 The Court said as follows:32 Mitchell v Police [2019] NZCA 497.3 Footnotes omitted.[28] Section 338 applies if three pre-requisites are met. These are:(a) the appellant failed to comply with a procedural order ortimetable;(b) the appeal Court gave the appellant 10 working days' noticeof its intention to dismiss the appeal; and(c) the appellant failed to rectify the non-compliance within thatperiod.[29] The appeal court then has a discretion to dismiss the appeal fornon-compliance under s 338. The discretion is guided by the interests ofjustice, balancing the right of appeal affirmed by s 25(h) of the New ZealandBill of Rights Act 1990 (NZBORA) with Parliament's intention whenenacting 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-compliancerecognises that there are countervailing considerations relevant to the interestsof justice including the Crown's legitimate expectation that it should beprovided with adequate particulars of the grounds of appeal to enable a properresponse and the public interest in the finality of court proceedings.The orderly and efficient administration of the court is also a relevantconsideration although an appeal would not normally be dismissedunder s 338 unless there had been serious, repeated and continuingnon-compliance with the court's directions.[11] Each of the statutory prerequisites for dismissal of the appeal is met in thiscase. Mr Savage has failed to file his grounds of appeal or otherwise take any steps toprosecute the appeal as directed by the Court in its email dated 3 June 2022. More than10 days' notice of the Court's intention to dismiss the appeal has been given. Notice ofthe fixture was given on 27 July 2022. No steps have been taken by Mr Savage torectify the position by filing grounds of appeal or by taking other steps to prosecutethe appeal.[12] 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 wassentenced. 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 interestedin engaging with his counsel. Finality is important, for the public generally, and inparticular, for the family of the deceased and others affected by her death.Result[13] Mr Savage's appeal against conviction and sentence is dismissed.Solicitors:Crown Law Office, Wellington for Respondent