THE QUEEN v SOAL JOHN SAVAGE [2002] NZCA 100 (13 May 2002)

IN THE court of appeal of new zealand

ca290/01

THE QUEEN

V

SOAL JOHN SAVAGE

Coram:	Keith J Blanchard J Anderson J
Counsel:	J G Rowan QC for Appellant
	A Markham for Crown
Judgment (on the papers):	13 May 2002

judgment of the court

[1] This appeal against conviction has been heard on the papers under the Crimes (Criminal Appeals) Amendment Act 2001.The relevant materials, including written submissions which have been received in accordance with r29 of the Court of Appeal (Criminal) Rules 2001, have been considered by the members of the Court who have conferred and agreed upon this judgment.

Offence

[2] The appellant was convicted at trial in the District Court at Auckland of causing grievous bodily harm with intent.

Relevant facts

[3] The charge arose from an incident in a park in Ngaruawahia on the evening of 23 December 2000.The victim was given a severe beating by two men, leaving him now in need of 24 hour care due to ongoing problems from his extensive head injuries.It was accepted by both the Crown and the defence that the appellant was present at and a witness to the beating, but that he did not actually administer it.Much of the trial centred on whether it could be inferred that the appellant aided and abetted the primary offence by the nature of his attendance at the scene of the beating.He was convicted as a party to the offending.

Grounds of appeal

[4] The appellant argues that the trial Judge erred in the portion of his summing up relating to the requirements of aiding and abetting.It is said that the Judge, having drawn the jury's attention to the Crown's submission that the appellant intentionally encouraged the attack by his presence, in that he was there to "add weight to the numbers", should have alerted the jury to an alternative inference said to be equally open on the facts - that the appellant was merely present in a passive capacity as a bystander or onlooker.In a videotaped interview the appellant admitted that he had previously lied to the Police about the incident and there was evidence to support a submission that he may have done so to protect himself by not seeming to be a nark.Counsel for the appellant submits that in addition to the orthodox directions about the significance of lies the Judge should have specifically reminded the jury about the reason given by the appellant for lying to the Police.The appellant also submits that the conviction is unreasonable and cannot be supported having regard to the totality of the evidence.

Reasons

[5] The first ground of appeal has no substance.The impugned section of the Judge's summing up is found within his summary of the Crown's case.The Judge clearly indicated to the jury that he was going to summarise the Crown's case and he proceeded to do so, identifying the inferences the Crown sought to make from the evidence.Equally, in the Judge's summary of the defence case, His Honour clearly put the alternative inferences made by the defence to the jury, including that the appellant was a "reluctant observer" and that he had made "it clear that he did not want to be involved in [the beating]".We see no error in this approach.

[6] As to the Judge's direction on lies, this followed the customary format of reminding the jury that people can lie for many reasons, and that if they were satisfied that a lie had been told and not merely a mistake made, that might bear on credibility, but they should take care not to think that because there had been a lie the accused must be guilty.The Judge could, of course, have reminded the jury of the specific explanation for lying but this was a relatively short trial, the jury could hardly have forgotten the point addressed by appellant's counsel in cross-examination and the direction given was entirely adequate in the circumstances.

[7] As to the appellant's remaining argument, there were, as already indicated, essentially two different scenarios presented in respect of the appellant's involvement in the beating.The members of the jury were fully entitled to accept the evidence upon which the Crown's case was based and to reject, as a matter of fact, that upon which the defence relied.This was a determination within the province of the jury and their verdict was, upon the whole of the evidence, far from unreasonable.

Decision

[8] The appeal is dismissed.

Solicitors:

D Goodlet, Wanganui

Crown Law Office, Wellington