Savieti v Police - [2021] NZCA 176

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA240/2019
[2021] NZCA 176

BETWEEN	DAVID SAVIETI Appellant
AND	NEW ZEALAND POLICE Respondent

Hearing:	22 February 2021
Court:	Courtney, Mallon and Wylie JJ
Counsel:	P K Hamlin and M Pitch for Appellant B C L Charmley and M R L Davie for Respondent
Judgment:	12 May 2021 at 11.30 am

JUDGMENT OF THE COURT

AThe application to adduce further evidence is granted.
BThe appeal is allowed.
C Mr Savieti’s conviction for careless driving causing injury is set aside.

____________________________________________________________________

REASONS OF THE COURT

(Given by Mallon J)

Introduction

David Savieti fell asleep while driving home from work. He crashed his car into another car, injuring both himself and a woman in the other car and causing damage to both cars. During his stay in hospital following the accident, he was diagnosed as suffering from obstructive sleep apnoea (OSA), a medical condition which causes poor quality sleep and can lead to excessive daytime sleepiness. He did not know he had this condition until this diagnosis.
Mr Savieti was charged with careless driving causing injury.[1] Following a defended hearing in the District Court at Auckland before Judge Henwood, he was convicted and sentenced to 80 hours’ community work and reparation of $665.50.[2] The District Court found that Mr Savieti was careless because, even though he did not know he had OSA, he was driving when he would normally be having an afternoon nap and he should have had a nap before deciding to drive.[3] An appeal against conviction and sentence was dismissed by Lang J in the High Court.[4]
[1]Land Transport Act 1998, ss 8 and 38.
[2]Police v Savieti [2018] NZDC 18395 [Conviction decision]; and Police v Savieti [2018] NZDC 27284 [Sentencing decision]. There was no challenge to the reparation order either in the High Court or this Court.
[3]Conviction decision, above n 2, at [20].
[4]Savieti v Police [2019] NZHC 905 [High Court decision].
Mr Savieti was granted leave to bring a second appeal against conviction to this Court.[5] He contends that he was not careless because he was tired, as was normal when he drove home, but not sleepy. He also seeks leave to adduce further expert evidence about OSA. The respondent also seeks leave to adduce expert evidence in reply.

The District Court

The evidence

[5]Savieti v Police [2019] NZCA 421 [Leave decision]. Mr Savieti’s application for leave to bring a second appeal against sentence was declined.

The prosecution evidence established that the accident occurred when Mr Savieti’s vehicle, travelling in the southbound lane on May Road, Mount Roskill, veered to the right, crossing the centreline and into the path of a vehicle in the northbound lane.
Mr Savieti was taken to hospital. He suffered a cardiac arrest when he was given pain relief for injuries suffered in the crash. He was resuscitated and placed in the critical care ward for treatment and care. While in that care, it became apparent…

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: [2021] NZCA 176
Decision Date: 12 May 2021 at 11.30 am

CaseChat Overview and Summary

Savieti v Police involved a challenge by David Savieti to his conviction for careless driving causing injury. The case originated in the District Court where Savieti was found guilty and sentenced. This was upheld on appeal to the High Court, leading to a further appeal to the Court of Appeal of New Zealand. The central issue was whether Savieti's actions constituted careless driving given his unawareness of his sleep disorder, obstructive sleep apnoea (OSA). The District Court held that Savieti was careless because he drove at a time when he would normally be napping and did not take a nap before driving home. The High Court upheld this decision, considering Savieti's OSA a contributing factor to his fatigue.

The Court of Appeal examined whether Savieti's unawareness of his sleepiness could negate the charge of careless driving. They found that it was reasonably possible that Savieti did not recognize he was sleepy, and that it was not established that a reasonable person in his position would have recognized this. The expert evidence supported the possibility that Savieti might not have been aware of his sleepiness due to the nature of OSA. Consequently, the Court of Appeal allowed the appeal, set aside the conviction, and granted leave to adduce further expert evidence, which did not alter the outcome.

Orders