Savieti v Police

[2019] NZCA 421

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA240/2019
 [2019] NZCA 421

BETWEEN	DAVID SAVIETI Applicant
AND	NEW ZEALAND POLICE Respondent

Court:	Collins, Wylie and Ellis JJ
Counsel:	P K Hamlin for Applicant K S Grau for Respondent
Judgment: (On the papers)	10 September 2019 at 2.30 pm

JUDGMENT OF THE COURT

AThe application for leave to bring a second appeal against conviction is granted.

BThe application for leave to bring a second appeal against sentence is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Collins J)

1. Mr Savieti was convicted in the District Court of careless driving causing injury.[1]  He was sentenced to undertake 80 hours of community work, pay $1,165.50 by way of reparation, including for emotional harm, and disqualified from driving for six months.[2]

   [1]Police v Savieti [2018] NZDC 18395.

   [2]Police v Savieti [2018] NZDC 27284 at [4]–[5].

2. The undisputed facts are that after completing work at about mid-afternoon, Mr Savieti fell asleep while driving home.  His car crossed the centreline and collided with the victim’s vehicle.  Mr Savieti and the victim were hospitalised.  In hospital, Mr Savieti was diagnosed for the first time with a serious sleep apnoea condition. 

3. The District Court Judge concluded that Mr Savieti must have felt tired before driving and that he could have had a nap at work before he set off for home.[3]  According to the District Court Judge, Mr Savieti’s failure to do so rendered him culpable.  Mr Savieti’s appeal against conviction and sentence was dismissed by the High Court.[4]

   [3]Police v Savieti, above n 1, at [20].

   [4]Savieti v Police [2019] NZHC 905.

4. Mr Savieti wishes to adduce “fresh” evidence to support a second appeal.  That evidence is in an affidavit from Dr Fenwick of London, a retired neuropsychiatrist and leading authority on sleep disorders.  He has previously given expert evidence in New Zealand, including in two cases heard in 2018. 

5. In essence, Dr Fenwick draws a distinction between Mr Savieti feeling tired when he finished work and him feeling “sleepy”.  He suggests it was unlikely Mr Savieti would have appreciated that he was about to fall asleep as he drove home.

6. If Dr Fenwick’s evidence is admissible, and if it is correct then it substantially negates the basis upon which Mr Savieti was found to be culpable in the Courts below.

7. We are satisfied that the criteria for leave to bring a second appeal prescribed in s 237(2) of the Criminal Procedure Act 2011 are satisfied.[5]

   [5]McAllister v R [2014] NZCA 175, [2014] 2 NZLR 764.

8. Two issues justify the granting of leave to bring a second appeal in this case:

   (a)Whether the proposed evidence from Dr Fenwick is admissible as “fresh” evidence.[6] 

   If so,

   (b)Does Dr Fenwick’s evidence render unsafe the factual findings made by the District Court and relied upon by the High Court, that Mr Savieti had some forewarning that he was about to fall asleep when driving his car?

   [6]Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273.

9. The second issue is such that, if determined affirmatively, a miscarriage of justice may have occurred, thereby satisfying the criteria for leave to bring a second appeal.

10. We are however, not satisfied that a second appeal against sentence is justified.  There is nothing in the sentence imposed that satisfies the criteria for a second appeal.

11. In setting out our view of the issues, we are not endeavouring to prescribe the basis upon which the appeal against conviction needs to be considered.

Result

1. Leave to bring a second appeal against conviction is granted.

2. Leave to bring a second appeal against sentence is declined.

Solicitors:
Crown Law Office, Wellington for Respondent