SAVIETI v NEW ZEALAND POLICE [2019] NZCA 421

SAVIETI v NEW ZEALAND POLICE [2019] NZCA 421 [10 September 2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA240/2019[2019] NZCA 421BETWEEN DAVID SAVIETIApplicantAND NEW ZEALAND POLICERespondentCourt: Collins, Wylie and Ellis JJCounsel: P K Hamlin for ApplicantK S Grau for RespondentJudgment:(On the papers)10 September 2019 at 2.30 pmJUDGMENT OF THE COURTA The application for leave to bring a second appeal against conviction isgranted.B The application for leave to bring a second appeal against sentence isdeclined.____________________________________________________________________REASONS OF THE COURT(Given by Collins J)[1] Mr Savieti was convicted in the District Court of careless driving causinginjury.1 He was sentenced to undertake 80 hours of community work, pay $1,165.501 Police v Savieti [2018] NZDC 18395.by way of reparation, including for emotional harm, and disqualified from driving forsix months.2[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 collidedwith 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 beforedriving and that he could have had a nap at work before he set off for home.3According to the District Court Judge, Mr Savieti's failure to do so rendered himculpable. Mr Savieti's appeal against conviction and sentence was dismissed bythe High Court.4[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 retiredneuropsychiatrist and leading authority on sleep disorders. He has previously givenexpert evidence in New Zealand, including in two cases heard in 2018.[5] In essence, Dr Fenwick draws a distinction between Mr Savieti feeling tiredwhen he finished work and him feeling "sleepy". He suggests it was unlikelyMr 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 substantiallynegates 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 prescribedin s 237(2) of the Criminal Procedure Act 2011 are satisfied.52 Police v Savieti [2018] NZDC 27284 at [4]–[5].3 Police v Savieti, above n 1, at [20].4 Savieti v Police [2019] NZHC 905.5 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.6If so,(b) Does Dr Fenwick's evidence render unsafe the factual findings madeby the District Court and relied upon by the High Court, that Mr Savietihad some forewarning that he was about to fall asleep when driving hiscar?[9] The second issue is such that, if determined affirmatively, a miscarriage ofjustice may have occurred, thereby satisfying the criteria for leave to bring a secondappeal.[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 prescribethe basis upon which the appeal against conviction needs to be considered.Result[12] Leave to bring a second appeal against conviction is granted.[13] Leave to bring a second appeal against sentence is declined.Solicitors:Crown Law Office, Wellington for Respondent6 Lundy v R [2013] UKPC 28, [2014] 2 NZLR 273.