Savieti v Police [2021] NZCA 176 is an interesting case about a man charged with careless driving causing injury, which went all the way from the District Court to the High Court and finally the Court of Appeal. It is a great reminder that sometimes judges don’t always get it right the first time or maybe even the second time. That is why we have a right of appeal in the New Zealand judicial system. It would have been easy for the driver in this case to give up, but he didn’t, and his determination paid off because his conviction was set aside. In this issue, I’m going to share the facts of the case and provide a summary of the findings in the District Court and the High Court. Next month, I will talk about what must be proven to find someone guilty of careless driving and the Court of Appeal’s decision, which ultimately overturned Savieti’s conviction.

The facts

Savieti fell asleep while driving home from work. He crashed his car into another car, injuring both himself and a woman in the other vehicle. During his stay in hospital after the accident, he was diagnosed as suffering from a severe case of obstructive sleep apnoea (OSA), which he did not know about until the diagnosis. OSA is a medical condition that causes poor quality sleep and can lead to excessive daytime sleepiness.

The District Court

Savieti is a store supervisor at Auckland Hospital. Before the accident and the diagnosis, Savieti put his fatigue down to his physical work at the hospital. On the day of the accident, he worked a little longer than he usually did due to a staff shortage. He said he was always tired when he finished work, so he would probably have been tired on the day of the accident. To refresh himself, he wound down the windows and turned up his music.

He was asked whether he had been feeling drowsy, and he said he had not and if he had been, he would not have driven. He confirmed he had never had any previous incidents of falling asleep without forewarning and that he knew when he was about to fall asleep because it was a gradual onset. He said that he usually had two to three hours of sleep at home after work and then just mucked around until he went to bed at about 11pm to midnight.

The defence called expert evidence from Dr Andrew Veale, a specialist respiratory and sleep physician trained in sleep disorders. Dr Veale had reviewed Savieti’s GP’s records, and there was no reference to tiredness or sleeping issues. He concluded that the car crash from falling asleep was Savieti’s first identifiable symptom of OSA, which is a very serious condition.

When asked how this disorder may have manifested itself in Savieti’s day-to-day life, Dr Veale said it could range from being completely asymptomatic to marked daytime sleepiness at times of low stimulation, right through to people who nodded off repeatedly while driving or during conversation.

He said the transition from wakefulness to feeling sleepy was generally slow, but feeling sleepy to asleep could happen instantaneously. He also said he would expect someone in Savieti’s case to be able to fall asleep behind the wheel instantly. He concluded that Savieti would have felt tired, but he was not certain that he would have known the consequences of that feeling, namely that he could fall asleep without forewarning.

Following a defended hearing in the Auckland District Court, Savieti was convicted after Judge Henwood found that even though he did not know he had OSA, Savieti was driving when he would normally be having an afternoon nap, and he should have had a nap before deciding to drive. In reaching this conclusion, the judge did not discuss Savieti’s evidence that he felt physically tired but not sleepy when he was driving home or what she made of Dr Veale’s evidence that a person with severe OSA may not recognise that they are sleepy and that the transition from sleepiness to asleep could be instantaneous.

The High Court

An appeal against conviction and sentence in the High Court was dismissed by Justice Lang. He concluded that Savieti’s OSA was a factor that contributed to his state of fatigue, which he must have been experiencing when he elected to drive home from work. He considered that the warning signs were there for Savieti if he had been prepared to recognise them. This was not a case of an unforeseen event rendering Savieti unconscious at the wheel of his vehicle but someone who ignored the signs that he was becoming sleepy and continued to drive when a prudent and reasonable motorist would have pulled off the road to rest.

The judge’s reasoning accepted that Savieti might not have recognised that he was tired, but he still considered that Savieti was careless because a reasonable and prudent person in his position would have recognised that he was tired. In reaching this conclusion, the judge did not discuss why he formed this view, despite Dr Veale’s evidence that it was not known whether Savieti would have been able to distinguish between physical tiredness from work and sleepiness. Nor did he discuss the significance of Dr Veale’s evidence that recognition depended on historical context and that, in Savieti’s case, the accident was the first recognisable symptom of OSA.

Please note that this article is not a substitute for legal advice and if you have a particular matter that needs to be addressed, you should consult with a lawyer. Danielle Beston is a barrister who specialises in transport law and she can be contacted on (09) 379 7658 or 021 326 642.