Citation: Gillett v Regina [2006] NSWCCA 370
Court: NSW Court of Criminal Appeal
Date: 24 November 2006
Judge(s): McClellan CJ at CL; Sully J; Hislop J
Background
The appellant was convicted in the District Court of three counts of driving in a manner dangerous to another person occasioning death, contrary to s 52A(1)(c) of the Crimes Act 1900. He was sentenced to a total of seven years imprisonment with a non-parole period of five years and three months. He appealed both conviction and sentence.
The events arose from an incident on 2 May 2003, when the appellant drove his vehicle along Condamine Street at Manly Vale and struck multiple vehicles in succession without stopping. One of those collisions propelled a family's car into the path of oncoming traffic, killing all three occupants: a husband, wife, and their young daughter. The trial judge found, as a matter of fact, that the appellant had suffered an epileptic seizure immediately before or during the impacts.
The trial was conducted without a jury at the appellant's election. The trial judge found that the appellant's conduct in driving immediately before the collision was not voluntary because of the seizure. The Crown's case therefore fell to be decided on the basis that the appellant's decision to drive at all, given his known medical condition, constituted dangerous driving.
Legal Issues
- Whether the appellant's epileptic seizure constituted a novus actus interveniens (an intervening act breaking the causal chain) so as to defeat the charge
- Whether driving while knowingly at risk of an epileptic seizure could constitute driving "in a manner dangerous to another person" under s 52A(1)(c)
- What "substantial risk" means in this context, and whether the appellant's epilepsy created such a risk
- Whether the trial judge erred in taking the appellant's sleep apnoea into account when assessing objective dangerousness
- Whether the trial judge correctly found that the appellant was aware it was not safe for him to drive
- Whether the trial judge gave appropriate weight to expert evidence
- Whether the trial judge erred in refusing to admit a document containing guidelines and standards for assessing fitness to drive
- Whether the appellant's failure to disclose his epilepsy on an RTA licence renewal form was properly taken into account
- Whether the sentence of seven years was appropriate, including whether the trial judge made internally inconsistent findings on moral culpability
Decision
The Court of Criminal Appeal dismissed the conviction appeal. The trial judge's conclusion that the appellant's decision to drive while knowingly at risk of an epileptic seizure constituted objectively dangerous driving was upheld. The Court confirmed that where a driver is aware of a medical condition that creates a real danger of a seizure, the act of driving in those circumstances can itself satisfy the requirement that driving was "in a manner dangerous" to the public.
On the novus actus interveniens argument, the Court rejected the proposition that the epileptic seizure broke the causal chain between the appellant's driving and the deaths. The dangerous character of the driving was found to reside in the very risk that the seizure might occur, not in any separate voluntary act after the seizure began.
On the question of sleep apnoea, the Court found no error in the trial judge considering that condition alongside the appellant's epilepsy when assessing objective dangerousness. The two conditions together contributed to the overall risk the appellant represented to other road users when he chose to drive.
On sentence, the Court granted leave to appeal but dismissed the appeal. It rejected the contention that the trial judge had made internally inconsistent findings about the appellant's awareness of risk. The trial judge had found that the appellant knew driving was risky for him, even if he did not fully appreciate the extent of that risk due to unawareness of his sleep apnoea. That partial lack of appreciation was taken into account in assessing moral culpability. Even if any minor error occurred in the trial judge's reference to the appellant having driven dangerously over a prolonged period, the Court was satisfied the sentence remained within the appropriate range.
Orders Made
- Appeal against conviction dismissed
- Leave to appeal against sentence granted, but the sentence appeal dismissed
Key Takeaways
- A driver who knowingly takes the wheel with a medical condition that creates a substantial risk of incapacitation can be found to have driven "in a manner dangerous" under s 52A(1)(c) of the Crimes Act 1900, even where the dangerous driving itself is involuntary due to a seizure.
- The occurrence of an epileptic seizure does not automatically operate as a novus actus interveniens where the risk of that very seizure was what rendered the driving objectively dangerous in the first place.
- Concealment of a medical condition from licensing authorities over many years was treated as relevant to the assessment of an offender's criminality and moral culpability at sentence.
- Where a sentencing court finds that a defendant did not fully appreciate the level of risk he posed to others, that finding does not necessarily reduce moral culpability to a point incompatible with a substantial custodial term if the court accounts for the partial ignorance in its overall assessment.
- In dismissing the sentence appeal, the Court of Criminal Appeal confirmed that even where a minor error in sentencing reasoning may be identified, an appeal court will not intervene if the resulting sentence falls within the range appropriate for offences of that gravity.
Legislation and Cases Referenced
Legislation:
- Crimes Act 1900 (NSW), s 52A(1)(c)
- Criminal Procedure Act 1986 (NSW), s 132
Cases:
- Hill v Baxter [1958] 1 QB 277
- Jiminez v The Queen (1992) 173 CLR 572
- R v Jurisic (1998) 45 NSWLR 209
- Kroon 52 A Crim R 15
- Mercer v Regina (1993) 67 A Crim R 91
- R v Price [2004] NSWCCA 186
- R v Plumb [2003] NSWCCA 359
- Royall v The Queen (1990) 172 CLR 378
- R v Whyte (2002) 55 NSWLR 252
- Zheng v Regina (1995) 83 A Crim R 572