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District Court 12 April 2013

R v Schilder (No 3)

[2013] NSWDC 141

Assault & violenceHomicideTraffic & driving
CRIMINAL LAW COSTS CIRCUMSTANCE OF AGGRAVATION

Citation: R v Schilder (No 3) [2013] NSWDC 141
Court: District Court of New South Wales
Date: 12 April 2013
Judge: Neilson DCJ

Background

The accused was charged with aggravated dangerous driving causing death and aggravated dangerous driving occasioning grievous bodily harm, arising from a collision on 12 September 2010. The aggravation alleged was that he was driving at more than 45 kilometres per hour above the applicable 70 km/h speed limit at the time of impact, meaning the Crown needed to prove a speed exceeding 115 km/h. The accused had pleaded guilty in the Local Court, and again on arraignment, to the lesser unaggravated versions of both charges.

At trial, the Crown accepted it could not disprove that the accused was experiencing an epileptic seizure at the time of the collision. Evidence established that the seizure most likely commenced before he crossed the median strip, and the accused's vehicle was travelling downhill throughout the relevant period, with the potential for speed to have increased during the seizure itself.

In January 2013, Neilson DCJ acquitted the accused on the aggravated charges and convicted him on the unaggravated alternatives to which he had already pleaded guilty. The defence then applied for a costs certificate under the Costs in Criminal Cases Act 1967.

  • Whether the Crown needed to prove the accused's speed at the precise moment of impact, or immediately before the onset of the epileptic seizure, to establish the circumstance of aggravation.
  • Whether, given the evidentiary gap on pre-seizure speed, the prosecution of the aggravated charges should reasonably have proceeded.
  • Whether the accused's own conduct contributed to the institution or continuation of those proceedings.
  • Whether a costs certificate under section 2 of the Costs in Criminal Cases Act 1967 should be granted.

Decision

The court found that the relevant speed for the aggravated charges was not the speed of the vehicle at the moment of impact, but the speed at which the accused was driving immediately before the epileptic seizure took over. This conclusion was grounded in the High Court's decision in Jiminez v R (1992) 173 CLR 572 and the NSW Court of Criminal Appeal's decision in Gillett v R [2006] NSWCCA 370. Because a driver in the grip of a seizure cannot meaningfully be said to be "driving" in the relevant sense, the Crown was required to prove the pre-seizure speed exceeded the statutory threshold.

The Crown's evidence went only to the speed of the vehicle at impact. No evidence was led as to what speed the accused was travelling before the seizure commenced. The court described this as a straightforward and fatal gap in the Crown case on the aggravated charges.

On the costs application, the court was satisfied that a prosecution with full knowledge of the evidence ultimately presented would not reasonably have proceeded on the aggravated charges. The court also found no act or omission by the accused had contributed to the institution or continuation of those proceedings. The accused had consistently acknowledged guilt on the unaggravated offences throughout. Accordingly, the certificate was granted, guided by the principles in Mordaunt v DPP [2007] NSWCA 121.

Orders Made

  • A costs certificate under section 2 of the Costs in Criminal Cases Act 1967 was granted to the defence.

Key Takeaways

  • To establish the circumstance of aggravation in an epilepsy-related dangerous driving case, the Crown must prove the accused's speed immediately before the onset of the seizure, not merely the speed of the vehicle at the moment of impact.
  • A driver experiencing an epileptic seizure cannot be treated as the conscious agent of the vehicle's speed at that point; the authority for this flows from Jiminez v R (1992) 173 CLR 572 and Gillett v R [2006] NSWCCA 370.
  • The District Court confirmed that a complete absence of evidence on a critical element of the aggravated charge was sufficient on its own to determine the prosecution on those counts.
  • Under the Costs in Criminal Cases Act 1967, a certificate may be granted where a fully informed prosecution would not reasonably have proceeded, and where the accused's own conduct played no role in bringing about or prolonging the charges.
  • Consistent pleas of guilty to lesser, unaggravated charges from the outset supported the finding that the accused had not contributed to the institution or continuation of the aggravated prosecution.

Legislation and Cases Referenced

Legislation
- Costs in Criminal Cases Act 1967 (NSW), ss 2, 3(1)

Cases
- Jiminez v R [1992] HCA 14; (1992) 173 CLR 572
- Gillett v R [2006] NSWCCA 370
- Mordaunt v DPP [2007] NSWCA 121