Citation: R v Schilder (No 1) [2013] NSWDC 23
Court: District Court of New South Wales
Date: 23 January 2013
Judge: Neilson DCJ
Background
The accused was a food delivery driver who, on the evening of 12 September 2010, was travelling south along the Princes Highway at Bomaderry, New South Wales. His vehicle crossed the central median strip, travelled approximately 270 metres in a northbound lane, and then re-entered southbound lanes at an intersection. There, it struck a vehicle that had just completed a right-hand turn from Illaroo Road.
The struck vehicle was propelled off the roadway, became airborne off a raised ramp, struck a tree on a riverbank, and sank five metres to the bottom of the Shoalhaven River. The driver of that vehicle drowned. His passenger sustained severe spinal injuries and a serious leg wound, both acknowledged to constitute grievous bodily harm.
The accused had a history of epilepsy and had previously been involved in motor accidents caused by seizures. He had made false representations to a psychologist and the Roads and Traffic Authority to secure renewal of his driver's licence. The Crown's case was that he suffered a complex partial epileptic seizure shortly before the collision, and the central dispute at trial was whether the aggravated form of the dangerous driving offences had been proved, specifically whether he was travelling more than 45 km/h above the 70 km/h speed limit at the moment of impact.
Legal Issues
- Whether the Crown proved beyond reasonable doubt that the accused was driving at a speed exceeding 115 km/h at the time of impact, satisfying the circumstance of aggravation under s 52A(7)(b) of the Crimes Act 1900.
- Whether lay witness estimates of the vehicle's speed were sufficiently reliable to establish that circumstance of aggravation.
- Whether expert accident reconstruction evidence established the vehicle's speed at the moment of impact.
- Whether the accused's actions at the time of the collision were voluntary, given that he had suffered an epileptic seizure before the impact, having regard to the principle in Jiminez v R (1992) 173 CLR 572.
Decision
The sole question for the judge alone trial was whether the Crown had proved beyond reasonable doubt that the accused's vehicle exceeded 115 km/h at the moment of impact. The accused had already pleaded guilty to the unaggravated versions of both offences and was convicted on those counts without contest.
On the speed question, Neilson DCJ found the evidence insufficient to establish the circumstance of aggravation. The accused had suffered a complex partial epileptic seizure before his vehicle crossed the median strip. Because his speed before the seizure was unknown, and because his actions from that point onward were involuntary, the court could not use observations of the vehicle's speed during the involuntary phase to prove what he had been doing under his own conscious control.
The court drew directly on Jiminez v R, which held that the relevant period for assessing a driver's conduct must be the period during which the driver's actions were conscious and voluntary. By analogy, conduct occurring after the onset of a seizure, during which the driver has no voluntary control, could not supply the evidentiary foundation for the aggravated offence.
On the expert and lay evidence of speed at or near the moment of collision, the court was not satisfied that the evidence established the vehicle exceeded 115 km/h at the time of impact. The reliability of lay opinion on speed was approached with caution, consistent with the direction available under s 165 of the Evidence Act 1995. Neilson DCJ acquitted the accused on both aggravated charges while convicting him on the two unaggravated dangerous driving offences to which he had pleaded guilty.
Orders Made
- Acquitted on the charge of aggravated dangerous driving occasioning death (the circumstance of aggravation being speed exceeding the limit by more than 45 km/h).
- Convicted on the charge of dangerous driving occasioning death (unaggravated form, guilty plea).
- Acquitted on the charge of aggravated dangerous driving occasioning grievous bodily harm (same circumstance of aggravation).
- Convicted on the charge of dangerous driving occasioning grievous bodily harm (unaggravated form, guilty plea).
- Unconditional bail granted to appear for sentence the following day.
Key Takeaways
- Under s 52A(7)(b) of the Crimes Act 1900, the Crown must prove beyond reasonable doubt that the accused was driving at the aggravated speed at the moment of impact, not merely at some earlier point during the journey.
- Where a driver suffers an epileptic seizure before a collision, conduct occurring after the onset of that seizure is involuntary, and the principle in Jiminez v R precludes reliance on that involuntary conduct to establish the elements of a driving offence.
- The District Court treated lay witness opinion on vehicle speed with particular caution, noting the relevance of s 165 of the Evidence Act 1995 to potentially unreliable evidence of that kind.
- A prior history of epilepsy-related accidents and misrepresentations to licensing authorities was relevant context to the accused's background but did not, of itself, resolve the speed question at the heart of the aggravated charges.
- Acquittal on the aggravated counts did not disturb the convictions on the unaggravated offences, which carried maximum penalties of 10 years and 7 years imprisonment respectively.
Legislation and Cases Referenced
Legislation
- Crimes Act 1900 (NSW), s 52A (dangerous driving occasioning death and grievous bodily harm, including aggravated forms and the s 52A(7)(b) speed circumstance of aggravation)
- Evidence Act 1995 (NSW), s 165 (unreliable evidence)
Cases
- Jiminez v R [1992] HCA 14; (1992) 173 CLR 572 (voluntariness of driving conduct; the relevant period is when the driver's actions are conscious and voluntary)
- Gillett v R [2006] NSWCCA 370
- R v Gillett [2005] NSWDC 20
- Hill v Baxter [1958] 1 QB 277