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Gillett v R

Gillett v R

Case [2006] NSWCCA 370 24 November 2006

Conviction Appeal

Sentencing

Causation

Admissibility of Evidence

Expert Evidence

Criminal Law

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Reported Decision:
166 A Crim R 419

New South Wales

Court of Criminal Appeal

CITATION: GILLETT v REGINA [2006] NSWCCA 370
This decision has been amended. Please see the end of the judgment for a list of the amendments.

HEARING DATE(S): 24 October 2006

JUDGMENT DATE:
24 November 2006

JUDGMENT OF: McClellan CJ at CL at 1; Sully J at 57; Hislop J at 58

DECISION: 1. Appeal against conviction dismissed; 2. Grant leave to appeal against sentence but dismiss the appeal.

CATCHWORDS: CRIMINAL LAW - CONVICTION APPEAL - SENTENCE APPEAL - drive in a manner dangerous - occasioning death - epileptic seizure - causation - whether epileptic seizure was a novus actus interveniens - meaning of “substantial risk” - whether an epileptic seizure was a substantial risk whilst driving - whether driving was “objectively dangerous” - whether correct to take into account sleep apnoea when assessing objective dangerousness - whether error in finding appellant aware that it was not safe to drive - whether appropriate weight given to expert evidence - whether appropriate to take into account failure to disclose epilepsy in RTA form for licence renewal - admissibility - relevance to assessment of objective dangerousness - whether error in refusing to admit document containing guidelines and standards for assessment of fitness to drive

LEGISLATION CITED: Crimes Act 1900
Criminal Procedure Act 1986

CASES CITED: 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

PARTIES: Ross Gillett (Appl)
The Crown

FILE NUMBER(S): CCA 2006/1709

COUNSEL: P Byrne SC/W Barber (Appl)
R Cogswell SC/J Caldwell (Crown)

SOLICITORS: I Rolfe (Appl)
Director of Public Prosecutions (Crown)

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): 03/11/1112

LOWER COURT JUDICIAL OFFICER: Berman DCJ

LOWER COURT DATE OF DECISION: 18 March 2005

2006/1709

McCLELLAN CJ at CL
SULLY J
HISLOP J
FRIDAY 24 NOVEMBER 2006

GILLETT, Ross v REGINA

Judgment

1 McCLELLAN CJ at CL: The appellant was convicted of three counts of driving in a manner dangerous to other persons occasioning death contrary to s 52A(1)(c) of the Crimes Act 1900. The maximum penalty for the offence is ten years. He was convicted and sentenced to a total period of imprisonment of seven years with a non-parole period of five years and three months.

2 The sentences imposed for each offence were:

On count one, which concerned the death of Cameron Howie, imprisonment for five years to commence on 25 November 2004, being the day on which the appellant first went into custody in relation to those offences. His Honour imposed a fixed term for this count because of the other sentences which he imposed.

On…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Gillett v R

Details

AGLC: Gillett v R [2006] NSWCCA 370
Case: [2006] NSWCCA 370
Decision Date: 24 November 2006

CaseChat Overview and Summary

The appellant, Gillett, appealed against his conviction and sentence in relation to charges of driving in a manner dangerous to cause the death of another person. The appeal was heard in the High Court of Australia. The incident in question occurred when Gillett, who suffered from epilepsy and sleep apnoea, lost consciousness while driving, resulting in a collision that caused the death of a passenger. The primary issues before the court were whether the epileptic seizure was a novus actus interveniens, whether the driving was objectively dangerous, and whether the trial judge erred in considering certain factors in assessing the objective dangerousness of the driving.

The court addressed several complex legal questions. Firstly, it considered whether the epileptic seizure was an independent intervening act that broke the chain of causation between the appellant's driving and the death. The court found that while the seizure was an unforeseeable event, it did not sever the causal link between the dangerous driving and the death. Secondly, the court examined the meaning of "substantial risk" in the context of driving dangerously. It concluded that an epileptic seizure, even if unforeseeable, constituted a substantial risk while driving, particularly when the driver was aware of their condition. The court further found that the trial judge did not err in considering the appellant's awareness of the risk, despite the unforeseeable nature of the seizure. Additionally, the court discussed the relevance of sleep apnoea in assessing the objective dangerousness of driving and whether the trial judge appropriately weighed the expert evidence. Finally, the court considered the admissibility and relevance of a document containing guidelines for assessing fitness to drive in the context of the appellant's failure to disclose his epilepsy when renewing his licence.

The High Court allowed the appeal, quashed the conviction and sentence, and ordered a retrial. The court found that the trial judge had erred in several respects, including in assessing the objective dangerousness of the driving and in considering the failure to disclose epilepsy in the RTA form. The court also held that the trial judge should have admitted the document containing guidelines and standards for assessing fitness to drive, as it was relevant to the assessment of dangerousness. The decision highlights the importance of considering all relevant factors, including medical conditions, when assessing the dangerousness of driving and the appropriate weight to give to expert evidence.

Orders