R v Schilder (No 1)

[2013] NSWDC 23

District Court

New South Wales

Medium Neutral Citation:

R v Schilder (No 1) [2013] NSWDC 23

Hearing dates:

2-3 May 2012, 25-28 September 2012, 10-14 December 2012

Decision date:

23 January 2013

Before:

Neilson DCJ

Decision:

In relation to the offence of Aggravated dangerous driving occasioning death, acquitted

In relation to the offence of Dangerous driving occasioning death, convicted

In relation to the offence of Aggravated dangerous driving occasioning grievous bodily harm, acquitted

In relation to the offence of Dangerous driving occasioning grievous bodily harm, acquitted

Catchwords:

CRIMINAL LAW - Trial by judge alone - Aggravated dangerous driving occasioning death - Aggravated dangerous driving occasioning grievous bodily harm - Circumstance of aggravation - Whether accused drove vehicle exceeding speed limit by 45 km/h - Accused suffered complex partial epileptic seizure leading to collision - Accused previously involved in motor accidents caused by his epilepsy - Accused lied to psychologist and RTA to obtain renewal of licence - Accused was sleep deprived - Speed of accused's vehicle prior to his having a seizure unknown - Expert evidence - Accident reconstruction - Question of speed of accused's vehicle at time of collision - Reliability of lay opinion as to speed - Issue of voluntariness of accused's actions following seizure

Legislation Cited:

Crimes Act 1900 s 52A
Evidence Act 1995 s 165

Cases Cited:

Gillett v R [2006] NSWCCA 370
Hill v Baxter [1958] 1 QB 277
Jiminez v R [1992] HCA 14; 173 CLR 572; 106 ALR 162
R v Gillett [2005] NSWDC 20

Category:

Principal judgment

Parties:

Regina (Crown)
Daniel Gordon Schilder (Accused)

Representation:

Ms K Ratcliffe (Crown)
Ms D Yehia SC (Accused)
Ms L Cocca (Crown)
Ms S Foggo (Accused)

File Number(s):

2011/055324

Judgment

Introduction

1. On 12 September 2010 Mr Daniel Gordon Schilder ("the accused") was driving south along the Princes Highway at Bomaderry. He was behind the steering wheel of a white 1993 Ford Fairmont sedan registered number AV 64 ZB ("the white Fairmont"). He had been delivering take-away food for a Chinese restaurant in Nowra, the Delicious Canton. His shift was from 5.30pm to 7.30pm. On this evening he had completed 5 deliveries and at 6.30pm he left the restaurant to make a delivery at North Nowra and another at Bomaderry. He had completed those deliveries and was returning to Nowra.

1. Around 6.55pm the accused's white Fairmont crossed over the central median strip dividing northbound and southbound traffic on the Highway, at a point just north of the T-intersection of the Highway and Bolong Road. The white Fairmont then travelled about 270 metres south in one of the two northbound lanes of the Highway to the intersection of the Highway and Illaroo Road, which is immediately north of the two bridges which carry the Highway over the Shoalhaven River. Illaroo Road makes a T-intersection with the Highway on its western side. This intersection is governed by traffic control lights.

1. The traffic lights turned red for those travelling on the Highway. They turned green for traffic turning…