R v Schilder (No 1)

Case [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…

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AGLC
R v Schilder (No 1) [2013] NSWDC 23
Case
[2013] NSWDC 23
Decision Date

CaseChat Overview and Summary

In the matter of R v Schilder (No 1), the defendant faced charges of aggravated dangerous driving causing death and grievous bodily harm. The case was heard by the court, which was tasked with determining the culpability of the accused in the fatal accident that occurred. The primary dispute was whether the accused's actions constituted aggravated dangerous driving due to exceeding the speed limit by 45 km/h, despite his claim of an epileptic seizure at the time of the incident. The court was required to weigh the reliability of expert evidence and lay opinions regarding the speed of the accused's vehicle and the voluntariness of his actions following the seizure.

The legal issues the court needed to address included the applicability of the aggravating factor of speeding, the credibility of the accused's claim of an epileptic seizure, and the extent to which his previous history of motor accidents and deception about his medical condition affected his culpability. Furthermore, the court had to consider the reliability of lay witness statements about the vehicle's speed and the voluntariness of the accused's actions post-seizure. The court also needed to determine if the accused's actions, if any, were voluntary following the seizure.

The court found that the accused's epileptic seizure, which occurred while he was sleep deprived and had lied about his medical history, led to the collision. However, due to the uncertainty about the speed of the vehicle at the time of the collision and the lack of evidence that the accused's actions were voluntary following the seizure, the court acquitted him of the charges of aggravated dangerous driving. The court did convict the accused of dangerous driving occasioning death, but acquitted him of all other charges related to grievous bodily harm. The court's reasoning hinged on the absence of clear evidence that the accused's actions were voluntary and the uncertainty surrounding the vehicle's speed at the time of the collision.

Orders

Orders of the court

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

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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