R v Schilder (No 3)

[2013] NSWDC 141

District Court

New South Wales

Medium Neutral Citation:	R v Schilder (No 3) [2013] NSWDC 141
Hearing dates:	12 April 2013
Decision date:	12 April 2013
Before:	Neilson DCJ
Decision:	I grant to the defence the certificate requested
Catchwords:	CRIMINAL LAW - Costs - Aggravated dangerous driving causing death - Aggravated dangerous driving occasioning grievous bodily harm - Circumstance of aggravation - Crown needed to establish what the accused's speed was not at the moment of impact, after he had fallen into his epileptic seizure, but rather immediately prior to his epileptic seizure - Crown adduced evidence only to prove the speed of the accused's vehicle at the time of collision - No evidence of accused's speed prior to his having an epileptic seizure
Legislation Cited:	Costs in Criminal Cases Act 1967
Cases Cited:	Mordaunt v DPP [2007] NSWCA 121
Category:	Costs
Parties:	Regina (Respondent) Daniel Gordon Schilder (Applicant)
Representation:	Ms K Ratcliffe (Respondent) Mr P Pearsall (Applicant) Ms L Cocca (Respondent) Ms S Foggo (Applicant)
File Number(s):	2011/055324

Judgment

1. This is an application by the defence for a certificate under s 2 of the Costs in Criminal Cases Act 1967. Before I can grant such a certificate, I must be satisfied of the matters referred to in s 3(1) of that Act.

1. This matter was tried by me alone. I delivered judgment on 23 January 2013 acquitting the accused of charges of aggravated dangerous driving causing death and aggravated dangerous driving causing grievous bodily harm but convicted him of dangerous driving causing death and dangerous driving causing grievous bodily harm, statutory alternative counts to which the accused had pleaded guilty both in the Local Court and on arraignment.

1. As I set out in [9] of my reasons, it had become my responsibility to decide whether the Crown had proved beyond reasonable doubt whether "at the time of impact" the accused was "driving" his vehicle "at a speed that exceeded, by more than forty-five kilometres per hour, the speed applicable to that length of road", namely seventy kilometres per hour. As I pointed out more shortly, the Crown had to prove beyond reasonable doubt that at the time of the impact the accused was driving at a speed exceeding 115 kilometres per hour.

1. Between [27] and [30] I pointed out that the Crown accepted that it was a reasonable possibility, which the Crown could not disprove, that the accused was having an epileptic seizure at the time of the collision on 12 September 2010 that led to the death of one victim and the suffering by another victim of grievous bodily harm. The Crown could not disprove that that was what caused the manner of the accused's driving and the resultant collision. At [30] I pointed out that one question arising was, when did the epileptic seizure that the accused suffered begin? I then considered certain evidence.

1. Commencing at [39] I said this:

"39. The only rational inference to be drawn from the evidence is that the accused's epileptic seizure…