GILLETT v REGINA [2006] NSWCCA 370

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

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 CASES CITED: 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