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 1This 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. 2This 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. 3As 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. 4Between [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. 5Commencing at [39] I said this: "39. The only rational inference to be drawn from the evidence is that the accused's epileptic seizure commenced at some point prior to his crossing the median strip north of the Bolong Road intersection. That finding needs only to be made on the balance of probabilities. It is consistent with the opinions expressed by Dr Armin, which I have already canvassed. It is consistent with some of the earlier collisions in which the accused was involved, that of 19 February 2008 (the second) and that of 27 November 2008 (the fourth). Agreed Fact 19 is that there is a roundabout at the intersection of the Highway and Belinda Street, to the north of the Bolong Road intersection. There is no evidence as to whether the accused had to negotiate that roundabout. The Crown did not seek to establish where the accused made his last delivery and his route links to the highway north of the Bolong Road intersection. However, if the accused had negotiated that roundabout, the inference to be drawn is that the seizure commenced after he left the Belinda Street intersection and before he failed to negotiate the left-hand curve of the Highway north of the Bolong Road intersection. There is no physical evidence of where the white Fairmont [the accused' vehicle] crossed the median strip. I cannot exclude as a reasonable possibility the opinion expressed by Mr Jamieson that it was at the tangent point of 20º left-hand curve, shortly after a point 75 metres north of the intersection. Indeed that seems imminently sensible to me and I am prepared to so find on the balance of probabilities. 40. What was the speed of the accused's vehicle before he was overtaken by his epileptic seizure? The simple answer to that question is: I do not know, because there is no evidence on that point. The Crown has not set out to prove what speed the accused was travelling at immediately before the epileptic seizure commenced, but rather the speed of the white Fairmont at the moment it collided with the green Falcon [the vehicle being driven by the deceased]. I do know that the accused's vehicle was travelling downhill before the Bolong Road intersection and continued to go downhill after crossing the median strip: I again refer to the evidence of Mr Cooper quoted in [33] above. Given the weight of the accused's vehicle (1.514 tonne) and gravity, the downhill slope, unless the accused braked, would have increased the white Fairmont's momentum, its speed. I again point to the opinion expressed by Dr Armin that the accused may have had a tonic episode affecting his right leg which might have caused him to accelerate, his right foot depressing the accelerator pedal, or, alternatively, keeping his right foot on the accelerator pedal, his consciousness being so impaired that he did not know that he ought to have braked or stop. 41. This lack of evidence as to the speed of the accused's vehicle immediately prior to his suffering the epileptic seizure is, on the defence submissions, fatal to the Crown case for reasons to which I shall, in due course, turn. I accept those submissions. That really is sufficient to decide the current prosecution." 6I went on, however, in a further forty-four pages of reasons, to consider what the Crown case was and whether it had established what it sought to establish. I canvassed the relevant law commencing at [92]. The leading authority which guided me was Jiminez v R [1992] HCA 14; 173 CLR 572. I was also assisted by the decision of the Court of Appeal in Gillett v R [2006] NSWCCA 370. I came to the view that the Crown needed to establish what the accused's speed was not at the very moment of impact, after he had fallen into his epileptic seizure, but rather immediately prior to his epileptic seizure. 7The Crown case as put to me today by the Crown Prosecutor was that the accused must be seen to be guilty because the consequences of his driving with his known tendency to epilepsy had the potential that he might fall into excessive speed in his state of semi-consciousness. That, in my view, is a view of the law which is not compatible with the decisions of the High Court of Australia and the Court of Criminal Appeal. The Crown never sought to establish what the speed of the accused was prior to his falling into his epileptic seizure which led to the dangerous driving leading to the death and the infliction of grievous bodily harm. 8In the circumstances, it is my view that had the prosecution before the presentation of the indictment been in possession of all the evidence which was eventually presented to me, it would not have been reasonable in the circumstances to proceed with the prosecution of the accused on the aggravated dangerous driving charges. I am also not persuaded that any act or omission of the accused contributed or may have contributed to the institution or continuation of the prosecution. As I said earlier, the accused had at all material times indicated that he was guilty of the unaggravated offences. That is set out in [8] of my earlier reasons for judgment. 9I accordingly grant to the defence the certificate requested, a pro-forma of which was filed in the Registry on 27 February 2013. In making that finding I record that I have been guided by the principles enunciated by McColl JA with whom Beazley and Hodgson JJA concurred in Mordaunt v DPP [2007] NSWCA 121, in particular the principles set out by her Honour in [36] of her reasons. HIS HONOUR: No-one wants any further reasons do they? PEARSALL: No your Honour thank you. RATCLIFFE: No your Honour. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 16 August 2013