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

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

The aggravated charges were not proved because the Crown failed to establish beyond reasonable doubt that the accused's vehicle was travelling at more than 115 km/h at the moment of impact, and in any event the Crown could not rely on speed after the onset of the epileptic seizure because the accused's actions then were involuntary. The Crown did not prove the aggravating circumstance during the voluntary driving immediately before the seizure. The accused was therefore acquitted of the aggravated offences but convicted of the unaggravated dangerous driving offences to which he had pleaded guilty.

Jurisdiction
Australia
Judgment Date
23 January 2013
Procedural Posture
Criminal Trial by Judge Alone / Principal Judgment on Indictment Determining Aggravated Dangerous Driving Charges After Guilty Pleas to Unaggravated Dangerous Driving Offences
Outcome
Accused acquitted of aggravated dangerous driving occasioning death and aggravated dangerous driving occasioning grievous bodily harm; convicted of dangerous driving occasioning death and dangerous driving occasioning grievous bodily harm; granted unconditional bail to appear for sentence.
Legal Topics
['aggravated Dangerous Driving Occasioning Death' 'dangerous Driving Occasioning Death' 'aggravated Dangerous Driving Occasioning Grievous Bodily Harm' 'epileptic Seizure and Voluntariness' 'circumstance of Aggravation: Exceeding Speed Limit by More Than 45 Km/h' 'accident Reconstruction Evidence' 'lay Opinion Evidence as to Speed']
['criminal Law' 'evidence' 'road Traffic Offences'] ['aggravated Dangerous Driving Occasioning Death' 'dangerous Driving Occasioning Death' 'aggravated Dangerous Driving Occasioning Grievous Bodily Harm' 'epileptic Seizure and Voluntariness' 'circumstance of Aggravation: Exceeding Speed Limit by More Than 45 Km/h' 'accident Reconstruction Evidence' 'lay Opinion Evidence as to Speed']

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Procedural Posture

Criminal Trial by Judge Alone / Principal Judgment on Indictment Determining Aggravated Dangerous Driving Charges After Guilty Pleas to Unaggravated Dangerous Driving Offences

Legal Issues

  1. 1 ['Whether the Crown proved beyond reasonable doubt that at the time of impact the accused was driving at a speed exceeding 115 km/h, being more than 45 km/h above the applicable 70 km/h speed limit.' "Whether the accused's driving after the onset of a complex partial epileptic seizure could be treated as voluntary driving for the purpose of proving the circumstance of aggravation." 'Whether expert accident reconstruction evidence and lay opinion evidence as to speed proved the alleged aggravating speed beyond reasonable doubt.' 'Whether the relevant dangerous driving was the voluntary driving before the epileptic seizure, when the accused knew of the risk of seizure while driving.']

Ratio Decidendi

The aggravated charges were not proved because the Crown failed to establish beyond reasonable doubt that the accused's vehicle was travelling at more than 115 km/h at the moment of impact, and in any event the Crown could not rely on speed after the onset of the epileptic seizure because the accused's actions then were involuntary. The Crown did not prove the aggravating circumstance during the voluntary driving immediately before the seizure. The accused was therefore acquitted of the aggravated offences but convicted of the unaggravated dangerous driving offences to which he had pleaded guilty.

Court Disposition

Accused acquitted of aggravated dangerous driving occasioning death and aggravated dangerous driving occasioning grievous bodily harm; convicted of dangerous driving occasioning death and dangerous driving occasioning grievous bodily harm; granted unconditional bail to appear for sentence.

Orders

  • ['On the charge of aggravated dangerous driving occasioning the death of Timothy Ioannou, the accused was found not guilty and acquitted.' 'On the charge of dangerous driving occasioning the death of Timothy Ioannou, to which the accused pleaded guilty, the accused was convicted.' 'On the charge of aggravated...