A MAN who caused a fatal crash at Tomago was suffering from a cognitive impairment due to a combination of complex psychological issues which meant he did not know what he was doing at the time of the crash.
Daniel Mark Pelos, 35, of Kurri Kurri, pleaded not guilty to dangerous driving occasioning death over the crash that killed 75-year-old Geoffrey Gilbert-Smith on Tomago Road on the afternoon of March 8, 2020.
Mr Pelos was in 2021 found unfit to stand trial and instead this week faced a two-day special hearing in Newcastle District Court that ended with Judge Sharon Harris delivering a verdict of act proven but not criminally responsible.
Judge Harris found Mr Pelos was suffering from a cognitive impairment due to "significant acute difficulties directly related to the effects of autism and intellectual disability exacerbated by anxiety and stress" that she said meant he "did not know the nature and quality of the act of his driving" at the time of the impact.
She found Mr Pelos did not need to be detained, instead ordering he be conditionally released and referred to the Mental Health Review Tribunal as a forensic patient.
There was no dispute Mr Pelos crossed to the wrong side of Tomago Road on March 8, 2020 and caused the crash that killed Mr Gilbert-Smith.
The special hearing focused on whether or not Mr Pelos was "voluntarily and consciously" driving the vehicle at the time of the crash and whether he had available to him a defence of mental health or cognitive impairment.
Mr Pelos was heading home along Tomago Road with his family in the car about 12.40pm on March 8 when failed to negotiate a sweeping left-hand bend and crossed into the oncoming lane.
Coming the other way was Mr Gilbert-Smith and the vehicles collided head-on, the impact forcing Mr Gilbert-Smith's Mitsubishi ASX down an embankment and into a tree.
Mr Gilbert-Smith suffered multiple injuries and died at the scene.
A crash investigation found Mr Pelos was not speeding, not affected by drugs or alcohol, was not using his mobile phone and there was nothing wrong with his car.
A witness driving behind Mr Pelos told police she saw his car cross to the wrong side of the road and did not see any brake lights.
The crucial evidence during the special hearing came from two expert neurologists who assessed Mr Pelos, both finding it was "reasonably possible" he was not "consciously and voluntarily" driving the vehicle at the time of the crash.
The experts came to different conclusions as to why, but the defence, led by barrister Mark Preece and solicitor Drew Hamilton, ultimately adopted the view of prosecution expert Dr David Rosen.
Dr Rosen concluded it was "highly unlikely" that Mr Pelos suffered a seizure at the time of the crash.
"The more plausible explanation was from the effects of stress in people with autism and intellectual disability and how superimposed emotional and psychological dysfunction in stressful situations can exacerbate cognitive impairment and diminish executive control," Dr Rosen found.
"At the time of the crash the defendant's cognitive functions were significantly impaired in a way that resembles a lack of consciousness and voluntary control but is different."
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