A MAN who crossed to the wrong side of Tomago Road in March 2020 and caused a head-on crash that killed 75-year-old Geoffrey Gilbert-Smith was suffering a mental health impairment at the time and most likely was not driving "consciously and voluntarily", Newcastle District Court has heard.
Daniel Mark Pelos, 35, of Kurri Kurri, who is represented by barrister Mark Preece and solicitor Drew Hamilton, has pleaded not guilty to dangerous driving occasioning death over the crash at Tomago but was found unfit to stand trial in 2021.
There is 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.
But a special hearing, that commenced in Newcastle District Court on Monday, will focus on whether Mr Pelos was "voluntarily and consciously" driving the vehicle at the time of the crash or if he has 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.
According to a brief of evidence handed up to Judge Sharon Harris on Monday, two neurologists opine that it was "reasonably possible" that Mr Pelos was not "consciously and voluntarily" driving the vehicle at the time of the crash, although they come to different conclusions as to why.
The defence neurologist, Dr Dan Milder, opined that it was possible Mr Pelos' driving before the crash took place at a time of "impaired consciousness due to a complex partial seizure".
"In effect, it is entirely possible that the defendant had a seizure and was therefore not a conscious and voluntary driver," court documents state.
However, the prosecution neurologist, Dr David Rosen, does not agree with that conclusion and opined that the combination of autism, intellectual disability, anxiety and stress compromised Mr Pelos' ability to drive before the crash.
"Ultimately, he concluded it was speculative and highly unlikely that the defendant had epilepsy or a seizure," court documents state. "But it was the effects of stress upon his mental and cognitive impairment that exceeded his capacity resembling a lack of consciousness and voluntary control."
The special hearing, before Judge Harris, continues on Tuesday.
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