The post-crash behavior of defendant Simon Christopher Courtney was addressed by Justice Malcolm Swift last week when he instructed jurors before they retired to consider the evidence they had heard over the previous five and a half days. On Friday, the four men and three women found Courtney guilty of two counts of unlawfully and maliciously inflicting grievous bodily harm, plus one charge of reckless driving. They found him not guilty of dangerous driving, an alternative charge.
Courtney, 50, was released on bail pending the preparation of a social inquiry report, with sentencing provisionally set for Monday, July 25.
Richard and Kathy Schubert, 71 and 68 respectively, were seriously injured when they were struck by the car Courtney was driving along West Bay Road as they were walking on the sidewalk near Villas of the Galleon. The incident occurred shortly after 5 p.m. on Sunday, Jan. 25, 2015, a day on which it had rained.
Courtney gave evidence during his trial, describing himself as an attorney who specializes in corporate work and mutual funds. He accepted that he had left the scene after the accident. He said he did not have a phone with him and wanted to call 911 after seeing a lady lying on the ground. He explained that he wanted to get back to The Ritz-Carlton because he knew there was a phone in the restaurant, where he and his wife had just come from a champagne brunch.
Courtney said he never made it to the restaurant, but he did not know if that was from being in a state of shock or because of a concussion he believed he had sustained from his head hitting the car window when the vehicle spun out of control. He did not submit medical evidence of a concussion.
In his instructions to the jury, Justice Swift explained that “maliciously” inflicting grievous bodily harm nowadays means “recklessly.”
When considering whether Courtney was reckless, jurors were entitled to take into account his post-crash behavior if they considered it appropriate to do so. But, he cautioned, they could only do so if they were satisfied that his departure from the scene was because he was aware that he had driven recklessly. If they thought there was a reasonable possibility that he had another motive, then his post-crash behavior was of no relevance to the issue of recklessness and they should ignore it.
Possible other motives for leaving were that Courtney may have gone to find help or call 911. He may have had no concerns about his driving, but fled the scene out of fear of being breath-tested, arrested or losing his license. He may have left for some other reason not connected to any reckless driving.
The judge did not use the phrase “leaving the scene of an accident.”
In fact, Courtney has been charged with leaving the scene of an accident without reasonable cause, but that offense can be tried only in the Summary Court. The charge was included when the matter first came to court, in May 2015. After Courtney elected to be tried in the Grand Court, a preliminary inquiry was held to determine if there was sufficient evidence to commit the case to the higher court. When a magistrate ruled that there was, the “summary only” charge was left to be dealt with in the lower court.
It was not immediately known when Courtney would return to the Summary Court.
Justice Swift had also told the jurors that they were entitled to consider alcohol in deciding the question of recklessness.
To prove recklessness, the Crown had to prove four things: that there was a risk that some bodily harm might result from the defendant driving that car in the circumstances existing at the time; that he was aware of the risk; that in the circumstances, he was aware that it was unreasonable to take the risk; and that he went on to take the risk.
Circumstances to be considered included the nature and condition of the road and its wet surface; the possibility of standing water; the defendant’s knowledge of the capabilities and characteristics of his car – a 2014 Mustang Shelby GT 500.
If jurors thought alcohol consumption may have been insufficient to play a part in what happened, they were obliged to put it out of their minds, the judge instructed.
“If, however, you are sure that alcohol did contribute to the risk and you are sure that, because of self-induced intoxication, the defendant was unaware of the risk his driving was likely to pose and that it was unreasonable to take the risk of driving, but that he would have been aware of the risk and would not have taken it if he had been sober, you will treat him as if he was aware of the risk and aware that it was unreasonable to take it. If you are sure of those matters, his intoxication does not provide him with a defense,” the judge said.
Courtney in his evidence maintained that he was careful in his consumption of champagne because he knew he would be driving. Evidence from the waiter and restaurant supervisor was that three bottles of champagne were served to the party of four people between noon and 3 p.m.
Courtney said he drank probably one glass of champagne per hour between noon and 3 p.m. and then mostly water until 5 p.m., but he did not have complete recollection.
Questioned by senior Crown counsel Tricia Hutchinson, he said he drank one glass per hour between 12 p.m. and 2 p.m., but had no memory of what he drank between 2 and 3 p.m. He denied drinking the five glasses of champagne suggested by Ms. Hutchinson. “If I was impaired in any way, I would have left the car and taken a taxi as I have done in the past,” he said.
During the trial jurors heard from Mr. and Mrs. Schubert via video link. Mr. Schubert, whom witnesses described as landing on his face and knees after being hit, said every bone in his face was broken and doctors needed to reference a photograph of how he looked before they performed surgery.
Mrs. Schubert sustained a deep laceration to her left leg that involved muscle damage, a cervical spine injury and loss of tissue to her scalp.