Irvin v The King - [2024] NSWCCA 70

Court of Criminal Appeal

Supreme Court

New South Wales

Summary available

Medium Neutral Citation: Irvin v R [2024] NSWCCA 70
Hearing dates: 10 April 2024
Date of orders: 13 May 2024
Decision date: 13 May 2024
Before: Payne JA at [1];
Mitchelmore JA at [112];
Wilson J at [113]
Decision:
(1) Application for leave to appeal granted.
(2) Appeal dismissed.

Catchwords:
CRIME – Appeals – Appeal against conviction – whether jury verdict unreasonable – collision between applicant’s and deceased’s vehicles – where applicant convicted of dangerous driving occasioning death while under influence of intoxicating liquor against Crimes Act 1900 (NSW) s 52A(1)(a) – defences – where applicant relied on defence under Crimes Act s 52A(8) that death not in any way attributable to his intoxication – where applicant bore onus of proving defence on balance of probabilities – whether jury bound to find defence proven on whole of evidence – whether only available finding was that collision occurred in applicant’s lane and therefore not attributable in any way to applicant’s intoxication – assessment of evidence – whether jury bound to find eye witness’s account unreliable – jury’s advantage in assessing witnesses – assessment of expert evidence – validity of assumptions made by experts

Legislation Cited:
Crimes Act 1900 (NSW) ss 52A, 52AA, 52AB
Criminal Appeal Act 1912 (NSW) ss 5, 6

Cases Cited:
Dansie v R (2022) 96 ALJR 728; [2022] HCA 25
Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30
M v The Queen (1994) 181 CLR 487; [1994] HCA 63
Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
R v F [1957] SR(NSW) 543
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13
The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35

Category: Principal judgment
Parties: Dennis Maxwell Irvin (applicant)
Crown (respondent)
Representation:
Counsel:

I Lloyd KC; T Bicanic (applicant)
S Lind (Crown)

Solicitors:
George Sten & Co (applicant)
Solicitor for Public Prosecutions (Crown)

File Number(s): 2021/201822
Publication restriction: Nil
Decision under appeal

Court or tribunal:

District Court of New South Wales

Jurisdiction:

Criminal

Date of Decision:

15 February 2023

Before:

Grant DCJ and a jury of 12

File Number(s):

2021/201822

HEADNOTE

[This headnote is not to be read as part of the judgment]

On 14 July 2021, Mr Dennis Irvin (the applicant) and Mr Michael Ingram’s vehicles collided outside Barellan, in south-western New South Wales, causing Mr Ingram’s death. The applicant was indicted in the District Court and pleaded not guilty to two dangerous driving offences and one offence of failing to stop and assist.

When the collision happened, the applicant was travelling south and the deceased north on Barellan Road. The Crown’s case was that the applicant was heavily intoxicated while driving his vehicle, an Iveco truck hauling a “King of the Road” caravan; that the caravan’s retractable driver’s side compartment was extended; that the applicant first swerved some distance off the road and that, trying to regain control, he…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Irvin v The King

Details

AGLC: Irvin v The King [2024] NSWCCA 70
Case: [2024] NSWCCA 70
Decision Date: 13 May 2024

CaseChat Overview and Summary

In the High Court of Australia, the case of Irvin v The King involved an appeal against a conviction for dangerous driving causing death while under the influence of intoxicating liquor, contrary to section 52A(1)(a) of the Crimes Act 1900 (NSW). The applicant, who was driving, was found guilty following a collision with the deceased’s vehicle. The applicant argued that the death was not in any way attributable to his intoxication, relying on section 52A(8) of the Crimes Act, which places the onus of proving this defence on the defendant on the balance of probabilities. The applicant contended that the jury was bound to find the defence proven given the evidence presented.

The legal issues central to the appeal included whether the jury verdict was unreasonable, particularly regarding the application of the defence in section 52A(8). The court had to determine whether the jury was obligated to find the defence proven based on the totality of the evidence and whether they were required to deem an eyewitness account unreliable. Additionally, the assessment of expert evidence and the validity of assumptions made by experts in their reports were scrutinized. The court examined whether the jury's advantage in assessing the credibility of witnesses and experts could be relied upon to find the defence proven.

The High Court held that the jury was not required to find the defence proven merely because the collision occurred in the applicant’s lane. The court emphasised that the jury was entitled to consider all the evidence and decide whether the applicant had discharged the onus of proving the defence on the balance of probabilities. The court also noted that the jury was not bound to find the eyewitness account unreliable, and their assessment of the evidence, including expert testimony, was a matter for their discretion. Ultimately, the appeal was dismissed, affirming the applicant’s conviction.

Orders