R v Irwin No. DCCRM-96-1067 Judgment No. D3779

[1998] SADC 3973

R v  BRIAN RONALD IRWIN

Criminal
Judge Lee
Ruling

The accused was charged with two counts of causing bodily harm by dangerous driving.  He applied on the voir dire for orders excluding certain utterances attributed to him by witnesses for the prosecution.  I refused the application, and these are my reasons.

The utterances were made shortly after the accident, and state or imply that the accused was the driver of the vehicle at the relevant time.  It was common ground that the identity of the driver would be an issue at the trial.  It was also common ground that the accused was intoxicated, and that he sustained injuries to his head in the accident.

The grounds advanced for the orders sought were that the utterances were either inadmissible as having no probative value at all or should be excluded in the exercise of discretion.

Although it is true that the utterances were not given in response to questions by the police, they should be excluded as inadmissible if the mental condition of the accused was such that no reliance whatever can be placed upon them:  R v Smith (1992) 58 SASR 491 at 499.  If not inadmissible, the utterances should still be excluded if their prejudicial effect outweighs their probative value:  R v Christie (1914) AC 545.

Counsel for the accused called two medical experts, Dr Noel McCleave and Dr Craig Raeside.  Both expressed the opinion that the accused’s intoxication and head injuries had combined to produce a state of automatism.  This is a state which, they said, would have separated the accused’s will from his words, and made him prone to confabulation.

It was apparent from the evidence of the doctors that their opinions were based substantially upon the assumption that the last thing the accused remembered before waking up in hospital the next day was having his first stubby of beer at the McLaren Vale Hotel.  That was the information given to the doctors and that was the effect of the evidence which the accused gave before me. 

So the opinions of the doctors depended for their validity substantially upon the credibility of the accused. 

The accused’s narrative of relevant events, and the prosecutor’s opportunity to test it by cross-examination, were restricted both by the asserted loss of memory and by the limited scope of the voir dire enquiry.  In these circumstances, I would have expected to hear a relatively straight-forward account. But I did not.  The accused said under cross-examination that, despite three or four convictions for drink driving in Queensland, he did not think after coming to South Australia that he would go to gaol for drink driving.  The significance of the cross-examination was that one of his utterances, repeated several times, was that he would go to gaol.  The accused’s answer was deliberately evasive in my judgment, and tended to undermine the reliability of the rest of his evidence.

Even if the accused was truthful about his loss of memory, I had other reservations about the opinions of the doctors.

Dr McCleave took the accused’s utterances to the ambulance officer Bernard that he wanted to get to the Mini because his friend and brother were inside as a misinterpretation by the accused of his environment, given that the accused’s three brothers were in Queensland at the time.  If Bernard correctly heard and reported the accused, the accused’s reference to his brother was consistent with a desire on his part to impress upon the officer the urgency of his need to return to the Mini and, more particularly, the occupants of the Mini.  The witness Simpson saw the accused get into and out of the Mini several times, and overheard him say to the occupants that they should remain silent.  One can infer that the accused wanted the occupants to remain silent about the identity of the driver.

As I understood the evidence of the doctors, the utterances of the accused were not so inherently unreliable that no attention in any circumstance should be paid to them.  Both doctors made it plain that independent confirmation of the truth of the accused’s utterances would diminish their opinions about his mental state.  Such of the other declarations as bore on the situation of the accused at various times all pointed to him as having been the driver.  I refer in particular to the declarations of Smith, Hancock, Simpson and Williams.  So the truth of the accused’s utterances was clearly, indeed overwhelmingly, confirmed by independent evidence.

Although dealing with “confessions” in the context of a police interview, the following observations of the Chief Justice in R v Pfitzner (1996) 66 SASR 161 at 177 seemed to me to apply with equal, if not greater, force to spontaneous utterances of the kind that were before me:

“In my opinion it is clear enough from this that the presence of a mental disorder which makes it possible that a confession is unreliable, in the sense that the mental disorder is such that one cannot accept it as intrinsically likely to be true, is not sufficient to render a confession inadmissible.  That is a matter which goes to weight, and obviously involves a consideration of the terms of the confession, and most importantly, the extent to which the contents, of the confession are confirmed by independent proof of the events to which it relates.

At the other extreme a person may be incapable of understanding questions, and of making rational answers to them.  The judgments suggest, without it being clear, that a confession will not be excluded unless the judge is satisfied, having heard evidence, that the mental condition of the person was such that the confession was attributable to a disorder which was such that no reliance could be placed upon the admissions made.  In expressing the matter this way I have deliberately avoided any question of onus, the correct placing of which does not arise here.

It also seems to me that the tenor of the judgments is that it will only be in an exceptional case that the confessional statement will be excluded, and that ordinarily one would expect issues of unreliability to be dealt with by the jury in deciding the weight to be given to the confession, rather than by the judge in making a decision to exclude the confession.”

If the expert opinions were to be discounted, as I thought they should be for the purposes of the voir dire enquiry, I was left with utterances which were responsive to the circumstances in which the accused found himself.  More particularly, the accused’s utterances were consistent with an intoxicated driver with a drink driving record who was in fear of the consequences for him of the accident, and who was restless, erratic and agitated as a result.  I considered that the utterances were made consciously and voluntarily.  I took the view that, if the accused maintained that his utterances were unreliable, then that would be for the jury to decide, in the light of such directions as would be appropriate, and  against the background of all the other evidence in the case that they found proven.

In the result, I ruled in favour of the admissibility of the utterances, and declined to exclude them in the exercise of discretion.