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…

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.

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Details

Case: [1998] SADC 3973
Decision Date: 11 March 1998

CaseChat Overview and Summary

The case of R v Brian Ronald Irwin, identified as DCCRM-96-1067, was presided over by Criminal Judge Lee. The accused, Brian Ronald Irwin, faced two counts of causing bodily harm by dangerous driving. Irwin applied for a voir dire to exclude certain statements attributed to him by prosecution witnesses, which were made shortly after the accident and implied he was the driver. The application was denied by the court, which provided detailed reasons for its decision. The court had to determine whether the statements were admissible or should be excluded due to their probative value or prejudicial effect, especially considering Irwin's intoxicated state and head injuries.

The legal issues revolved around the admissibility of Irwin's statements under the circumstances of his intoxication and injuries, which the defence argued rendered the statements unreliable or inadmissible. The court examined whether Irwin's mental condition at the time of the statements was such that they could not be relied upon, or if their prejudicial effect outweighed their probative value. The defence presented medical evidence suggesting Irwin was in a state of automatism due to his intoxication and injuries, which would have impaired his ability to consciously control his words. However, the court found these expert opinions were contingent on the credibility of Irwin's account of events, which the court doubted due to inconsistencies in his testimony.

The court found that the statements were not so unreliable that they should be excluded outright. The experts acknowledged that independent confirmation of the statements would affect their opinions. The court considered that the statements were consistent with Irwin's behaviour and the situation at the time of the accident. The judge ruled that the truth of the statements was supported by independent evidence from other witnesses. The court concluded that the issue of reliability should be determined by the jury, not the judge, and that the statements should be admitted into evidence.

In summary, the court ruled in favour of the admissibility of the statements made by Irwin and declined to exclude them in the exercise of discretion. The court found that the statements, despite the defence arguments, were reliable enough to be considered by the jury as part of the overall evidence in the case.

Orders