R v Irwin No. Sccrm-98-60 Judgment No. S6670

[1998] SASC 6670

R  v  IRWIN

Court of Criminal Appeal:  Doyle CJ, Millhouse and Nyland JJ

DOYLE CJ

This is an application for leave to  appeal against conviction.
Mr Irwin was convicted on two counts of causing bodily harm by dangerous driving, contrary to s19a(3) of the Criminal Law Consolidation Act.
Leave to appeal was refused by Prior J.
By application dated 17 April 1998, Mr Irwin applied to have determined by the Full Court his application for leave to appeal against conviction.  The application was considered by the Full Court in private pursuant to rule 15(7) of the Supreme Court Criminal Appeal Rules 1996.
The application was considered by the court comprising me, Millhouse and Nyland JJ.
We are unanimously of the opinion that leave to appeal should be refused.
Ground 1 complains that the learned judge erred in concluding that the statements of the accused at the scene of the accident were voluntary, or reliable, and that it was fair to admit them into evidence.  This ground rests upon a claim that the statements were made by the applicant while in an automatistic state.
Contrary to the applicant’s submission, the judge did address the issue of the voluntariness of the statement.  Whilst it is true that the judge did not specifically find against the applicant’s claimed loss of memory, this is overtaken by the judge’s finding that the statements at the scene were, in fact, reliable.  Once this is accepted, and there was ample evidence to support such a conclusion, then the claims of unreliability and confabulation, and accordingly of loss of memory, all tend to collapse.  In our opinion, it was permissible for the judge to examine the reliability of what was said and to reason back from that.
The court does not accept the submission that the judge misdirected himself as to the law.  Once the evidence was admitted, it was for the jury to decide whether the statements were reliable.  We also do not consider that there was any basis for discretionary exclusion, once the answers were found to be true and not given because of an  automatistic state.
We do not consider that there is any realistic prospect of success on this ground.
Ground 2 complains that the judge erred in directing the jury in terms which inferred that important factual issues were established without the need for their consideration.
In our opinion, this ground has no merit.  Throughout the summing up, there were plenty of occasions when the judge reminded the jury that issues of fact were for them to decide.  There is not any realistic prospect of the court being satisfied that the judge withdrew crucial factual issues from the jury, or confused the jury.  Accordingly, we would refuse leave to appeal on this ground.
Accordingly, it appears that the appeal has no reasonable prospect of success, nor does the appeal raise any point of principle.
It is for those reasons that the court has refused leave to appeal.
Accordingly, the order of the court is that leave to appeal be refused.