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Court of Criminal Appeal 13 May 2024

Irvin v R

[2024] NSWCCA 70

Traffic & driving
CRIME APPEALS APPEAL AGAINST CONVICTION WHETHER JURY VERDICT UNREASONABLE DEFENCES ASSESSMENT OF EVIDENCE

Citation: Irvin v R [2024] NSWCCA 70
Court: NSW Court of Criminal Appeal
Date: 13 May 2024
Judges: Payne JA (primary judgment); Mitchelmore JA and Wilson J agreeing

Background

On 14 July 2021, a fatal collision occurred on Barellan Road in south-western New South Wales between an Iveco truck towing a caravan and a Mitsubishi Outlander. The driver of the Mitsubishi was killed. The driver of the truck and caravan, the applicant, had been drinking that day, had not eaten, and was captured on store video appearing unsteady on his feet shortly before the collision. After the crash, he drove home without rendering assistance or calling emergency services.

The applicant was convicted in the District Court at Albury of dangerous driving occasioning death while under the influence of intoxicating liquor (Crimes Act 1900 (NSW) s 52A(1)(a)) and of failing to stop and render assistance (s 52AB(1)). He was sentenced to an aggregate term of three years and nine months, with a non-parole period of two years and six months.

The applicant appealed only the dangerous driving conviction. His sole ground was that the jury's verdict was unreasonable and could not be supported by the evidence. He did not challenge his intoxication, the failure-to-stop verdict, or the sentences imposed.

  • Whether the jury's verdict on the dangerous driving charge was unreasonable and unsupported by the whole of the evidence.
  • Whether the jury was bound to find the s 52A(8) defence proven on the balance of probabilities, namely that the applicant's intoxication contributed in no way to the deceased's death.
  • Whether the jury was obliged to reject the eyewitness account of the deceased's passenger, Mr Manning, as unreliable.
  • Whether the jury was required to accept the applicant's collision reconstruction expert's opinion that tyre marks showed the deceased's vehicle crossed into the applicant's lane.

Decision

The Court of Criminal Appeal, applying the well-established test from M v The Queen, confirmed that an appellate court reviewing a verdict for unreasonableness must independently assess the evidence. The relevant question is not whether the jury might have entertained a doubt, but whether it must have done so. That is a demanding standard, and the Court found the applicant did not meet it.

On the s 52A(8) defence, the applicant bore the onus of proving on the balance of probabilities that the collision was not attributable in any way to his intoxication. His case was that the evidence compelled a finding that the deceased's vehicle had crossed the centre line and caused the impact. The Court rejected that argument. The jury was entitled to accept the evidence of Mr Manning, a 92-year-old passenger in the deceased's vehicle, who gave evidence that the deceased's car remained in its lane and that the caravan's protruding extension crossed into their lane. Apparent inconsistencies in Mr Manning's account were ones the jury could reasonably resolve, and the Court deferred to the jury's advantage in assessing his credibility in person.

The Court also upheld the jury's treatment of the competing expert evidence on tyre marks at the scene. The applicant's expert, Mr George, opined that certain marks were made by the deceased's vehicle, suggesting the deceased had crossed into the applicant's lane. However, the Court found that those marks were equally consistent with having been made by the applicant's own vehicle. Mr George's conclusions rested on assumptions the jury was not obliged to accept, and were inconsistent with Mr Manning's account. By contrast, the Crown expert's opinion was consistent with the physical evidence including vehicle damage, debris pattern, and other road markings.

The applicant's own electronically recorded interview, in which he told numerous lies, was also available to the jury as evidence against him. On the totality of the evidence, the Court held it was open to the jury to conclude the applicant had not discharged the s 52A(8) defence, and the verdict was not unreasonable.

Orders Made

  • Leave to appeal granted.
  • Appeal dismissed.

Key Takeaways

  • An appellate court reviewing a verdict for unreasonableness asks whether the jury must have entertained a doubt, not merely whether it might have done so. This is a high threshold that requires independent assessment of the whole evidence.
  • Under s 52A(8) of the Crimes Act 1900 (NSW), the defendant bears the onus of proving on the balance of probabilities that the death was not attributable in any way to their intoxication. A jury is not compelled to accept that defence simply because a competing account of the collision exists.
  • Where an eyewitness's evidence contains apparent inconsistencies, a jury is entitled to resolve those inconsistencies in the Crown's favour. Appellate courts will defer to the jury's advantage in assessing witness credibility and reliability in person.
  • Competing expert reconstruction opinions do not automatically oblige a jury to prefer the defence expert's view. Where an expert's conclusions depend on factual assumptions, the jury is free to reject those assumptions and, with them, the opinion that rests on them.
  • In dismissing the appeal, the Court of Criminal Appeal confirmed that lies told by the accused in a recorded police interview are available to the jury as circumstantial evidence bearing on a statutory defence that the accused carries the burden of proving.

Legislation and Cases Referenced

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

Cases
- M v The Queen (1994) 181 CLR 487; [1994] HCA 63
- Libke v The Queen (2007) 230 CLR 559; [2007] HCA 30
- SKA v The Queen (2011) 243 CLR 400; [2011] HCA 11
- Pell v The Queen (2020) 268 CLR 123; [2020] HCA 12
- Dansie v R (2022) 96 ALJR 728; [2022] HCA 25
- The Queen v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35
- R v F [1957] SR(NSW) 543