McBride v The Queen

McBride v The Queen - [1966] HCA 22 - HCA 1966 case summary — Zoe

[15]

Though, with every respect to those who decided Attorney-General v. Bindoff [1] , I doubt whether it is even technically sufficient to express the offence the section creates, attention is certainly not adequately focused by the form of the charge upon the contemporaneity, upon which the section insists, of the driving which is in breach of the section and the impact by or through which the person is killed or injured. In some circumstances it may not be enough that the impact is the result of the vehicle having been driven at some earlier point of time in breach of the section. In other circumstances, the interval of time between the driving which is in breach of the section and the impact may be so short that the offending driving can be regarded as persisting to the moment of impact. It is not enough that injury results from the driving or that the death or injury occurs at the time of the impact. The impact must occur whilst the vehicle is being driven in breach of the section. In this case, though the summing up did not at any point call the jury's attention to the matter, no point has been raised in this connexion: and, in any case, on the facts here, the jury could well have been allowed to conclude that if the applicant was driving so inattentively to the danger of the public that for that reason he did not see the pedestrians entering the marked pedestrian crossing on the roadway until immediately before the impact with them, the impact occurred whilst the vehicle was being driven so inattentively. But the question whether the impact occurred whilst the vehicle was being driven in the manner charged is an essential ingredient of the offence created by s. 52A and, being a matter of fact, is for the decision of the jury, if there be any evidence upon which they can properly draw the necessary conclusion. They should, of course, have their attention called to the requirement of the section and be suitably directed on the matter in relation to the particular circumstances of the case.

[17]

The facts, though to a limited extent in contest, were relatively simple. The applicant was driving his employer's unladen motor truck easterly on a main road in a Sydney suburb. He was driving it at a reasonable, indeed, at a relatively slow, pace. He was following, driving near to his left-hand side of the roadway, a car. There was an intersection of the main road with other major thoroughfares over which intersection the car and the lorry had to pass before reaching a marked pedestrian crossing of the main road. As the car ahead of the motor truck approached this crossing it stopped, well short of the crossing. The applicant pulled out from behind the stopping car in what was described as a swerve. A woman and her infant son were at the time passing from south to north on the pedestrian crossing; they had covered the southern half of the roadway and had commenced to walk across the northern half when the motor truck driven by the applicant struck them, killing the child and doing grievous bodily harm to the mother. The evidence for the Crown suggested that the applicant had appeared to apply his brakes, and that thereafter the motor truck had continued at a lower speed, passing over the pedestrian crossing at a very slow speed. Motorists driving vehicles in the same main road at or immediately prior to the time of the impact both easterly and westerly gave evidence of their having seen the pedestrians crossing the roadway, and having done so at varying distances from the crossing but in each case at such a distance as allowed of the stopping of the vehicle before reaching the pedestrians. The applicant claimed that just before reaching the pedestrian crossing his attention had been attracted by a vehicle closer to him than the crossing, coming westerly and indicating an intention to make a turn northerly at the road intersection and across the path the motor truck was travelling; and that later, the pedestrians had stepped out "from behind" this vehicle. This situation was specifically denied by evidence given for the Crown. However, the accused said that the woman and her child were only about six or eight feet from him when he first saw them. He conceded that he was familiar with the locality and aware of the presence of the pedestrian crossing. He also claimed that his brakes had not worked properly; as he put it, they had "gone hard", and that he had resorted to the hand brake to stop the motor truck when he realized that the foot brake was not stopping the vehicle. In his statement at the trial he claimed to have caused the brakes to be serviced by his employer shortly before the day in question and believed that they were in order when he took over the vehicle in the course of his employment prior to the accident.

[43]

I do not find any fault with the form of the indictment which, it seems to me, followed the form to which the Court of Criminal Appeal gave its approval in Attorney-General v. Bindoff [1] . Nor do I offer any comment on the contention that the summing up did not adequately present the case for the appellant to the jury. My view is founded on the fact that not only was no assistance given to the jury by the summing up on the issue whether the applicant drove his vehicle "in a manner dangerous to the public" but the introduction of the notion of "culpable driving" served only to confuse the issue. It is, of course, true that the offence of which a person may be convicted under s. 52A of the Crimes Act is described by the section as "culpable driving". But before he can be found guilty of that offence it is necessary that the essential ingredients of the offence as declared by the sub-section should be made out beyond reasonable doubt (Attorney-General v. Bindoff [1] and Reg. v. Lillicrap [1] ). In the present case there is no suggestion that the vehicle was being driven at a speed which was dangerous to the public and it was necessary for the Crown to establish that the applicant had driven the vehicle in which he was travelling in a manner which was dangerous to the public. It was, therefore, erroneous and confusing to invite the jury, as I think the summing up did, to equate "culpable driving", as expounded in the summing up, with the act of driving in a manner dangerous to the public. On this topic his Honour said: "The third thing which you have to consider is whether the accused drove his car in a manner dangerous to the public. Mr. Murphy for the accused has put to you that this is not the case of a driver swerving all over the road, indifferent to the consequences of his act. There are many ways and manners in which it could happen. This is the allegation here, that the manner in which he drove was dangerous. Supposing I choose to go out on the roadway and blindfold myself and drive down or drive through the crossing at Darlinghurst here, then that would be a manner of driving that is dangerous obviously. It may be I have a sixth sense and can drive quite straight through a crossing, but the manner in which I conduct myself by blindfolding myself can still be a dangerous manner of driving. So, you come to this question of the word "culpable" that has been used. It is not an easy word to define. You will find according to the Oxford Dictionary that [all that] it describes it is as blameworthy. That is, as opposed to praiseworthy. Something very good would be praiseworthy; something bad is blameworthy". At no stage thereafter in the course of a brief summing up was anything said to modify or vary the effect of the last three sentences of this passage and it seems to me that their importance and bearing on the case escaped the notice of a Court of Criminal Appeal. In my view the Court of Criminal Appeal should have concluded that there was a major defect in the summing up and should have allowed the appeal.

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Decision date

Before

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Judgment (44 paragraphs)

Parties

Cases Cited (1)