McBride v The Queen

For that he on the day in the year and at the place last aforesaid did drive a motor vehicle to wit a motor lorry in a manner which was dangerous to the public and through impact with the said motor vehicle, grievous bodily harm was then occasioned to Doreen Mavis Daly.

Section 52A of the Crimes Act, 1900 is in the following terms -

(1) Where the death of any person is occasioned through impact with a motor vehicle or through the impact of a motor vehicle with any vehicle or other object in, on or near which the person was at the time of impact and in either case the motor vehicle was at the time of impact being driven by a person -

(a) under the influence of intoxicating liquor or of a drug; or

(b) at a speed or in a manner which is dangerous to the public,

the person last-mentioned shall be guilty of the misdemeanour of culpable driving and shall be liable to imprisonment for five years.

(2) Where grievous bodily harm to any person is occasioned through impact with a motor vehicle or through the impact of a motor vehicle with any vehicle or other object in, on or near which the person was at the time of impact and in either case the motor vehicle was at the time of impact being driven by a person -

(a) under the influence of intoxicating liquor or of a drug; or

(b) at a speed or in a manner which is dangerous to the public,

the person last-mentioned shall be guilty of the misdemeanour of culpable driving and shall be liable to imprisonment for three years.

The word "then" in the indictments apparently serves to satisfy the terms of the section requiring that the death of or the injury to the person be occasioned by impact with a vehicle at the time of impact being driven in breach of the section.

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.

The complaint of the applicant in seeking special leave to appeal is that his defence was not adequately placed before the jury; indeed, his counsel submitted that the learned chairman of Quarter Sessions in the summing up had discounted a significant portion of it without warrant and to the applicant's prejudice. But, to my mind, the summing up was defective in a more radical respect. It did not, in my opinion, adequately explain to the jury the nature and essentials of the offences with which the applicant was charged.

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.

A good deal of expert evidence was given at the trial about the braking system on the motor truck and as to tests conducted on its brakes after the occurrence. It appeared that the brakes were no more than forty-five per cent efficient, test results of between forty-two per cent and forty-five per cent being obtained. Experts suggested that the booster device which aids the pedal pressure exerted on the brakes was not operating efficiently: and that, on the footing of the acceptance of the accused's statement that at the time of the accident the brakes "went hard", the condition of the booster device could have been the result of a sudden failure.

Beyond the inference which could be drawn from these basic facts there was no direct evidence that the applicant was driving inattentively, and particularly no specific evidence that he was so inattentive that his driving was dangerous to the public. I have set out so much of the evidence because of the course taken by the learned chairman of Quarter Sessions in his summing up to the jury.

Naturally the first matter in the case of a charge that the vehicle has been driven in a manner which is dangerous to the public is to determine and present to the jury what precisely is the manner of driving which the Crown alleges the accused has pursued and which it claims is dangerous to the public. If that manner of driving is not by its very description potentially dangerous to the public, it would be necessary to isolate for the jury the features of it which the Crown charges to be so dangerous. Of course, if the evidence could properly suggest to the jurymen some other feature of the applicant's driving as itself dangerous to the public, the jury should be told that they are competent to treat that feature of the driving rather than the feature or features of the driving chosen as dangerous by the Crown, as in breach of the section. Equally, if the evidence could bear such an interpretation, they could be told that if they find the applicant to have been driving in the precise manner charged by the Crown as dangerous but think it dangerous to the public for some reason other than that assigned by the Crown, they are at liberty to find that element of the offence established upon the footing of their own view as to the reason why the manner of driving was dangerous to the public. But in any case, the jury would need to be told what the expression "dangerous to the public" as used in the section involves.

The section speaks of a speed or manner which is dangerous to the public. This imports a quality in the speed or manner of driving which either intrinsically in all circumstances, or because of the particular circumstances surrounding the driving, is in a real sense potentially dangerous to a human being or human beings who as a member or as members of the public may be upon or in the vicinity of the roadway on which the driving is taking place. It may be, of course, that potential danger to property on or in the vicinity to that roadway would suffice to make the speed or manner of driving dangerous to the public, but the need for death or injury to a person to result from impact with a vehicle so driven may make that question unlikely to arise, though the possibility of its doing so must be acknowledged.

This quality of being dangerous to the public in the speed or manner of driving does not depend upon resultant damage, though to complete the offence under the section, impact causing damage must occur during that driving. Whilst the immediate result of the driving may afford evidence from which the quality of the driving may be inferred, it is not that result which gives it that quality. A person may drive at a speed or in a manner dangerous to the public without causing any actual injury: it is the potentiality in fact of danger to the public in the manner of driving, whether realized by the accused or not, which makes it dangerous to the public within the meaning of the section.

This concept is in sharp contrast to the concept of negligence. The concept with which the section deals requires some serious breach of the proper conduct of a vehicle upon the highway, so serious as to be in reality and not speculatively, potentially dangerous to others. This does not involve a mere breach of duty however grave, to a particular person, having significance only if damage is caused thereby. These distinctions make it imperative that the jury be specifically directed as to the criteria to be applied and the distinctions to be observed in determining whether any particular speed or manner of driving can have the quality, intrinsic or occasional, of being dangerous to the public within the meaning of the section: and that the particular features of the driving charged as in breach of the section be isolated for the jury and related to these criteria.

Whilst, of course, it is for the jury in each case to decide whether the manner of driving is dangerous to the public, in my opinion, it cannot be said in general terms as Herron C.J. said in the instant case that: "What the section fundamentally means is that if, by driving in a manner which is dangerous to the public in the opinion of the jury, death is caused, or alternatively grievous bodily harm to any person is occasioned, by such manner of driving, then the law inflicts a penalty."

This formulation does not leave the necessary room for a careful direction to the jury as to what "dangerous to the public" means and involves; and also, it seems to me, with every respect, it overlooks the requisite contemporaneity of the impact from which death or injury flows and the speed or manner of driving. Of course, once assisted by an indication of what can in the circumstances constitute driving in a manner dangerous to the public, and having had the distinctions to which I have adverted called to their attention, it is for the jury to decide the fact.

The quality of the driving may be deduced from the resultant facts. But where it is sought to make out the relevant quality of the driving by inference from the contemporaneous impact and its consequences, it seems to me to be the more necessary to carefully apprise the jury of the matters to which I have called attention and to keep before them the precise issue they have to try. Because the charge is unlikely to be laid unless the impact has caused death or grievous bodily harm, there will always be before the jury the serious result of the occurrence and the temptation to try an issue of negligence as between the driver and the injured party will naturally be most marked. Also the general incident of the road toll must not be allowed to obscure the particular right of the driver to a proper trial of the actual charge that is made against him, though I hasten to say that I do not suggest that this happened in the summing up in the present case.

In the case of a charge under the section that the vehicle was at the time of impact being driven by a person under the influence of intoxicating liquor, or of a drug, the same problems do not arise. Even in the case where the offence charged involves driving at a speed which is dangerous to the public, the relationship of the speed to danger to the public will be more readily seen. But where it is the manner of driving, an expression which can cover a wide and diverse set of facts, it is not enough that the vehicle as driven by the accused has caused death or injury and the accused was negligent, even in some glaring respect. It is essential to define what is charged as the manner of driving, so that when that has been found, the two succeeding questions can be dealt with, namely, was that manner of driving in itself or in its circumstances dangerous to the public and, did the impact which caused the death or injury occur whilst the vehicle was being so driven. Of all of these matters the jury are to be satisfied beyond all reasonable doubt.

However, in the present case, the only basis which the evidence offered for concluding that the motor vehicle at the time of impact was being driven in a manner dangerous to the public was that it was being driven so inattentively when approaching the pedestrian crossing that such inattentive driving constituted a danger to the public. And as I have said the only evidence that the motor vehicle was being driven inattentively were the circumstances of the impact and the accused's account of the happening.

The learned Chairman of Quarter Sessions did not at any stage pinpoint for the jury what it was that the Crown alleged was the dangerous manner of driving, though it emerges from a reading of the summing up that he considered the case to be a case of inattentive driving. He said on this aspect: "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 be still a dangerous manner of driving."

In my opinion, and with every respect to the experienced and learned chairman, this really gave the jury no assistance on the actual question in the case upon which they had to be affirmatively satisfied to the requisite degree, namely, was the driver "driving inattentively to the danger of the public at the time of the impact"? Indeed, at a later point in the summing up, his Honour said: "If you take the accused's own account of what happened, and a copy of his interview with the police will be before you, and he was asked in that interview, "When did you first see the woman - ?", I emphasize that, and he said "When I was about six feet away from her." Take yourself the first question of why didn't he see her earlier, and I will come to that aspect of his case in a moment."

The question, in my opinion, was not why didn't he see the pedestrian earlier than the time he claimed to have done. It may be impossible for the jury to answer that question and yet not be entitled to conclude affirmatively and beyond all reasonable doubt that the driver was driving inattentively to the danger of the public at a time so proximate to the impact that it could be concluded that at the time of the impact he was driving in a manner dangerous to the public. To pose such a question as his Honour put to the jury was, in my opinion and with due respect, to distract their minds from the real question.

When his Honour came to discuss the detail of the evidence, it seems to me that he treated the matter as if the case was one of breach of duty on the part of the driver towards the woman and her child as pedestrians passing over a pedestrian crossing. He referred to this area as a "Sanctuary - a safety place for pedestrians to cross a road and it is an offence to drive a vehicle on a pedestrian crossing when there is a person crossing it." Of course, the existence, and the proximity of a pedestrian crossing in relation to the path being taken by the applicant with the motor truck, were factors to be taken into account in considering whether the degree of inattentiveness which the jury found to have been exhibited by the applicant satisfied them that the manner of driving was dangerous to the public; but, in my opinion, the particular reference made by his Honour to the crossing and to the traffic offence was an irrelevant reference having regard to the nature of the manner of driving which it seems the Crown claimed to have been dangerous to the public. As I understand it the case was not that he deliberately drove through the pedestrian crossing, but that due to his lack of attention, he was driving dangerously prior to reaching the crossing. Later his Honour said - "This is not a case in which the injured person has in any way contributed to the injuries that she suffered by dodging about." However appropriate that remark might be in a claim by the injured woman for damages, it was, in my opinion, inappropriate in the present case. With every respect, it obscured rather than illuminated the essential nature of the offence with which the driver was charged.

In the present case the only assistance given to the jury in respect of what was involved in driving to the danger of the public was as follows: "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. Indifference to consequence is not an essential element. The Crown does not have to prove that the accused was quite indifferent to the consequences of his act. The driver may have honestly believed that he was driving very carefully and yet he may be guilty of driving in a manner which is dangerous to the public and it is for you as a jury to determine not whether the accused was as a matter of psychology indifferent or not to the public safety, but whether he has driven in a manner that was dangerous to the public. In other words, it is not a matter of what is the condition of his mind as to what he is doing but it describes the actual behaviour of the driver." But the offence is not driving culpably but driving in a manner dangerous to the public, though if that is made out the offence thus constituted is styled culpable driving. To give such a name to the offence no doubt lends strength to the notions to be derived from the words of the section which specify its actual elements; but the nature of the offence is not to be ascertained by defining the word culpable.

My examination of the summing up as a whole, satisfies me that the essential ingredients of the offence charged were not put to the jury as they should have been, that for that reason the resultant convictions cannot stand and that there must be a new trial if the Attorney-General of the State so decides.

Before concluding I wish to say something about the matter of the brakes. As the dangerous quality of the driving was sought to be made out by inference from the actual result of that driving, the reduction in braking power of the motor truck unknown to the applicant, if the jury thought it so, no doubt bore considerably on whatever conclusion was sought to be drawn from the impact itself. But had the jury had their attention clearly directed to the manner of driving which was charged as dangerous and warned that they must be satisfied positively that the applicant was at the relevant time driving so inattentively that he could not or was unlikely to see pedestrians in time to avoid them, it may well be that the evidence about the brakes, though relevant, would have had no commanding significance. Consequently, as the case was presented, I do not think the learned chairman was right in discounting as he did the matter of the brakes and their efficiency. But nevertheless if the summing up had otherwise adequately instructed the jury I would not have thought his treatment of the matter of the brakes called for the grant of special leave.

It was for these reasons that I was of opinion special leave to appeal should be granted, and, the argument on the motion being taken as the argument on the appeal, that the appeal be allowed, the convictions set aside and a new trial ordered.

I think, with respect to the learned judges of the Court of Criminal Appeal, that they should have quashed the conviction of the accused in this case.

Reading the summing up at the trial, it does not seem to me to be adequate. I do not gather from it what exactly was the substance of the Crown's allegation of driving in a manner dangerous to the public. This, doubtless, was clearly stated in the opening of the Crown's case and the final address for the Crown. I apprehend that the Crown case was that the accused did not stop at the pedestrian crossing but drove through it regardless of the danger which this involved to the child who was killed and his mother who suffered grievous bodily harm through impact with the truck. It seems that the jury would have thought that they had to find whether or not such conduct amounted to driving in a manner dangerous to the public. The verdict of the jury doubtless shows that they considered that this issue ought to be found against the accused. The learned trial judge was right in directing the jury that their duty was to apply an objective standard in deciding that issue, following, it would seem, the observations in R. v. Coventry [1] . In my view the summing up is defective in that it did not properly direct the jury as to the defence. The substantial defence was that the accused did not intentionally drive into the crossing. His defence was that he was driving at a slow speed, his truck was empty and he applied the brakes before entering the crossing but they failed. From his statement to the jury - which it was open to them under the Crimes Act to take into account - they might well have concluded that he had proper grounds for assuming that his employer had very recently put the brakes in order.

The case of Reg. v. Spurge [1] is an authority for the proposition that a mechanical defect may successfully be relied upon as a defence to a charge of dangerous driving if the danger has been created by a sudden total loss of control in no way due to any fault on the part of the driver and if the accused raises the defence the onus is on the Crown to negative it. The learned trial judge, however, attached little importance to the defence in his summing up because he pointed out that the accused was such a short distance from the crossing when he first saw Mrs. Daly, the injured woman, and that in all probability he would not have been able to stop even if the brakes had been working efficiently. The accused said in his statement that he was experienced enough in driving to know that he could have avoided the accident if his brakes had been working efficiently and that he applied his brakes when he saw Mrs. Daly on the crossing. In an earlier statement to the police he said he saw Mrs. Daly when he was about six feet from her but in his unsworn statement he qualified this by saying that he felt that a mental calculation by him of the distance between points on the road would not be reliable. As I read the evidence it would have been open to the jury to find that the accused's vehicle might have been substantially more remote from the crossing at the moment when he first saw Mrs. Daly. His Honour did not instruct the jury that if they had any reasonable doubt as to the efficiency of the brakes or as to the accused's knowledge of any deficiency, then the Crown would have failed to discharge the general onus resting on it of proving the allegation of dangerous driving made in each count.

I think that the summing up was not adequate and that the conviction ought to be quashed.

I agree with the order proposed by the Chief Justice.

In my opinion the trial of the applicant so far miscarried that it was proper to grant special leave to appeal and to quash the applicant's conviction.

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.

1. (1953) 70 W.N. (N.S.W.) 309. 2. (1953) 70 W.N. (N.S.W.) 309. 3. [1956] S.R. (N.S.W.) 296; 73 W.N. 398.