Kelly v Wigzell - [1907] HCA 53

JEREMIAH KELLY

COMPLAINANT,

SYDNEY WIGZELL

ON APPEAL FROM THE SUPREME COURT OF

QUEENSLAND. Brisbane Traffic Act 1905 (Qd.), (5 Edw. VII. No. 18), sec. 6 -Traffic Regulations

Permitting" passengers in excess of prescribed number to travel on tramcar Duty of tramway conductor-Variane between information and evidence as BRISBANE,

to place-Justices Act 1886 (Qd.), (50 Vict. No. 17), sec. 48.

In a prosecution for an offence against a by-law which prohibits a conductor from permitting any person in excess of the maximum number prescribed to travel on a tramcar, the fact that there are more than the

5 CLR 127

prescribed number actually travelling in a tramear is sufficient evidence of such permission on the part of the conductor.

An information ought not to be dismissed on the ground of a merely technical variance between the information and the evidence with regard to the name of the place in which an offence is proved to have been committed.

Decision of the Full Court Kelly v. Wigzell, 1907 Q. W.N., 1, reversed. The Brisbane Tramway Company in 1906 ran tramcars in the streets of Brisbane and South Brisbane. One of their cars, running from South Brisbane towards Brisbane, drew up in Melbourne Street on the south bank of the river, entered Victoria Place (a short approach continuing Melbourne Street to the bridge), and was there boarded by police officers, who counted the passengers while going across the bridge, and found that several in excess of the regulation number fixed by the Traffic Regulations of 6th April 1906 (framed under the provisions of the Brisbane Traffic Act 1905,) were travelling in the car. The conductor was prosecuted for a breach of the Regulations, sec. XVIII. (5), which provides that " no conductor shall any person in excess of the maximum number prescribed in clause 2," (which was 50 for that type of car), " to travel in or upon any tramcar." The information charged the offence as having been committed in Melbourne Street, South Brisbane. The magistrate dismissed the complaint on the ground that there was no evidence that any offence had been committed in Melbourne Street, as the passengers were not counted until after the car had left that place. This decision was affirmed by the Supreme Court 1, who added as an additional ground that the evidence did not establish any "permission" on the part of the conductor.

The complainant appealed by special leave to the High Court. Power (with him Macleod), for the appellant. "Permitting to travel" is fully established by the evidence the conductor is the person in charge of the car, and knows when passengers get on the car, and has full power to exclude any in excess of the prescribed number from getting on.

11907 Q. W.N., 1.

5 CLR 128

The evidence that an offence was committed being clear, it is immaterial that the information is at variance, if at all, with the evidence in its statement of the place…

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: [1907] HCA 53
Decision Date: 10 October 1907

CaseChat Overview and Summary

The case of *Kelly v Wigzell* involved a prosecution against a tram conductor for permitting passengers in excess of the prescribed number to travel on a tramcar. The prosecution was brought under the *Brisbane Traffic Act 1905* (Qd.) and its associated Traffic Regulations. The conductor was charged with breaching a regulation that prohibited him from allowing more than the maximum number of passengers, fixed at 50 for the type of tramcar in question, to travel on the tram. The information alleged the offence occurred in Melbourne Street, South Brisbane.

The legal issues before the High Court of Australia were whether the presence of more than the prescribed number of passengers on the tram constituted sufficient evidence of the conductor's "permission" for them to travel, and whether a minor variance between the stated location of the offence in the information and the evidence presented was grounds for dismissing the charge. The magistrate had dismissed the complaint, finding no evidence of the offence in Melbourne Street as the passengers were counted after the car had left that location. This decision was affirmed by the Supreme Court of Queensland, which also held that the evidence did not establish the conductor's permission.

The High Court determined that the fact of excess passengers travelling on the tramcar was sufficient evidence of the conductor's permission. The Court reasoned that the conductor, as the person in charge, has a duty to ensure the prescribed number of passengers is not exceeded and that the law would be rendered futile if the mere presence of excess passengers did not imply permission. Furthermore, the Court held that any variance between the information and the evidence regarding the place of the offence was a technicality that should be disregarded or amended under section 48 of the *Justices Act 1886* (Qd.), especially as Melbourne Street and Victoria Place were essentially the same location.

Consequently, the High Court allowed the appeal, discharged the order of the Supreme Court, and remitted the case to the Police Magistrate with a direction to convict the conductor. The respondent was ordered to pay the costs of the appeal and the motion to rescind leave to appeal.

Orders