Kelly v Wigzell

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.