R v Murphy (William)
| Jurisdiction | England & Wales |
| Judge | LORD JUSTICE EVELEIGH |
| Judgment Date | 07 March 1980 |
| Judgment citation (vLex) | [1980] EWCA Crim J0307-3 |
| Docket Number | No. 261/C/79 |
| Court | Court of Appeal (Criminal Division) |
| Date | 07 March 1980 |
[1980] EWCA Crim J0307-3
Lord Justice Eveleigh
Mr. Justice Bristow
and
Mr. Justice McNeill
No. 261/C/79
IN THE COURT OF APPEAL
CRIMINAL DIVISION
Royal Courts of Justice
MR. N. BAKER appeared on behalf of the Appellant.
MR. M. MOTT appeared on behalf of the Crown.
The judgment which I am about to read is concurred in by Mr. Justice Bristow and Mr. Justice McNeill and it is the judgment of the court.
On the 14th December, 1978, at Shrewsbury Crown Court the Appellant was convicted of causing death by reckless driving. He was fined £400 with six months' imprisonment in default and was disqualified from driving for three years. He was ordered to pay £100 towards the prosecution costs.
At approximately 11.15 p.m. on Saturday, 4th March, 1978 the Appellant driving a Triumph Stag motor car was involved in a collision with a Mini-Clubman that was driven by Robert Short. The collision occurred at the junction of the A518 with Furnace Lane, Trench, Shropshire. Mr. Short received fatal injuries.
The prosecution suggested at the trial that just before the accident occurred the Appellant had been "racing" with a friend, who was driving another Triumph, as they proceeded along the A518 towards Wellington. Short, the victim, was travelling in the opposite direction. He stopped at a junction to turn right into Furnace Lane. The prosecution alleged through a traffic accident expert, P.C. Little, that the Appellant was driving at least partially on the wrong side of the road when he hit the Mini-Clubman. The defendant said to the police that he was on the correct side of the road when the Mini-Clubman turned across him.
A Mr. Bailey, an off-duty police constable, testified that he was travelling at approximately 40 m.p.h. towards Wellington. The Appellant's Triumph Stag and another Triumph passed him in quick succession at a speed which he estimated to be 60-70 m.p.h.
A Mr. Gaughan testified that when the two cars overtook him they were travelling at least 60 m.p.h. His passengers corroborated this evidence.
When he was interviewed by the police and in his later statement the Appellant admitted going at 55 m.p.h. when he was overtaking these vehicles.
P.C. Little in his evidence said that if the Mini had been stationary at the moment of impact (as the prosecution alleged) then the Appellant's ear must have been travelling very fast.
Mr. Humphries was driving the Ford Escort van behind Mr. Short in the direction of Newport. He testified that the Mini was travelling very slowly and slowed down even more as it indicated to turn right into Furnace Lane. It stopped towards the centre of the road, but stilt on the correct side. In fact Mr. Humphries had to wait behind Mr. Short before he could move on. It was while they were waiting that the collision occurred.
P.C. Little could not be specific. He first gave evidence on the basis that the Mini-Clubman had been turning to the right across the Appellant's path at the time of impact. In his view the vehicle had not been turning.
However, he later agreed under cross-examination that the same damage could have been caused if the Mini-Clubman had been stationary but at an angle across the road at the moment of impact.
The Appellant did not give evidence at the trial.
There are two grounds of appeal. The second may be dealt with shortly. It is to the effect that the learned recorder erred in allowing the prosecution to call a police constable as an expert witness to give his opinion as to the nature of the collision, the course of the defendant's vehicle thereafter and other matters said to be deducible from the marks in the road and the damage to the vehicles. Before this court however Counsel for the Appellant recognised that he was in some difficulty in view of the case of Regina v. Oakley decided on the 8th June, 1979. There the Lord Chief Justice said: "The point is so short. The question is: is the Judge at fault in admitting the evidence of P. C. Robinson giving his opinion of what he has seen? The answer is that, as long as he keeps within his reasonable expertise, which is a matter for the Judge, he is entitled to be heard on every aspect as an expert, to that extent, if no further." Those words would cover the facts of this case and the second ground of appeal fails.
The first ground is of greater substance. It is said that the recorder erred in his direction to the jury as to the definition of the word "recklessly". He told the jury "'Recklessly' is a word in the English language which I have no intention of explaining. You know what it means as well as I do and you have to make up your minds considering the evidence as a whole." Having retired for an hour and a half the jury returned to ask the question "Does reckless driving include driving faster than the speed limit? If we decide that the defendant was doing so is that the same thing as saying he was driving recklessly?" To that question the recorder correctly answered "No". He went on to say "'Recklessly' is a perfectly standard English word and I do not think anything I can say is likely to make it any clearer than the word itself does. By reckless driving one means just that – reckless driving." He went on to say however that speed could be one element but that to exceed the speed limit would not necessarily amount to driving recklessly. Conversely he said that a vehicle, although driven slowly, could be driven recklessly "it you were not looking where you were going and having total disregard to the presence of other road users and their rights to use the road."
Section 50 of the Criminal Law Act, 1977 provides: "(1) For sections 1 and 2 of the Road Traffic Act 1972 (causing death by reckless or dangerous driving, and reckless, and dangerous, driving generally) there shall be substituted - 1. A person who causes the death of another person by driving a motor vehicle on a road recklessly shall be guilty of an offence. 2. A person who drives a motor vehicle on a road recklessly shall be guilty of an offence."
On behalf of the Appellant it is submitted that the jury should have been directed along the lines that there must be proved a subjective mental element of the kind indicated in Regina v. Briggs (1976) 63 Crim. App. R. 215, Regina v. Parker (1976) 63 Crim. App. R. 211 and Regina v. Stephenson (1979) 3 W.L.R. 193. He referred to the words of Lord Justice Lane in Regina v. Stephenson at page 200: "We wish to make it clear that the test remains subjective, that the knowledge or appreciation or risk of some damage must have entered the defendant's mind...
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