Turtled

Posted on Mar 27, 2020 | 0 comments


My dark sense of humour found the facts of Ex parte Musgrove; Re Howard (1961) 78 W.N Feb 15 at 88 amusing….

At 9:15pm on 26 January 1960, Sergeant Howard from Kandos police came across Mr Musgrove standing beside his upside down car off the road on the eastern side of Davies Road. Mr Musgrove couldn’t offer any explanation for how he got off the bitumen and on to the gravel on the right hand side (which I assume is the “wrong” side) of the road.

Mr Musgrove was charged with driving a motor vehicle negligently on a public street. Although I have some sympathy for the magistrate who applied (in the absence of an explanation) res ipsa loquitor  and convicted him.  The problem is that he ignored the golden thread of english criminal law that it is the duty of the prosecution to prove the prisoner’s guilt….no matter what the charge or where the trial (Woolmington v DPP). The conviction was overturned (like the car) on appeal and the case is now authority for the proposition that res ipsa loquitor doesn’t apply in criminal law.

Another interesting anecdote about this case is that Mr Musgrove was represented by W. P. Deane. That would be William Patrick Deane, who started practice at the Sydney bar in 1957, en route to his appointments to the High Court and subsequently as Governor General.

Creative commons acknowledgment for the photograph.

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