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Narayan v The State [2004] FJHC 114; HAA0048.2004 (25 June 2004)

IN THE HIGH COURT OF FIJI
AT SUVA
APPELLATE JURISDICTION

CRIMINAL APPEAL NO.: HAA0048 OF 2004

BETWEEN:

RAJENDRA NARAYAN
s/o Suruj Narayan
Appellant

AND:

STATE
Respondent

Date of Hearing: 7th June, 2004
Date of Judgment: 25th June, 2004

Counsel: Mr. E. Veretawatini – for the Appellant
Mr. J. Rabuku – for the State

APPEAL JUDGMENT

This is an appeal against conviction and sentence. After a hearing the appellant was found guilty on one charge of permitting another person to drive a motor vehicle without being the holder of the driving licence (Section 56(6) and Section 114 of the Land Transport Act 1998) and one further charge of permitting a person to drive a motor vehicle when there was no current Third Party Risks policy in contravention of the Third Party Risks section 4(1) and (2) of the Motor Vehicle (Third Party Insurance) Act 177.

Particulars of the Offence

It was said that on the 2nd of March, 2003 the appellant being the owner of a private motor vehicle permitted Lepani Vakacegu to drive that motor vehicle on King’s Road Nausori when the driver did not hold a driving licence.

As a result of that driving at the same time and place it was further said that the owner allowed the subject motor vehicle to be driven without the cover of a Third Party Risks Insurance Policy.

After conviction the appellant was sentenced on the first charge to a fine of $100.00 and in default 30 days imprisonment. On the second charge a fine of $50.00 in default 30 days imprisonment and disqualification from driving for a period of 12 months.

Grounds of Appeal

The appellant was represented at appeal. The written grounds of appeal are contained at paragraph 4 of the notice:

(a) That the Learned Trial Magistrate erred in law and in fact in not evaluating the evidence of the appellant and the witnesses.

(b) That the Learned Trial Magistrate erred in law and in fact in not properly directing himself on the required standard of proof.

(c) That the Learned Trial Magistrate erred in law and in fact that there were inconsistencies in the statements given by Lepani Vakacegu to the Police and the evidence which he gave in Court on behalf of the Respondent.

(d) That the Learned Trial Magistrate erred in law and in fact when he failed to give any weight to the evidence of Reginal Suruj Narayan on behalf of the Appellant in that he was the one who instructed the motor vehicle to be driven away by Lepani Vakacegu.

(e) That the Learned Trial Magistrate effed in law and in fact in not taking into account that the Appellant was a first offender.

(f) That the Appellant has been greatly prejudiced in that there are special and exceptional circumstances in the mitigating of the Appellant’s case, which the Learned Trial Magistrate was, not aware of, hence there has been a substantial injustice.

(g) That the sentence passed by the Learned Trial Magistrate is harsh and excessive in all the circumstances.

(h) That the Appellant reserves the right to argue and/or file further or revised Petition of Appeal after perusing the copy of the Court record.

Appeal

At appeal these grounds were simplified and refined to a point where essentially counsel submitted that the police had not proved some essential ingredients of these charges and accordingly the learned Magistrate erred in law in making the finding he did.

The appellant says the essential ingredients for these offences include:

1. Identification of the motor vehicle.
2. Identification of the owner.
3. Identification of the fact that the accused was the owner.
4. Identification of the fact that as owner he permitted the named person to drive this car. And in addition
5. For the second charge without a current Third Party Risks Policy of Insurance.
   

The State submits that identification of the motor vehicle and its ownership are not essential ingredients in the proof and that accordingly the conviction was correctly entered. I should note that both counsel addressed me fully on issues of mitigation.

Decision

The pivotal sections read as follows:

Section 56

(3) No person shall

(a) ...............

(b) employ or permit or cause or allow any other person to drive a motor vehicle unless that other person is the holder of a driver’s licence of the appropriate class issued under this Part.

Section 4 Users of motor vehicles to be insured against third party risks

(1) Subject to the provisions of section 5, no person shall use, or cause or permit any other person to use, a motor vehicle unless there is in force in relation to the use of that motor vehicle by such person or other person, as the case may be, such a policy of insurance in respect of third party risks as complies with the provisions of this Act.

(2) Any person acting in contravention of this section is guilty of an offence and shall be liable for a fine not exceeding $400 or to imprisonment for a term not exceeding one year or to both such fine and imprisonment and a person convicted of an offence under this section shall (unless the court for special reasons thinks fit to order otherwise and without prejudice to the power of the court to order a longer period of disqualification) be disqualified from holding or obtaining a driving licence for a period of 12 months from the date of conviction.

As to the first charge while ownership of the motor vehicle is not expressly stated in the section nonetheless I believe it must be inferred. That is particularly so in charges involving permission for a non licensed person to drive a motor vehicle. I interpret the section in relation to this “permissive offending” to mean that the person with dominion or control over a motor vehicle i.e. the owner offends when he permits someone to drive his motor vehicle.

I am enforced in that view by the particulars of the offence for this charge. The police included this concept of ownership as an ingredient they must prove. The particulars of the charge read as follows:

“RAJENDRA NARAYAN s/o Suruj Narayan on the 2nd day of March 2003 at Nausori in the Central Division being the owner of a private motor vehicle permitted LEPANI VAKACEGU to drive the said motor vehicle on King’s Road, Davuilevu without being the holder of a driving license”.

The police have clearly accepted the responsibility of proving “ownership” as an ingredient of the offence.

As for the second charge, in my view, this flows from the first. The ownership of the motor vehicle needs to be established. Again, the police accepted this responsibility as the particulars of the offence were expressly worded as follows:

“RAJENDRA NARAYAN s/o Suruj Narayan on the 2nd day of March 2003 at Nausori in the Central Division being the owner of motor vehicle on Kings Road, Davuilevu did permit LEPANI VAKACEGU to drive the said motor vehicle when there was not in force in relation to the use of the said motor vehicle third party risks as complied with the provisions of this Act”.

The appellant was unrepresented at his defended hearing. He denied permitting Lepani Vakacegu a permission to drive any motor vehicle. PW.1 sets up evidence in contra distinction to this. However, he fails to specifically identify a vehicle he claims he drove at the appellant’s request. He also fails to identify any ownership of that subject vehicle. It is not clear from his evidence which of two vehicles involved on the day he actually drove.

PW.2 was the Interviewing Police Constable. He simply presents the caution interview where it is said there are admissions. However, on review of that caution interview its clear that the admissions are of limited value. The pivotal question reads:

Did you on 2/3/03 at about 10.00 hrs on King’s Road Davuilevu permitted Lepani Vakacegu to give a motor vehicle with a track plate No. A001.

Answer: Yes

The essential feature of the question as recorded is that clearly the word “give” was substituted for the word “drive” in the question. However, when presenting his evidence the Interviewing Constable made no reference to this. Accordingly the learned Magistrate’s mind was not directed to establishing whether or not that pivotal question required explanation.

In his well reasoned judgment at page 14 of the record in fact the learned Magistrate misquotes the question as being “Did you on 2/3/03 at about 10.00 hours on Kings Road Davuilevu permitted Lepani Vakacegu to drive a motor vehicle with a track plate No. A001”.

Answer: “Yes”.

The learned Magistrate has not transposed the question correctly. He has assumed that the word “drive” was used. It was not.

Decision

I find that the issue of ownership in both of these charges is an essential ingredient of the offence that the police must prove beyond reasonable doubt. This is particularly so because of the framing of the charge. It is said to create a “permissive” type of offence. I find that for there to be permission for someone to drive a motor vehicle must involve the concept of authorization which in turn involves some question of dominion or control over the thing to be used. I further find that it is significant that the charges as framed require proof of ownership of the motor vehicle.

I find that none of the prosecution evidence reliably proves the charge to the appropriate criminal standard. This finding alone would suffice to grant the appeal.

However, and in addition the learned Magistrate did not properly direct himself on this issue. He was mistaken in his consideration of the express language used in the interview. In his judgment he transposed the word “give” for the word “drive” without any evidential basis to do so and moreover without consideration of any reasons from the witness to do so. This admission in the evidence required explanation. There was none. It was a pivotal feature in the judgment. The finding was factually wrong.

I accordingly find that the conviction of this appellant in these circumstances was unsafe. The appeal against conviction is granted and the conviction in the lower court is quashed. I direct that the charges be referred back to the Magistrates Court for re-hearing before another Magistrate.

Gerard Winter
JUDGE

At Suva
Friday 25th June, 2004