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Tiambo v Lari [1979] PNGLR 525 (27 September 1979)

Papua New Guinea Law Reports - 1979

[1979] PNGLR 525 - Nabo Tiambo v Gideon Lari 

[1979] PNGLR 525

N205

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

NABO TIAMBO

V

GIDEON LARI

Lae

Saldanha J

27 September 1979

VEHICLES AND TRAFFIC - Particular offences - Driving a motor vehicle without owner’s consent - Whether driver who is not owner has custody or possession - Authorized use by servant in course of employment - Unauthorized use - Offence committed moment motor vehicle used for unauthorized purpose - Motor Traffic Act 1950, s. 14(1).

Section 14(1) of the Motor Traffic Act 1950 makes it an offence for a person “to drive or use” a motor vehicle without the owner’s consent.

In the course of his employment the appellant was required to ship a car from Lae to Port Moresby. He was given the ignition key by his boss to take the car to the Namasu wharf. On arrival at that wharf he was told that the ship was at the main wharf. The appellant then proceeded in the car to the town centre, did some shopping, drove around, went home for lunch and then set out to visit a friend at which time he had an accident in the car. The appellant was charged with and pleaded guilty to driving a motor vehicle without the owner’s consent contrary to s. 14(1) of the Motor Traffic Act 1950. On appeal against conviction and sentence of three months’ imprisonment with hard labour,

Held

The offence under s. 14(1) of the Motor Traffic Act 1950 is committed the moment when the motor vehicle is driven or used for an unauthorized purpose no matter when the unauthorized use occurs: where a servant has custody and not possession of the motor vehicle it makes no difference whether the use of the motor vehicle for an unauthorized purpose occurs in the course of the day’s work or at the end of the day’s work;

Ex parte Johnstone; Re Turnbull (1935), 52 W.N. (N.S.W.) 194;

Mowe v. Perraton, [1952] 1 All E.R. 423;

R. v. Wibberley, [1966] 2 Q.B. 214; and

R. v. Phipps (1970), 54 Cr. App. R. 300, considered and distinguished.

(2)      The conviction and sentence should be affirmed.

Appeal

This was an appeal against conviction on a charge of driving a motor vehicle without the owner’s consent, contrary to s. 14(1) of the Motor Traffic Act 1950, and sentence of three months’ imprisonment with hard labour.

Counsel

G. W. Tatireta, for the appellant.

B. J. Cassells, for the respondent.

Cur. adv. vult.

27 September 1979

SALDANHA J: On 4th January, 1979, the appellant appeared before a magistrate in the District Court at Lae charged with the offence of driving a motor vehicle without the owner’s consent contrary to s. 14(1) of the Motor Traffic Act 1950. When the charge was read to him he appears to have said (the handwriting of the magistrate is not very legible): “The ship was on shipment to Port Moresby. I took it away and smashed it.” I assume he said or meant to say that the car was on shipment. The magistrate recorded a plea of guilty and, after reading the statement of facts and presumably reading it also to the appellant, he sentenced the appellant to three months’ imprisonment with hard labour.

The appellant appeals against the conviction on the ground that “the magistrate erred in entering a conviction as the statement of facts did not support the allegation that the driving was without the consent of the owner, or, alternatively the magistrate erred in entering the conviction as the statement of facts disclosed a possible defence that the appellant had the implied consent of the owner to drive the motor vehicle.” There is no complaint that the plea of guilty was not properly entered as being not warranted by what the appellant said in answer to the charge. If an accused person appears to be pleading guilty to the charge it is — or should be — the practice for a magistrate to record a plea of guilty provisionally and only if further inquiry, usually provided by a perusal of the statement of facts, supports such a plea should the provisional plea be confirmed. I assume that the appeal is brought on the basis that the statement of facts does not support the plea of guilty and that in the circumstances the magistrate should not have entered a plea of guilty but should have proceeded to hear the case.

The statement of facts contains the following allegations. The appellant is employed as a stores supervisor in the supply section of the Works and Supply Department at Lae. In the course of his duties he had to ship a car from Lae to Port Moresby. On the morning of 29th December, 1978, he obtained from his boss the ignition key to this car in order to enable him to drive it to Namasu wharf for shipment to Port Moresby.

When the appellant drove the car to Namasu wharf he was told that the ship was at the main wharf. But instead of driving the car either to the main wharf or back to his place of work, he drove it to the town centre where he spent some time driving around aimlessly and doing some shopping, after which he went home for lunch. He left his house at about 1 p.m. and he was on his way to visit a friend when he lost control of the motor vehicle. It overturned causing damage estimated to cost over K2,000 to repair.

Counsel for the appellant argues that as the original taking of the motor vehicle was lawful a subsequent unauthorized use of the motor vehicle cannot make it an offence. He relies upon Ex parte Johnstone; Re Turnbull[dcli]¹ in support of this proposition. Johnstone was charged under s. 526a of the Crimes Act (N.S.W.). The facts — and I quote from the headnote — were as follows:

“Johnstone obtained the permission of the owner of a certain motor car to take and use the car on a certain day, the owner instructing him that the car must be returned not later than 9 p.m. on the same day. The defendant drove the car to a town a considerable distance away and failed to return it. He was subsequently charged with taking and using the car without the consent of the owner and was convicted by the magistrate. The applicant thereupon obtained a rule nisi for prohibition and moved to make it absolute.”

The trial judge came to the following conclusion[dclii]²:

“The next matter I have to consider is whether in this case there was a taking and using by the applicant without the consent of the owner. In my opinion the word ‘take’ is the decisive word in the section. It has to be remembered that the reason for the insertion of this section into the Crimes Act was for the purpose of preventing what Mr. Bavin referred to as joy-riding, the taking of a vehicle without any intention of permanently appropriating to the use of the person taking it, but with the purpose of getting the benefit of the use of the car for a certain time. It is admitted by Mr. Badham that the offence is a composite one, that there must be both taking and using, but he argues that there can be in addition to an actual physical taking a constructive taking, which is sufficient to constitute an offence under the section. That may be, but what I have to consider is, whether in this case there was such a constructive taking. Cases have been referred to in which it has been held that there has been a constructive taking and reference has been made to the case of a servant taking for his own use and appropriating to his own use goods which had been placed in his custody by his master. In such a case as that, in the law of larceny no doubt it has been held that there is a constructive taking, but it has never been held in a case like the present, where full legal possession is in the first instance given to the person who is charged, that he can afterwards be held to be guilty of a constructive taking by some act such as that which is proved in the present case. As I think that the word ‘taking’ is a decisive word in the section and have come to the conclusion that there is not a constructive taking, and there is clearly no actual taking at the time of nine o’clock when the lawful possession ended, I have to hold that no offence has been proven and I have to make the rule nisi absolute ...”

The Crimes Act (N.S.W.) makes it an offence to take and use a vehicle without the consent of the owner. The decision of the court turned partly upon the construction put upon the word “take” and hence on the question whether or not there had been a constructive taking. Now, s. 14(1) of the Motor Traffic Act 1950 makes it an offence for a person to drive or use a motor vehicle without the owner’s consent. The word “take” is not used in our section and therefore the question whether or not there had been a constructive taking of the motor vehicle does not arise and this part of the decision does not help us. It was also held — by analogy with the law of larceny — that as Johnstone in the first instance had full legal possession any subsequent unauthorized user could not be said to amount to constructive taking so as to make him guilty of an offence. I am not at all sure that what Johnstone had at law was not possession but custody. If the learned trial judge had found that Johnstone had custody and not possession he might have come to a different conclusion.

English authorities seem to adopt the view that a servant has only custody, possession remaining in the employer. In England the starting point in this line of cases is Mowe v. Perraton[dcliii]³. The facts of this case as stated in the headnote are as follows:

“Case stated by West Kent Quarter Sessions.

At a court of summary jurisdiction sitting at Bromley, Kent, on 28th April, 1951, on a charge preferred by the appellant, a police officer, the respondent was convicted of having taken and driven away a motor vehicle, a Commer goods motor van, without the consent of the owner or other lawful authority, contrary to s. 28(1) of the Road Traffic Act, 1930. The respondent appealed to West Kent Quarter Sessions before which court it was proved or admitted that he was a van driver employed by the Road Haulage Executive and that he was subject to the orders of the Royal Army Service Corps, Woolwich Arsenal, to whom the van was on hire. On 18th April, 1951, without the owner’s consent or other lawful authority, he used the van to take a radiogram from his house to that of a relative. He contended that the word ‘take’ was used in s. 28(1) of the Road Traffic Act, 1930, in its ordinary sense and should not be given the technical meaning of ‘take’ in the definitions in s. 1 of the Larceny Act, 1916, and that he had not ‘taken’ the van within the meaning of s. 28(1) because he had never relinquished control of it between finishing work and driving it to his home. The appellant contended that the word ‘take’ in s. 28(1) bore the same meaning as in the definition of larceny at common law; that, as a servant, the respondent had custody, and not possession, of the van while using it under the orders of the hirers; and that, when driving to his home instead of to the garage, he ‘took’ the van within the meaning of s. 28(1). Quarter sessions held that the respondent had not taken and driven away the van without the consent of the owner or other lawful authority and allowed the appeal, and the appellant appealed.”

The appeal was to the Divisional Court and Lord Goddard C.J. said[dcliv]⁴:

“... it seems to me wrong to say that what he did was taking and driving away a motor vehicle without the consent of the owner within s. 28(1) of the Road Traffic Act, 1930. That section is intended to deal with the case of people who take motor cars which do not belong to them, drive them away, and then abandon them, because it is difficult to say that they intended to deprive the owner permanently of the possession, but here the respondent had taken and driven the motor vehicle as part of his work.”

This case is interesting. The headnote says that it was held that[dclv]⁵:

“as the driver was in lawful possession of the van before he took it for the unauthorised purpose, he was not guilty of the offence of taking and driving away a motor vehicle without the consent of the owner or other lawful authority under s. 28(1) of the Road Traffic Act, 1930.”

Having regard to the passage from the judgment of Goddard C.J. cited above it is doubtful whether the basis of his judgment was that the driver was in lawful possession of the van before he took it for the unauthorized purpose. The judgment of Ashworth J. in R. v. Wibberley confirms the correctness of this view. He says[dclvi]⁶:

“It is well established that in circumstances such as prevailed in Mowe’s case[dclvii]⁷ and in the present case the servant does not in law have possession of the vehicle; he merely has custody of it, possession remaining with the employer. It is equally well established that a servant who has custody of his employer’s property may be guilty of stealing it, if he dishonestly disposes of it: see, for example, R. v. Cooke[dclviii]⁸.”

The facts in Wibberley’s case were as follows. I quote from the headnote[dclix]⁹:

“The appellant was employed by H. as a driver. His instructions were that at the end of his day’s work he should leave the vehicle in one of his employer’s two yards. H., however, would have made no complaint if the appellant had left the vehicle after work outside his own house and had taken it back when he went to work next morning. Thus the position was the same, when the appellant left the vehicle outside his house after work, as it would have been if he had taken it back to one of the yards. Having finished his day’s work at about 5 p.m., the appellant parked the vehicle outside his house. At about 7 p.m. on the same evening he used it for his own purposes without H.’s permission. On appeal against conviction of taking and driving away the vehicle without the owner’s consent or other lawful authority, contrary to s. 217(1) of the Road Traffic Act, 1960, Held: on the facts there was a taking by the appellant when he drove the vehicle away from his house at 7 p.m., just as there would have been if he had left it in one of H.’s yards after the day’s work and had gone back after an interval and had driven it away.”

Ashworth J. sought to distinguish Wibberley’s case[dclx]¹⁰ from Mowe’s case[dclxi]¹¹ in the following way. He said[dclxii]¹²:

“... the question arises whether a distinction can validly be drawn between Mowe’s case and the present. When the facts of the two cases are compared it is clear that in Mowe’s case the driver had not completed his tour of duty with the vehicle when he drove it away for his own purposes. He had still to take the van to the garage at Woolwich Dock and indeed, as appears from the judgment of Lord Goddard C.J., it was his intention to drive the van to the garage after delivering the radiogram. His day’s work with the van had not been completed when he drove it away. On the other hand, in the present case the defendant’s work for the day had been completed about two hours before he drove it to Southampton and Chandlers Ford, and it is reasonably clear from the summing up that he did not intend to take the truck back to either of the two yards that night. Although the employer would have preferred the truck to have been left in one of the yards, no complaint would have been made if the appellant had left it outside his house until his work began on the following morning and, accordingly, when he left it outside his house at the end of his day’s work, the situation so far as he was concerned with the truck was the same as if he had taken it back to one of the yards. He had no authority to take it or drive it until the next day’s work began.”

If a servant has only custody and not possession, it should make little difference whether the use of the motor vehicle for an unauthorized purpose occurred in the course of the day’s work or at the end of the day’s work. If unauthorized use at the end of the day’s work is an offence the unauthorized use during the course of and before the end of the day’s work should equally be an offence. Leave to appeal to the House of Lords was refused but the court certified under s. 1 of the Administration of Justice Act, 1960, that a point of law of general public importance was involved. In the event no application would appear to have been made to the House of Lords for leave to appeal. I mention it merely to indicate that the attempt to draw a distinction between Wibberley’s case[dclxiii]¹³ and Mowe’s case[dclxiv]¹⁴ is fraught with some difficulty. Wibberley’s case was applied in R. v. Phipps[dclxv]¹⁵ wherein it was held that:

“Where a defendant has been given permission by the owner of a motor-vehicle to take and use it for a limited purpose, but on the completion of that purpose fails to return it and thereafter uses it without any reasonable belief that the owner would consent, the defendant is guilty of taking the vehicle without the consent of the owner, contrary to s. 12 of the Theft Act 1968 ...”

Under s. 526a of the Crimes Act (N.S.W.) a person commits an offence when he takes and uses a motor vehicle without the consent of the owner. The corresponding provision in England makes it an offence for a person to take and drive away a motor vehicle without the owner’s consent. As I pointed out earlier s. 14(1) of the Motor Traffic Act 1950 does not use the word “take”. It makes it an offence for a person to drive or use a motor vehicle without the owner’s consent. The decisions in Australian and English cases appear to turn on the construction placed on the word “take” and on the question whether or not there has been a constructive taking. The absence of the word “take” in our legislation makes all the difference and whether the English and Australian cases have been rightly or wrongly decided they have no application in Papua New Guinea. They would only be applicable if by analogy to the concept of constructive taking we were to import into our law the concepts of constructive driving and constructive using. As far as I am aware such concepts are at present unknown to the law and I do not see the need to import them into our law unnecessarily. Our duty based on the canons of statutory interpretation is to give the words of a statute their plain and ordinary meaning. Therefore in Papua New Guinea, in my view, a person commits an offence the moment he drives or uses a motor vehicle for an unauthorized purpose no matter when the unauthorized use had occurred.

By the contention that there was a possible defence that the appellant had the implied consent of the owner to drive the motor vehicle I apprehend is meant that the appellant had implied consent to drive to places other than Namasu Wharf. The answer to that is the sentence in the statement of facts which reads: “The defendant (had) only (been) given the key to drive down to Namasu Wharf only.” He would undoubtedly have had implied consent to drive to the main wharf from Namasu Wharf when he realized that the ship was at the main wharf and not at Namasu Wharf but he would have had no implied authority to drive to the town centre for shopping or drive home for lunch or drive to visit a friend.

For these reasons the appeal is dismissed, and the conviction affirmed. The appellant has been on bail pending the hearing of the appeal. He must now serve his sentence.

Appeal dismissed. Conviction affirmed.

Solicitor for the appellant: M. Kapi, Public Solicitor.

Solicitor for the respondent: K. B. Egan, Public Prosecutor.