Waqavakatoga v State [1991] FJLawRp 1; [1991] 37 FLR 1 (15 March 1991)

[1991] 37 FLR 1

HIGH COURT OF FIJI

TEVITA WAQAVAKATOGA

v

THE STATE

[HIGH COURT, 1991 (Fatiaki J), 15 March]

Appellate Jurisdiction

Sentence - driving whilst uninsured- duty of sentencer considering disqualification to alert the accused - "special reasons "- relevance of master and servant relationship.

The appellant drove for a diplomatist part-time; the vehicle was uninsured.

On appeal against disqualification the High Court HELD: (1) the resident magistrate should have alerted the appellant that he was considering disqualifying him from driving (2) in the circumstances of the case the appellant's honest but mistaken belief that the vehicle was insured amounted to a "special reason" for not disqualifying him.

Cases cited
Anthony Albert Ireland (1988) 10 Cr. App. R. (S) 474
Blows v Chapman [1947] 2 All ER 576
Jones v English [1951] 2 All ER 853
DPP v Mahend Singh Cr. App. No. 9 of 1983
Money (1988) 10 Cr. App. R. (S) 237
Powell and Carvell (1984) 6 Cr. App. R. (S) 354
Rennison v Knowler [1947] 1 All E R 302

Appeal against sentence imposed in the Magistrates' Court.

H. Lateef for the Appellant
Ms. N. Shameem for the Respondent

Fatiaki J.

The appellant pleaded guilty in the Magistrate Court to offences of Driving an Unlicensed Motor Vehicle and Using an Uninsured Motor Vehicle. He was convicted and sentenced to pay a fine of $15 on each count. In addition he was disqualified from holding or obtaining a driving licence for a period of 12 months on the latter offence.

He now appeals against the order of disqualification on the ground that the learned trial magistrate erred in law in not exercising his discretion in favour of the appellant having regard to "special reason", advanced by him.

The Magistrates Court record however reveals that the appellant was unrepresented at his trial and had said nothing in mitigation. Subsequently learned counsel appeared for the appellant before the trial magistrate and unsuccessfully sought an order for a stay of the appellant's disqualification pending appeal.

In his written ruling the learned trial magistrate observed correctly that no 'special reasons' were given at the trial nor in the application for a stay however he erred in holding that there was no power to suspend a sentence of disqualification pending appeal. Such a power exists by virtue of Section 29(2) of the Traffic Act Cap. 176 read with Section 4(3) of the Motor Vehicles (Third Party Insurance) Ordinance (Cap. 153, 1967 Edn.)

Section 4(2) of the Motor Vehicles (Third Party Insurance) Ordinance Cap. 153 provides inter alia:

"....... a person convicted of an offence under this section shall (unless the Court for special reasons thinks fit to order otherwise ......... ) be disqualified from holding or obtaining a driving licence for a period of 12 months from the date of conviction".

Clearly in the absence of 'special reasons' a Court is obliged to disqualify an offender for at least 12 months.

However learned counsel's argument on appeal was not so much that 'special reasons' had been advanced by the appellant but rather that the learned trial magistrate ought, (in fairness to the appellant who was unrepresented throughout) to have advised him that he was at risk of losing his driving licence.

In addition, the trial magistrate ought to have explained the nature of permissible 'special reasons' and then called upon the appellant to advance or show 'special reasons' (if any) why he should not be disqualified.

With this submission this Court agrees. In the first place the words in parenthesis in Section 4(2) (above) dealing with 'special reasons' enables the Court not to disqualify if it thinks fit, and, whilst the burden of proving the existence of special reasons must of necessity fall on a convicted person to show see: Jones v. English [1951] 2 All E.R 853), nevertheless, the Court as a logical sentencing procedure ought first to exclude the existence of 'special reasons' before ordering disqualification under the section.

I am also fortified in this view by recent decisions of the English Court of Appeal which held in Powell and Carvell (1984) 6 Cr. App. R. (S) 354:

"The sentencer had erred in not allowing counsel to know that he had in mind to impose a disqualification so that they could address their minds to the question and make submissions on it."

(affirmed and applied in Money (1988) 10 Cr. App. R. (S) 237 and more recently in Anthony Albert Ireland (1988) 10 Cr. App. R. (S) 474).

It is significant that in the 3 cases cited the appellants were represented by counsel at their trials, a fortiori in my view the same must hold true for an unrepresented accused faced with mandatory disqualification in the absence of 'special reasons'. Needless to say learned State Counsel very properly conceded that in the interests of justice the appellant should have been asked.

In the circumstances following the decision of the Chief Justice in D.P.P v. Mahend Singh Cr. App. No. 9 of 1983, and in the exercise of powers under Section 320(l) of the Criminal Procedure Code Cap. 21, the Court adjourned the further hearing of the appeal so as to enable the appellant to appear and give sworn evidence on the narrow question of whether or not special reasons existed in his case.

The appellant, an employee in the Fiji Navy testified that he lived with and had known the owner of the vehicle for quite a long time and on numerous occasions had done some part-time driving for turn. On the day in question he was requested by the owner to pick him up from Nadi International Airport but unfortunately on the way the vehicle went off the road. Fortunately however no one was hurt in the accident.

Although the appellant was aware of the need for a driver to be covered for third party risks, he had not enquired of the owner whether or not the vehicle was insured nor had he thought it proper to enquire. His reason being that the owner held a very responsible position in a large international organisation and he had no reason to doubt and in fact believed that the vehicle was properly registered and fully insured. He was paid $25 to drive the vehicle on this occasion.

In Rennison v. Knowler (1947) 1 All E R 302 Lord Goddard C.J. in considering a situation where the owner of a motor cycle had permitted a friend to drive it in the belief that he was covered, said at p. 304:

"Belief, however honest, cannot, in our opinion, be regarded as a special reason unless it is based on reasonable grounds".

and later in the same judgment:

"We cannot hold that a belief founded on no reasonable grounds can constitute a special reason. Considering that he never even asked the question we cannot possibly accept his belief on this matter as a special reason".

In my view that case is narrowly distinguishable from the present by the apparent equality in the relationship between the parties and the unreasonable omission

Learned counsel for the appellant in dealing with the evidence of the appellant submitted that in all the circumstances having regard to the high esteem in which the vehicle owner was held by the appellant, their relative unequal positions and the fact that he was paid to drive, it would be unbecoming even rude for the appellant a member of a disciplined force, to enquire of the vehicle owner: (his superior) "Sir, is the vehicle covered?"

Learned State Counsel accepts that the appellant honestly believed that the vehicle was covered by a valid insurance policy and although he had made no enquiries of the owner, nevertheless, in the special circumstances of this case that omission was not unreasonable. The fact that the appellant was paid for his efforts also put him in the subservient position of an employee.

If I may say so the facts and circumstances of this case are almost indistinguishable from that pertaining in the case of Blows v. Chapman [1947] 2 All E R 576 which learned counsel for appellant drew to the court's attention.

In that case an employee was told by his employer to cart some manure using an uninsured tractor for a short distance along a public road. In upholding a lower court's decision quashing the disqualification imposed, Singleton J. said in words reminiscent of counsel's submissions in this appeal, at p. 577:

"In the case before us, the respondent was a workman who had driven tractors for his employer for many years without complaint. On the day on which he was seen by the police he was driving a tractor which was not covered by insurance. He did not know that. He was, in my view, entitled to assume that his employer had complied with the law ........... It is not I think, the duty of a workman to ask his employer each day: "Is this vehicle insured?"

Having regard to the appellant's sworn evidence and the particular circumstances of the case including the fact of the vehicle owner (the principal offender in this case) having been previously acquitted by this court because of his diplomatic status, I hold that the appellant had reasonable grounds for his honestly held (albeit mistaken) belief that the motor vehicle was in fact insured and that such belief amounts to a 'special reason' for not disqualifying him.

Accordingly the order of disqualification is quashed and the appellant's driving licence (if already produced) is hereby ordered to be returned to him. There being no appeal against the fines imposed, they are upheld.

(Appeal allowed; sentence varied)