Rafoi v State [1992] FJLawRp 6; [1992] 38 FLR 203 (1 October 1992)

[1992] 38 FLR 203

HIGH COURT OF FIJI

Appellate Jurisdiction

MICHAEL RAFOI

v

THE STATE

Jesuratnam J.

1 October 1992

Crime - offences - permitting a person to drive without being the holder of a driving licence - whether an offence of strict liability - Traffic Act (Cap 176) Section 23 (1).

The appellant was convicted of the offence of permitting another person to drive his motor vehicle without that person being the holder of a driving licence. On appeal against the conviction the High Court HELD: In order to convict it is not incumbent upon the prosecution to prove that the appellant knew that the driver held no licence.

Cases cited:

Baugh v Crago (1976) Crim. LR 72

J. Semisi for the Appellant
I. Mataitoga (Director of Public Prosecutions) for the Respondent

Jesuratnam J.:

In this case the appellant was charged in the magistrate's court of Suva on four counts as follows: (1) he permitted Christopher Rafoi to drive a motor vehicle on Princess Road without being the holder of a driving licence contrary to sections 23(1) and 85 of the Traffic Act Cap. 176, (2) he permitted the same person to drive the vehicle when there was not in force a policy of insurance in respect of third party risks contrary to sections 4(1)(2) of Motor Vehicle (Third Party Insurance) Act Cap. 177, (3) permitted the same person to drive the vehicle when it was not duly licensed contrary to sections 9 and 85 of the Traffic Act and (4) permitted the same person to drive the vehicle when there was not in force a policy of insurance in respect of third party risks contrary to sections 4(1) (2) of the Motor Vehicle (Third Party Insurance) Act.

On the date of trial the prosecution withdrew count 2 as it was obviously a duplicate of count 4. The appellant therefore pleaded guilty to the remaining counts which were 1, 3 and 4. After the facts were outlined and accepted by the appellant the learned magistrate convicted him and sentenced him to a fine of $50.00 in default 6 months' imprisonment on count 1, a fine of $30.00 in default 3 weeks on count 3 and a fine of $30.00 in default 3 weeks on count 4. He was also disqualified from driving for 12 months, on count 4.

The appellant has appealed against his conviction and sentences.

The main grounds on which Mr. John Semisi argued the appeal were that the outline of facts did not disclose all the ingredients of the offences in question and that counts 2 and 4 were bad for duplicity and the withdrawal of the second count at the trial without amending the charge sheet was illegal and fatal to the conviction on count 4.

The appellant argued that mens rea is an essential ingredient of count 1 and should have been set out in the facts when they were outlined by the prosecutor. Even if mens rea is a latent ingredient of the offence the section of the law itself which defines the offence does not specify it in terms. Perhaps the prosecutor faithfully followed the strict terms of the section and did not say that the appellant knew that the person whom he permitted to drive did not possess a driving licence.

Perhaps the prosecutor was so full of the knowledge that the person permitted was the 16-year old son of the accused (which was admitted by the accused at the stage of mitigation) that he assumed that it could never have been a matter of controversy even if proof of such knowledge was a legal requirement. However such speculation is in my view unnecessary in the face of the strict terms of section 23(1) of the Traffic Act. It reads:-

"Subject to the provisions of section 24, it shall be an offence for any person to drive a motor vehicle of any class upon a road unless he is the holder of a driving licence valid in respect of such class under the provisions of this Part or to employ or permit any other person so to drive a motor vehicle of any class unless such other person is the holder of such a driving licence"

It seems to me that section 23(1) of the Traffic Act does not require the proof of mens rea that the accused knew that the person permitted did not possess a driving licence. It is a strict liability offence. It has been held in England that it is not necessary to prove mens rea in the case of the offence of permitting another to drive a motor vehicle without a driving licence.

In Baugh v. Crago (1976) Crim. LR 72 the justices acquitted the defendant on the ground that he had a genuine belief that the person whom he permitted to drive was the holder of a driving licence where the insurance cover was dependant on the possession of a driving licence by the driver. On appeal by the prosecutor it was held that the prosecution needed to prove only the granting of permission to drive and no more and the justices were directed to convict. There are other cases where it has been held that an honest and mistaken belief that the driver possessed a driving licence is no defence.

In fact a perusal of section 23(1) of the Traffic Act seems to indicate that a duty is cast on the person permitting to ensure that the person permitted is the holder of such a driving licence as is referred to. The prohibition is against employing or permitting any person to drive a motor vehicle of any class unless such person is the holder of such a driving licence. It is therefore not enough even if the person permitting knew that the person permitted holds a driving licence. He must go further and ensure that the person permitted holds a driving licence to drive a motor vehicle of the relevant class. It seems to me that these are necessary risks which an owner takes when he permits another to drive his motor vehicle.

In the instant case the appellant would not have been even in a position on his part to prove that he did not know that the driver, who was his own 16-year old son, did not possess a driving licence. When he pleaded in mitigation a little later he admitted that he knew that his son had no driving licence. This information volunteered by the accused himself may also help to dispel any judicial disquiet on the matter. However this does not answer the argument of defence counsel that it was necessary for the prosecutor to state at the stage of outlining facts that the accused knew that the driver had no driving licence. But it is my view that the prosecution need not prove mens rea in the case of an offence under section 23(l) of the Traffic Act.

As regards the objection to count 4 on the ground of duplicity I am inclined to agree with the learned Director of Public Prosecutions that originally counts 2 and 4 were filed in obvious error, It was a genuine mistake which the prosecution remedied on the date of trial by moving to withdraw count 2 and retaining count 4.

It is not practicable in a busy magistrates' court to move for a further adjournment in order to file an amended charge sheet. In any case no prejudice could have been caused to the appellant by the duplication and the subsequent informal amendment that was made.

I do not think that the sentences are in any way excessive. The disqualification from driving for 12 months is mandatory if there are no special reasons. I am satisfied that the reasons put forward by the appellant are not 'special' within the legal meaning of the term.

I therefore dismiss the appellant's appeal against conviction and sentence.

(Appeal dismissed.)