Timeon v The Republic [2005] KIHC 70; 05-05 (24 October 2005)

IN THE HIGH COURT OF KIRIBATI
CRIMINAL JURISDICTION
HELD AT BETIO
REPUBLIC OF KIRIBATI

High Court Criminal Appeal No. 5 of 2005

BETWEEN:

TABERANNANG TIMEON
ROMY POSADA
Appellants

AND:

THE REPUBLIC
Respondent

For the Appellants: Ms Berenike T Iuta
For the Respondent: Ms Pauline Beiatau

Date of Hearing: 24 October 2005

JUDGMENT
(Ex Tempore)

The appellants have been convicted as the owners and operators of a mini-bus TUC 7242 which was carrying more than the 15 passengers for which it was licensed. A form had been put in the bus: this gave room for five people to sit instead of the three who could have been seated on the seats over which the form was placed. The Single Magistrate found proved that the bus was carrying 17 passengers besides the driver and the conductor. It should have carried no more than 15 passengers and the driver and conductor.

Ms Iuta’s first point is that the prosecution did not prove the appellants to be the operators of the bus. The correct method of proof of an operator’s licence is to tender a certified copy to the Court through an officer of the licensing authority, in this case the TUC. This was not done: instead a police officer gave evidence that he searched the record at the TUC and found the two owners to be the two appellants. The Court minute of the officer’s evidence goes on “Here are the documents”. The minute does not shew a formal tender nor is there an exhibit on the file. The Single Magistrate says: “It was clear from Tavita Meita’s evidence that he went to TUC seeking information about the owner of the bus TUC 7242 and he discovered that the bus was owned by two people i.e. Taberannang Timeon and Lomi Posada”. It is unfortunate that neither the minute of evidence nor the judgment sets out explicitly the tender of a copy of the certificate but I feel justified in assuming there was a tender and the two appellants were proved as the owners. I suggest most strongly that in future the prosecution should follow the correct procedure: tender a certified copy of the licence through an officer of the licensing authority.

I may mention that under S.4 of the Traffic Act the words “owner” and “bus operator” have, in the circumstances of this case, the same meaning.

The definition of “bus operator”:–

“A person who regularly carries passengers for reward in an enclosed motor vehicle”.

The only definition of “owner” – “includes a person who has possession of the vehicle under a hiring agreement or hire purchase agreement”. This is to cover the situation of a person who has a vehicle on hire purchase: technically such a person is the hirer not the owner but because of this definition is to be regarded as the owner.

In the absence of proof to the contrary an owner may be presumed to be the operator. The driver of a bus is the agent of the owner: so the owner is deemed to be carrying the passengers and to be the bus operator.

That disposes of Ms Iuta’s first point.

The Single Magistrate found there were 17 passengers on the bus. There is some confusion in the evidence but the magistrate made a finding which I should accept.

Ms Iuta’s final point is “that by allowing a maximum of 15 passengers, in a vehicle which the Authority knew or ought to have known was designed to carry 15 people, the Authority is in fact, by implication, authorizing the modification of seats so as to allow for 15 passengers to be carried excluding the driver and bus fare collector”.

I cannot see the implication which Ms Iuta suggests. The Single Magistrate found that the bus had seats for 15 passengers: she was relying on the evidence of the Toyota mechanic. There is no implication of an authorization to carry extra passengers.

Despite the ability with which she argued them that disposes of Ms Iuta’s three points.

The appeal is dismissed.

THE HON ROBIN MILLHOUSE QC
Chief Justice