Ainui v Ouki [1977] PGNC 5; [1977] PNGLR 11 (28 January 1977)

Papua New Guinea Law Reports - 1977

[1977] PNGLR 11 - Ling Ainui v Luke Ouki 

[1977] PNGLR 11

N78

PAPUA NEW GUINEA

[NATIONAL COURT OF JUSTICE]

LING AINUI

V

LUKE OUKI

Waigani

Williams J

27-28 January 1977

VEHICLES AND TRAFFIC - Particular offences - Driving on public street without due care and attention - “Public street” - Motor Traffic Act 1950 s. 6[viii]¹, s. 7(1b).

VEHICLES AND TRAFFIC - Person convicted of traffic offence - Penalty - Principles relating to penalties - Particular circumstances - Driving without due care and attention - Whether danger to life and property - Relevance of magistrate’s sentencing policy.

The appellant was charged with contravening s. 7(1b) of the Motor Traffic Act 1950 by driving a motor vehicle on a public street, namely B.P. parking area Boroko, without due care and attention. The appellant pleaded guilty, was convicted and fined K50 and in addition it was ordered that her licence be suspended for a period of three months.

On appeal against conviction and sentence,

Held

N1>(1)      The question whether a place is a public street within the meaning of s. 6 of the Motor Traffic Act 1950, is largely a question of degree and fact. If only a restricted class of person is permitted or invited to have access the place is a private place; if only a restricted class is excluded it is a public place.

John James Waters (1963) 47 Cr. App. R. 149 adopted and applied.

N1>(2)      Further the definition of “public street” in s. 6 of the Motor Traffic Act 1950, appearing in an Act designed to regulate the control and management of motor vehicles, the word “place” therein should be construed to refer to a place where the general public are permitted to drive motor vehicles, and includes therefore the driving of motor vehicles for the purposes of ingress to and egress from a parking area.

N1>(3)      It being a matter so notorious as to be the subject of judicial notice that the general public has access to and does in fact use the B.P. parking area Boroko, without any limitation being placed on its use, the plea of guilty could not be regarded as improperly entered.

N1>(4)      Having regard to the nature of the case, the low speed whilst reversing, the want of any danger to life or property, the fact that the appellant was a first offender, and the apparent application of some general sentencing policy by the local court magistrate, the magistrate had given insufficient weight to the particular circumstances of the case, and had misdirected himself in the exercise of his discretion, particularly as regards the suspension of licence.

Kapena Boe Arua v. Bulanasoi [1975] P.N.G.L.R. 44 applied.

N1>(5)      The appeal against conviction should be dismissed.

N1>(6)      The appeal against sentence should be allowed and the order imposing the fine and so much of the order for suspension of licence as remained unexpired, set aside.

Appeal

This was an appeal against conviction and sentence (on a plea of guilty) on a charge of contravening s. 7(1b) of the Motor Traffic Act 1950, by driving a motor vehicle on a public street, namely B.P. parking area Boroko.

Counsel

G. C. Lalor, for the appellant.

A. J. Alpine, for the respondent.

Cur. adv. vult.

28 January 1977

WILLIAMS J: The above-named appellant was charged on summons with a contravention of s. 7(1b) of the Motor Traffic Act 1950 as amended in that she drove a motor vehicle on a public street, namely, B.P. parking area Boroko, without due care and attention. The matter was heard by a Local Court on the 2nd December, 1976. The appellant pleaded guilty to the charge. She was convicted and fined K50 and in addition it was ordered that her licence be suspended for a period of three months.

The facts surrounding the matter are somewhat scanty. All that appears from the record of the proceedings is that it was alleged that the appellant whilst reversing her vehicle in the car park collided with another vehicle. It further appears that damage was done to the appellant’s vehicle estimated in the sum of K80.

She appeals to this Court on two grounds. Firstly, it is said that the magistrate should not have accepted her plea of guilty because B.P.’s car park at Boroko is a private place and not a public street within the meaning of the Motor Traffic Act. In the alternative it is said that if the parking area be held to be a public street then the penalty imposed was manifestly excessive.

The term “public street” is defined in s. 6 of the Motor Traffic Act. The definition is as follows:

“ ‘Public street’ means any street, road, lane, thoroughfare, footpath, bridge or place open to or used by the public or to which the public have or are permitted to have access whether on payment of a fee or otherwise.”

As was said by the Court of Criminal Appeal in John James Waters[ix]² the question whether a place is a public place is largely a question of degree and fact. If only a restricted class of person is permitted or invited to have access the place is a private place. On the other hand, if only a restricted class is excluded it is a public place.

As has been said the appellant pleaded guilty to the charge and no evidence was adduced before the Local Court. The car park in question is a very well known one and one familiar to a large number of residents of Port Moresby. I personally have parked there on numerous occasions and I think it is very likely that the learned magistrate has done so also. I think it is a matter so notorious as to be the subject of judicial notice that the general public has access to and does in fact use the area without any restriction or limitation being placed on its use. In these circumstances I do not think it was incumbent on the magistrate to reject the appellant’s plea of guilty and to hear evidence directed to the nature of the area.

Another argument was put on behalf of the appellant to the effect that the application of the ejusdem generis rule required the word “place” appearing in the definition of “public street” to be construed as meaning a place upon or over which there was a passage of traffic and that this place was essentially a parking area. The definition is one appearing in an Act designed to regulate the control and management of motor vehicles and, in my view, the word “place” appearing in the definition should be construed to refer to a place where the general public are permitted to drive motor vehicles. Obviously ingress to and egress from the parking area involves the driving of the vehicle in the parking area. In consequence I do not see that the appellant derives any assistance from the application of the ejusdem generis rule. In consequence it does not appear to me that the magistrate erred in accepting the appellant’s plea of guilty to the charge.

On the question of penalty it was urged that the fine of K50 was manifestly excessive having regard to the fact that it represented one-half of the statutory maximum penalty, that the appellant had no prior convictions for traffic offences and that on the facts revealed to the Court this could not be said to be a serious offence of its kind. As to the suspension of licence it was conceded that there was a discretionary power in the magistrate to suspend the licence but that in reality the magistrate had not exercised a discretion at all. That this was so, it was submitted, emerged from the report furnished by the magistrate to this Court. The magistrate reported that there was nothing unusual about the case it being “an ordinary traffic case”. His report also contains a number of statistics relating to traffic offences coming before the Court. The magistrate also observed that “offences which generally received greater penalties were driving under the influence; without due care and attention; negligently or dangerously (usual penalty K50 fine plus three months’ suspension of licence)”. It was contended that this indicated that the magistrate did not consider the matter in the light of its own particular facts but rather was employing some general tariff principle. Reliance was placed upon the observations of Frost C.J. in Kapena Boe Arua v. Bulanasoi [x]³, where his Honour cited with approval a passage from the judgment from Flanagan v. Knowles[xi]⁴ that “any flexible general standard (of penalty) must be adjusted in accordance with the particular circumstances of each case”. His Honour went on to point out that a judge or a magistrate cannot put aside his duty to exercise his discretion in each particular case simply by relying on a general scale drawn up by himself or the magistrates generally, as the circumstances of every case vary.

Looking at the facts appearing from the record of proceedings of the Local Court I am impelled to say that this is not a serious case of its kind. The appellant was apparently driving at a low speed because she was reversing her car. One can easily imagine far more serious cases of this kind, for example, driving without care and attention on the Hubert Murray Highway in peak hour traffic, where careless driving would be much more likely to create a situation of danger to life and property. Another important factor is that it appears that the appellant was a first offender. I am left with the firm impression that the magistrate gave insufficient weight to these circumstances and that he misdirected himself in the exercise of his discretion, particularly as regards the suspension of licence. It appears to me that the magistrate was applying some general rule that driving without due care and attention usually carried a penalty of K50 plus three months’ suspension of licence rather than weighing the particular circumstances of the case which, in my view, indicated that this could not be described as a serious case of its kind. In my opinion the case called for the imposition of a pecuniary penalty without any suspension of licence.

However, about seven weeks of the suspension period has already run and there is nothing this Court can do to alter that. (See Eastwood v. Samar [xii]⁵.) As I have said, I think that the case called for a fine only but having regard to the fact that she has already suffered the suspension of her licence for seven weeks I do not consider that any further penalty is called for.

For the above reasons I dismiss the appeal against conviction but I allow the appeal against sentence and set aside the magistrate’s order imposing a fine and so much of his order for suspension as remains unexpired.

Appeal against conviction dismissed. Appeal against sentence allowed.

Solicitor for the appellant: W. J. Andrew, Acting Public Solicitor.

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

R>

[viii]Infra p. 12.

[ix](1963) 47 Cr. App. R. 149.

[x][1975] P.N.G.L.R. 44.

[xi][1957] TASStRp 20; [1957] Tas. S.R. 301 at p. 307.

[xii][1976] P.N.G.L.R. 206.