Regina v Lipa [2020] SBMC 13; Criminal Case 539 of 2020 (25 June 2020)

IN THE CENTRAL MAGISTRATE’S COURT )
OF SOLOMON ISLANDS AT HONIARA )
(Criminal Jurisdiction)

Criminal Case No. 539 of 2020

REGINA

-v-

WILLIAM LIPA

&

GEORGINA VEKE MAUSI

Date of hearing: June 19^th, 2020
Date of written ruling: June 25^th, 2020

Mr. Watson Akwai for the Prosecution
Mr. Andrew Bosa for the Accused

RULING ON ISSUE PERTAINING TO COUNT 2 AGAINST BOTH ACCUSED PERSONS

Introduction

[1]. On June 19^th, 2020, the accused persons both entered guilty pleas to two counts of traffic offences respectively. For accused William Lipa, a count of Driving Unlicenced Motor Vehicle contrary to section 7 (1) of the Road Transport Act (Cap. 131) and a count of Driving Uninsured Motor Vehicle contrary to section 8 (1) of the Third-Party Insurance Act (Cap. 83). For the co-accused Mrs. Mausi, one count of Permitting Unlicenced Motor Vehicle contrary to section 7 (1) of the Road Transport Act (Cap. 131) and a count of Permitting Uninsured Motor Vehicle contrary to section 8 (1) of the Motor Vehicle Third-Party Insurance Act (Cap. 83).

[2]. The particulars of the offence against both accused persons are as follows: -

William Lipa

Count 1 That William Lipa on 15^th May 2020 at about 10:00am did drive a motor vehicle to wit a silver Toyota Corolla registration number MC-2018 on a road namely Kukum high way, opposite Golf field Panatina area, which was not licenced.

Count 2 That William Lipa on 15^th May 2020 at about 10:00am did drive a motor vehicle to wit a silver Toyota Corolla registration number MC-2018 on a road namely Kukum highway, opposite Golf field Panatina area, there not being in force in relation to the user of the vehicle policy of insurance of such a security as complies with the requirement of the motor vehicle (Third-Party Insurance) Act (Cap. 83)

Georgina Veke Mausi

Count 1 That Georgina Veke Mausi on 15^th May 2020 at about 10:00am being the owner of a motor vehicle to wit a silver Toyota Corolla registration number MC-2018 did permit a person namely William Lipa to drive the said motor vehicle on a road namely Kukum high way, opposite Golf field Panatina area, which was not licenced.

Count 2 That Georgina Veke Mausi on 15^th May 2020 at about 10:00am being the owner of a motor vehicle to wit a silver Toyota Corolla registration number MC-2018 did permit a person namely William Lipa to drive the said motor vehicle on a road namely Kukum highway, opposite Golf field Panatina area, there not being in force in relation to the user of the vehicle policy of insurance of such a security as complies with the requirement of the motor vehicle (Third-Party Insurance) Act (Cap. 83)

[3]. Subsequent to registering the accused persons’ guilty pleas, counsel Bosa proceeded with his mitigation submission. During his mitigation submission, he has with consent of prosecution tendered a copy of third party insurance policy, issued by Capital Insurance (SI) LTD and bears the accused name; Mrs. Georgina Veke. It expressly states at paragraph 3 of this third-party insurance policy that it commences on the 30^th April 2020 and terminates at midnight on 30^th April 2021.

[4]. This document was officially signed and stamped on 30^th April 2020. It is to be noted that the existence and authenticity of this third-party insurance policy is never an issue, it is simply highlighted for clarity purposes.

[5]. It is clear on count 2 per the particulars of offence against the both accused that the offence occurred on 15^th May, 2020, a month after Mrs. Mausi had attained the third-party insurance policy^[1]. The prosecution and defence were then alerted of this matter. I had informed them that it appears there had been a valid third-party insurance policy for motor vehicle registration number MC-2018 on the date of the offence, thus, would appear mistaken in law for the prosecution to pursue count 2, relating to uninsured motor vehicle. This is of course the gist of the issue and highly contested matter.

[6]. In view of this contested issue, both Prosecutor Akwai and Counsel Bosa made oral submissions on this particular matter, which I will deliberate on the specifics later in this ruling.

Agreed Facts

[7]. The facts are undisputed and accepted that on 15^th May, 2020, at about 10:00am, Mr. Lipa had driven an unlicenced Motor vehicle registration number MC-2018 on the Kukum highway road, opposite Golf field Panatina area, East Honiara.

[8]. It is also conceded that on the date of offending, Mrs. Georgina Veke Mausi being the owner of the said vehicle permitted Mr. Lipa to drive the unlicenced motor vehicle registration number MC-2018 on a public road.

[9]. It is undisputed and accepted that on 15^th May 2020, or date of offence, the motor vehicle registration number: MC-2018 was covered by third-party insurance policy, being issued on the 30^th April 2020, a date before the date of offence.

Issues

[10]. Whether count 2 against Mr. William Lipa, Driving Uninsured Motor Vehicle is proper in view of the third-party insurance policy being obtained and commences on 30^th April 2020, a date earlier to date of offending?

[11]. Whether count 2 against Mrs. Georgina Veke Mausi, permitting uninsured motor vehicle is proper in view of the third-party insurance policy being obtained and commences on 30^th April 2020, a date earlier to date of offending?

[12]. Whether there is any conditional or restrictive provision(s) under the Road Transport Act (Cap. 131) and Motor Vehicle Third-Party Insurance Act (Cap. 83) to state that a third-party insurance policy can only operate in conjunction with a valid motor vehicle licence and/or is of no legal effect without a valid motor vehicle’s licence?

Submission

Prosecution’s submission

[13]. Prosecutor Akwai orally submitted that a third-party insurance cannot run in isolation but must always be supported with a valid motor vehicle’s licence. When there is no motor vehicle licence, the third-party insurance policy shall not be operational, meaning the vehicle is not road worthy and cannot be allowed to travel on the road. Thus, when a person fails to obtain a motor vehicle licence or is yet to get one, he or she is not allowed to use a motor vehicle including the third-party insurance policy or any reliance thereto for that matter.

[14]. Prosecutor Akwai did not object to the existence and authenticity of the mentioned third-party insurance policy issued by Capital Insurance (SI) LTD, and its date of commencement being 30^th April 2020, but adamantly submitted that it is not operational until Mrs. Mausi acquires the motor vehicle licence. He did not refer to any case authorities or specific provision to support his submission.

Defence submission

[15]. Counsel Bosa for the accused persons simply submitted in support to the Court’s position regarding count 2 being unsupported and discloses no offence, however, had not foreshadow the issue before plea and even during mitigation submission.

Discussion

[16]. For reason that Prosecution have contended that third-party insurance policy does not operate in its own but only hinged with valid motor vehicle licence, I see it appropriate to explain both these important legislations in my deliberation which should assist to explain the law and its application. If I find on the affirmative, then I will proceed to hear mitigation and sentencing submissions. If, however, I find on the contrary, I will set-aside the guilty pleas on count 2 and enter not guilty pleas to assess its merit and whether it is a worthy contested matter for trial.

[17]. Section 7 (1) of the Road Transport Act states: -

S. 7 (1) Subject to section 13 any person who uses or permits to be used on a road, which is repairable at the public expense, any motor vehicle or trailer which is not licensed under and in accordance with the provisions of this Part, shall, unless such person, vehicle or trailer is exempted from the provisions of this section by or under the provisions of this Act or any regulations made thereunder, be guilty of an offence and liable to a fine of five hundred dollars or to imprisonment for six months or to both such fine and such imprisonment.

[18]. The relevant section that both accused were charged for under count 2 is as provided under section 8 (1) & (2) (b)^[2], where it states: -

S.8 (1) Subject to the provisions of this Act, it shall not be lawful for a person to use, or cause or permit any other person to use, a motor vehicle on a road unless there is in force in relation to the user of the vehicle by that person, or that other person, as the case may be, such a policy of insurance or such a security as complies with the requirements of this Act.

(2) Any person who acts in contravention of this section shall be guilty of an offence and liable— (b) on conviction by a Magistrate's Court, to a fine of one hundred and fifty dollars or to imprisonment for four months or to both such fine and such imprisonment.

[19]. Obviously, there are two separate legislations at play in this case, the Road Transport Act and Motor Vehicle (Third-Party Insurance) Act. The former regulates motor vehicles licences, traffic on the roads and road safety. The latter one regulates compulsory insurance against third-party risks arising out of the use of motor vehicles on roads and for matters connected therewith and incidental thereto. Although practically, these two legislation normally coexist, they serve separate purposes.

[20]. The issue at hand deals with the conduct by police to charge a person for using or permitting to use an uninsured motor vehicle on a road, while there being in force a valid motor vehicle third-party insurance policy.

[21]. The proper starting point is whether or not this valid third-party insurance only operates or comes into effective upon attaining a motor vehicle licence.

[22]. In my respectful view, the fact that there was at the time of offence a valid third-party insurance in force or that the motor vehicle is covered by a valid third-party insurance, it effectively preclude the application of section 8 (1)^[3], that is to say the ‘unlawfulness’ for a person to use or permit the concerned motor vehicle on a road. There is no offence disclosed. Thus, would appear flawed and incorrect in law to charge a person under section 8 (1) (2) (b) when there is a valid third-party insurance in force. I shall proceed further to deliberate on this view.

[23]. It is evidenced and undisputed before this Court that on the date of offence, 15^th May 2020, there was in fact a valid third-party insurance being in force or on foot since 30^th April 2020. Its operational period is for one (1) year or until 30^th April 2021. Precisely put, count 2 against both accused was laid while motor vehicle registration number MC-2018 was covered by third-party insurance.

[24]. The Prosecution strongly argued that regardless of a valid third-party insurance policy in force, the vehicle is not allowed to be on the road, until of course a valid motor vehicle licence is obtained, unfortunately that would be of a stretch as per the interpretation of section 8 of Motor Vehicle (Third-party Insurance) Act (Cap. 83). While I might agree that, a motor vehicle licence is required for vehicle to be on the road, that would be the basis for count 1. But it does not give any justification to charge the accused persons for count 2, as far as the meaning and purpose of third-party insurance policy is concerned.

[25]. With respect, it appears that there is confusion with the issue of a motor vehicle’s licence and the legality of a third-party insurance. The Prosecution’s submission that both operate together and that one cannot operate in isolation, in my view is ill-conceived, for reason that these are two separate legislations and hold separate purposes.

[26]. I must say that while it is a requirement under section 9 of the Road and Transport Act[1] that a person must produce a valid third party insurance along with other necessary documents to be qualified to obtain a motor vehicle’s licence. It is not a requirement under the Motor Vehicle Third-Party Insurance Act[2] to submit a valid motor vehicle licence before a person can be issued with third-party insurance.

[27]. A third-party insurance comes into effect on the date of commencement provided by the insurer. Section 5 (1) (a) & (4) of the Motor Vehicle Third-Party Insurance Act^[4] states: -

S. 5 (1) (a) – In order to comply with the requirements of this Act, a policy of insurance – shall be issued by an insurer.

S.5 (4) – A third-party policy in relation to a motor vehicle shall commence on the date on which it is expressed to commence and unless it is sooner cancelled in pursuance of this Act, shall continue in force.

[28]. My reading of the above proviso is that, it is the legitimate statutory power of the licenced insurer, in this case the Capital Insurance (SI) LTD to issue or not issue third-party insurance. Once that insurer issues the third-party insurance, its commencement date shall be that which appears on the face of the insurance policy and unless it is sooner cancelled, it shall continue in force.

[29]. In view of the above, it would appear proper to state that the third-party insurance issued by the Capital insurance (SI) LTD on the 30^th April 2020, is valid and in force until 30^th April 2021. Thus, as far as the interpretation and purpose of third-party insurance under section 8 (1) of the Act^[5] is concerned this motor vehicle registration number: MC-2018 is legally covered by a third-party insurance for use on the road.

[30]. Furthermore, in my reading of these two important legislations^[6], there is no restrictive or conditional provision under the Road Transport Act and Motor Vehicle (Third-Party Insurance) Act to expressly state that the operational period or commencement date of third-party insurance is subjected to obtaining a motor vehicle licence. There is also no provision under either legislation to limit the statutory power of the insurer and its powers to effect the legal commencement date of the third-party insurance.

[31]. I should now say that, if it is to be any clearer, the proper charge against the accused persons should be count 1, ‘using unlicenced motor vehicle’ and ‘permitting unlicenced motor vehicle’, but not ‘using or permitting uninsured motor vehicle’. Laying count 2 against the accused persons within this operational period is an error that must be borne by the officer responsible for charging the accused persons.

[32]. With respect, this is an issue for the prosecution to settle at the initial stage of proceeding, possibly a withdrawal of count 2. Unfortunately, it had become apparent before the Court during mitigation submission. I remind myself that in such circumstance, the Court have power to set-aside or vacate the guilty plea and enter a not guilty plea, so that the matter can proceed through trial. The right is provided since I have yet to enter conviction on count 2.

[33]. In case of Fanasia v Director of Public Prosecutions^[7] The appellant was convicted on his plea of guilty by the Magistrate’s Court (Central) of using a vehicle on the road without a policy of third party insurance c/s 8 of the Motor Vehicle (Third Party Insurance) Act 1972. Notwithstanding his guilty plea, the appellant appealed against his conviction on the ground that the Magistrate failed to explain a defence open to him under s.8(3) of the Act and so his plea, made while unrepresented and not aware of the defence, was not a proper, full and unequivocal plea. The question before High court was whether or not the appellant’s plea of guilt was unequivocal. Having considered its totality, it was found that there was a viable defence available for the appellant. That is to say, anyone charged with an offence under s.8 cannot be convicted if he proves that the vehicle did not belong to him, that he was using the vehicle in the course of his employment and that he neither knew nor had reason to believe that the vehicle was uninsured. The Court found that the Magistrate had not inquired enough. Hence, remitted the matter for retrial before a different Magistrate.

[34]. The authority to set-aside guilty plea is as provided in the final paragraph of the Court’s judgment, when His Lordship Wood, then CJ, stated; -

“On the record and if the learned Magistrate had made further enquiry I am of the opinion that a plea of “not guilty” would have been entered on count 3 of the charge sheet...”

[35]. With the above authority, I agree that the proper approach now is to set-aside the guilty plea and enter “not guilty plea”. But must I set this matter for trial? In Fanasia’s case, there was a viable defence available for the appellant, thus, the court’s intention to have the matter remitted to Magistrates Court for retrial.

[36]. However, in this case at hand, the facts disclose no offence from the moment prosecution conceded to motor vehicle registration number MC-2018, as being covered by valid third-party insurance on date of offence. Therefore, if we are to proceed, there is nothing to argue at trial.

[37]. I stand back and ask, could this mistake be cured at this stage? In my view, this mistake is beyond curability by rectification or amendment^[8], because it will not change the position of the law and the uncontested facts of the third-party insured motor vehicle registration number: MC-2018. I must again say that by admitting to the third-party insurance policy^[9] it resulted in there being no offence disclose to warrant the accused persons to be charged for count 2, using or permitting uninsured motor vehicle. It will only be prejudicial for the accused persons if this matter is to proceed to trial, because count 2 is clearly not made out in facts and law, from the beginning.

[38]. Having considered count 2 in its totality and matters discussed above, it would be best to bring this matter to a finality at this stage. Going on to trial will not change my finding. It is my view that ending this matter at this stage will serve the interest of justice, the accused persons and that of the public as a whole.

[39]. The Prosecution and defence had requested that the reasons for this decision be reduced to writing. These are those reasons.

ORDERS

[40]. Upon considering what I have discussed earlier in my ruling, I make the following orders: -

1. I find that a third-party insurance serves its own application and can operate alone even in the absence of a motor vehicle licence, as far as its purpose is concerned. The legality of a third-party insurance is not negated nor nullified in the absence of a motor vehicle licence.
   
2. I find count 2 against both accused persons are improper and its facts discloses no offence, that is in view of the uncontested third-party insured motor vehicle reg: MC-2018, being obtained and commences on 30^th April 2020, a date earlier to date of offence.
   
3. Consequent to order 1 and 2 above, guilty pleas entered against count 2 by both Accused persons are hereby set-aside and be replaced with not guilty pleas.
   
4. Order Dismissal of count 2 against both accused persons.
   
5. Enter acquittal against both accused persons on count 2.
   
6. Matter shall proceed to sentencing and mitigation submission for count 1 against both accused persons.
   
7. Order accordingly.
   

THE COURT

..................................................
MR. LEONARD. B. CHITE
Principal Magistrate

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^[1] Third-party insurance issued by Capital insurance (SI) LTD on 30^th April 2020
^[2] Motor Vehicle Third-Party Insurance Act (Cap. 83)
^[3] Above n. 2
^[4] (Cap. 83)
^[5] Above n.1
^[6] Road Transport Act (Cap. 131) and Motor Vehicle (Third-Party Insurance) Act (Cap. 83)
^[7] [1985] SBHC 11; [1985-1986] SILR 84 (25 July 1985)
^[8] Section 201 of the Criminal Procedure Code (Cap. 7)
^[9] Covering motor vehicle registration number MC-2018