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Thick v Hoeter [1962] PGLawRp 7; [1963] PNGLR 87 (8 November 1962)

Papua New Guinea Law Reports - 1963

[1963] PNGLR 87 - Thick v Hoeter

[1963] PNGLR 87

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

ALFRED ARNOLD THICK

APPELLANT

AND

FRANK GEORGE HOETER

RESPONDENT

Port Moresby

Minogue J

8 November 1962

On appeal from the Stipendiary Magistrate.

MOTOR TRAFFIC - Prosecution - Permitting person to drive vehicle without efficient brakes - Criminal responsibility of employer and others - Statutory burden of defence - Inconsistency or repugnancy between Ordinances - Motor Traffic Ordinance 1950-1955, Sections 20, 23, Regulation 54 (f) - The Criminal Code Sections 23, 24, 36 - Laws Repeal and Adopting Ordinance 1921-1952 Sections 13, 17

Regulation 54 (f) of the Motor Traffic Regulations provides:

�Any person who drives or permits any person to drive a motor vehicle . . . . (f) unless efficient brakes are affixed thereto . . . . shall be guilty of an offence.�.

Section 23 of that Ordinance provides a general defence where a person proves to the Court that the offence or contravention could not have been avoided by reasonable efforts on his part.

Section 23 of the Criminal Code provides, inter alia, the general defence of accident.

The Appellant was the owner of a motor truck which, whilst being driven by S., was involved in a collision with another vehicle. A subsequent examination of the truck revealed that its brakes were defective. The Appellant was charged under Regulation 54 (f) of the Motor Traffic Regulations before the Stipendiary Magistrate at Goroka, who convicted the Appellant and imposed a fine of �20.

On appeal against conviction.

Held:

Dismissing the appeal, that Regulation 54 (f) is aimed at the person who permits or allows another person to drive a vehicle if in fact it is without efficient brakes. Section 23 of the Motor Traffic Ordinance 1950-1955 contains certain exculpatory provisions but places on a Defendant the burden of satisfying the Court that his case falls within that section provided the prosecutor has made out his own case. (Proudman v. Dayman[xcvii]¹�considered and followed). Section 23 of the Criminal Code should be applied to all persons charged with an offence (following Hunt v. Moloney ex parte Hunt 53 Q.J.P.R. 109; 1959 Qd. R. 164) but that section is inconsistent with Section 23 of the Motor Traffic Ordinance 1950-1955. Such inconsistency is resolved by Section 13 of the Laws Repeal and Adopting Ordinance 1921-1939 so that Section 23 of the Motor Traffic Ordinance 1950-1955 prevails. The Appellant has not displaced the burden cast upon him by that section.

McLeod v. Buchanan[xcviii]²; Gherashe v. Boase[xcix]³; Greene v. Sergeant[c]⁴; Broadhurst v. Larkin[ci]⁵; also followed.

Crabtree v. Fern Spinning Co. Ltd.[cii]⁶�and Mullen v. The King[ciii]⁷�referred to. Ex parte Bruce; Re. Fleeman[civ]⁸�considered.

Counsel:

Kilduff: for the Appellant.

Croft: for the Respondent.

REASONS FOR JUDGMENT

MINOGUE J:� On the 15th August, 1962, the Stipendiary Magistrate at Goroka convicted the appellant of an offence under Regulation 54 (f) of the Motor Traffic Regulations namely that on the 25th July, 1962, at Goroka in the Territory of New Guinea he permitted a person Simar-Sulu to drive a motor vehicle upon a public street whilst not having efficient brakes attached thereto, and fined him �20. Against that conviction the Defendant appealed to this Court pursuant to the provisions of Part XI of the District Courts Ordinance 1924-1961 made under the powers conferred by the New Guinea Act 1920.

Regulation 54 (f) reads as follows:

�Any person who drives or permits any person to drive a motor vehicle . . . . (f) unless efficient brakes are affixed thereto . . . . shall be guilty of an offence.�.

By Section 20 of the Motor Traffic Ordinance a person who commits an offence against or contravenes any provision of the Ordinance or the Regulations shall where no other penalty is provided be liable in respect of any such offence or contravention to a penalty not exceeding �50 or imprisonment for three months. No other penalty is provided in Regulation 54 and consequently Section 20 applies. As he was required to do by Section 232A (2) of the District Courts Ordinance the Magistrate made and forwarded a report to the Registrar of this Court and this I had before me on the hearing of the appeal together with the depositions taken on the hearing before the Magistrate.

The facts found by the Magistrate were that at about 4 o�clock in the afternoon of the 25th July, 1962, Inspector Hoeter (the respondent) was called to the scene of an accident near the Public Works Department, North Goroka. Here he found a Bedford truck owned by the appellant and a Landrover in collision. Tests at the time showed the brakes of the Bedford to be defective. The Inspector had it removed to Goroka Motors and examined by the manager, one Spriggs, who found the brakes completely inoperative. The driver of the Landrover - one Sears - was called to describe the incident, and he related, and the Magistrate accepted, how the driver of the oncoming Bedford truck had signalled him to reverse; he had done so but had not been able to prevent the truck colliding head-on with the Landrover.

According to the Magistrate�s report, objection was then made by Mr. Kilduff, who appeared for the defence, that there was no case to answer. The Magistrate had no hesitation in holding a prima facie case had been made out and he took the view that the objection was not really pressed. After a short adjournment granted at the request of the defence, Defence Counsel elected to call evidence. The Defendant was present in Court throughout the proceedings but was not called, nor was the native driver of the truck Simar-Sulu by either the prosecution or the defence. The Magistrate unhesitatingly accepted the evidence of Spriggs. In his address to the Magistrate, Mr. Kilduff did not appear to seriously press the view that the brakes were not efficient, but he did submit at some length that the prosecution had failed to prove that the Defendant had �permitted� the truck to be driven in this defective condition. In the course of this address the Magistrate pointed out to Mr. Kilduff that he had elected to call evidence and had not called the Defendant. This failure, the Magistrate felt, he had to bear in mind in deciding whether the charge was proven or not. In his view the Defendant was the person who, of course, knew the truth of the matter and who could have most easily set his grave suspicions at rest.

The Magistrate took the view finally that the proof of states of mind like �intention� or �permitting� raises difficulties, especially when, so he said, the prosecution could not reasonably risk calling as a witness the driver of the offending truck who happened to be the employee of the Defendant. He reasoned that the prosecution had established that a native employee of the Defendant in working hours was driving a truck the property of the Defendant in the usual course of his employment, and further that this truck had defective brakes, and that the Defendant being presumably a man of ordinary business acumen was privy to the driving. Accordingly he felt driven to the conclusion that the Defendant in some way he did not choose to speculate on, had �permitted� this defective vehicle to be driven.

The Defendant appealed on the following grounds:

N2>(a)����� that the conviction was against the evidence and the weight of evidence;

N2>(b)����� that the learned Magistrate was in error in holding that an onus was on the Defendant to call Simar-Sulu or any other person in his defence;

N2>(c)����� that the prosecution failed to discharge the onus of proving beyond reasonable doubt that the Defendant permitted Simar-Sulu to drive a motor vehicle, to wit, Bedford Motor Lorry TP.NG. 12-992 upon a public street, Elliott Street, Goroka whilst not having efficient brakes affixed thereto contrary to Regulation 54(f) of the Motor Traffic Regulations;

N2>(d)����� that the conviction is contrary to law as Regulation 54(f) of the Motor Traffic Regulations was not tendered by the prosecution;

N2>(e)����� that the penalty was excessive.

Ground (d) was abandoned at the hearing, and in view of Section 5 of the Laws of the Territory (Proof and Printing) Ordinance 1951, in my opinion properly so.

With regard to ground (b) the Magistrate in his report points out that he did not hold there was an onus on the defence to call Simar-Sulu, nor do I think from an analysis of his reasons therein set out that he did so hold. Accordingly this ground fails. I think that his observation that the prosecution could not reasonably risk calling the driver of the truck was unfortunate. If he had anything to say to assist the prosecution case then the proper thing was to call him. If he had no such evidence to give then there was no point in calling him.

The appeal really turned on the argument on ground (c). Mr. Kilduff�s main submissions for the Appellant were that the word �permit� connotes a positive act on the part of the Defendant and connotes also knowledge on his part. To establish a prima facie case he argued it was incumbent on the prosecutor to prove:

N2>�(a)���� that the brakes were inefficient;

N2>(b)����� that the inefficiency was known to the Defendant; and

N2>(c)����� that the Defendant gave his express or implied consent to the vehicle being driven with the brakes in such a condition.

He went on to urge that there must be a point of time to which the prosecution can point as the time at which the Defendant had knowledge and with that knowledge permitted the vehicle to be driven; for example, he said, if the vehicle went out in the morning inspected and passed in all respects by a mechanic and for some fortuitous reason during the day the brake fluid ran out, the driver not having reported the matter, the Defendant could not be convicted because he had no knowledge of the condition of the brakes either actual or presumptive at the relevant time. He conceded that there was abundant evidence that at or about the time of the collision the brakes on the Defendant�s vehicle were in fact not efficient. Mr. Croft, for the Respondent, submitted that all the prosecution had to prove was:

N2>(a)����� permission express or implied given by the Defendant to the driver to drive this vehicle;

N2>(b)����� that the vehicle was in fact without efficient brakes at the material time, i.e., at the time of the accident.

Permission, so he argued, relates only to the driving; it does not relate to the composite idea of driving with defective brakes. He conceded that �permit� must be given its ordinary meaning �knowingly permitting� but sought to restrict its application to the actual driving. He founded strongly on Proudman v. Dayman[cv]⁹�and on McLeod v. Buchanan[cvi]¹⁰.

Considering the regulation in isolation and giving the words thereof their ordinary or natural meaning, I would think that the person aimed at is he who permits or allows another person to drive a vehicle if in fact it is without efficient brakes. The regulation does not say �Any person who permits a person to drive a vehicle knowing that the brakes are inefficient� or even �with inefficient brakes�. The word �unless� in my opinion, casts something like a liability on the permittor to ensure that the brakes are efficient before he permits another to drive the vehicle. If he gives permission to drive a vehicle on which in fact the brakes are inefficient, he does so at his peril - unless of course there can be found either expressly or impliedly in the Ordinance or Regulations or in the general law some exculpatory enactment or presumption which will excuse him.

I turn now to a consideration of the Ordinance and Regulations as a whole to see if there is any support for Mr. Kilduff�s contention that there must be presumed in Regulation 54 (f) an intention on the part of the permittor to allow the vehicle to be driven with defective brakes. The Motor Traffic Ordinance 1950 was an Ordinance made by the Governor-General by and with the advice of the Federal Executive pursuant to the powers conferred by the Papua and New Guinea Act 1949 (see Section 54). The Ordinance sets out a few major offences, most of which find their counterpart in the legislation of the Australian States, and by Section 33 leaves a great number of matters to be dealt with by regulation. With very few exceptions the subject matters on which regulations can be made are subject matters dealing with the preservation of public safety. Speed, lighting, the qualifications and age of drivers, alarm systems, the provision of brakes, the rules of the road to be observed, the conveyance of inflammable liquids in vehicles are all permissible subjects of regulation, and it seems to me clear that the Federal Executive desired to leave to the Administrator-in-Council, with the knowledge of local conditions which he must be presumed to possess, the detailed regulation of traffic and provision for public safety as far as concerned the use of motor vehicles in the Territory of Papua and New Guinea.

The Regulations themselves contain a detailed set of provisions or enactments the great majority of which are designed to ensure the safety of the public. Regulation 54 (f) in addition to its provision for efficient brakes also deals with projecting loads, persons travelling on running-boards and the provision of a horn or other alarm system. A number of regulations refer to the permission by one person to another to do an act; see Regulations 27, 29, 48, 49, 50, 53, 54, 66, 68, 69 and 71.

Section 23 of the Ordinance is important. It provides that a person shall not be liable to be convicted of an offence against or a contravention of a provision of the Ordinance or the Regulations if he proves to the satisfaction of the Court hearing the case that the offence or contravention could not have been avoided by reasonable efforts on his part. Nowhere else can I find any exculpatory provision.

With respect I agree with what was said by Dixon J. (as he then was) in Proudman v. Dayman[cvii]¹¹�(supra) at 540: �There has been a marked and growing tendency to treat the prima facie rule as excluded or rebutted in the case of summary offences created by modern statutes, particularly those dealing with social and industrial regulation . . . . There may be no longer any presumption that mens rea, in the sense of a specific state of mind, whether of motive, intention, knowledge or advertence, is an ingredient of the offence created by a modern statute;� I am of the opinion that the Ordinance and Regulations which I have been considering follow the pattern of modern statutes dealing with such subjects as health and public safety and show a legislative intention to displace the presumption of mens rea. I am consequently of opinion that there is nothing in such Ordinance and Regulations to cause me to alter the construction which I placed upon Regulation 54 (f) considering it in isolation. Indeed I am fortified in that construction. Accordingly I reject Mr. Kilduff�s submission in this regard, and if the matter rested there there was ample evidence for the Magistrate to convict the Appellant.

I understood Mr. Kilduff to concede that at the relevant time there was a general permission existing in Simar-Sulu to drive the vehicle, and if my understanding is wrong, I am clearly of opinion that there was evidence on which the Stipendiary Magistrate could so find, as he in fact did.

But I must next consider whether the further rule referred to by Dixon J. in Proudman v. Dayman[cviii]¹²�- namely that honest and reasonable mistake is prima facie admissible as an exculpation - has lost its application also and whether, if it has not, the Appellant can avail himself of it. Unless Section 23 of the Ordinance can be read as providing the only avenue of defence then I can see no sufficient indication elsewhere to compel me to hold the rule rebutted. That generally speaking it still exists is the view of Dixon J., of Dean J. in Gherashe v. Boase[cix]¹³�and of Martin J. in Green v. Sergeant[cx]¹⁴. I did not understand Mr. Croft to contend to the contrary and for myself I am content to adopt what Dixon J. said in Proudman v. Dayman[cxi]¹⁵�(supra) at pp. 540-541. Section 23 of the Ordinance can I think be taken to cover such defences as accident, prohibition of the offensive act and active and reasonable steps to prevent the offence or contravention. I doubt if it should be taken to include honest but mistaken belief. But on the other hand, I do not take the view that the presence of the section is sufficient either of itself or read in conjunction with the rest of the Ordinance and Regulations to rebut the rule.

However I can see nothing in the evidence to point to the existence of any belief on the part of the Appellant as to the brakes of the Bedford truck, and it may have been this that the Magistrate had in mind when he commented on his failure to give evidence. I do not think he was entitled to infer that the Appellant �of course knew the truth of the matter� but he had no need to go this far.

In the result I agree with Mr. Croft�s argument that on the proper construction of the regulation there was evidence entitling the Magistrate to conclude as he did. Taking the view that I do as to the proper construction of the Regulations it becomes unnecessary to consider Mr. Kilduff�s argument wherein he sought to distinguish Proudman v. Dayman[cxii]¹⁶�(supra) and McLeod v. Buchanan[cxiii]¹⁷�(supra).

Mr Kilduff relied on Ex parte Bruce; Re Fleeman[cxiv]¹⁸. In that case McClemens J. upon an application for statutory prohibition had to consider Regulation 110A of the Motor Traffic Regulations (N.S.W.) which read - �The driver of a motor vehicle upon a public street shall not permit or allow any person to ride in or upon any portion of such vehicle not intended or constructed for the carriage of persons if (a) in all the circumstances, including his position and the equipment and construction of that portion of the vehicle there is reasonable danger of such person falling or being thrown therefrom . . .� McClemens J. held that the regulation did not create anything in the nature of an absolute duty and he applied what was said by Darling J. in Crabtree v. Fern Spinning Co. Ltd.[cxv]¹⁹�- �A man cannot be said to allow that of which he is unaware or that which he cannot prevent.� The case appears to be reported only in the Weekly Notes and it does not seem that Proudman v. Dayman[cxvi]²⁰�(supra) was cited in argument. No analysis of the Motor Traffic Act or Regulations is made in the judgment as reported but for myself I should have thought if such a provision as Regulation 110a were in the Territory Regulations that the permission in the regulation of which knowledge or awareness formed an element was the permission to a person to ride in that portion of the vehicle not intended or constructed for the carriage of passengers. If in fact the passenger was seated or standing in what could be reasonably considered to be a position of danger, in my view the offence of permitting would be committed by the driver unless he could bring himself within Section 23 of the Territory Ordinance or the exculpatory rule adverted to by Dixon J. In any event it does appear that the decision of McClemens J. could be supported on either of these bases. The Defendant did give evidence which, as I read it, would support the inference that he both had used all reasonable efforts to avoid offending and was under an honest and mistaken belief on reasonable grounds.

It is not necessary for me to decide in this case whether if evidence of such a belief is raised the ultimate onus remains on the prosecution. The presence of Section 23 in the Ordinance may cause difficulties in supporting such a contention. Herring C. J. in Broadhurst v. Larkin[cxvii]²¹�calling in aid the Oxford Dictionary definition of �permit� as including �not to prevent� was of opinion that when a section in legislation of the type in question in this appeal is addressed to persons in control of others and makes it unlawful for them to permit those others to contravene the section it should be read as making it unlawful for them �to allow� or �not to prevent� their contravening it. �In the public interest�, he said at p. 545, �their failure to prevent a breach of the section by drivers under their control is prohibited under penalty, and while this undoubtedly throws a large responsibility upon employers and other persons in control of the drivers of vehicles, the menace that is to be guarded against is of a very serious character, and if they choose to send their vehicles around the country without taking reasonable or proper steps to prevent those under their control from driving without adequate rest, they cannot complain if they are treated as themselves contravening the section.� And the learned Chief Justice inferred from the fact that the driver of the vehicle was employed by the Respondent Larkin and that he had in fact driven without sufficient rest (the offence charged), Larkin had permitted the vehicle to be so driven there being no evidence that he had taken any steps at all to prevent the driver contravening the section.

Whilst I have so far expressed agreement with Mr. Croft�s submissions that does not conclude the matter. Mr. Croft very properly referred me to Sections 23 and 24 of the Criminal Code of Queensland as possibly assisting the Appellant and not unnaturally Mr. Kilduff seized on Section 23 as giving him fresh reason for hope and victory.

Chapter V of the Code contains general provisions dealing with criminal responsibility and �criminal responsibility� is defined in Section 1 as meaning liability to punishment as for an offence. Section 23 provides that subject to the express provisions of the Code relating to negligent acts or omissions a person is not criminally responsible for an act or omission which occurs independently of the exercise of his will or for an event which occurs by accident. Section 24 provides that a person who does or omits to do an act under an honest and reasonable but mistaken belief in the existence of any state of things is not criminally responsible for the act or omission to any greater extent than if the real state of things had been such as he believed to exist. So that in the Code there is legislative recognition of honest and reasonable but mistaken belief. By Section 36 of the Code the provisions of Chapter V apply to all persons charged with any offence against the statute law of Queensland. The statute law of Queensland in my understanding comprises the whole body of enacted law whether by statute or pursuant to powers contained in a statute. By Section 13 of the Laws Repeal and Adopting Ordinance 1921-1939 of the Territory of New Guinea those portions of the Acts and Statutes of the State of Queensland specified in the Second Schedule to the Ordinance that were in force in Queensland at the commencement of the Ordinance were adopted as laws of the Territory of New Guinea so far as they were applicable to the circumstances of the Territory and were not repugnant to or inconsistent with the provisions of any Act Ordinance law regulation rule order or proclamation having the force of law that had then been or may hereafter be expressed to extend to or applied to or made or promulgated in the Territory. The Ordinance took effect on the 9th May, 1921, and the Criminal Code Act 1899 of Queensland which enacted the Criminal Code is one of the Statutes appearing in the Second Schedule. By Section 17 of the Ordinance all or any references to authorities persons places subjects matters or things in any act statute or law adopted by the Ordinance is to be taken as referring to corresponding or analogous authorities persons places, etc., in the Territory. Section 36 of the Code reads �The provisions of this Chapter (i.e., Chapter V) apply to all persons charged with any offence against the Statute Law of Queensland.� So that by virtue of Section 17 of the Ordinance for the words �Queensland� in Section 36 of the Code there should be read the words �The Territory of New Guinea� and prima facie Chapter V of the Code is applicable in New Guinea subject to what I will hereafter say as to repugnancy or inconsistency.

The effect of Section 23 of the Code has been recently considered by the Full Court of Queensland in Hunt v. Moloney[cxviii]²². The Court in that case held that the operation of Section 23 could not be excluded merely by the objects of the statute against which an offence is charged and that it can only be indirectly excluded by the clear language of a later statute. A hotel licensee had been prosecuted for contravention of a provision of the Health Act of the State of Queensland and the Magistrate had found that the action of a servant in serving a glass of beer in contravention of the section was performed contrary to the instructions of and without the knowledge of the Defendant. Accordingly he held that Section 23 applied in that the act of the servant had occurred independently of the exercise of the will of the Defendant. The provisions of the Health Act in question in this case were quite different from the provisions of the Ordinance under review but I agree with what was said by Mack J. in that case at page 124 when discussing the exclusion of mens rea by what has come to be loosely called the modern interpretation of statutes - �Whatever the correct test or definition of the rule may be it is a canon of interpretation of statutes to be applied where the common law doctrine of mens rea can have application. There must be a different approach in Queensland.� All the Judges of the Court took the view that Section 36 of the Code applies Section 23 to every statutory offence irrespective of type. Mack J. also took the view that Section 36 prevents the subject matter and object of an act from having overwhelming importance, and although the strength of the presumption (i.e. of the necessity for mens rea) may vary with the subject matter of an act, Section 23 must apply with equal force to every statute.

Before proceeding to discuss whether these sections have application in relation to the Motor Traffic Regulations of the Territory, I should first consider whether either of them can afford the Appellant any assistance in his appeal. With regard to Section 24, the same considerations apply as I have earlier set out when discussing whether there was any evidence of an honest and reasonable though mistaken belief. Whilst I do not feet that the operation of the rule is excluded by any express or implied provisions of the law, there is nothing in the evidence to show such a belief, and accordingly the section can not avail the Appellant.

Section 23 raises questions of greater difficulty. What is the act or omission in this case which may be said to occur independently of the exercise of the will of the Appellant? In my view it must be the act of permitting to drive the vehicle, and although the Magistrate did not have this section in mind, the evidence and his finding is such as to justify me in concluding that that act did not occur independently of the exercise of the will of the Appellant. But it is in that part of the section excusing a person from criminal responsibility for an event which occurs by accident that the difficulty occurs. What is the event to which the section may be taken to refer in the circumstances of this case? The possibility of the brakes having failed by the accidental striking of a stone or some other object against the servo unit was suggested both in the cross-examination of the witness Spriggs and by the Defendant�s mechanic in reply to a question put to him by the Magistrate. If the facts were or could have been as then suggested and later strongly urged upon me, I think that the Defendant then would have been by his conviction held to be criminally responsible for an event which occurred by accident. Although in fact the charge is of permitting a person to drive a vehicle without efficient brakes, in the circumstances which I have been discussing, the inefficiency could have happened by reason of the accidental event and it would be the happening of the accidental event which led to the criminal responsibility - a fortiori if the stone had struck the servo unit at the very time of the approach of the two vehicles to each other and the driver was unable to pull up his vehicle because of that event. And the correct view seems to be that the prosecution must negative accident if there is evidence in the course of the trial suggesting such a defence. See Mullen v. The King[cxix]²³. Albeit with some doubt I am inclined to the opinion that Section 23 if applicable would entitle the Appellant to succeed although the evidence is of the most meagre and this argument was not put at all at the hearing before the Magistrate.

However there remains to consider whether or not these provisions of the Criminal Code are repugnant or inconsistent with the provisions of the Motor Traffic Ordinance and the Regulations. As I have earlier stated the Ordinance and Regulations contain a comprehensive scheme for the preservation of public safety on the roads and on their face would seem to exclude the necessity for the prosecution to show knowledge or motive or intention although still leaving it for the Defendant to show honest and mistaken belief. But Section 23 of the Ordinance in my opinion clearly covers events happening by accident which would otherwise inculpate a person charged with an offence. And as under that provision it is specifically for the Defendant to satisfy the Court, I do not see how this can stand together with Section 23 of the Code. The two provisions are quite inconsistent so far as concerns the incidence of the burden of proof. Consequently I am of the opinion that there is repugnancy or inconsistency and Section 23 of the Ordinance prevails. The Appellant if he wished to avail himself of this section had the burden of satisfying the Court that he was within the section. This burden he did not undertake and accordingly in my opinion he was rightly convicted.

What I have said is sufficient to dispose also of ground (a) of the Notice of Appeal and that ground fails.

Ground (e) raises different considerations. Mr. Kilduff has urged upon me the previous blameless record of the Appellant, the fact that he has been in business for many years and that the prosecution did not show any moral blameworthiness on his part. I cannot help feeling that the Magistrate allowed his conviction that the Defendant was privy to the driving to influence his fixing of the penalty. There was in fact no evidence that the Defendant was privy to the driving with defective brakes with knowledge of their condition. Accordingly I feel that a fine of �10 would be adequate in all the circumstances.

The appeal against conviction will be dismissed and the appeal against sentence will be allowed to the extent that the penalty will be varied by substituting a fine of �10 in lieu of the fine of �20 imposed.

Solicitors for Appellant: Stan Cory and C. F. Kilduff.

Solicitor for the Respondent: S. H. Johnson, Crown Solicitor.

[xcviian>67 C.L.R. 536.

[xcviii]1940 2 ALL E.R. 179.

[xcix]1959 V.L.R. 1.

[c]1951 V.L.R. 500.

[ci]1954 V.L.R. 541.

[cii]1901 85 L.T. 549.

[ciii]1938 St.R.Qd. 97.

[civ]1957 W.N. (N.S.W.) 452.

[cv]67 C.L.R. 536.

[cvi]1940 2 ALL E.R. 179.

[cvii]67 C.L.R. 536.

[cviii]67 C.L.R. 536.

[cix]1959 V.L.R. 1.

[cx]1951 V.L.R. 500.

[cxi]67 C.L.R. 536.

[cxii]67 C.L.R. 536.

[cxiii]1940 2 ALL E.R. 179.

[cxiv]1957 W.N. (N.S.W.) 452.

[cxv] 1901 85 L.T. 589 at p. 552.

[cxvi]67 C.L.R. 536.

[cxvii]1954 V.L.R. 541.

[cxviii]53 Q.J.P.R. 109.

[cxix] 1938 St. R.Qd. 97.