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Maule v Meama [1970] PGLawRp 22; [1969-70] PNGLR 280 (21 October 1970)

Papua New Guinea Law Reports - 1969-70

[1969-70] PNGLR 280 - Bulage Maule v Meama

[1969-70] PNGLR 280

PAPUA NEW GUINEA

[SUPREME COURT OF JUSTICE]

BULAGE MAULE

V

MEAMA

Kundiawa

Raine J

21 October 1970

CRIMINAL LAW - Driving or using motor vehicle without consent of owner - Use inconsistent with consent - Motor Traffic Ordinance 1950-1967, s. 14.

B., in the course of his employment, was permitted to use his employer�s vehicle. He was required to leave the vehicle overnight at a certain place. After visiting a place on his employer�s business, he drove in a direction away from the place where he was to leave the vehicle and was found some distance away from that place with a female passenger in the vehicle. B. was charged under s. 14(1) of the Motor Traffic Ordinance 1950-1967 with using a motor vehicle without first obtaining the consent of the owner and pleaded guilty in the local court. He appealed against conviction on the ground that the plea was wrongly entered.

Held

Affirming the conviction, that the consent given by the owner when B. took possession of the vehicle did not extend to the use which the appellant made of the vehicle and immediately the vehicle was put to a use which was B.�s, and not that of the employer, the use of the vehicle became unlawful.

Bollmeyer v. Daly[1933] SAStRp 32; , [1933] S.A.S.R. 295, referred to.

Ex parte Johnstone; Re Turnbull (1935), 52 W.N. (N.S.W.) 194, distinguished.

Reg. v. McGill, [1970] Crim. L.R. 290, applied.

Appeal

Bulage Maule appealed against his conviction for an offence under s. 14(1) of the Motor Traffic Ordinance 1950-1967 on the ground that his plea of guilty was wrongly entered. The facts and arguments are set out sufficiently in the judgment of Raine J.

Counsel

P. Luke, for the appellant.

Wall, for the respondent.

21 October 1970

RAINE J:� This is an appeal by an employee who is charged under s. 14(1) of the Motor Traffic Ordinance 1950-1967 with using his employer�s vehicle without consent. Section 14 reads:

N2>�14(1) A person who drives or uses a motor vehicle without first obtaining the consent of the owner of the vehicle shall be guilty of an offence.

Penalty: One hundred pounds or imprisonment for six months.

N2>(2)����� Notwithstanding anything contained in this Ordinance, the provisions of the last preceding sub-section shall not apply to a member of the Police Force in the execution of his duty.�

I imagine that sub-s. (2) is inserted so that police, who probably normally have to be issued with some sort of document before using departmental vehicles, if only as a record of mileage to check on petrol consumption, in cases of urgency and when duty demands it, will be free to use vehicles without express permission.

The appellant apparently called at a coffee factory in the course of his work, and left it at 5.30 p.m. and proceeded down a road that would lead him to the turnoff to Koge where he would have left the vehicle overnight. However, at the turnoff to Koge the appellant proceeded in the opposite direction. Had he turned the other way he would have got to Koge by about 6.15 p.m., and allowing for a permissible stop, e.g., at a shop, or to talk to someone, one would have expected that he and his employer�s vehicle would certainly have got to Koge by 6.30 p.m. and not later than 7 p.m. This was what he should have done and he had consent to drive back to Koge. In fact it seems he was somewhere on the other road at about 7.30 p.m., and one can add to that some time to retrace his steps and get to the Koge turnoff, and a further forty minutes to an hour to reach Koge after arriving at the turnoff, which means that it was not possible for him to have got home before about 8.15 p.m. at the earliest, and probably rather later. Apart from the time factor, the particulars in the charge and the facts stated in the appellant�s presence in the local court, show that he had a female passenger in the vehicle upon whom he had amorous designs. The charge was verbose and contained a deal of surplusage, but this served a good purpose in that the appellant was given further and better particulars and knew exactly what he was up against. The appellant pleaded guilty, but changed his plea on the appeal. There has been no further evidence.

There is nothing to suggest that the appellant would not have returned the vehicle to Koge in due course, assuming it continued to be in good mechanical order. It is not suggested that this is a sort of larceny case. I have assumed that this is, at most, the �joy ride� type of matter.

Counsel for the appellant submits that when the appellant left the factory and drove off towards the turnoff to Koge that he had express or implied approval so to drive his employer�s vehicle, and I have no doubt that this was so.

But Mr. Luke goes further than this and submits that the subsequent driving or use is covered by the original consent and covers �every degree of use� thereafter. He says that �every degree of use� is covered by the consent and flows from it. The words �every degree of use� were used by Richards J. in Bollmeyer v. Daly[ccclxxxv]¹. That learned judge was considering a section similar in terms to s. 14(1) of the Ordinance, the words �who drives or uses� appear in both sections, as opposed to �takes and uses� (the emphasis is mine) in the New South Wales section considered by Stephen J. in Ex parte Johnstone; Re Turnbull[ccclxxxvi]². Because of this I think Ex parte Johnstone; Re Turnbull[ccclxxxvii]³�can be distinguished and, in addition, I note that his Honour says[ccclxxxviii]⁴:

�In such a case as that, in the law of larceny no doubt it has been held that there is a constructive taking, but it has never been held in a case like the present, where full legal possession is in the first instance given to the person who is charged, that he can afterwards be held to be guilty of a constructive taking by some act such as that which is proved in the present case.�

In that case the facts were not greatly different to those in this appeal, although rather stronger, the consent being given to take the car for a certain time or till a certain time. In fact the car was driven a considerable distance away and not returned. With respect, I do not disagree with his Honour�s interpretation of �takes and uses� in the New South Wales provision but with equal respect, unless his Honour was thinking of the position of bailees, I do not regard the man who took the car as being in �full legal possession� as stated by the learned judge[ccclxxxix]⁵, and even in bailment it is putting the bailee�s actual possession rather too high. In any event, whatever the position in New South Wales, this appellant was a mere employee. All he had was the custody of the vehicle, the �full legal possession� here remained in the owner. See Reg. v. Wibberley[cccxc]⁶�and see also the discussion in Wibberley�s case of Mowe v. Perraton[cccxci]⁷�and the distinguishing of it[cccxcii]⁸. Reference was also made to Reg. v. McGill[cccxciii]⁹. This was a �taking� case, but despite that, and the abbreviated report, I found it helpful. In McGill�s case, M. was convicted of taking a motor vehicle without authority. He asked to borrow L.�s car to take his wife to the station to catch a train to Hastings. L. gave permission on the express condition that he brought the car straight back. M. did not return it that day, and the following day he drove it to Hastings. It developed a fault and was not returned for a further two days. It was submitted that if the original taking is with the owner�s permission no subsequent use of the vehicle can amount to the offence even though it is known that (the) owner would not have given permission for such use. Held, dismissing the appeal, the submission was bad: considering Reg. v. Wibberley[cccxciv]¹⁰. The matter was put correctly by the trial judge: the allegation against him is that having lawfully borrowed the car for a particular purpose he did not return it, and that his use of it thereafter without the owner�s consent constitutes an offence unless he reasonably believed that the owner would in the circumstances have given his consent if asked.

In the instant appeal there is nothing which leads me to believe that the appellant could be said to have reasonably believed that his employer would have given its consent to the deviation if asked. Indeed, it was more than a mere deviation that was involved.

In the present case there was, as I have said, no �full legal possession� given to the appellant. He was a mere employee and all he had was custody of the vehicle, mere physical possession of it, and that custody and physical possession was limited to the particular purposes of the employer. Thus, notwithstanding the initial consent to the user, immediately the vehicle was put to a use that was the appellant�s use, and not the use of the employer, then the appellant no longer had it in his lawful custody and lawful use became unlawful. This is not to say that going slightly out of one�s way home to have a drink or to purchase something at a shop attracts s. 14(1), if only because the driver and user of the vehicle could reasonably assume that the owner would give his consent to this. An owner would hardly be thought to expect that his employee would drive home, as it were, as the crow flies, and then return on foot or in his own vehicle to a shop that was a couple of streets off the direct route home.

Here the consent attached to a particular user and in my opinion it did not attach to the use made of the vehicle by the accused which would have involved him getting home much later, travelling in a different direction and for a greater distance in connexion with a transaction that had absolutely nothing to do with the coffee industry. Had he picked up his female passenger as he proceeded home in the general direction of Koge and had he even stopped for a time and made some amorous advances to her that might be one thing, but what he did was a very different thing indeed.

As I have said, I believe that the consent attaches to a particular use and to say that initial consent gives carte blanche to all manner of use thereafter makes the section ineffective, and one would only ever see it used where no consent at all was ever given.

For the above reasons I think that the consent to the appellant�s use of the vehicle ceased to operate at some point of time after he went in the opposite direction to Koge after he arrived at the Koge turnoff, and I dismiss the appeal.

Appeal dismissed.

Solicitor for the appellant: W. A. Lalor, Public Solicitor.

Solicitor for the respondent: P. J. Clay, Acting Crown Solicitor.