Court acquits owner of motorcycle for permitting uninsured use due to lack of actual knowledge.

[*242] 1983 Dec. 29

(KALLIS, AG.D. J. )

IN THE DISTRICT COURT OP NICOSIA

Nicosia Police,

v.

Charalambous Kleovoulou,

Accused,

(Case No. 141 66/83).

Third party insurance- Use on road - "Permit ...... to use" Section 3(l) of the Motor Vehicles -(Third Party Insurance) Law, Cap. 333 - Owner of motor-cycle delivering motor-cycle to be taken for repairs - Expressly instructing person taking delivery not to ride it

- Said person riding it - Whether owner permitting use uninsured.

P.S. Efthymiou, for the Prosecution,

Varkaris, for the Accused.

JUDGMENT

The following judgment was delivered by:-

KALLIS, AG. D.J.: - The accused in[*243] this case was charged or a charge-sheet containing three counts as follows:

(1) Permitting a person to drive a motor vehicle without driving licence, contrary to regulations 25-(1) and 71 of the motor Vehicles Regulations, 1973.

(2) Permitting a person to use a motor vehicle without having in force a policy in respect of Third Party Risks, contrary to section 3(1) (2) of the motor Vehicles (Third Party Insurance)

Law, Cap. 333.

(3) Permitting a motor vehicle to be driven without its licence being in force, contrary to regulations 16(1) and 71 of the Motor Vehicles Regulations, 1973.

It was the case for the prosecution that the accused who maintains a garage for repairing of motor-cycles permitted P.W.2 Athanasis Athanassiou ("Athanassiou") - ex accused No.l - to use one of such motor-cycles.

P.w.l, P.C. 2468 Ioannis Christou, testified that on 13.6.83 he stopped the said Athanassiou for checking purposes whilst the latter was riding motor-cycle Ls 828 along Yerasimos Markoras Street. The check which he carried out revealed that Athanassiou had no driving licence, he was not covered by an insurance against third party risks, the

motorcycle had no motor-vehicle licence and it belonged to the accused. The [*244] witness formally charged the accused of the above offences and he

replied "I do not admit".

In cross-examination the witness said that he did not ask accused to give a statement.

P.W.2 Athanasios Athanassiou, a motor-cycle mechanic testified that on 13.6.1983 he visited the place of work of the accused. Accused then asked him to push the motor-cycle to the tyre-repairer and have its tyre repaired and push it back "Ipen mou o katigoroumenos na paro tin motosikletta kountiti is ton lastihari na tin kollisome ke na tin fero piso kountiti". He repaired the tyre, rode it to his house and on his return he was apprehended by the Police Constable. The Prosecution took objection to the statement of the witness that accused told him to push the motor-cycle to the repairer and bring it back by pushing it and with the leave of the court he read to the witness the relevant passage of his statement wherein the words "by pushing it ("kountiti") were not used. As the witness insisted on his version which he cave in court, the prosecution with the leave of the Court declared him hostile and cross-examined him? and in the course of such crossexamination the witness stated that accused told him to take the motorcycle by pushing it to the repairer and bring it back by pushing it.

When the accused was called upon to make his defence he testified on oath that he asked P.W.2 to take the motor-cycle in question and have its tyre repaired and expressly told him not to ride it and take it by pushing it and bring it back by pushing it ("na tin pari kountiti ke na tin feri piso kountiti"). when at the Police Station he started [*245]

giving a statement but he asked the Police Constable to stop writing the statement, because the latter wrote therein that accused permitted P.W.2 to ride the motor-cycle. Then a Police Sergeant started taking the statement but when he wrote that accused permitted P.W.2 to take the motor-cycle accused said that he would not sign the statement and he was formally charged without giving a statement.

In cross-examination he said that he told P.W.2 not to ride the motor-cycle because as he was under-aged and had no driving licence he was not covered by third party insurance and accused knew what would be the consequences had P.W.2 ridden the motor-cycle.

In the course of the trial I had occasion to watch carefully all the witnesses while testifying before me and to observe their demeanour in the witness-box. Having done so I have no difficulty whatsoever to accept the evidence of P.W.l. Regarding the evidence of P.W.2, I have already referred to the inconsistency between his statement to the police and his sworn testimony. In view of this inconsistency and of his demeanour in the witness box which clearly gave the impression of a person of low mentality and of a person who was at a loss and the only thing he was certain of was that he was asked to push the motorcycle both on his way to the répairer and back, I am of opinion that his evidence is not the sort of evidence that can be safely relied upon in a criminal case and will, therefore, be rejected in toto.

Regarding the evidence of the accused having regard to his demeanour in the witness-box which clearly gave me the impression that he was a witness of truth, coupled with the absence of a statement [*246] from him, something which tends to corroborate his version of the events which led to the non-taking of a statement fron him, I have arrived at the conclusion to accept his testimony. I therefore find that accused told P.W. 2 to push the motor-cycle to the repairer and brine it back by pushing it; that in spite of these express instructions P.W. 2 rode the motor-cycle to his house and was apprehended on his way back. From these findings the safe inference can be drawn that accused had no knowledge of the use of the motor vehicle.

And the question arises whether on these findings accused is guilty of the above offences.

As already stated the accused is charged of permitting P.W.2 to commit the above offences. According to Wilkinson's Road Traffic Offences 10th ed, p. 41 "the essence of permitting the commission of an offence is knowledge and, where there was no question of actual knowledge in the defendants, knowledge could not be imputed to them in the absence of prima facie evidence from which it would be said that they had shut their eyes to the obvious or had allowed something to go on not caring whether an offence was committed or not". And at p. 42: "The Prosecution need not prove actual knowledge and it may suffice if constructive knowledge is shown, e.g. shutting one's eyes to the obvious Wilson V. Bird, (1962) S.J. 880) where there was evidence of actual knowledge. Knowledge is an essential element in permitting and knowledge is not imputed by mere negligence but by something more, such as recklessly sending out a car not caring what would happen".

In the case of Sheldon Deliveries Ltd. v. Willis (1972) R.T.R. [*247] 217 "the defendants, who

delivered motor cars for reward and were insured against third-party risks for driving on a road any vehicle bearing certain trade plates, were charged

with permitting the use on a road of an uninsured car, contrary to section 201(1) of the Road Traffic Act, 1960. The Justices found

that the defendants had instructed their employee to deliver a sports car from London to Cardiff and, ' since the journey was to begin early on a Monday morning, to,take

the car bearing the trade plates from their depot on the Saturday, drive to his home, and to park the car in a suitable place until he was ready to begin the journey

that the employee, having no authority to drive the car except in accordance with his instructions, drove it for his

own purposes on the sunday without the trade plates so that no. cover against third-party risks was in force. There was no suggestion that the defendants had

actual knowledge of the circumstances. The justices were of opinion that the defendants had not exercised the degree of care required in the circumstances to ensure

that the car was not unlawfully used while in their employee's possession or made sufficient inquiries about the parking, and they convicted the defendants. On appeal against conviction:

"Held, allowing the appeal, that since the essence of permitting the use of a vehicle in contravention of section >201(1) of the Road Traffic Act 1960 was knowledge, and there was no suggestion that the defendants had actual knowledge, knowledge could not be imputed to them, for there was no evidence from which it could be said that they shut their eyes to the obvious or were reckless whether or not an offence was comitted (p.220 D - E, G). Accordingly, the defendants had been wrongly convicted, and the conviction would be quashed." [*248]

Melford Stevenson J. said at p. 219: "It was the essence of 'permitting' that there should be knowledge and in the instant case it was not for ore moment suggested that there was actual knowledge."

It should be noted that section 201(1) of the Road Traffic Act, 1960 is identical with our own section 3(1) of Cap. 333, and therefore the above authority is very instructive in the interpretation and application of our own section.

In Newbury

v. navis, (1974) R.T.R. 367 "the defendant who owned a car, agreed to lend it to J on condition that he insured against

third-party risks. In the defendant's absence J drove the car on a road without insurance. The defendant was convicted of

permitting J to use the car uninsured, contrary to section 143(1) of the Road Traffic Act 1972. On appeal against conviction:

"Held, allowing the appeal, that, since permission given subject to a condition which was unfulfilled was no permission, the defendant had given J no permission to use the car unless he had insurance to cover its use; since J had no such insurance, he was driving the car without permission and the defendant did not permit its use uninsured in contravention of section 143(1) 370 G-H) , and, accordingly, the conviction would be quashed."

Mackenna J is quoted to have said at

p. 371: "....... nobody can be convicted of an offence under section 143(1) of the Act of 1972 unless he has allowed his vehicle to be

used

[*249]

Regarding the offence of ''causing" unlawful use which is covered by section 3(1) of Cap. 333 as well as Wilkinson's (supra) p. 3P it is * stated that it requires proof of mens rea in knowledge of the facts

" rendering the user unlawful ’To cause' involves some express or positive mandate from the person 'causing' to the other person, or sane authority from the former to the latter arising in the circumstances of the case.”

Applying the legal position as above enunciated to the facts of this case as found above, and particularly to the finding that P.W.2 acted contrary to express instructions of the accused and to the inference that accused had no knowledge of the use of the vehicle by P.W.2 I am driven to the inescapable conclusion that accused has not committed any of the offences charged;and he will, therefore, be acquitted.

Accused acquitted.