Police v Mariner No. Scciv-02-1206

[2002] SASC 363

POLICE  v  MARINER
[2002] SASC 363

Magistrates Appeals:  Criminal (ex tempore)

1. DOYLE CJ: The respondent was charged with one count of driving a motor vehicle without first obtaining the consent of the owner, contrary to s 86A of the Criminal Law Consolidation Act 1935 (SA).

2. The respondent raised what is often called a Proudman v Dayman defence. The Magistrate was not satisfied that the prosecution had excluded an honest, though mistaken, belief held on reasonable grounds as to the existence of facts which, if they existed, would have rendered the driving innocent. Accordingly, the Magistrate dismissed the charge on the basis the prosecution had failed to prove the offence beyond reasonable doubt. The appeal is against the Magistrate’s decision.

3. The alleged offence occurred on Tuesday, 20 November 2001. The respondent told the police that on the preceding Sunday, she was out walking her dog when she met a man named Leigh who was parked in a black Commodore, which he was having trouble starting. The two chatted, and after the vehicle was started the respondent accepted a lift home from Leigh. Leigh told the respondent he was from Sydney. The respondent allowed him to stay the night at her home. The next morning Leigh was gone but the vehicle was still parked in the respondent’s driveway. It remained there all day Monday. On the Tuesday, the respondent drove the vehicle to Cash Converters where she exchanged her VCR for some money to pay for petrol for her own car. Her car was out of petrol and, for that reason, as I understand the evidence, she was unable to drive it. My understanding is also that had she wanted to use her car she would have had to move Leigh’s vehicle.

4. The police became involved when they saw the respondent driving the vehicle near Cash Converters. The vehicle had been stolen. It was also bearing registration plates from another stolen vehicle. The black Commodore was in fact owned by Plaza Holden Pty Ltd.

5. The respondent admitted that she did not have the consent of Plaza Holden to drive the vehicle. She admitted that she did not have the express or explicit consent of Leigh to drive the vehicle. Her explanation was that she believed that Leigh was the owner of the vehicle and that, because of her involvement with him, and because he had left the vehicle at her home, he would have consented to her use of the vehicle if he had been present for her to ask him.

6. The offence created by s 86A is committed when a person ‘drives, uses or interferes with a motor vehicle without first obtaining the consent of the owner of the vehicle’. The penalty for a first offence is imprisonment for two years and disqualification from holding or obtaining a driver’s licence for a period of 12 months.

7. The Magistrate put the offence into the class of offences described by King CJ in Davis v Bates (1986) 43 SASR 149 at 150, that is:

   ‘‘Offences of which guilty knowledge or intention is not an element to be proved by the prosecution but which are nevertheless not committed if the person doing the prohibited act believes, on reasonable grounds, in a state of facts which, if true, would render the doing of the act innocent.”

   I agree with the Magistrate’s classification of the offence. The penalty for the offence is such that Parliament can not have intended that it be imposed on a person who lacks both knowledge that he or she is committing an offence and an intention to commit an offence. The example given by the Magistrate, that of a father who moves his son’s car without his son’s specific consent, illustrates the undesirable consequences that would follow if the offence were classified as being in the third class described by King CJ, that is an absolute offence involving no mental element.

8. The words ‘without first obtaining the consent of the owner’ suggest that the commission of the offence involves an intention to do that which is prohibited by the provision. If Parliament had intended to create an offence with no mental element words such as ‘without the consent of the owner’, without qualification, might have been used. The reference to first obtaining the owner’s consent suggests that Parliament was adverting to the driver’s state of mind. However, I realise that the words used are not determinative of the issue. But I consider that the words used, in combination with the significant penalty associated with the offence, and the presence of the section creating the offence in the Criminal Law Consolidation Act, in combination, lead to the conclusion that the offence created by s 86A involves a mental element.

9. I would describe that element as knowledge on the part of the offender that he or she has not obtained the consent of the owner of the vehicle prior to driving, using or interfering with it, or as an intention on the part of the offender to drive, use or interfere with the vehicle without first obtaining the owner’s consent to do so. Alternatively, the mental element might comprise the absence of any belief that the consent has been obtained. However, I do not put forward this description of the mental element as in any way definitive, it not being necessary to do so in this case. It is sufficient in this case to say that, for those general reasons, I agree with the Magistrate that the so-called Proudman v Dayman defence was open to the respondent here, in the sense that the evidence raised, as a possibility, the state of mind inconsistent with a finding of guilt.

10. The defence consists in the accused having been ‘under a mistaken belief on reasonable grounds as to the existence of facts which, if they existed, would have rendered the conduct innocent’: Davis v Bates at 152 King CJ. When the evidence raises that issue the onus is on the prosecution to exclude such belief: Davis v Bates at 152, King CJ.

11. Accordingly, in the present case, the onus was on the prosecution to exclude an honest and reasonable belief in two facts which, if they existed, would have rendered the respondent’s conduct innocent. The first fact is that the man known to the respondent as Leigh was the owner of the vehicle. The second fact is that Leigh had consented, or would have consented, if asked, to the respondent’s use of the vehicle.

12. The Magistrate was, as he said “gravely suspicious” about the respondent’s explanation of her conduct. He would not have believed her if the issue was one to be established by her on the balance of probabilities. But the onus was on the prosecution to exclude an honest and reasonable belief beyond reasonable doubt and it failed to do so to the Magistrate’s satisfaction.

13. In reaching a decision, I have had some concern about the Magistrate’s expressed suspicion of the respondent’s explanation. His suspicion casts doubt upon her claim to an honest belief in facts that would render the conduct innocent. But I am unable to find any error in the Magistrate’s reasoning or in his conclusions. He expressed his doubts about the respondent’s explanation and, in particular, about her veracity. But he was clear on the standard of proof to which he had to be satisfied if he were to find the offence proved. There was evidence to support the defence in this aspect and, arguably, insufficient evidence to exclude it beyond reasonable doubt.

14. My view is that it was open to the Magistrate to find as he did, that the prosecution had not proved beyond reasonable doubt that the asserted belief was not honestly held.

15. I do not agree that it was not open to the Magistrate to find that the belief was reasonably held. This element is to be determined objectively. In the circumstances, there was a basis upon which the Magistrate could decide that the respondent’s belief that the car belonged to Leigh was reasonable, or to put it in terms of the onus of proof, could decide that it was not shown beyond reasonable doubt that the respondent’s belief was not reasonable. I am referring there to the belief that Leigh was the owner of the car.

16. As to the belief that Leigh would have consented to the use of the car if asked, my view is the same.

17. By leaving the car at the respondent’s home with the keys in it, Leigh could reasonably be thought to be consenting to her moving it, or, consenting to her making limited personal use of it.

18. I am also of the view that the respondent’s belief that Leigh would have consented, if asked, to the use of the vehicle, is equivalent to a belief in actual consent. It is simply another way of expressing the same thing. It refers to an implied consent, and in that sense an actual consent, arising by implication from the circumstances.

19. The circumstances in brief are their previous acquaintance, admittedly brief, and the leaving of the car at her home with the keys in it, without any explanation, and without any indication that he would not agree to her use of the vehicle. I must say, however, that I would not have found that the respondent’s belief was reached on reasonable grounds were I in the position of the Magistrate. But I am not prepared to say that it was not open to the Magistrate to find that there were reasonable grounds for the respondent believing that Leigh was consenting to the use of the car. Again I put the matter that way conscious that, in doing so, I have not reflected the onus of proof.

20. While the reasonableness of the grounds on which the belief is based is to be decided objectively, this is a matter in which there is room for some difference of opinion. As I have said, I am not prepared to hold that the Magistrate was wrong, even though I regard the conclusion which he reached as, in this particular respect, a conclusion that was generous to the respondent.

21. For those reasons, it has not been shown that the Magistrate erred in dismissing the charge, and for those reasons I dismiss the appeal.