Rathmann v Stirling Stations Proprietary Limited No. Scgrg-98-1379 Judgment No. S6946

RATHMANN v STIRLING STATION PROPRIETARY LIMITED
[1998] SASC 6946

Magistrates Appeal: Criminal

OLSSON J. This is an appeal by a complainant against an order of dismissal of a complaint which alleged that, on 20 February 1997 near Stirling North, the respondent was the owner of an overloaded vehicle consisting of a prime mover, two semi trailers and a dolly-trailer. It was alleged that the vehicle - configured as a road train - had been driven on the Port Augusta-Port Wakefield Road whilst it exceeded its permitted gross mass of 42.5 tonnes by 32.4 tonnes.
The defendant pleaded not guilty to the charge and the matter proceeded to trial on oral evidence.
What follows is my summation of the factual material as extracted from the findings of fact made by the learned magistrate, or which was otherwise common ground.
The vehicle, the subject of the charge, was, on the occasion in question, being driven by one McCarthy along Highway One near Port Augusta. The learned magistrate accepted that McCarthy was a particularly impressive witness and a generally responsible driver when in charge of a vehicle such as a road train.
The evidence indicated that McCarthy was a member of an extended family which bred and dealt in cattle in the northern part of the state and in the Northern Territory. The total family currently runs up to 30,000 head of cattle on various properties. As an adjunct to those activities it is necessary to operate vehicle transport to move cattle, as appropriate.
Originally five McCarthy brothers traded as a partnership. The partnership was dissolved some time prior to the alleged offence and the operations restructured. In that process the present respondent became the registered owner of various vehicles. The overall new operation was based at Stirling Station via Alice Springs, in the Northern Territory.
The witness McCarthy was a second generation member of the family and, together with his father and brother, was originally involved in the respondent company. McCarthy's brother was based on a property at Mount Crawford. (The learned magistrate inadvertently referred to it as Mount Compass.) However, over a period of time, some further restructuring occurred. In the result, McCarthy concluded his beneficial involvement with the respondent and took over, on account of his equity, various assets, including the prime mover and dolly trailer which was used with the road train. The other elements comprising the road train, as it was actually configured at the time of the alleged offence, had been located at Mount Crawford. They were registered in South Australia and normally used with a different prime mover, for the purpose of transport of sheep within South Australia and, in particular, to an abattoir at Port Pirie.
Other elements of the road train, in its “normal” configuration had been left by McCarthy at Port Augusta.
The prime mover was registered in the Northern Territory in the name of the respondent, which held a road train permit issued in South Australia in respect of it. That permit simply stipulated that the prime mover was entitled to tow two currently labelled and registered semi trailers and a dolly trailer. It was not limited to any particular trailers. A specific term of the permit was expressed as follows:-
“For the purpose of this permit ‘a currently labelled’ semi trailer or converter dolly means a unit that displays a Road Train inspection label whereby the current month and year has not passed the month and year punched out in the inspection label.”
On 20 February 1997 McCarthy brought the prime mover south in order to collect a number of drought cattle from a property at Balaklava. He intended to transport them to better pastures to north of the state. Cattle crates were available on the trailers which he had left at Port Augusta, but it was arranged that the stock would be loaded into crates on the trailers from Mount Crawford. An arrangement was made that McCarthy would truck the stock north in those crates as far as Port Augusta, where they would be moved into the crates at that location.
This arrangement was put into effect and the stock duly loaded on the road train trailers. Those trailers were converted into a single road train at the approved marshalling area at Lochiel. All went well until the road train pulled up at the compulsory way bridge stop at Stirling North, just short of Port Augusta. The learned magistrate found that, at that time, McCarthy had no intention of breaking the law and bona fide thought that all was in order.
However, he was incorrect in thinking that the prime mover trailers were each displaying a road train inspection label, whereby the current month and year had not passed the month and year punched out on the inspection label, as required by the relevant road train permit. Unfortunately for him one trailer no longer had an inspection label affixed. The other trailer bore a label which had expired.
The learned magistrate accepted his evidence that he had not used the trailers in question since the middle of the preceding year, at which point he had personally made sure that they were inspected and that all requirements of the inspector were satisfied. The learned magistrate pointed out that it was common ground that, if the trailers had borne current inspection labels, the road train would not have been over length. Nor would it have been overweight, in contravention of the provisions of the relevant statute and regulations.
For the purposes of the prosecution the appellant proved that the respondent was the registered owner of the prime mover at the material time. It was demonstrated that it was so registered, under the laws of the Northern Territory, in the respondent’s name as registered owner. In those circumstances the prosecution sought to rely upon the statutory presumption contained in s175(2) of the Road Traffic Act 1961, for the purpose of proving that the defendant was the owner, as well as the person registered as the owner, of the road train.
That subsection provides as under:-
“(2) Proof that a person is registered as the owner of a motor vehicle constitutes proof that the person is the owner of that motor vehicle in the absence of proof to the contrary.”
I here pause to comment that a question at once arises as to whether this provision has any application to a vehicle registered in a State or Territory other than South Australia. I will return to that issue in due course.
The evidence revealed that, so far as he was concerned, the ownership of the relevant prime mover had in fact passed to McCarthy. However, it appeared that the corporate body had never taken any steps to actually transfer the registration of the prime mover to McCarthy, nor had it taken any steps to cancel the South Australian road train permit which it held in respect of it. It was accepted by the learned magistrate that McCarthy believed that he had the right to deal with the prime mover at all material times, as owner.
Against that background the learned magistrate concluded that, whilst McCarthy may have been the beneficial owner of the road train, nevertheless, the corporate body had still remained its legal owner. She concluded, on the evidence, that there had not been any real agreement about the timing of the change of legal ownership. This was particularly so because, on the restructuring which occurred, he had received assets the value of which was in excess of the amount to which he was entitled when he left the company. There was thus a specific reason why formal title had not been transferred to him, pending settlement of any debt owed by him to the company. For this reason, the learned magistrate was of opinion that the statutory presumption had not being displaced. With respect, this finding was not in accordance with the unequivocal evidence at trial and was pure supposition on her part.
As I understand her reasoning the learned magistrate was of opinion that a so-called Proudman v Dayman (1941) 67 CLR 536 defence is available in relation to an alleged offence of the type charged against the respondent. I do not take the notice of appeal to challenge that conclusion.
So it was that she concluded that the onus was on the prosecution to exclude the reasonable possibility that the respondent had an honest and reasonable, but mistaken, belief that it had a permit to have the particular road train on the road south of Port Augusta on the occasion in question. She said that, having heard and seen McCarthy as a witness, she had absolutely no doubt at all that he had turned his mind to the question of compliance with the requirements of the statute before he attached the trailers to his prime mover. He honestly believed that there was a valid permit to drive the road train, on the occasion in question, on the relevant road, notwithstanding that this was not the true situation.
Having so concluded she then turned to the issue of whether McCarthy's honest belief had been held on reasonable grounds.
In referring to McCarthy she had this to say:-
"He knew that in the previous October and inspection appointment had been booked, to take place at the same place as all previous inspections had taken place. He knew that the trailers were used every week, to take sheep to Port Pirie. He knew that he had been called at short notice to move cattle that were starving (the term he used was "out of feed"), and which had been yarded near Balaklava, to the Northern Territory. He believed that all of the members of his family had always done their best to ensure that they complied with the rules of the road whenever they moved stock, as they were doing constantly. It was dark. He made a quick examination of the trailers, as best he was able to do in the dark, making sure that there were no obvious signs that they were un-road worthy for any reason before attaching them to the prime mover.
What Mr. McCarthy did not do, in the dark at Mount Compass, knowing he had to pick up cattle from a yard as a matter of urgency, was regard the risk that the appointed inspection had never eventuated as a risk so real that he should take the extra step of confirming that the appointed inspection had, in fact, taken place some four months earlier; that there was a small hole punched in a plastic tag attached to each trailer.
The effort involved was not great, and there was every opportunity to check for holes in the tags before the road train was configured at Lochiel.
Even so, I am not persuaded that an ordinary person in the same position would have regarded the risk as so real that it was necessary to take special steps to guard against such a happening having occurred. The inspection of the trailers was but one factor of many factors Mr. McCarthy had to consider before coming to an honest belief that if he configured a road train at Lochiel there existed a "permit or exemption" to have it on the road to Port Augusta.
I have no doubt a road traffic inspector would guard against such a risk, as a matter of routine. I am not persuaded, even on the balance of probabilities, that an ordinary person in the same position as Mr. McCarthy would have regarded the risk so high that tags ought to be checked, as a safeguard.
In my view, in this case the reasonable possibility that the requisite honest belief was held by Mr. McCarthy, on reasonable grounds, is a reasonable possibility which is not excluded by the evidence. He had turned his mind to all of the relevant considerations and more, before forming the belief and taking the trailers to Balaklava, and before the cattle were loaded, well before he actually configured the road train at Lochiel. For his belief to be unreasonable, his assessment of the risk the inspection had never occurred had to be an unreasonable assessment. I am not persuaded that an ordinary person in the same position would necessarily have assessed the risk any differently.”

The learned magistrate went on to reason that the knowledge and belief of McCarthy was to be attributed to the respondent company. Whilst he was not, at the time, an employee of the respondent, he was, in her view, at the very least, its agent. She pointed out that he was in possession of the prime mover registered to it and also the company's permit to use a road train to move cattle to a company property to the north.
On the foregoing basis the learned magistrate concluded that there remained a reasonable possibility that the respondent had a Proudman v Dayman (supra) defence. She therefore dismissed the complaint.
By her notice of appeal the appellant relies on the following grounds:-
1...... The learned magistrate erred in law in making findings of fact in relation to the respondent company, when there was no evidence before the magistrate upon which the magistrate could make such findings.

2.The learned magistrate erred in law in finding that Mr McCarthy was acting in the capacity of a servant or an agent of the respondent company.

3...... The learned magistrate erred in law in finding that the belief of Mr McCarthy could be imputed to the respondent company.

4.The learned magistrate erred in finding that the belief held by Mr McCarthy was as to a state of facts which would render the conduct of the respondent company innocent if true.

Before addressing these specific grounds it is necessary to return to the appellant’s contention related to the operation of s175(2) of the Road Traffic Act. This argument seeks to attach the relevant statutory presumption to the respondent, by virtue of the fact that the prime mover was registered in the Northern Territory. Reference was made to various provisions of the Motor Vehicles Act 1996 (NT).
In my view reliance on s175(2) in the present situation is (and was) misconceived. Both as a matter of normal statutory construction and on the patent scheme of the South Australian statute, it is clearly directing its attention to vehicles registered in this State, pursuant to the provisions of the Motor Vehicles Act 1959 (SA). That statute does not deem external registration equivalent to registration under it. Section 19A merely authorises the driving of externally registered vehicles in South Australia, subject to certain conditions.
The appellant is, however, on stronger ground in so far as secondary reliance is placed on s175(1)(f) of the Road Traffic Act. This stipulates that:-
“In proceedings for an offence against this Act, an allegation in a complaint -
...
(f)..... that any person was, at a time specified in the complaint, the owner, the person in charge, or the driver or rider, of any vehicle or animal,
is proof of the matters so alleged in the absence of proof to the contrary.”

The complaint in the instant case did allege that the respondent was, at the relevant time, the owner of the road train.

An issue, therefore, arose as to whether, on the evidence, the magistrate was justified in concluding that the respondent had not discharged the onus of proving a contrary proposition. That onus fell to be discharged on the balance of probabilities.
It is to be remembered that the respondent was charged with an offence of driving an overweight vehicle pursuant to s146(1) of the Road Traffic Act. Subsection (2) of that section provides that, where a vehicle is in contravention of s146(1), the owner and the driver are each guilty of an offence and each liable to the prescribed penalty. In the instant case the prosecution is against the respondent only, as alleged owner.
The only evidence as to ownership, apart from registration records, was that given by McCarthy - who, as already appears, was accepted by the learned magistrate as an excellent and credible witness. Her finding as to ownership was not based on a rejection of any of his evidence, but on inferences which she drew from it.
When questioned at the time of the alleged offences McCarthy stated that he was the owner of the prime mover and that the two semi trailers were owned by his brother. This was noted on the offence report at the time and confirmed in evidence by a prosecution witness. It follows that the sworn evidence given by McCarthy was certainly no recent invention on his part. His statements have been consistent throughout.
It was also noted by the inspector at the weighbridge that the owner of the prime mover, as painted on its door, was said to be McCarthy Brothers Pty Ltd of Stirling Station via Alice Springs. That company was apparently a livestock dealing entity controlled by McCarthy’s father and uncles, which seems to have been subsumed by the respondent.
McCarthy testified that he lived in Alice Springs and worked at the Station. He gave evidence that the ownership of the prime mover was transferred to him in mid to late November 1996 as part of the withdrawal by him of his equity in the respondent’s business. He still owed the respondent some money in respect of it at date of trial because of its overvalue in relation to that equity. He said that he had no knowledge of legal requirements related to formal transfer of registration.
The evidence in chief given by McCarthy on that topic was as under:-
“Q... After this family division, do you now have an interest in Stirling Station itself.
A...... I, personally, no, Mr Mitchell.
Q...... As part of that division did you take over this prime mover we are talking about.
A...... Yes, through my father and my brother and myself.
Q...... What was the arrangement there.
A...... The arrangement was to put it tech - I have two other prime movers and they were working quite busy, and the prime mover in question, 389-364 registered in the Northern Territory, that was sitting idle and it was more or less in a round about way said to me, if you take that as part-payment of the break-up and use it to work, that will come off what brothers owe each other.
Q...... What was it valued at.
A...... It was valued at $106,000.
Q...... You would then have owned a third of it anyway.
A...... Yes.
Q...... You, therefore, owed about $76,000.
A...... Around about 71 or 72 thousand.
Q...... You recknoned you would work that off doing work for your family company.
A...... For everybody involved.
HER HONOUR: I am a bit lost. You have come out of Stirling. Were you still with the father and brother and then there was a second split where you moved off again or what was it.
A...... I decided to take the truck. Dad had had a split and the truck was part of his share and then it all belonged to them, but when I decided to go on my own dad said you can take the truck because it was no good to him. He is about 70 and said he didn’t want to drive.
Q...... That came off your capital account.
A...... Yes.
MR MITCHELL
Q...... To end the story, I understand you have subsequently sold the truck.
A...... The truck I had nearly sold the truck on the actual day of the alleged offence. I was actually in the market to buy a new truck and within three to four weeks of that alleged offence I traded the truck in on a new prime mover.
Q...... You paid for that yourself.
A...... Yes, finance company.
Q...... How do you now owe Stirling Station Pty Ltd.
A...... I still owe Stirling Station about $30,000.
Q...... And you are working that off.
A...... Yes, Mr Mitchell.
Q...... On the day in question, the 20 February last year, were you the driver of the vehicle that was proceeding from near Two Wells to the Northern Territory.
A...... Yes, I was, Mr Mitchell.
Q...... Now, who was the owner of the prime mover, registered 364-389.
A...... On 20 February 1997.
Q...... Yes.
A...... I was, Mr Mitchell.
Q...... Just to complete and leave no shadow of doubt, did Stirling Stations Pty Ltd have any interest in the vehicle at that time. Were they the owner of it.
A...... No, I was the owner of that vehicle.
Q...... Who was the owner of the dolly, that was part of the complex on that day.
A...... I own the dolly.
Q...... Who owned the two trailers.
A...... Can I just explain that before it gets too complex. The two trailers and the dolly did belong to McCarthy Properties Pty Ltd.
HER HONOUR Which one is McCarthy Properties.
A...... McCarthy Properties was my father, my brother and myself and when I purchased the prime mover from Stirling Station, I said I would take it, I also took a dolly out of my brother, my father and myself’s company as part of the payment as well.
MR MITCHELL
Q...... Now, it is clear from the document tendered from the prosecution that the vehicle remained registered in the name of Stirling Station. Can you explain that.
A...... Yes. I took possession of the vehicle mid to late November 1996 and I decided in a matter of three to four weeks that the vehicle was going to have to have money spent on it, money that I thought was throwing it against the wall for the age of the vehicle, seven years old, 6 and a half years old and I thought, rather than lend money and spent it on a vehicle, it is better to lend money and buy a new one so I proceeded to trade the vehicle in to Mack Trucks in Adelaide.
Q...... When did you do that.
A...... I traded the truck to Mack Trucks in Adelaide about the beginning of March, I think. I picked a new prime mover up on the 17th of March 98.”

In the course of what was a quite perfunctory cross examination on this topic McCarthy confirmed that the transfer of ownership of the prime mover to him occurred in about mid to late November 1996.
The relevant cross examination on this question then proceeded as follows:-
“Q... Can you provide the court with any documentary evidence of that transfer of ownership.
A...... Not with me, no. It is an agreement in the family.
Q...... So it could have happened actually any time.
A...... How do you mean.
Q...... We have no documentary evidence of the transfer of ownership. Usually, when a large object is sold there is a contract, a piece of paper, something changes hands. You have no documentary evidence of the transfer of ownership.
A...... I suppose I will get that when I finally pay for it.
Q...... But at the time of the offence is it your evidence that the prime mover, 389-364, registered in the Northern Territory, was still registered with the Department of Motor Vehicles in the Northern Territory.
A...... Yes, it was.
Q...... Were you aware of the requirements of the owner in relation to the sale and disposal of a vehicle according to the law in the Northern Territory.
A...... No, you’ll have to explain it to me.
Q...... I have no further questions on that point. ... ”
It is at once to be noted that the primary evidence of McCarthy that he had become the owner of the prime mover was never refuted or even seriously challenged in cross examination by the prosecution. This is to be seen in the context that the learned magistrate accepted him as an excellent and credible witness. Furthermore, it is important to note that McCarthy was called by the respondent as its witness and that it has, at no time, asserted title against him.
At the conclusion of the trial the prosecution really rested its case on two planks - the statutory presumption arising from the allegation of ownership and an argument based on the Northern Territory record of registration in the name of the respondent. It seems to have confused the notion of registered ownership with actual ownership - an approach reiterated by Ms Lee-Justine, of counsel for the appellant, on the hearing of the appeal.
It seems to me that any argument based on the Motor Vehicles Act 1996 (NT) was utterly misconceived. It is stating the obvious to say that, under that enactment, a certificate of registration was, in no sense, a certificate of title. It was no more than evidence of compliance with a statutory pre-requisite to the operation of a vehicle on a road in the Territory. Furthermore, s123 of that statute availed the prosecution nothing. It simply stipulated that:-
“A certificate of registration in respect of a motor vehicle shall, in all proceedings under this Act, be prima facie evidence that the person last specified thereon as the owner or a new owner, as the case may be, is the owner of the motor vehicle.” [my emphasis]

It is no more that an evidentiary, facilitating provision which operates, for a limited purpose, within the Northern Territory. Even so, it does not touch on the substantive legal relationships between parties. It remains open to any party to adduce evidence as to actual, rather than mere presumed, ownership.
Such a situation is not altered by other provisions of the Northern Territory statute, such as s20, requiring notification of transfer of ownership within 14 days of sale or disposal of a vehicle. Section 20 merely stipulates that, until registration of transfer, the registered owner “shall remain liable as owner for any breach in respect of the vehicle such of the provisions of this Act as apply to an owner”. The section further provides that, on delivery and acceptance of a certificate of registration bearing the prescribed form of notification of transfer, the registrar shall sign a relevant memorandum of transfer and deliver the certificate to the new owner “who shall then be deemed to be the owner of the motor vehicle for the purposes of this Act”.
Quite apart from the fact that the statutory provisions in question have no operation in this State, it is patent that the deeming provisions have nothing to do with legal or beneficial ownership as such. They merely reflect on the operation of penal provisions of the local statute.
Indeed, in that respect, the same conceptual situation arises in South Australia, under the legislation of this State.
It is scarcely being profound to say that a motor vehicle is a chattel. As such, title to it may be conferred simply by handing over possession of it, unless possession is given pursuant to a contract of sale under which there is a specific stipulation that property in the chattel is not to pass until some later date. (See, Sale of Goods Act 1895 (SA) s17, s18, which is replicated in s22 and s23 of the corresponding Northern Territory statute. These provisions merely reflect the relevant common law principles.)
In this regard I need do no more than refer to the following dictum of Jordan CJ in Gatward v Alley (1940) 40 SR(NSW) 174 at 179:-
“In the case, however, of a chose in possession ... a person who has possession has all the rights of an owner except as against anyone who can prove that he, and not the possessor, is the true owner: Holdsworth, VII, 449 - 450. Possession is prima facie evidence of ownership: ibid p478; Field v Sullivan [1923] VLR 70 at 84; and is sufficient evidence of ownership unless contrary proof is given: Robertson v French 4 East 130 at 136 - 7.”
(See Also Jeffries v Grant Western Railway Co 5 E & B 802 at 805.)
In the instant case, the unimpeached evidence of McCarthy suggests that he probably did not purchase the vehicle. Rather he was permitted to take it in satisfaction of his part share equity in the respondent, subject to payment to the respondent of excess value.
Even if this did constitute a sale the clear intention was that he received title with possession. The fact that, shortly after the alleged offence, he unilaterally traded it in on another vehicle, speaks eloquently of the effect of the transaction between the respondent and himself; and when property in the vehicle passed to him. If there was no sale then the principles adverted to in Gatward v Alley (supra) clearly applied. Not only did he have possession, but also the respondent called him as its witness and has never asserted adverse ownership against him - the position is quite the contrary.
The fact that the registration of the vehicle was not transferred when McCarthy took over the vehicle does not gainsay that situation. The sole evidence before the learned magistrate was that McCarthy was totally ignorant of his obligation to notify change of ownership under s20 of the Motor Vehicles Act 1996 (NT).
It seems to me that the learned magistrate was led by the parties into a pre-occupation with the issue of what were argued to be the incidents of registration and the statutory deeming provisions, when, in reality, these did not provide the answer to the core issue with which she was faced. They were, in large measure, red herrings. The uncontroverted evidence was all in the one direction. At the relevant time, McCarthy was plainly the owner of the prime mover, and his evidence to that effect manifestly negated the deeming provisions of s175(1)(f) of the Road Traffic Act on the balance of probabilities. The contrary finding of the learned magistrate in that regard cannot, with respect, be supported.
In the reasons for decision published by the learned magistrate she commented:-
“The prosecution relied on the statutory presumption contained in s175(2) of the Road Traffic Act to prove that the defendant was the owner as well as the person registered as the owner. It was argued that the defendant Stirling Station Pty Ltd was not guilty of this offence by reason of the restructuring. The ownership of the NT registered prime mover had passed to Mr McCarthy.
Stirling Station Pty Ltd has never taken any steps to transfer registration of the vehicle to the defendant, and it has not taken any steps to cancel SA road train permit number RT 116357, which it holds in respect of the NT registered prime mover. As a result of the restructuring, the value of the assets transferred to Matthew Francis McCarthy exceeded his entitlement.
Nothing was put before me about any of the restructuring other than Mr McCarthy’s honest and genuinely held beliefs as to the outcome of each stage in the restructuring.
I have no difficulty in accepting that Mr M McCarthy believed he had the right to deal with the NT registered prime mover at the centre of this case. In fact he traded it in on a different prime mover about one month later, in mid-March.
It is a quantum leap to say that he was the owner of the prime mover. None of the financial and other records of the company were placed before me, concerning the assets of the company and its past and present shareholders before and after the restructuring. Those involved in the restructuring may well have been in agreement as to ‘what will happen’, without there being any real agreement about the timing of change of ownership. In this case, while beneficial ownership seems to have passed to Mr McCarthy, and when he sold the prime mover he kept the proceeds and became one of the defendant’s debtors because the value of the assets he received were in excess of the amount he was entitled to receive when he split away from the family company Stirling Station Pty Ltd, it is likely that Stirling Station Pty Ltd retained legal (as opposed to beneficial) ownership of the prime mover pending sale of the prime mover or full payment of the debt owed to it by Mr McCarthy.”
She therefore held that the onus under s175(2) had not been discharged.
Several things need to be said about that approach.
First, I have already made the point that s175(2) was incapable of having any relevance to this matter. It simply did not apply to the registration of a vehicle under legislation of the Northern Territory. That provision relates only to registration under legislation of this State.
Second, it seems to presuppose that registration and the certificate evidencing it, somehow constituted the legal title to the vehicle, whereas they do not do so.
Third, the summation of fact set out in the dictum is simply not a fair resume of the quite specific, unqualified and uncontroverted evidence given by McCarthy, as I have above recited it. Furthermore, the subsequent trading in of the vehicle, when he still owed money to the respondent, belies any conclusion contrary to his evidence. That was quite inconsistent with any suggestion that the property in the vehicle had not passed to him. The failure to register a change in ownership in the Northern Territory was nothing more than a “red herring” for present purposes.
Elsewhere in her reasons the learned magistrate described McCarthy as “a particularly impressive witness” and she did not anywhere reject any of the positive evidence given by him. With respect, she appears to have misconstrued the relevant evidence given by him on this topic, which was quite unequivocal.
Finally, the dictum really flies in the face of the principles discussed in Gatward v Alley (supra).
It follows, then, that the prosecution of the respondent failed on any view, because the evidence plainly disclosed that the respondent was not the owner of the vehicle at the relevant time.
It is therefore unnecessary to plumb the depths of the other issues sought to be raised by the appellant. I would only seek to make a brief comment concerning one of them.
I have difficulty in concluding that the issue as to whether McCarthy’s state of mind can be imputed to the respondent is to be resolved by reference to the well known case of Tesco Supermarkets Ltd v Nattress [1972] AC 154 espoused by her counsel.
As already appears, the primary offence alleged was in fact committed by McCarthy. The respondent was sought to be prosecuted in its capacity as deemed owner, by virtue of the provisions of s146(2) of the Road Traffic Act. It seems to me that, in circumstances in which a corporation is said to be inculpated in an alleged offence simply by virtue of the ownership of a vehicle, where that vehicle is being driven by someone not employed by it and not for its purposes, it would, prima facie, be a travesty to suggest that any Proudman v Dayman (supra) defence cannot be availed of because the driver’s state of mind cannot be imputed to it. The circumstances of the driving in the instant case and the state of mind of McCarthy were peculiar to him and entirely in his knowledge. If the corporate owner is also to be absolutely liable for any potential transgression of the law on his part then, in my opinion, it ought, as a matter of logic, to remain the situation that it is entitled to avail itself of any defence available to him. Any other conclusion would result in the macabre situation that the person actually perpetrating the alleged offence could be acquitted, but a party who, in fact, had nothing to do with it and no interest in the relevant activity could be held criminally responsible. Such a notion seems offensive to any concept of justice. However, it is unnecessary, finally, to decide it at this time.
Be that as it may, I consider that, for the reasons above expressed, this appeal cannot succeed. The ultimate conclusion arrived at by the learned magistrate was correct, albeit on a basis of reasoning other than that expressed by her. In practical terms the appellant prosecuted the wrong party.
The appeal must be dismissed.

[1998] SASC 6946

17 November 1998