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Utala v Paula [1986] PGNC 11; N549(M) (18 July 1986)

N549(M)

PAPUA NEW GUINEA
[NATIONAL COURT OF JUSTICE]

APPEAL NO. 124 OF 1986

KARA UTALA
APPELLANT

V.

JACOB PAULA
RESPONDENT

Rabaul: Woods J
18 July 1986

Appeal against Magistrate’s power to suspend driving licence.

Motor Traffic Act s.36 Power to suspend or disqualify from driving.

Cases and Legislation
Robin Fleming v. Gwale Dau Unreported N.436
Motor Traffic Act Ch.243

Counsel:
G. Gendua, for the Appellant.
F. Damien, for the Respondent.

Cur.adv.vult

REASON FOR JUDGMENT

8 August 1986

WOODS J: I heard this Appeal at Rabaul on 18 July 1986 and I upheld the magistrate’s powers to suspend the driving licence and said I would publish my reasons at a later date and this I now do.

This is an appeal against part of the sentence imposed by the District Court at Rabaul following a conviction for driving a motor vehicle on a public street without due care and attention contravening s.17(2) of the Motor Traffic Act ch.243.

The appeal is against that part of the sentence whereby the magistrate suspended the appellant’s driving licence for a period of six months.

Counsel for the appellant has submitted that the magistrate had no power to suspend a driving licence following the conviction for an offence under s.17(2) of the Act. It is submitted that magistrates only have power to suspend driving licences for offences defined by s.17(1) and s.18 of the Act and for offenders who hold a permit under s.11 of the Act.

The power to suspend or disqualify from driving is in s.35 and s.36 of the Motor Traffic Act.

Section 35 - Automatic disqualification, etc

"Where a person is convicted of an offence against s.17(1) or 18, the court that convicts him shall disqualify him from holding and obtaining a licence for such period as it thinks proper, not being less than -

(a) in the case of a first offence -

(i) against Section.17(1) three months; and

(ii) against Section.18 six months; and

(b) in the case of a second or subsequent offence against either of those sections - 12 months.

Section 36 - Discretionary suspension, disqualification, etc.

(1) Subject to Section 35, the court that convicts a person of an offence against this Act may, in addition to any other punishment to which the person is liable under the this Act in respect of the offence -

(a) if he holds a licence or a permit under Section 11 -

(i) suspend the licence or a permit for such time as the court thinks proper and, if the court thinks fit, also direct that no licence and no such permit be granted to him during such further time after the expiration of the licence or permit as the court thinks proper; or

(ii) cancel the licence or permit and, if the court thinks fit, declare him to be disqualified from obtaining a licence or such a permit for such time as the court thinks proper; and

(b) if he does not hold a licence or a permit under Section 11 - direct that no licence or permit be granted to him during such time as the court thinks proper.

(2) A person whose licence or permit under Section 11 is suspended is, during the period of suspension, disqualified from obtaining a licence or permit".

Section 35 clearly provides for automatic disqualification for offences against s.17(1) and s.18.

Section 36 provides a discretionary power to suspend or disqualify where other offences are committed.

Counsel has submitted that s.36 only applies to licences issued under s.11 of the Act or permits issued under s.11 of the Act and that as the appellant held a licence issued under the regulations and not under s.11 the power to suspend under s.36 did not apply to him.

Counsel seems to me to be misinterpreting the words in s.36 1(a) "if he holds a licence or a permit under s.11" as limiting the word ‘licence’ as well as the word ‘permit’ to something in s.11. The word ‘licence’ in that phrase is distinct from the word ‘permit’. There is no licence issued under s.11. That Section is clearly a special provision for a temporary type of permit and the word ‘licence’ does not appear. The word ‘licence’ in s.36.1(a) means a licence issued under the regulations; see s.1, the interpretation section.

If s.36 was merely limited to a permit issued under s.11 it becomes a very limited section and why is the word ‘licence’ used throughout the section. I find that s.36 does cover driving licences as issued under the regulations and I have to disagree with the interpretation of this section by the Chief Justice in the case Robert Fleming v Gwale Dau Unreported Judgment No. N436.

I therefore find there was power to suspend a licence and I therefore upheld the magistrates suspension of the appellant’s driving licence.

Lawyer for Appellant - Public Solicitor
Lawyer for Respondent - Public Prosecutor