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Public Prosecutor v Jerry [1986] VULawRp 8; [1980-1994] Van LR 216 (27 March 1986)

[1980-1994] Van LR 216

IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU

CRIMINAL JURISDICTION

Criminal (Appeal) Case No. 2 of 1986

BETWEEN:

PUBLIC PROSECUTOR
Appellant

AND:

SAM JERRY
Respondent

Coram: Chief Justice Cooke

Counsel: Mr Dickinson, Public Prosecutor
Mr Rissen, Public Prosecutor

JUDGMENT

[CRIMINAL LAW - motor vehicle offences - STATUTES - interpretation of "any person"]

In this case, the Respondent was charged with driving a motor vehicle without a third party insurance and was acquitted by the learned Senior Magistrate because he held there was in existence a third party insurance covering the vehicle and even though the Respondent drove the vehicle without the owner's consent, he was protected by virtue of the said coverage.

Mr Dickenson, the Public Prosecutor, submitted that the learned Magistrate erred in law in his interpretation of section 3 of Joint Regulation 16 of 1967 as amended. He stressed that the Court must look to the insurance policy itself which is a personal contract with the company and the insured. That the insurers cover the owner, not the vehicle, and the insurance is a contract of indemnity whereby, in consideration of the premium, if any risks happen as a result of which you are required to pay money, the insurance company will compensate you. Mr Dickenson stressed this point and referred to Wilkenson on Road Traffic, 10 Edition page 311 which sets out the liability of insurers. Mr Dickenson, in his submission, delved into the pros and cons of insurance policies and explained the circumstances in which the insurance company considers itself liable and in doing so referred to various sections of the policy. In an attempt to show who the policy covered, Mr Dickenson then turned to section 3 itself and the interpretation to be placed on the words "any person". He posed the questions - What makes the more sense? What was the section trying to achieve? What was it intended to mean? He then submitted it surely could not cover people who were disqualified, took the vehicle without permission etc

Mr Rissen, the Public Solicitor, in his reply supports the decision of the learned Magistrate. He submitted the section was clear and unambiguous. For example if you have a vehicle, you must have a policy of insurance to indemnify any person who uses the vehicle. It does not specify the person, it just says "any person". He submitted it was not for the Court to restrict the meaning of those simple words. Mr Rissen further submitted that once the insurance is issued, the policy cannot reduce the terms. He read section (3) which states:-

"No such policy of third party insurance shall be avoided or vitiated by reason of any term or condition thereof whatsoever and any such term or condition of any policy of third party insurance shall be deemed, with effect from the commencement of this section, to be null and void".

In my opinion, that subsection clearly answers the submission of the Public Prosecutor that the policy is personal to the insured only and who is bound by the term of the said policy. I agree with the view expressed by both the learned Senior Magistrate and Public Solicitor and consider that the words 'any person' in section 3 must be interpreted to mean just that and not be restricted in any way.

Lord Morris of Borth-y-Gest in the case of Shop and Store Developments Ltd v I.R.C. (1967) 1 A.C. at 493 said:-

"Where, by use of clear and unequivocal language capable of only one meaning, anything is enacted by the legislature, it must be enforced however harsh or absurd or contrary to common sense the result may be".

Again there is a judgment of Lord Goddard C.J. in the case of Williamson -v- O'Keefe (1947) 1 All ER 307and which deals with the meaning of the words "Any person" in the English Road Traffic Act 1930. Lord Goddard stated:-

"The justices in the present case held that no offence had been committed because of the construction which they placed on the Road Traffic Act, 1930, section 35 (1). The respondent was charged with using the car on a road when there was no policy in force and, in fact, no policy was in force."

The reasons the justices give for their decision are:-

(1) The words "any person" in the said section must mean either any person whatsoever or "any owner". They cannot have two meanings in the same section, and we consider they mean "any owner", for the following reasons.

(2) The said section creates two offences or rather three, but the case in question is only concerned with two namely:-

• (a) It shall be not lawful for "any person" to use etc.,
• (b) It shall not be lawful for "any person" to permit any person to use etc.
• In (b) the words "any person" must mean owner because the owner is the only person who can legally permit another person to use.
  

(3) As the words "any person" cannot have two different meanings in the same section, they must mean 'any owner' in (a) as in (b).

They went on to state:-

(4) If the legislature had meant the words to have two different meanings in the same section, it would have said "It shall not be lawful for any person to use or, if he is the owner, to permit any other person to use. Therefore the words "any person" are confined to the owner. The respondent was not the owner, so the said section does not implicate him and he is not guilty of any offence.

Lord Goddard commenting on the reasoning of the justices stated:

"This is a very subtle piece of reasoning, but the courts find it impossible to adopt the same view as the justices. The act is perfectly clear in its terms. It creates an offence and imposes a penalty on any person who uses a motor car on the road without a policy being in force. The words are as clear as they possibly can be, and, as Mr O'Keefe was a person who used a car on a road without a policy being in force, it follows that he committed an offence and is liable to disqualification for not less than 12 months. The case must go back to the magistrates with a direction to convict."

Although this is the converse of what happened in the case before me, the same principles apply. In our case there was a policy of insurance in existence and as the words "any person" are interpreted as stated aforesaid, the Respondent is covered by it and in my opinion, properly acquitted by the learned Magistrate.

The appeal is accordingly dismissed.

Dated at Vila this 27th day of March 1986.

FREDERICK G. COOKE
CHIEF JUSTICE