147-NLR-NLR-V-39-WIJEYSINGHE-(S-I.,-POLICE)-v.-DHANAPALA.pdf
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MOSELEY J.—Wijeysinghe (S.-I., Police) v. Dhanapala.
1938Present: Moseley J.
WIJEYSINGHE (S.-I., POLICE) v. DHANAPALA.182-—P. C. Kalutara, 33,408.
Motor Car Ordinance—Load of lorries^—Excepted persons—Burden of proof—Ordinance Wo. 20 of 1927, s. 62 (3).
Where a person is charged with breach of section 62 (3) of the MotorCar Ordinance, viz. : “ No person shall be carried in a lorry other thanthe owner or hirer of the lorry or of the goods carried therein or theservant or agent of the owner or the hirer'’,—
Held, that the burden of proving that the persons carried in the lorryfall within the excepted class of persons lies upon the accused.Mudaliyar, Pitigal Korale North v. Kiribanda (12 N. L. R. 304) followed.
^ PPEAL from a conviction by the Police Magistrate of Kalutara.
Colvin R. de Silva, for accused, appellant.
Jansze. C.C., for complainant, respondent.
Cur. adv. vult.
July 20. 1938. Moseley J.—
The appellant was charged that he being the driver of a certain lorry,carried goods and four passengers in contravention of the conditions orother provisions lawfully inserted in the licence, in breach of section 31 ofOrdinance No. 20 of 1927 (The Motor Car Ordinance, 1927). The licenceauthorizes the carriage of goods and persons up to a total weight of6,552 lb., such persons being the servants or agents of the owner or hirerof the lorry or of the goods carried therein.
It will be observed that the terms of the licence bear a strong resem-blance to the provisions of section 62 (3) of the Motor Car Ordinance.The learned Magistrate in fact held that the charge actually came underthat section, and he convicted the appellant of an offence against thatsection. That was one of the grounds of appeal urged before me, namely,that the learned Magistrate was wrong in recording a conviction undersection 62 (3), seeing that the charge was laid under section 31. Iexpressed the view that the accused was in no way prejudiced thereby,and that ground, of appeal was not pressed. As a matter of fact, thealteration was in favour of the accused, since the conditions of the licencemake no exception in favour of the owners or hirers of the lorry, but onlyin favour of their respective agents or servants. So, but for the alteration,it would have been of no avail to the accused to prove that the allegedpassengers held the status of hirers.
The appeal was then argued on the ground that the learned Magistratewas wrong in holding that the onus of proof that the persons carried inthe lorry were owners or hirers of the lorry or of the goods carried therein,or the servants or agents of the owner or hirer was on the accused. I donot know what is meant by the expression “ hirer of the goods ”, but Ihave set out the words as they appear in section 62 (3). That is, however,beside the point. The only point to be decided in this case is upon whomdoes the burden of proof lie. The learned Magistrate’s finding is as
MOSELEY J.—Wijeysinghe iS.-I., Police) v. Dhanapala535
follows: —“ Once the prosecution proves that besides goods there weremen travelling in the lorry, it is for the accused to prove in what capacitysuch men travelled in the lorry I take it that he meant to say, it isfor the accused to prove that each of them is a hirer or owner of the lorryor servant or agent of one of such persons
Counsel for the appellant relied upon the case of Nair v. Saundias where a Full Bench held that, where it is sought under section 80 (3) (b)of the Motor Car OrdLnance) 1927, to render the owner of a motor carliable for an offence committed in his absence by his driver, in which casehis liability does not arise if the offence is committed without his consent,it is for the prosecution to prove that the offence was committed with hisconsent. In such a case the gravamen of the charge is that the ownerconsent-J and the reasons underlying the decision* can be, and I say sowith respect, readily appreciated.
It was further contended for the appellant that section 62 (3) describesa class or classes of persons who may be lawfully carried in a lorry andthat this description is expressed in negative form merely for the sake ofconvenience, an ingenious but not convincing argument.
I was also referred to the case of Dias v. Marcian", where, in the case ofa prosecution under section 63 (3) of the Motor Car Ordinance, it was heldby Keuneman A.J. that the onus of proof that all passengers carried wereadults was on the prosecution. Here again it is an affirmative propositionwhich the prosecution seeks to establish.
Counsel for the respondent referred me to the following passage inArchbold’s Criminal Pleading (30th ed.) p. 356:—“ Negative aver-ments, it seems, must formerly have been proved in all cases by theprosecutor (see Over v. Harwood (1900) 1 Q.B. 803, 806 ; 69 L.J. (Q.B.) 272,Channell J.) ; but the present rule upon the subject appears to be, that, incases where the subject of such averment relates to the defendant person-ally, or is peculiarly within his knowledge, the negative is not to beproved by the prosecutor, but, on the contrary, the affirmative must beproved by the defendant, as a matter of defence :….”.
He further cited the case of Perkins v. Devadasan *, where a person wasprosecuted for that he “ not being a medical practitioner ” did practisefor gain. In that case de Kretser A.J. held that the Ordinance providedan exception in favour of a medical practitioner and that a person whoclaims the benefit of such an exception must prove that he comes within it.
In the case of The Mudaliyar, Pitigal Korale North v. Kiri Banda * thequestion of the burden of proof in a prosecution under section 21 of theForest Ordinance, No. 16 of 1907, was considered. The relevant part ofthe section is as follows :—“No person shall clear, set fire to, or break upthe soil of … . any forest not included in a reserved or villageforest' . .. ”. It was held by a Bench of three Judges that “ once
the Crown has proved the fact that a clearing has been effected in a forest,it rests with the accused to defeat that charge, if he can, by showing thatit is a reserved or village forest”. The words “not included in a reservedor village forest ” were held to be an exception within the meaning of
section 105 of the Evidence Ordinance.
' 37 N. L. R. 439.
* 10 C. L. W. 57.
39/39
3 10 C. L. H 141.* 12 X. L. R. 304.
536
HEAKNE J.—Samarasinghe v. Banda.
So here I am' satisfied that the words “ other than the owner, or hirer ofthe lorry jar of the goods carried therein or the servant or agent of theowner or hirer ” amount to a specific exception contained in the lawdefining the offence. The burden of proof was therefore upon theappellant.
For this Teason the appeal is dismissed.
Appeal dismissed.