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Chapter 47: Taking Vehicle Without Authority

Table Of Contents  

[47.0] Introduction 

This chapter will examine the offence of 'Taking Vehicles Without Authority', as outlined in section 59 of the Traffic Act (Ch. 131). 

That section is almost identical with section 217 of the Road Traffic Act 1960 (UK). 

For the purpose of consistency the offences under the Traffic Act (Ch. 133) should be interpreted  

'in accordance with the Interpretation and General Provisions Act and the principles of legal interpretation obtaining in England, and expressions used in it shall be presumed, so far as is consistent with their context, and except as may be otherwise expressly provided, to be used with the meaning attaching to them in English criminal law and shall be construed in accordance therewith', see section 3 of the Penal Code (Ch. 26). 

In R v Flower (1956) 40 CrAppR 189 Lord Goddard CJ stated at page 192: 

'I hope that the police and those responsible for prosecutions will remember that it is still open to charge an offender with stealing petrol in such circumstances.' 

A defendant should not be charged with stealing the same vehicle, see R v Gibbs (1959) 44 CrAppR 77. 

The law relating to: 

·                     'Double Jeopardy' is examined commencing on page 105; and 

·                     'Larceny' is examined commencing on page 460.

[47.1] Offence 

Section 59(1) of the Traffic Act (Ch. 131) states: 

'A person who takes and drives away a vehicle without having either the consent of the owner thereof or other lawful authority shall be liable – 

(a)                on conviction by the High Court, to a fine of five hundred dollars or to imprisonment for six months or to both such fine and such imprisonment; 

(b) on conviction by a Magistrate's Court, to a fine of two hundred dollars or to imprisonment for three months.' (emphasis added)

[47.2] Wording Of Charge 

'[Name of Defendant] at [Place] on [Date] did take and drive away a vehicle to wit a [specify the vehicle] without having either the consent of the owner thereof namely [specify the name of the owner] or other lawful authority.'

[47.3] Elements 

A. Defendant 

B. Place 

C. Date 

D. Take

 E. Drive Away 

F. Vehicle 

G. Without Having: 

[i] Consent Of The Owner; or 

[ii] Other Lawful Authority

[47.4] Take & Drive Away 

The term 'Take' is not defined in the Traffic Act (Ch. 131) or the Interpretation & General Provisions Act (Ch. 85). 

The 'natural and ordinary' meaning of that term in the context of this section would mean to remove without the consent of the owner or other lawful authority. 

The term 'Drive' is examined commencing on page 709. 

If an employee without his/her employer's permission takes and drives away a vehicle owned by the employer after working hours for his/her own purposes he/she would be guilty of 'taking' the vehicle within the meaning of section 59(1) of the Traffic Act (Ch. 131), see R v Wibberley [1966] 2 QB 214; [1965] 3 AllER 718; (1965) 50 CrAppR 51; [1966] 2 QB 214. 

See also: R v Cook (1964) 48 CrAppR 98; Mowe v Perraton [1952] 1 AllER 423; (1952) 35 CrAppR 194; Shimmell v Fisher & others (1951) 35 CrAppR 100; R v Pearce [1973] CrimLR 321; R v Miller [1976] CrimLR 147 & R v Diggin [1981] RTR 83; (1981) 72 CrAppR 204; [1980] CrimLR 656.

[47.5] Vehicle 

The term 'Vehicle' is defined in section 2 of the Traffic Act (Ch. 131) as including: 

'a motor vehicle, a trailer and any other conveyance used on the road.'

[47.6] Question Of Consent 

The onus is on the defendant to prove on the 'balance of probabilities' that he/she had either: 

·                     the consent of the owner; or 

·                     other lawful authority, 

to take and drive away the vehicle in question. 

The law relating to 'Negative Averments' is examined commencing on page 83. 

Section 59(2) of the Traffic Act (Ch. 131) states: 

'If on proceedings under this section the court is satisfied that the accused acted in the reasonable belief that he had lawful authority, or in the reasonable belief that the owner would, in the circumstances of the case, have given his consent if he had been asked thereof, the accused shall not be liable to be convicted of the offence.' 

In R v Phillips & McGill (1970) 54 CrAppR 300 the Court of Appeal considered circumstances in which the defendant McGill had been given permission by the owner of a motor vehicle to take and use it for a limited purpose. However, rather than returning it upon completion he used it for his purpose on the belief that the owner would consent to such use. 

Fenton Atkinson LJ, delivering the judgment of the Court, stated at pages 303 – 304: 

'The learned Common Sergeant put it to the jury in this way: 

"The allegation against him is that having lawfully borrowed the car with Mr. Larking's consent for a particular purpose and for a particular purpose only, he" – referring there, of course, to Mc Gill – "thereafter did not return the car, and if that is the position, then as from the time he decided not to return the car and drove it off on his own business and after having taken his wife to Victoria Station, or rather brought her back again because she missed the train, as from then, as a matter of law, and common sense, if he did not have Mr. Larking's permission, he took it and drove it away, and it is that subsequent taking and driving that the Crown allege constitutes the offence in this matter." 

[…] 

In our view, the direction of the learned Common Sergeant was perfectly proper and accurate.' 

The law relating to 'Honest Claim Of Right' is examined commencing on page 431. 

If the consent to use a motor vehicle was obtained by intimidation this would be no 'consent' in law, see R v Hogden [1962] CrimLR 563. 

See also: R v Cameron [1990] 2 QdR 264; (1990) 46 ACrimR 329; Nabo Tiambo v Gideon Lari [1979] PNGLR 525 & Bulage Maule v Meana [1969 – 70] P&NGLR 280.

[47.7] Liability Of Passengers 

The mere fact that a person enters a vehicle which had been taken without the consent of the owner and being driven, does not constitute the offence under section 59(1) of the Traffic Act (Ch. 131). There must also be evidence that the passenger was a 'party' to the original taking, even though he/she was not present when the vehicle was initially taken, see R v Stally (1959) 43 CrAppR 5. 

See also: R v Bogacki & others [1973] 2 WLR 937; [1973] 1 QB 832; [1973] 2 AllER 864; [1973] RTR 384; [1973] CrimLR 385; (1973) 57 CrAppR 593 at page 598 & R v Phillips & McGill (1970) 54 CrAppR 300.

[47.8] Alternative Conviction 

Section 59(3) of the Traffic Act (Ch. 131) states: 

'If on the trial of a charge of stealing a vehicle the court is of the opinion that the defendant was not guilty of stealing the vehicle but was guilty of an offence under this section, the court may find him guilty of an offence under this section and thereupon he shall be liable to be punished accordingly.' 

The law relating to 'Larceny' is examined commencing on page 460.

[47.10] Jurisdiction 

The jurisdiction of the Courts in respect of this offence is examined commencing on page 14. 

The law relating to 'Sentencing' in respect of this offence is examined commencing on page 918, including the 'Disqualification Of Drivers' Licenses'.

[47.11] Related Offences 

The following offences are related to the offence of 'Take & Drive Away': 

·                     'Unlawful Use Of Animal Or Vessel', section 290 of the Penal Code (Ch. 26); and 

·                     'Tamper With Motor Vehicle', section 60 of the Traffic Act (Ch. 131).