Carter v The King

[2024] SASCA 140

SUPREME COURT OF SOUTH AUSTRALIA

(Court of Appeal: Criminal)

CARTER v THE KING

[2024] SASCA 140

Judgment of the Court of Appeal  

(The Honourable Justice S Doyle, the Honourable Justice Stanley and the Honourable Justice Stein)

5 December 2024

CRIMINAL LAW - APPEAL AND NEW TRIAL - PROCEDURE - POWERS OF COURT ON APPEAL - POWER TO ORDER NEW TRIAL OR QUASH CONVICTION AND DIRECT ENTRY OF VERDICT OF ACQUITTAL

CRIMINAL LAW - PROCEDURE - DISCLOSURE OBLIGATIONS

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - ADMISSION OF FURTHER EVIDENCE - IN GENERAL

CRIMINAL LAW - APPEAL AND NEW TRIAL - PARTICULAR GROUNDS OF APPEAL - MISDIRECTION AND NON-DIRECTION - EFFECT OF MISDIRECTION OR NON-DIRECTION

CRIMINAL LAW - EVIDENCE - MATTERS RELATING TO PROOF - STANDARD OF PROOF - DIRECTIONS TO JURY - REASONABLE DOUBT - GENERALLY

APPEAL AND NEW TRIAL - APPEAL - GENERAL PRINCIPLES - POINTS AND OBJECTIONS NOT TAKEN BELOW - WHEN NOT ALLOWED TO BE RAISED ON APPEAL - COURSE OF CONDUCT AT TRIAL

STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - GENERAL APPROACHES TO INTERPRETATION - WHOLE ACT TO BE CONSIDERED

STATUTES - ACTS OF PARLIAMENT - INTERPRETATION - PARTICULAR WORDS AND PHRASES

APPEAL AND NEW TRIAL - NEW TRIAL - IN GENERAL AND PARTICULAR GROUNDS - IN GENERAL - MISCARRIAGE OF JUSTICE - CIRCUMSTANCES NOT INVOLVING MISCARRIAGE - WHERE RESULT OF TRIAL NOT AFFECTED

CRIMINAL LAW - APPEAL AND NEW TRIAL - VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE - APPEAL DISMISSED

Appeal against conviction.

On 30 December 2018, a helicopter employed for police operations was hit by a blue light emitting laser while on approach to land at Adelaide airport. The pilot and a passenger gave evidence that the light impacted upon their vision and the pilot said it interfered with his night vision goggles. Following an investigation by police inside the helicopter and on the ground, the appellant was located and thereafter arrested and charged with doing an act capable of prejudicing the safe operation of an aircraft with intent to prejudice the safe operation of the aircraft contrary to s 10 of the Aircraft Offences Act 1971 (SA). The appellant was convicted by a jury.

The appellant appeals his conviction on multitudinous grounds, including, in summary:

1.There was a failure by the Crown to disclose relevant evidence which gave rise to a miscarriage of justice (grounds 1 and 2);

2.The trial Judge failed to adequately direct the jury in relation to post offence conduct and to lies by the appellant to police (grounds 3 and 4);

3.The trial Judge failed to adequately direct and misdirected the jury as to the meaning of reasonable doubt (ground 5);

4.The trial Judge misdirected the jury in relation to the honesty of a witness (ground 6);

5.The trial Judge misdirected the jury as to the identification evidence (ground 7);

6.The trial Judge failed to adequately direct and misdirected the jury in relation to the elements of the offence (ground 8); and

7.The verdict was unsafe and cannot be supported having regard to the evidence (ground 9).

Held (dismissing the appeal; per the Court):

1.The failure to disclose the “alcotest” administered to the appellant after his arrest did not give rise to a miscarriage of justice in circumstances where the existence of the evidence was at all times within the appellant’s knowledge and was not fresh evidence.  In any event, the evidence was not likely, whether with or without an intoxication direction, to have caused the jury to entertain a reasonable doubt about the appellant’s guilt.

2.Directions in relation to consciousness of guilt and concerning the accused’s lies were not sought at trial.  Given the manner in which the trial was run, there was not a risk the jury adopted consciousness of guilt reasoning.  The forensic contest at trial was such that counsel did not consider directions concerning lies were warranted and a direction about lies may have risked undermining the appellant’s credibility to the detriment of the defence case.  The absence of such directions did not deprive the appellant of a chance of an acquittal that was fairly open. 

3.The trial Judge’s directions were consistent with authority and standard directions.  It is generally unwise for a judge to attempt to explain the concept of reasonable doubt beyond indicating that the expression means what it says and conveying that it does not entail concluding that the accused may have committed the offence or it is more likely than not that the accused did so. 

4.The trial Judge’s summing up accurately reflected the defence case at trial which challenged the reliability, not the honesty, of the witness.

5.The directions given by the trial Judge were appropriate, tailored to the evidence, and adequately warned the jury about the danger of acting on identification evidence both generally and in relation to the infrared footage. 

6.The trial Judge’s reasons were clear and could have left the jury in no doubt that it was necessary to be satisfied beyond a reasonable doubt that the appellant intended to point the laser at the helicopter.

7.An act capable of prejudicing the safe operation of an aircraft encapsulates acts which are capable of bringing about consequences which increase the risk of harm or danger in a manner which is more than insignificant, but not necessarily fatal, to acts capable of causing catastrophic consequences.  This is to be assessed as a matter of fact and degree in the particular circumstances of the case.

8.Upon an independent assessment of the evidence, taking into account the jury’s advantage:

a.      It was open to the jury to be satisfied beyond reasonable doubt that the appellant was the person pointing the laser and that the act of pointing the laser had the capability of prejudicing the safe operation of the aircraft; and

b.      The evidence excluded, as a reasonable possibility, that the appellant lacked the specific intent required to make out the charged offence, and as such it was open to the jury, acting reasonably, to be satisfied beyond reasonable doubt that the appellant was guilty of the offence.

Words and Phrases:

1.      “Prejudicing the safe operation of an aircraft” (Aircraft Offences Act 1971 (SA), s 10)

Aircraft Offences Act 1971 (SA) ss 10, 11, 13, 15, 16; Criminal Procedure Act 1921 (SA) s 166; Joint Criminal Rules 2022 (SA) r 191.1, referred to.
Ames v The King [2023] SASCA 85; Chevron Australia Holdings Pty Ltd v Federal Commissioner of Taxation (2017) 251 FCR 40; Dansie v The Queen (2022) 274 CLR 651; DES v The Queen [2020] SASCFC 32; Dhanhoa v The Queen (2003) 217 CLR 1; Fennell v The Queen (2019) 93 ALJR 1219; Gallagher v The Queen (1986) 160 CLR 392; GBF v The Queen (2020) 271 CLR 537; Green v The Queen (1971) 126 CLR 28; Grey v The Queen (2001) 184 ALR 593; Libke v The Queen (2007) 230 CLR 559; M v The Queen (1994) 181 CLR 487; Pell v The Queen (2020) 268 CLR 123; Project Blue Sky Inc v Australian Broadcasting Authority (1998) 194 CLR 355; R v Baden-Clay (2016) 258 CLR 308; R v BFG (2013) 115 SASR 499; R v Dookheea (2017) 262 CLR 402; Ratten v The Queen (1974) 131 CLR 510; TKWJ v The Queen (2002) 212 CLR 124, considered.

CARTER v THE KING
[2024] SASCA 140

Court of Appeal – Criminal:    S Doyle JA, Stanley and Stein AJJA

1. THE COURT:   On 30 December 2018, a helicopter utilised for police missions was on approach to land at Adelaide Airport when the helicopter cockpit was illuminated by blue light emitted by a laser.  The two passengers on board, both police officers, rapidly utilised cameras and mapping software to identify the source of emission of the laser light.  The pilot diverted the helicopter from landing to navigate in an arc around, but at some distance from, the identified address.  Police on board the helicopter communicated with police on the ground who attended the address.  After an initial interaction with the appellant, Mr Carter, at the front door of his property, police left to conduct some checks, shortly thereafter returned and Mr Carter was arrested.  A search warrant was executed and a laser was located in a location on the back verandah. 

2. Mr Carter was charged with doing an act capable of prejudicing the safe operation of an aircraft with intent to prejudice the safe operation of the aircraft pursuant to s 10 of the Aircraft Offences Act 1971 (SA) (“the Act”). 

3. On 6 December 2023, Mr Carter was found guilty by majority verdict of the jury.

4. Mr Carter appeals his conviction on grounds that the verdict was unsafe and cannot be supported having regard to the evidence and which challenge various directions given by the trial judge to the jury.

   Prosecution case at trial

5. At trial, the prosecution called Mr O’Donnell, the pilot of the helicopter; Brevet Sergeant McFarlane, one of the police officers on board, and Senior Constable Edwards, the investigating officer.  We summarise this evidence below.

6. On 30 December 2018, the helicopter was returning to Adelaide Airport at the end of an SA Police (“SAPOL”) mission.  There were three people on board: an experienced helicopter pilot, Mr O’Donnell, and two police officers, Brevet Sergeant McFarlane and Brevet Sergeant Olivier.  The helicopter was equipped with a wide-angled closed circuit television (“CCTV”) camera, a narrow-focused CCTV camera and an infrared camera.  Infrared produces an image which appears black and white based on temperature differentials.  The equipment available on board the helicopter included mapping software integrated with the cameras.  The cameras could be controlled to face different directions and zoom in and out.

7. At about 11:15 pm, Mr O’Donnell was piloting the helicopter at approximately 4,500 feet while descending to land at Adelaide Airport.  The CCTV and infrared cameras had been stowed for landing.  Mr O’Donnell gave evidence that at about 11:15 pm, a laser hit the helicopter cockpit.  It was very bright with a lot of glare refracting in the cockpit, which was distracting.  Mr O’Donnell was drawn towards and looked towards the light, receiving temporary flash blindness, losing visibility for a few seconds and then experiencing after-images in his vision.  The night vision goggles he was utilising shut down briefly, rendering them unusable for a few seconds.  His vision was degraded.  Mr O’Donnell thought the flash blindness lasted for the first five seconds and after images for about the first 30 seconds.  Mr O’Donnell recalled the helicopter being illuminated by the laser light four or five times for periods of up to about 15 to 20 seconds at a time for a short period of under five minutes.

8. The laser did not affect the mechanical operation of the helicopter or its on board equipment. 

9. Mr O’Donnell had received laser safety training.  He said he would not attempt to land a helicopter while a laser was being shone because it is unsafe to do so. 

10. Brevet Sergeant McFarlane said at 11:17 pm his attention was drawn to a very bright blue light to the left side of the helicopter which dazzled his eyes and the inside of the helicopter lit up blue from the light.  He could not look directly at the light as it caused pain and so he looked away.  Brevet Sergeant McFarlane could not remember the exact number of times the laser was shone or the exact period of time over which the flashes occurred.

11. In response to the laser, Mr O’Donnell levelled off at approximately 4,000 feet and set the helicopter in a left-hand orbit around the source of the light.  He did not look in the direction of the laser but only looked straight ahead or to the right, losing 90-degrees of his 180-degree field of vision.  Brevet Sergeant McFarlane and Brevet Sergeant Olivier turned on the cameras and, utilising the cameras and software, quickly located the address from which the laser light was emitting, being 22 Atlantic Avenue, West Beach, which is Mr Carter’s address.  Brevet Sergeant McFarlane estimated they were 2-3 kilometres away.

12. Mr O’Donnell communicated with air traffic control and Brevet Sergeant McFarlane communicated with a police communications operator.  SAPOL were tasked to Mr Carter’s address in response to communications from Brevet Sergeant McFarlane.

13. Recordings of some communications between Brevet Sergeant McFarlane and the communications operator were tendered.  A recording at 11:24:31 pm records Brevet Sergeant McFarlane saying that the helicopter was last lasered about a minute before. 

14. Senior Constable Edwards arrived at Mr Carter’s front door at 11:24:18 pm.  Senior Constable Edwards started her body worn camera.  Mr Carter answered the door wearing shorts and a long-sleeved top.  The body worn camera footage records Senior Constable Edwards telling Mr Carter they were there about a laser that had been pointed from his backyard.  Mr Carter responded: “what the hell are you talking about?”.[1]  Shortly after this interaction between Mr Carter and Senior Constable Edwards, Senior Sergeant McFarlane’s communication to the communications operator that they were last lasered about a minute ago is audible in the footage. 

    [1]     Exhibit P8.

15. At 11:24:44 pm, recorded communications record Brevet Sergeant McFarlane responding to the communications operator’s request for any visual description of the person by saying “negative, mate it’s under IR, I’d say a male with a blue coloured laser for info”. 

16. At the time of this communication, Senior Constable Edwards was at Mr Carter’s front door.  She asked Mr Carter if there was anyone else at home, to which Mr Carter responded “[his] son”.  When Senior Constable Edwards asked to speak with Mr Carter’s son, Mr Carter said he thought he was asleep.  At this point in the body worn camera footage, it is possible to hear Brevet Sergeant McFarlane’s reference to being “under IR”.  Mr Carter’s son James then appeared at the front door wearing a short-sleeved top.

17. At the time Brevet Sergeant McFarlane was observing the infrared camera footage and interacting with the communications operator as referred to above, he had not turned on the recording function on the camera.  He did so at 11:29 pm, with the recording from the infrared camera commencing at 11:29:52 pm. 

18. The infrared footage[2] zoomed in and out and cycled through different angles as the helicopter travelled in an arc around the property.  Parts of the rear yard were obscured at times by structures and foliage in the back garden.  As the helicopter moved, the crosshairs at the centre of the screen generally remained on Mr Carter’s property.  It is possible in the footage to see details, at times with surprising clarity, of the roof structure of the house, cars in the driveway, the roof of the shed at the rear of the property, fencing, the clothesline and, at certain angles, details of items under the back verandah, including exercise equipment.  In some sections of footage, the neighbours’ yard, swimming pool and the space between the neighbouring houses is visible.

    [2]     Exhibit P4.

19. Senior Constable Edwards continued to interact with Mr Carter and his son and then left their front door at 11:29 pm, at about the time Brevet Sergeant McFarlane activated the recording function.  Senior Constable Edwards returned to the police vehicle to conduct checks.

20. In the infrared footage, at 11:32:11 pm, a figure is visible walking from the vicinity of the back door, across the verandah.  The contrast between the whiteness of the person’s lower limbs and the grey shades of the person’s trunk and arms is noticeable.  The figure turned back towards the house at 11:32:26 pm, walking directly towards the back door.  At 11:32:41 pm a figure can be seen in the footage. The figure bent down at a location on the back verandah near the back door and then stood upright and, at 11:32:56 pm, opened the back door and went back inside.   As the figure was in the process of standing upright, the operator zoomed in the infrared camera.  The zoomed footage clearly contrasts white, depicting the outline of the person’s lower limbs, hands (as the person opens the door) and the back of their neck as they turn, with the darker grey of the person’s trunk, arms and the top of their legs.  The figure disappeared from view, moving into the house, at 11:32:57 pm. 

21. In evidence, Mr Carter said the figure bending over was him.

22. At 11:32:23 pm, the communications operator asked Brevet Sergeant McFarlane whether he had any sort of visual description he could give.  Brevet Sergeant McFarlane responded “we’ve got a male with shorts, it’s probably the best description I can give you … yeh, they’re shorts, just going to the back door now, looks like long sleeves”. 

23. At about 11:32:22 pm, the infrared footage captures the police officers in the street alongside their vehicle.  There is a clear difference between the arms and legs of the police officers in the footage in contrast with the figure seen on the back verandah.  The differentiation in shades enables an inference, borne out by the body worn camera footage, that the police officers were wearing short-sleeved shirts. 

24. The infrared footage ceased at 11:34:07 pm. 

25. At 11:34 pm, Senior Constable Edwards and a number of other police officers re-attended at Mr Carter’s front door.  Mr Carter was arrested.  A laser was located during a search of the property in a location on the back verandah near the back door.

26. Mr O’Donnell said that after the laser ceased and he been informed by ground police it would not continue, he landed the helicopter. 

27. Senior Constable Edwards gave evidence that a photograph of Mr Carter on the evening he was arrested, which depicted him wearing a long-sleeved top and shorts, was the same clothing Mr Carter was wearing at the time of his arrest and the same clothing he was wearing at the time she attended at his front door. 

28. None of the individuals on board the helicopter suffered any lasting negative effects from the laser light exposure.

29. The day after the incident, Mr O’Donnell completed an internal safety report.  He was cross examined on the contents of the report.  Mr O’Donnell accepted that he did not record in the safety report any flash blindness or the other impacts he described in his evidence.  In the safety report Mr O’Donnell stated: “pilot could have had temporary visual disturbance”.  Mr O’Donnell agreed he did not say the pilot experienced temporary visual disturbance.  His explanation for the entry in the safety report was at the time he was on night shift, he was up all night conducting missions, there was a requirement to complete the safety report within 24 hours and generally minimal information was included because it was an internal safety report.  He included the full information in his affidavit.  Mr O’Donnell explained that some fields in the report were auto generated by the system. 

30. Brevet Sergeant McFarlane gave evidence that he saw one person standing in the rear yard of 22 Atlantic Avenue at the time the laser was being operated.  He said the person in the yard appeared to have on a long-sleeved shirt and shorts and the person looked like an adult male from their gait and carriage.  Brevet Sergeant McFarlane thought he saw a figure in the backyard two or three times before police arrived.  Each time he saw a figure in the backyard he believed the person had a long-sleeved shirt on, appeared to be wearing shorts and looked like an adult male.  He did not notice any differences between that person and the first person he saw.  In the time he was watching the camera feed in the helicopter, Brevet Sergeant McFarlane did not see anyone else arrive at, or depart from, the address other than police. 

1. Brevet Sergeant McFarlane was cross-examined about his descriptions of the individual in the back yard in the recorded communications.  A focus of the cross-examination was the failure by Brevet Sergeant McFarlane to have described the person he observed in the back yard at the time the laser was operated by reference to wearing long sleeves. That reference was only in the communication at 11:32 pm after the laser had ceased operating.  While Brevet Sergeant McFarlane agreed it fell to him to provide as much information as he was able in order to assist police on the ground, he denied that the information he provided at 11:24 pm represented the best information he had available at that time.  He said in the 11:24 pm communication he was explaining to police on the ground that he was operating under infrared with a black and white image.  Brevet Sergeant McFarlane said he was conscious of the time he spent on the radio and he would not spend a long time providing a detailed description of everything he could see.  He agreed in hindsight he could have provided those details in the initial report. 

2. Brevet Sergeant McFarlane said he was looking at a screen that was 15.6 inches and the image of the person on the screen would have been about 1.5 centimetres high. 

3. Attempts to obtain evidence from Brevet Sergeant Olivier were abandoned as a result of difficulties with an AVL link.  Facts were agreed including that Brevet Sergeant Olivier described the individual he saw as a male of stocky build wearing shorts.  Brevet Sergeant Olivier did not refer to long sleeves.

4. Senior Constable Edwards said she did not see anyone other than Nicholas and James Carter and police officers at the house during the time she was present, which was about an hour and a half. 

5. The laser was found under a pot plant in the rear yard near a barbeque, immediately to the left of the back door.  The laser was submitted for forensic analysis but no prints were able to be obtained.  Senior Constable Edwards requested DNA examination, but the DNA examination was not conducted. 

6. In cross-examination, Senior Constable Edwards agreed that both Nicholas Carter and James Carter answered the description of solidly built adult males who were wearing shorts on the night. 

7. Senior Constable Edwards agreed that Brevet Sergeant McFarlane’s communications with the communications operator referring to being under IR was transmitted when she was talking to Mr Carter at his front door.  When she arrived she had the vague description of male with a blue coloured laser.  Senior Constable Edwards recalled hearing the description from Brevet Sergeant McFarlane at 11:32 pm at which time she would have been at the police cars speaking with other police officers. 

8. Senior Constable Edwards agreed that DNA testing could have been done but was not and she simply let DNA testing go. 

9. When Senior Constable Edwards arrived she went to the front door.  She did not go down the sides of the house or out the back or enter any sheds or other buildings.  She did not canvass the neighbourhood or speak to anyone else in the street.

   Defence case

10. Mr Carter gave evidence in his defence and called two neighbours to give evidence of his good character and what they heard on the night.  We summarise this evidence below.

11. In 2018, Mr Carter was living at 22 Atlantic Avenue, West Beach with his son, James.  His other son Tom lived elsewhere.  There was a shed at the back of the house which James and Tom used for social occasions. 

12. Mr Carter is a qualified valuer who worked in a business with his brother.  He has an active membership at the West Beach Surf Lifesaving Club as a past-vice president and a committee member and participates in club and surfing activities. 

13. Mr Carter said he did not, on 30 December 2018 or any other time, shine a laser at the helicopter and he did not have anything to do with anyone else shining the laser.  He did not know precisely who was responsible.  There were other people at the house and he suspected James, or Tom, or a friend of Tom’s called Aaron was responsible.  

14. Mr Carter said on that evening, Tom and Aaron arrived at the house.  He and Tom exchanged Christmas gifts and then he went into his study and remained at his computer sitting in his back massage chair.  James, Tom and Aaron went to the shed to have a drink and listen to music.  James was wearing shorts and a T-shirt and he recalled Tom and Aaron were also wearing shorts. 

15. At that time, Mr Carter was medicated on opiate based drugs Targin and Lyrica for a back injury which he shortly thereafter had invasive surgery to correct.  He had consumed some drinks and was actively drinking whiskey.  He did not know precisely how much he had consumed.  He drank whiskey on ice with soda or cold water and would have had a couple of drinks. 

16. Mr Carter said he fell asleep and then woke with a start.  He thought he was woken from deep sleep by a noise at the front of the house.  It was dark outside.   He did not know what caused him to wake up.  He was a bit confused and had had a few drinks.  He went out to the back because his last recollection was Tom, Aaron and James were out the back.  He opened the sliding door from the dining room area to the verandah and saw Aaron and Tom to his left.  He asked them what was going on.  He could not remember the exact words they used but Tom said something along the lines of “I think that’s the police and they’ve seen”, he recalled that the laser and police were mentioned and he could hear a helicopter in the distance.  His immediate reaction was to bark at them to “get the eff out” and to “ditch that effing thing”.  Mr Carter said when he told them to get out and “ditch the thing”, Aaron responded and pointed in the direction of the barbeque saying “it’s over there”.  Mr Carter then turned and saw James standing in the kitchen.  He told James to go to his room, went to the kitchen and took another stiff drink.   

17. A short time later, Mr Carter heard noises at the front of the house and went to investigate.  It appeared to be police.  He retreated behind the screen door.  The police knocked on the window frame.  Mr Carter said at the time when he spoke to police at the front door, he had not yet seen the laser. 

18. Mr Carter said after he spoke with Tom and Aaron he did not see either of them again that night.  He saw Tom a few days later.  He has never seen Aaron again.  He does not know whether or not Tom and Aaron left the house or the property.  They could have been in the garage.  There was a gate between the garage and the brick wall of the carport and an exit through the carport roller door which was closed that night but could be lifted manually.  There was also a fence opening, via a hinged fence panel, between his property and the neighbour’s property which could be used to get onto the neighbour’s property and then out to the road via a walkway. 

19. During the time between when police first arrived, left and returned the second time, Mr Carter went out the back to investigate the area Aaron had indicated.  He walked out the laundry door and looked towards the barbeque.  There was a pot plant on a gully trap against the wall.  He bent down to look at the base of the pot plant and observed what appeared to be a laser in a plastic bag sitting underneath the pot plant.  It was not effectively concealed and was visible if one leant down.  Mr Carter said the infrared footage showed him leaning forward inspecting the location of the laser. After he saw the laser in that position the police returned for a second time. 

20. Mr Carter recognised the laser as one he had acquired from his brother for the purposes of testing bird control.  Mr Carter wanted to try the device for birds at his river property and brought it home to do a trial on birds on the clothesline.  He understood that the laser shone a broad beam and the birds would take off.  Mr Carter put the laser in the shed with the intention of charging it and never saw it again until that night.  Mr Carter said he had left it on a shelf where it was visible. 

21. Mr Carter gave evidence that he said “what are you talking about?” to Senior Constable Edwards when she arrived at the door to protect his children.  His failure to mention to police that Tom or Aaron had been at the house was also for their protection.

22. Mr Carter said he had never operated the laser. 

23. Mr Carter was cross-examined about his evidence concerning his discussion with Tom, including his failure to first ask questions about what was happening rather than encouraging Tom to hide the laser and flee.  Mr Carter said he told Tom to get out of there and ditch the laser because he thought something bad had happened.  Mr Carter said Tom seemed troubled or had a concerned look on his face and the notion of police and lasers immediately rang alarms for him because the notion of a laser being used and police being involved did not sound like a good thing. When asked why police would be concerned about using a laser, Mr Carter responded if a laser had been used or pointed at police or waved around and they had observed it, he imagined they would want to investigate.  He said he did not necessarily think a laser had been pointed at them because all he had to go on was Tom mentioning police and laser and something to the effect of “they’ve seen it”.  Mr Carter later referred to Tom talking about a laser and police as a “major concern”.  Mr Carter said he did not ask Tom and Aaron what they were talking about because he was groggy and startled and their words gave rise to fear.   He knew there was a laser in the shed.  Mr Carter told Tom to leave because he drew a conclusion there was a risk.

24. Mr Carter maintained his account of the conversation was true.  He denied he shone the laser at the police helicopter, denied he put the laser in the location it was found and denied he shone the laser intending to prejudice the safe operation of the helicopter.

25. Mr Hettner, a neighbour, gave evidence of his recollection of the events of 30 December 2018.  That night, he was sitting with his partner outside having drinks.  He could hear voices and heard music.  He recognised Tom’s voice.  He did not hear or see Mr Carter and could not name any of the other voices.  He went to bed at about 10:30 or 11:00 pm and did not recall hearing a helicopter or police arriving.  He confirmed there was an access between the rear of his house and the rear of Mr Carter’s house.  Mr Hettner gave evidence of Mr Carter’s good character and standing in the community. 

26. Ms McBain was Mr Hettner’s partner.  She also gave evidence of Mr Carter’s good character and standing.  Ms McBain said they were outside from about 7:00 pm to about 11:00 pm.  She could hear voices and music next door.  She thought Mr Hettner went to bed between 10:30 pm and 11:00 pm.  She stayed up to clean up the kitchen. She went outside at about 11:00 pm to have a cigarette before she went to bed.  When she went out it was quiet.  She could not hear any music.  She heard the shed door next door screech probably just after 11:00 pm.  She went back inside about 20 minutes later.  When she was lying in bed she heard a helicopter.  Ms McBain thought she heard Mr Carter’s voice that night. 

    Counsel’s addresses

27. The prosecution case emphasised:

    Brevet Sergeant McFarlane’s evidence that it was the same person who came in and out of the house a couple of times.

    Mr Carter was wearing a long-sleeved shirt when he met Senior Constable Edwards at the door but James was wearing a short-sleeved shirt.

    Mr Carter accepted the footage depicted him outside the back of the house wearing a long-sleeved shirt.

    Mr Carter was still wearing that long-sleeved shirt shortly after when police returned, arrested Mr Carter, searched the house and found the laser.

    There was no room for doubt because there were only two people at the house, only one was in a long-sleeved shirt and he was the man responsible.

    There was no evidence from Mr Hettner about who was at the house after 11:00 pm.

    Ms McBain’s evidence gave rise to a fair inference that just after 11:00 pm, everyone else had gone home.

    Mr O’Donnell’s evidence of the impact of the laser upon him and that it was not safe to land. 

    It could be inferred from the number of times the laser was pointed and the duration of 10 to 15 seconds each time that Mr Carter must have been trying to annoy the pilot and distract him to stop or make it hard for the pilot to do his job, which was to safely operate the aircraft. 

28. The prosecution acknowledged an important issue was whether the jury could accept Brevet Sergeant McFarlane’s evidence about what he saw and the description he gave when he first started making observations when the laser was still emitting light.  The prosecutor reiterated that Brevet Sergeant McFarlane could not tell the jury he saw the same person at the back of the house but only that he did not notice any differences between the figures he saw. 

29. The prosecutor suggested that Mr Carter’s account was not truthful and the alleged conversation with Tom and Aaron did not occur. 

30. Mr Carter’s counsel told the jury that the main issue was identification.  Counsel referred to Mr Carter as a mature adult, a responsible, caring father and someone with an impressive career, who had contributed to the community and who was vouched for by persons who knew him well.  He asked the jury to consider whether Mr Carter seemed like the sort of person who would willingly and knowingly attempt to impair the safe operation of a helicopter and questioned how the state of mind required for the offence fitted with Mr Carter’s personality and background.  Counsel referred to the good character evidence and asked the jury to consider the likelihood that someone with Mr Carter’s character and good standing and reputation would commit the crime. That evidence was emphasised as relevant to Mr Carter’s reliability and credibility as a witness.  

31. Mr Carter’s counsel asked the jury to consider whether anyone shining a laser at a helicopter two or three kilometres away would have any idea it might have a negative impact on persons in the helicopter, let alone have thought about deliberately impacting the safety of the helicopter.  There was no prospect of serious damage to anyone because the laser was only capable of causing eye damage at 157 metres or less[3] and the helicopter was kilometres away.  Counsel for Mr Carter put to the jury that Mr O’Donnell did not have an adequate explanation for why he did not record in the safety report the impacts of which he gave evidence, in particular, why he recorded that the pilot could have had temporary visual disturbance rather than that he did have temporary visual disturbance. 

    [3]     This fact was agreed.

32. Counsel told the jury that if they were not satisfied with Brevet Sergeant McFarlane’s evidence, that ended the prosecution’s case.  While there was no doubt it was Mr Carter shown bending over the area where the laser was found, Mr Carter had told the jury he did so after the laser was used by someone else.  Mr Carter’s counsel attacked the identification evidence on multiple grounds.  He asked the jury to consider that Brevet Sergeant McFarlane’s description was not sufficient to provide a positive identification and Brevet Sergeant McFarlane’s evidence was not reliable because:

    Five years had passed, Brevet Sergeant McFarlane was relying on memory and conceded recalling detail was a challenge. 

    The quality of the image was unreliable including because of the size of the screen and the image. 

    Brevet Sergeant McFarlane could not point out facial features or fine detail. 

    Brevet Sergeant McFarlane’s “half-hearted” best description was at 11:32 pm after the laser had ceased. 

    The footage was intermittent. 

    Brevet Sergeant Olivier’s description was of a male, solidly built, in shorts. 

    Neither description was sufficient to prove the identification of Mr Carter beyond reasonable doubt.

    The difference between Brevet Sergeant McFarlane’s communications at 11:24 pm and 11:32 pm.  Counsel submitted Brevet Sergeant McFarlane provided all the details he could at 11:24 pm because that was all he had seen, consistent with the “negative mate” comment.  If Brevet Sergeant McFarlane had more information, he would have provided it, and there was no good reason to hold anything back. 

    The description of a long-sleeved shirt was given only at 11:32 pm after Brevet Sergeant McFarlane had seen Mr Carter on the back verandah.

    The next door neighbour confirmed Tom’s presence.

    The lack of DNA evidence hampered the defence case.

33. Counsel described the recorded messages with the communications operator as the death of the identification evidence offered by Brevet Sergeant McFarlane.

34. While accepting Mr Carter’s advice to Tom to flee was poor fatherly advice, it was explained by the fact that Mr Carter had been drinking, had taken medication and was awakened with a start by a commotion. 

35. Counsel asked the jury to accept Mr Carter’s evidence as wholly believable and credible, given by someone whose reputation in the community was for integrity and dependability and that evidence was supported. 

    Grounds of appeal

36. Mr Carter’s grounds of appeal are as follows:

    1.    The fresh evidence being the breath-alcohol analysis conducted on the Appellant in the early hours of December 31st 2018 gives rise to a substantial risk of a miscarriage of justice in that it was cogent, reliable evidence that could have led to his acquittal by the jury.

    2.    The Crown’s failure to comply with statutory and common law duty to disclose the applicant’s breath-alcohol analysis was unfair, and irregularity in the proceedings and caused a miscarriage of justice by depriving the applicant of cogent evidence of his innocence.

    3.    The Learned Trial Judge erred in that he failed to adequately direct the jury as to the statements made by the appellant to police which were lies on his own evidence at the trial.

    4.    The Learned Trial Judge erred in failing to adequately direct the jury as to the ‘post-offence’ conduct of the appellant and the use to which it may be put.

    5.    The Learned Trial Judge misdirected the jury & failed to adequately direct them as to the meaning of ‘reasonable doubt’ when it was evident from their note that they required that direction.

    6.    The Learned Trial Judge misdirected the jury such as to withdraw from their consideration that Brevet Sergeant McFarlane was dishonest, this did not fairly represent the defence case, usurped the jury function and misrepresented what had occurred at the trial.

    7.    The Learned Trial Judge misdirected the jury as to the purported identification of the offender by Brevet Sergeant McFarlane and failed to adequately direct them as to the identification-type evidence in the trial.

    8.    The Learned Trial Judge failed to adequately direct the jury as to the charge and the task required of them, misdirected the jury as to the pathways to guilt and reinforced or failed to correct the erroneous statements of law in the prosecutors closing address.

    8.1The jury were not properly directed that they did not simply need to find that the person sighted by McFarlane was the appellant, and that the appellant intended to prejudice the safe operation of the aircraft, but also that the intermediate step required was that the appellant intended to direct the laser beam at the aircraft.

    8.2The prosecutor opened and closed to the jury on the basis that it was sufficient in proving intent that the appellant sought to ‘annoy or distract’ the pilot, was repeated by the Learned Trial Judge in summing-up, if the jury found that was the appellant’s intent, then he was entitled to an acquittal.

    8.3The trial proceeded correctly as to the definition of prejudice, however failing to contextualise it against the charge and failing to assist in respect to the word ‘operation’ and its qualifier ‘safe’.

    8.4The jury were misdirected as to the specific intent required in the case and the preconditions that they would need to find before the evidence led could be used against him.

    9.    The verdict was unsafe and cannot be supported having regard to the evidence, the appellant was entitled to an acquittal.

    9.1It was not open to the jury to be satisfied beyond reasonable doubt that it was the appellant who was directed the laser pointer.

    9.2It was not open to the jury to be satisfied beyond reasonable doubt, that the act alleged by the Crown was capable of prejudicing the safe operation of the aircraft.

    9.3It was not open to the jury to be satisfied beyond reasonable doubt that the appellant intended to direct the laser pointer at the helicopter

    9.4It was not open to the jury to be satisfied beyond reasonable doubt that the appellant intended to prejudice the safe operation of the aircraft.

    Grounds 1 and 2 – fresh evidence and failure to disclose

1. On 29 February 2024, Mr Carter filed an interlocutory application seeking to adduce evidence in the appeal of the fact and results of Mr Carter’s “alcotest” at 1:30 am on 31 December 2018 and a toxicology report prepared by Professor White dated 13 February 2024. 

2. Ms Jasmine Daniel, Mr Carter’s then instructing solicitor, engaged for the appeal, deposed by affidavit dated 29 January 2024 that in or around January 2024, following Mr Carter’s conviction, he first informed counsel retained for the appeal that he was subject to an “alcotest” following his arrest.  Ms Daniel was instructed that Mr Carter did not inform his previous legal representatives because he only had a vague recollection of the “alcotest”.  He did not appreciate its relevance and the reading of the “alcotest” was not disclosed to him.  On 30 January 2024, the prosecution provided to defence a copy of the “alcotest” result, indicating it was conducted at 1:30 am on 31 December 2018 with a reading of 0.122. 

3. On 13 February 2024, Professor White provided a report in which he concluded that, based on Mr Carter’s instructions concerning his alcohol consumption and the “alcotest” reading, Mr Carter’s blood alcohol concentration at 11:17 pm was likely to be 0.155.  Professor White opined that at 11:17 pm Mr Carter would have been experiencing very significant effects of alcohol including sedation, impaired movement, failure to maintain concentration, impaired thinking and decision making, disinhibition, labile mood and his memory may have been impaired.  Mr Carter’s earlier consumption of prescribed opiates may have added a small additional effect, the main additional effects of the medications being a greater degree of sedation, failure to maintain concentration and impaired thinking and decision making.

4. Mr Carter contended that he was entitled to assume the prosecution would disclose relevant evidence, he had proactively sought material which he suspected might exist, and he had only a vague memory of being tested.  In submissions, Mr Carter said that he had no precise memory of the quantity of alcohol he had consumed other than that he consumed wine and whiskey.  The instructions given to Professor White about his consumption were based on the best of his recollection in the absence of a clear memory of what he had consumed.  Mr Carter submitted that not knowing the specific number in the “alcotest” reading deprived him of a proper basis to seek an intoxication direction.

5. The Office of the Director of Public Prosecutions was not aware of the “alcotest”.  The respondent appropriately accepted that the “alcotest” results should have been disclosed and the respondent was constructively taken to have known the information possessed by SAPOL.  However, the respondent contended the failure to disclose the results of the “alcotest” did not result in a miscarriage of justice.

   Consideration

6. We commence by observing that SAPOL had the obligation to disclose, and should have provided the “alcotest” result to the Director of Public Prosecutions. 

7. This Court has the power to receive fresh evidence on an appeal.[4]

   [4]     Criminal Procedure Act 1921 (SA), s 166; Joint Criminal Rules 2022 (SA), r 191.1.

8. A failure to disclose all relevant evidence to an accused may result in the quashing of a verdict of guilty.[5]  

   [5]     Grey v The Queen [2001] HCA 65; (2001) 184 ALR 593 at [18]-[23] (Gleeson CJ, Gummow and Callinan JJ), as cited in Mallard v The Queen [2005] HCA 68; (2005) 224 CLR 125 at [17] (Gummow, Hayne, Callinan and Heydon JJ); Ames v The King [2023] SASCA 85 at [212] (Livesey P, Bleby and David JJA).

9. Fresh evidence is evidence which was not actually or constructively available to the accused at the time of the trial.[6]  Where the evidence existed at the time of the trial, the question for consideration is whether that material could have been available to the accused by the exercise of reasonable diligence in the preparation of the defence.[7]   An accused is entitled to assume that the prosecution will comply with their disclosure obligations and considerable latitude is extended to an accused in determining what evidence, by reasonable diligence, could have been available at trial.[8]

   [6]     Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510 at 518-20 (Barwick CJ, McTiernan, Stephen and Jacob JJ agreeing), as cited in Lawless v The Queen [1979] HCA 49; (1979) 142 CLR 659 at 674-5 (Mason J, Barwick CJ and Aiken J agreeing).

   [7]     Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510 at 516 (Barwick CJ, McTiernan, Stephen and Jacob JJ agreeing)

   [8]     Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510 at 512 (Barwick CJ, McTiernan, Stephen and Jacob JJ agreeing); Ames v The King [2023] SASCA 85 at [243] (Livesey P, Bleby and David JJA).

10. The Court must determine whether or not a miscarriage of justice has resulted from the absence of the material in the trial.  The question whether there has been a miscarriage of justice is usually answered by asking whether the accused was deprived of a chance of acquittal that was fairly open.[9]  A trial is not unfair if the accused of his own volition has not called evidence which was available at the time, or of which he or she could reasonably have been expected to have become aware and produced at the trial.[10]  This is so even if it may appear that if the evidence had been called and believed, a different verdict would most likely have resulted.[11]  A decision to pursue or not to pursue a particular course at trial which is explicable on the basis it could have produced a forensic advantage may well have the result that a chance of acquittal which otherwise may have been open was not fairly open in the circumstances.[12]  

    [9]     TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 at [26] (Gaudron J, Gummow J agreeing).

    [10]   Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510 at 517 (Barwick CJ, McTiernan, Stephen and Jacob JJ agreeing)

    [11]   Ratten v The Queen [1974] HCA 35; (1974) 131 CLR 510 at 517 (Barwick CJ, McTiernan, Stephen and Jacob JJ agreeing).

    [12]   TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 at [31] (Gaudron J, Gummow J agreeing).

11. While this case involved a failure to comply with the duty of disclosure, Mr Carter submitted that the evidence of the “alcotest” constituted fresh evidence which he was not obliged to seek out and the absence of which denied him the opportunity to explore particular lines of defence.  The possibilities he identified were to use intoxication to explain his behaviour, which was described by prosecution as implausible, to provide an alternative explanation for the “post offence” conduct and to seek an intoxication direction that was likely, in Mr Carter’s submission, to have resulted in an acquittal on intention.

12. The Court received the affidavit of Ms Daniels and the report of Professor White exhibited to it.  However, the evidence does not constitute fresh evidence which could not have been obtained with reasonable diligence on the part of Mr Carter or his legal team.  Mr Carter knew he was tested for alcohol and the information about the extent of consumption of opiates and alcohol was at all times peculiarly within Mr Carter’s knowledge.  It is apparent from the affidavit of Ms Daniels that Mr Carter informed his counsel that he was tested for alcohol, which he must have recalled.  Mr Carter also, to the extent he could remember, gave instructions about his alcohol consumption to Professor White for the purposes of obtaining the report.  The failure to disclose, while unsatisfactory, did not give rise to a miscarriage of justice in such circumstances.

13. The absence of evidence during the trial of the precise reading on the “alcotest” also did not give rise to a miscarriage of justice. 

14. At trial, Mr Carter gave some evidence about intoxication.  He said he was on prescription medication following a back injury and had consumed alcohol on the night in question.  While knowing the precise reading on the “alcotest” provided specific information for use in obtaining a report from Professor White, defence could nevertheless have obtained such a report based on assumptions about Mr Carter’s level of consumption and the potential impacts on Mr Carter.  Further, Mr Carter’s counsel did not request an intoxication direction and specific use was made of the intoxication evidence by defence counsel in closing addresses to which we will return.  This appears to reflect a reasonable, indeed quite nuanced, forensic strategy to have adopted to the delicate issue of intoxication. 

15. Further, we do not accept Mr Carter’s submission that further attention to the issue of intoxication, including an intoxication direction, was likely to have resulted in an acquittal as a result of an inability of prosecution to prove specific intention. 

16. Firstly, such a direction would have impacted adversely on Mr Carter’s primary defence, which was that he did not point the laser.  Mr Carter’s counsel emphasised Mr Carter’s good character in support of that defence, and the implausibility of him, as a mature adult, using the laser in the manner alleged.  There was a very real risk that this defence and the reliability of Mr Carter’s evidence would have been undermined, potentially significantly, by any greater focus upon intoxication as a result of specific evidence of the degree of Mr Carter’s intoxication, and an intoxication direction. 

17. Second, the forensic choice to use evidence about intoxication to explain Mr Carter’s interactions with Tom and Aaron and then police was not precluded by not knowing the specific reading on the “alcotest”.  Counsel in fact purposefully deployed evidence about Mr Carter’s drinking and having been awoken with a start to counter the prosecution’s submissions that Mr Carter’s evidence was implausible or illogical. 

18. Third, Mr Carter accepted that the jury verdict indicated the jury rejected much, if not all, of his evidence.  He submitted that it was not too speculative to suggest that the logical fallacies and irrationalities in his evidence having been answered, albeit at the cost of reliability, the jury may have been in a better position to assess his evidence for what was reliable and what was not.  It is not apparent why more detailed evidence of intoxication would have enabled the jury to assess what aspects of his account were more or less reliable.

19. Fourth, the jury were in a position to form a view about Mr Carter’s demeanour in the body worn footage of Senior Constable Edwards[13] which was recorded a relatively short time after the laser was pointed at the helicopter.  The footage shows a few minutes of Mr Carter interacting with police.  Mr Carter’s appearance in the footage is not of a man who is obviously so significantly intoxicated as to be incapable of forming the requisite intention. 

    [13]   Exhibit P8.

20. Taking into account all of the evidence at trial and the use made of the intoxication evidence by defence, we do not consider the “alcotest” result and the report of Professor White, whether with or without an intoxication direction, would have been likely to have caused the jury to entertain a reasonable doubt about Mr Carter’s guilt.[14]

    [14]   Gallagher v The Queen [1986] HCA 26; (1986) 160 CLR 392 at 410 (Brennan J); TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 at [111]-[112] (Hayne J, Gummow J agreeing).

21. Accordingly, Mr Carter does not succeed on this ground of appeal.

22. Mr Carter filed an interlocutory application seeking leave to issue a subpoena to SAPOL seeking a range of documents relating to police procedures concerning processing arrested persons, gathering evidence, the platform for review of presumptive blood alcohol concentrations of arrested persons, and other kinds of documents.  He sought the provision of an affidavit from SAPOL about the use of breath analysis.  The classes of documents sought in the subpoena were said to be relevant to grounds 1 and 2 of the appeal.  A single Judge declined to grant this application prior to the hearing of the appeal.  To the extent it was renewed on appeal, it should be refused.  The documents sought are not relevant to, or required by, the Court for the purposes of addressing Mr Carter’s submission on the cogency of the “fresh” evidence or whether such evidence could have been obtained by the exercise of reasonable diligence.

    Grounds 3 and 4 –post-offence conduct and lies

    Post offence conduct

23. Mr Carter submitted that the prosecution alleged he was in possession of the laser shortly after being observed in its vicinity.  This was said, by implication, to have caused the jury to believe Mr Carter consciously hid the laser where it was ultimately found.  Mr Carter submitted that much was made of the fact that Mr Carter was observed exiting the house and was in the vicinity of the laser after the police had attended at the front door for the first time.  Accordingly, he submitted the absence of a direction from the trial Judge concerning post offence conduct left the jury free to conclude he was responsible for hiding the laser, and that this reflected a consciousness of guilt. 

24. The respondent submitted that the prosecution case was not that Mr Carter hid the laser to prevent it being found, nor that he did so out of consciousness of guilt, nor was there any suggestion the conduct was capable of reflecting negatively upon Mr Carter’s credit.  The purpose of the footage was to enable the jury to compare clothing of the man on the back verandah, shown in the infrared camera footage, with the clothing that Mr Carter was wearing at the front door, shown in the body worn camera footage.  This was part of the prosecution’s circumstantial case to establish Mr Carter’s guilt. 

    Consideration

25. Whether or not there is a requirement to give directions on consciousness of guilt will depend on the nature of the evidence, and how the trial is conducted.  If the prosecution has not made a submission based on consciousness of guilt, then unless the trial Judge considers there is a real risk the jury may adopt consciousness of guilt reasoning, generally it is unnecessary to give such a direction.[15]  The trial judge must decide whether the way the case was presented involved an implied suggestion to the jury to engage in reasoning which involves a consciousness of guilt.[16]  At the same time, the judge must be aware of the risk that giving a complicated direction may not only confuse a jury, but also risk giving undue prominence to an issue to the prejudice of the accused.

    [15]   Dhanhoa v The Queen [2003] HCA 40; (2003) 217 CLR 1 at [34] (Gleeson CJ and Hayne J).

    [16]   R v BFG [2013] SASCFC 24; (2013) 115 SASR 499 at [17] and [29] (Sulan J).

26. In Mr Carter’s case, the trial Judge expressly raised with counsel, in the absence of the jury, the use to be made of the footage showing the person on the back verandah.[17]  The prosecutor said the only reliance on the footage was that a man wearing clothes matching those worn by Mr Carter was in possession of the laser and was to be put together with the evidence from Senior Constable Edwards as to where the laser was found.  The trial Judge said:[18]

    HIS HONOUR:  Right. It's no - I don't want to use the word - consciousness of guilt in hiding it or anything like that?

    MR MCCABE:   I'm not going there, no.

    HIS HONOUR:  Mr Powell, you won't want any direction on that point, it's best to keep quiet on that point?

    MR POWELL:   Yes. 

    [17]   Trial Transcript (“TT”) 186.7.

    [18]   TT187.

27. In his closing address, the prosecutor referred to the infrared footage.  He reminded the jury of the footage of a man in a long-sleeved shirt bending outside the back door at 11:32 pm, and Mr Carter’s agreement that was him.  The prosecutor then referred to Mr Carter answering the front door to police in a long-sleeved shirt and submitted there was no room for doubt as to the identity of the offender because there were only two people at the house and only Mr Carter was wearing long sleeves.  The prosecutor referred to the laser being found under the pot plant, not hidden in the shed or thrown into the garden, as consistent with a person coming out of the house to put it there, not consistent with a person having come out of the shed.  While this submission may have implied Mr Carter hid the laser, it appears the submission was to counter Mr Carter’s evidence that Tom and Aaron had been in the shed and rear yard and were in possession of the laser.  During his evidence, Mr Carter explained why he went to that location and bent down to inspect what was there. 

28. Counsel for Mr Carter made a forensic choice in agreeing that a direction on the post-offence conduct was not required.  Even if decisions are later regretted, that does not give rise to unfairness.[19]  Generally speaking, a party is held to the manner in which his or her counsel presented the case.[20]

    [19]   TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 at [16]-[17] (Gleeson CJ).

    [20]   TKWJ v The Queen [2002] HCA 46; (2002) 212 CLR 124 at [74]-[78] (McHugh J).

29. Counsel’s decision to not seek a direction expressly warning against reasoning invoking a consciousness of guilt is readily understood.  An express consciousness of guilt direction may have been confusing in the face of Mr Carter’s evidence or may run the risk of putting the very idea into the jury’s mind.  While not determinative, the fact counsel agreed such a direction was not required at the time of the exchange between the trial judge and counsel and did not later seek such a direction supports a conclusion that, in the context of the way the trial was conducted, there was not a real risk the jury may adopt consciousness of guilt reasoning and accordingly such a direction was not required.[21] 

    [21]   GBF v The Queen [2020] HCA 40; (2020) 271 CLR 537 at [25] (Kiefel CJ, Bell, Keane, Gordon and Edelman JJ).

30. The absence of a consciousness of guilt direction did not deprive Mr Carter of a chance of acquittal that was fairly open.  In our view, there was no risk of the jury engaging in consciousness of guilt reasoning by reason of the prosecution submission or the reliance placed by the prosecution on the evidence of Mr Carter on the back verandah.  The conclusion that Mr Carter placed the laser in the location followed if the jury rejected Mr Carter’s account and accepted that the whole of the evidence proved Mr Carter’s guilt beyond reasonable doubt.  The jury’s assessment of the reliability of Mr Carter’s evidence about Tom and Aaron’s presence and his conversation with them would have been based on their impressions of him in the light of all the evidence.  We do not consider it a realistic possibility that the jury would have first, separately considered whether Mr Carter concealed the laser and used that conclusion to reason back to whether they believed his account or accepted the prosecution evidence. 

    Lies

31. The body worn camera footage of the interaction between Mr Carter and Senior Constable Edwards included Mr Carter’s lie that he did not know what police were talking about when Senior Constable Edwards referred to the use of a laser from the property.  Mr Carter gave evidence that he responded that way because he was protecting his kids.[22]  This lie became apparent from Mr Carter’s evidence about his discussion with Tom and Aaron and Aaron pointing to the location of the laser. 

    [22]   TT291.

32. The second lie, on Mr Carter’s case, was also contained in the body worn camera footage and related to Mr Carter’s reference to thinking James was asleep.  This was inconsistent with Mr Carter’s evidence that he saw James and told him to go to his room.  The third lie, on Mr Carter’s case, was the failure of Mr Carter to mention Tom or Aaron’s presence to Senior Constable Edwards. 

33. Mr Carter submitted that in the absence of an appropriate direction confining their use to the issue of his credibility, the jury was left free to assume his lies were probative of guilt. 

    Consideration

34. As set out above, if the prosecution does not contend that a lie is evidence of guilt, and the trial Judge does not apprehend any real danger the jury might reason in that way, as a general rule a direction is not required.[23]

    [23]   Dhanhoa v The Queen [2003] HCA 40; (2003) 217 CLR 1 at [34] (Gleeson CJ and Hayne J).

1. The only use made by the prosecution of the body worn camera footage related to Mr Carter’s appearance wearing a long-sleeved shirt in contrast to his son, James, wearing a short-sleeved shirt.  The prosecution did not rely on anything said by Mr Carter as a lie nor did prosecution seek to rely on Mr Carter’s failure to mention Tom or Aaron to the police as a lie.  Mr Carter was not cross-examined on the basis that any of the asserted lies were relevant to his credit, nor that his denials arose out of a consciousness of guilt. 

2. Mr Carter’s counsel did not seek any direction in relation to lies.  This is consistent with the forensic contest at trial being such that counsel did not consider it warranted. 

3. The conclusion that Mr Carter lied in relation to responding by “what are you talking about” arose both on the prosecution’s case that Mr Carter was the offender and Mr Carter’s defence that Tom and/or Aaron were the offenders.  The conclusion that Mr Carter lied therefore arose whether or not the jury rejected or accepted Mr Carter’s account in his defence.  Consequently, a direction by the trial Judge concerning lies in reference to this evidence may have run the risk of highlighting the evidence and giving it a prominence which was not warranted, potentially to the benefit of the prosecution case and the detriment of the defence case.  A direction about lies concerning the statement about James and the absence of a statement about Tom and Aaron may have run the risk of undermining Mr Carter’s credibility to the detriment of the defence case. 

4. In our view, a direction on lies was not required on the case as conducted at trial.

5. Accordingly, Mr Carter does not succeed on these grounds of appeal.

   Ground 5 – meaning of reasonable doubt

6. Mr Carter contended the trial Judge failed adequately to direct the jury on the meaning of “reasonable doubt”.  During summing up, the trial Judge received a note from the jury.  On receiving the note, his Honour said to counsel:

   Another note from the jury saying that they are struggling with the term 'reasonable': 'Where does "reasonable" sit in relation to the following scale: certain, highly likely, likely, 50:50, unlikely, highly likely, impossible?' I think I'd probably just repeat what reasonable doubt - I presume they're meaning in the context of reasonable doubt and repeat that there's no other explanation other than a doubt that they are prepared to entertain.

7. During the discussion that ensured, Mr Carter’s counsel asked for a repetition of the direction concerning the burden of proof with a reminder of “possibly” and “probably”. 

8. The trial Judge thereafter directed the jury as follows:

   Lastly, you said that you were struggling with the word 'reasonable' and where did 'reasonable' sit in relation to the following scale of certain, highly likely, likely, 50:50, unlikely, highly unlikely, impossible. The law says that I should only inform you that the prosecution has to prove beyond reasonable doubt each of the elements of the offence and that reasonable doubt is a doubt which you as reasonable jurors are prepared to entertain and requires no further explanation than that.

9. After the jury left the courtroom following concluding comments, Mr Carter’s counsel again raised the direction about reasonable doubt.  Counsel suggested a repetition of the direction that it was not sufficient to find an accused is possibly guilty and not sufficient to find an accused probably guilty because someone on the jury panel had gone to the trouble of setting out a likelihood scale which “needed to be shut down”. 

10. The jury were then directed as follows:

    I just wanted to reiterate a direction that I gave you before that perhaps I should give again given the question about reasonable doubt. In answer to that question, I referred you to what I said that reasonable doubt is a doubt which you as reasonable jurors are prepared to entertain and that it required no other explanation than that. You might recall that I also went on to say that as to things the prosecution must prove. Nothing short of proof beyond reasonable doubt is sufficient. It is not sufficient for the prosecution to show a mere suspicion of guilt or to show that the accused is probably guilty. The accused, like any other accused, is not to be convicted unless their guilt has been established by reasonable doubt. If, at the end of the day, you are left with a reasonable doubt of the guilt of the accused arising on the evidence, you must give him the benefit of that doubt and find him not guilty and as I then went on, anything defence put by way of explanation, it does not have to prove. Rather, it is the prosecution that must prove each and every element of the offence beyond reasonable doubt. I just wanted to make that clear given that question that arose, thank you.

11. Mr Carter submitted that the note and the responses to the note evidenced a substantial risk of miscarriage of justice and it could not reliably be said that the jury verdict was arrived at lawfully.  Mr Carter submitted that the proposed sliding scale of relative probability referred to in the jury note could be applicable to a doubt the jury entertained about his guilt or an inference they may draw from the prosecution or defence case.  If so, the jury would have wrongly understood that defence inferences needed to be proved beyond reasonable doubt and to the exclusion of all others. 

    Consideration

12. Mr Carter’s contention that the whole of the note was not read out must be rejected in light of the transcript.

13. While the juror’s note did not specifically refer to “reasonable” as part of the phrase “reasonable doubt”, almost all of the references to “reasonable” throughout the summing up were in the context of “reasonable doubt”.  The trial Judge’s response to the jury’s question expressly addressed “reasonable doubt” in the context of proof by the prosecution beyond reasonable doubt of each of the elements of the offence.  The final direction the jury received before retiring to consider their verdict was the direction set out above, which clearly and unequivocally related to the prosecution’s burden of proof.  In addition to the occasions in the summing up where the trial Judge referred to the requirement for proof beyond reasonable doubt of all elements of the offence, the jury were told it was not sufficient for the prosecution to show Mr Carter was probably guilty.  The trial Judge also directed the jury that defence did not have to prove anything and that if they accepted Mr Carter’s denials, they would acquit him.  Similarly, the trial Judge directed the jury that if they could not exclude as a reasonable possibility or rational inference that Tom or Aaron or James pointed the laser, they must acquit Mr Carter. 

14. The jury did not follow up with a further question and no additional clarifying directions were sought by counsel. 

15. Further, the trial Judge’s directions were consistent with authority and standard directions.  It is generally unwise for a judge to attempt to explain the concept of beyond reasonable doubt beyond indicating that the expression means what it says and conveying that this does not simply entail concluding the accused may have committed the offence or it is more likely than not that the accused did so.[24] 

    [24]   Green v The Queen [1971] HCA 55; (1971) 126 CLR 28 at 32-3 (Barwick CJ, McTiernan and Owen JJ); R v Dookheea [2017] HCA 36; (2017) 262 CLR 402 at [41] (Kiefel CJ, Bell, Gageler, Keane, Nettle and Edelman JJ).

16. For these reasons, Mr Carter’s criticisms of the trial Judge’s directions and his Honour’s treatment of the note do not withstand close scrutiny.

17. Accordingly, Mr Carter does not succeed on this ground of appeal.

    Ground 6 – asserted challenge to honesty of a witness

18. Mr Carter complained that when directing the jury in relation to the risks of identification evidence, the trial Judge referred to Brevet Sergeant McFarlane as an honest witness.  Mr Carter complained that the trial Judge’s direction fatally undermined the subtle defence position that Brevet Sergeant McFarlane was not an honest witness. 

19. The summing up included the following statement:

    You must approach identification evidence with caution. The experience of the courts is that identification evidence of a person can be unreliable. It has led to innocent people being convicted in the past. Honest witnesses, and it was not suggested that Brevet Sergeant McFarlane was not an honest witness, can be mistaken.

20. The trial Judge went on to direct the jury about potential risks in identification evidence.

    Consideration   

21. Mr Carter’s submission is not consistent with the manner in which the trial was conducted by the defence.  It was not put to Brevet Sergeant McFarlane in cross-examination that he was not being truthful, nor did counsel suggest to the jury in closing that Brevet Sergeant McFarlane was not honest in his evidence.  In closing address, Mr Carter’s counsel expressly said he was not criticising Brevet Sergeant McFarlane as a police officer.  Rather, Mr Carter’s counsel attacked Brevet Sergeant McFarlane’s reliability, articulating in detail five separate reasons why Brevet Sergeant McFarlane’s evidence should be treated as lacking reliability.  His approach to Brevet Sergeant McFarlane’s evidence was to cast him in the light of a witness who was trying to do his best, but his evidence concerned matters that happened a long time ago in circumstances in which Brevet Sergeant McFarlane had limited opportunities to make observations.

22. The approach of defence counsel was to attack Brevet Sergeant McFarlane’s reliability only, not his credibility, as a considered forensic choice.  The trial Judge’s reference to honest witnesses was part of his Honour’s careful directions on the dangers inherent in identification evidence even with honest witnesses.  Consequently, it was consistent with the defence case.  Further, counsel did not seek a re-direction.

23. Accordingly, Mr Carter does not succeed on this ground of appeal.

    Ground 7 – identification evidence

24. Mr Carter complained that the trial Judge misdirected the jury and failed adequately to direct the jury as to “identification type evidence” in the trial.  In particular, he contended that Brevet Sergeant McFarlane’s evidence was wrongly labelled “identification” evidence, which improperly elevated the probative value of Brevet Sergeant McFarlane’s observations.  Mr Carter contended the warnings about identification evidence were insufficient to correct the mischaracterisation of Brevet Sergeant McFarlane’s evidence which in fact only constituted a brief listing of three matters (that is, male, shorts and long sleeves) which Brevet Sergeant McFarlane observed under distracted conditions.  Mr Carter submitted the description of the person pointing the laser by reference to long sleeves was influenced by the recorded infrared camera footage showing him on the back verandah.  He submitted the jury should have been clearly directed that Brevet Sergeant McFarlane’s purported observations were not of the person in the recorded footage and his description was no more reliable than what they could see for themselves in the footage. 

    Consideration

25. The trial Judge directed the jury that they could not reach a conclusion about the identity of the person who shone the laser unless they were satisfied by all of the evidence that the only rational inference was that Mr Carter shone the laser. 

26. The trial Judge directed the jury that they did not have to decide between conflicting accounts of who used the laser as that would be the wrong approach.  He reminded the jury the prosecution had to prove beyond reasonable doubt that Mr Carter pointed the laser.  If they were unable to reach a conclusion about who pointed the laser, they would have reasonable doubt, in which case they must acquit Mr Carter. 

27. The trial Judge addressed Brevet Sergeant McFarlane’s evidence that, at the time the laser was being pointed, he observed that the person was male and had on shorts and a long-sleeved shirt.  The trial Judge directed the jury that they must approach identification evidence with caution and referred to the experience of the courts that identification evidence can be unreliable, that honest witnesses can be mistaken, and that a witness being confident is a poor guide to accuracy.  His Honour then pointed out specific reasons why the identification evidence may be unreliable. They were:

    the circumstances in which Brevet Sergeant McFarlane made the observations;

    the size of the computer screen and the size of the image;

    the cameras zooming in and out;

    the property was viewed from different angles;

    at times part of the property was obscured;

    the events occurred five years before;

    Brevet Sergeant McFarlane did not have notes or recordings of his observations. 

28. The trial Judge expressly alerted the jury to the danger that, having seen the recording at 11:32 pm showing a person with shorts and a long-sleeved shirt, Brevet Sergeant McFarlane reasoned back to what he thought he saw earlier when the laser was being operated.  His Honour also explained the evidence was limited to identifying a male person with shorts and a long-sleeved shirt and contrasted the observations of Brevet Sergeant Olivier (by the agreed fact) which were limited to the person being male, of solid build and wearing shorts.  The jury were expressly directed that the agreed fact must be considered by the jury as to whether it cast doubt on Brevet Sergeant McFarlane’s accuracy.  In this way, the trial Judge directly warned the jury of the risk that Brevet Sergeant McFarlane’s evidence of his observations of the person pointing the laser were infected by what he saw on the recorded infrared footage.  While using the phrase “identification evidence”, it was clear from the trial Judge’s directions that the references were to the observations made by Brevet Sergeant McFarlane and Brevet Sergeant Olivier (in the agreed fact). 

29. Further, after these warnings, the trial Judge continued to say that if, after considering the evidence of Brevet Sergeant McFarlane and the warnings he had given them about identification evidence, they were not satisfied that at the time the laser was being operated Brevet Sergeant McFarlane observed the person operating the laser was male, wearing shorts and had a long-sleeved shirt, then they were directed there was not sufficient evidence for Mr Carter to be identified as the person who shone the laser at the helicopter and they must acquit Mr Carter.  The jury were further directed that if they were satisfied that Brevet Sergeant McFarlane made that observation at the time the laser was being operated, they still had to exclude as a rational inference that someone else pointed the laser.  The jury were reminded that they must be satisfied beyond reasonable doubt on all of the evidence that Mr Carter performed the act of pointing the laser. 

30. The directions given by the trial Judge were appropriate, were tailored to the evidence and adequately warned the jury about the danger of acting on Brevet Sergeant McFarlane’s evidence both generally and in relation to the infrared footage. 

31. Accordingly, Mr Carter does not succeed on this ground of appeal.

    Ground 8 – directions in relation to the elements of the offence and intention

32. There were a number of aspects to this ground of appeal relating to the directions on the elements of the offence.  They require consideration of the proper interpretation of the statutory provision. 

33. While accepting the trial Judge correctly directed the jury in relation to the meaning of “prejudice”, Mr Carter contended the mischief to which the Act is directed is terrorism and the section is incompatible with “prejudice” which is trivial, such as annoyance or distraction. Mr Carter contended the trial Judge failed to contextualise “prejudice” against the charge and failed to assist the jury with the meaning of the word “operation” and its qualifier “safe”. Mr Carter contended that “safe operation” refers to a machine doing the thing for which it was designed in a manner consistent with its design and which does not give rise to undue risk to the health of the operator or any other person. Thus, in his submission, to prejudice “safe operation” requires something which is more than trivial and which has a meaningful relationship with the functioning of the machine by reference to the way it is designed to function. In Mr Carter’s submission, the machine’s function must have been inoperably, perceptibly or permanently worsened or made dangerous as a result of the act of the offender.

34. Mr Carter complained that the jury were not directed that before reaching any finding of the specific intent, they had to be satisfied of basic intent, that is, an intent to point the laser to hit the aircraft.  Mr Carter submitted that there was little evidence from which the jury could have inferred the intention deliberately to point the laser at the helicopter given the distance, the time of night and the path of the laser.  Mr Carter therefore contended that path to acquittal was effectively withdrawn from the jury’s consideration because the jury was instructed to consider those two distinct matters together (if at all). 

35. Mr Carter complained that the trial Judge misdirected the jury in relation to the specific intent required to establish guilt.  Mr Carter submitted the jury had to be satisfied the accused sought to bring about an actual risk to the helicopter, that is, the accused turned his or her mind to setting about a course of action which of necessity required contemplation of an outcome that the act would result in the helicopter colliding or being destroyed.

    Consideration

36. During the trial, discussion occurred between the trial Judge and counsel about the directions to be given concerning the elements of the offence.  The trial Judge raised with the prosecutor the case in relation to “capable of prejudicing”.  The prosecutor confirmed that the case run against Mr Carter was that the matters of which Mr O’Donnell gave evidence were capable of incapacitating the pilot to the extent the safe operation of the aircraft was prejudiced.  Thus, the case was the act did prejudice the safe operation of the aircraft but all that was required was for the jury to be satisfied the act was capable of prejudicing the aircraft.  Mr Carter’s counsel understood the case as being conducted on the basis of an actual consequence. 

37. The trial Judge commenced his summing up by explaining to the jury the four elements of the charge.  His Honour later returned to address each of the elements of the offence separately and to relate the evidence and submissions to each of those elements. 

38. The trial Judge did not give directions using the language of basic intent.  The trial Judge did not give specific directions about the concept of safe operation of the aircraft.  Trial counsel did not ask his Honour to do so.  Defence counsel did not submit that the directions given by the trial Judge were erroneous or deficient or should be given in the way Mr Carter now contends was required. 

39. There was no issue that the helicopter met the definition of “aircraft” in the Act.

40. In relation to performing an act, the trial Judge explained that the act must be a deliberate act and not an accidental or inadvertent act. 

41. In relation to proof that the act of pointing the laser was capable of prejudicing the safe operation of the aircraft, the trial Judge directed the jury that prejudicing meant “impairing” or “affecting disadvantageously or detrimentally”.  His Honour directed the jury that the prosecution did not have to prove the act actually prejudiced the safe operation, only that it was capable of doing so.  The jury had to be satisfied beyond reasonable doubt the prosecution had proved that pointing the laser was capable of causing:

    temporary flash blindness;

    loss of vision;

    glare;

    after-images which degraded situational awareness and the pilot’s vision;

    the pilot’s night goggles to shut down;

    the loss of the ability of the pilot to look in all directions and travel in all directions;

    impairment of the ability to land the helicopter while the laser was being operated. 

1. The jury were directed that the final element of the offence was that the accused deliberately pointed the laser intending to prejudice the safe operation of the aircraft.  It was not sufficient that Mr Carter was careless or reckless or absent minded and he must have turned his mind to the consequences of pointing the laser, intended them to occur and intended to prejudice the safe operation of the aircraft.  The trial Judge directed the jury they had to be satisfied that the only rational inference was one of intention to prejudice the safe operation of the aircraft. 

2. When directing the jury about the elements of the offence by reference to the evidence and the addresses, the trial Judge reminded the jury that it was not sufficient for prosecution to prove Mr Carter was careless or reckless or absentminded; he must have turned his mind to the consequences of pointing the laser and intended them to occur and to prejudice the safe operation of the aircraft.  The prosecution must therefore prove that, by pointing the laser, Mr Carter intended to blind or distract the pilot or to impair him and his flying, knowing that if that occurred the safe operation of the helicopter would be prejudiced.  We pause to observe that, in one sense, this direction was advantageous to Mr Carter as the jury were directed they had to find the safe operation of the helicopter “would be prejudiced” whereas the statutory requirement is a lesser test, being capability of prejudice.

3. The jury was not separately directed in terms of “basic intention”, that is, that the prosecution must establish beyond reasonable doubt that Mr Carter intended to point the laser at the helicopter.  However, the trial Judge’s repeated reference to the requirement for proof that the laser was pointed deliberately and not accidentally or carelessly was clear and could have left the jury in no doubt that it was necessary for them to be satisfied beyond reasonable doubt that Mr Carter intended to point the laser at the helicopter.  The jury could not have reached the conclusion that Mr Carter intended to prejudice the safe operation of the aircraft if the jury were not satisfied that Mr Carter had deliberately pointed the laser at the aircraft.  Mr Carter’s complaints concerning the absence of directions in relation to basic intent must be rejected.

4. We turn now to consider the submissions concerning the meaning of “capable of prejudicing the safe operation” of an aircraft.

   Statutory interpretation principles

5. There is no dispute concerning the principles of statutory interpretation relevant to this appeal.  A statutory provision is construed by reference to its text, context and purpose.[25]  The statutory interpretation task begins and ends with the language.  Context, which includes extrinsic material, may assist in determining the meaning of legislative language.[26]

   Aircraft Offences Act 1971 (SA)

   [25]   Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; (1998) 194 CLR 355 at [69] (McHugh, Gummow, Kirby and Hayne JJ).

   [26]   Chevron Australia Holdings Pty Ltd v Federal Commissioner of Taxation [2017] FCAFC 62; (2017) 251 FCR 40 at [3] (Allsop CJ); Thiess v Collector of Customs [2014] HCA 12; (2014) 250 CLR 664 at [22]-[23] (French CJ, Hayne, Kiefel Gageler and Keane JJ), quoting Federal Commissioner of Taxation v Consolidated Media Holdings Ltd [2012] HCA 55; (2012) 250 CLR 503 at [39] (French CJ, Hayne, Crennan, Bell and Gageler JJ).

6. The Act addresses crimes on board aircrafts and crimes affecting aircraft. Those crimes include exercising control of an aircraft, destroying an aircraft, doing acts to prejudice safe operation of an aircraft, assaulting crew, endangering the safety of an aircraft, taking or sending dangerous goods on an aircraft, and making threats to destroy, damage or endanger safety or kill or injure persons on board. The Act enables the person in command of an aircraft to arrest persons on board and to search the aircraft.

7. Section 10, entitled “Prejudicing safe operation of aircraft” provides as follows:

   A person shall not do an act or thing capable of prejudicing the safe operation of an aircraft to which this Part applies with intent to prejudice the safe operation of that aircraft.

   Penalty: Imprisonment for fourteen years.

8. Section 11, a more serious offence, provides as follows:

   A person who does an act or thing capable of prejudicing the safe operation of an aircraft to which this Part applies—

   (a) with intent to prejudice the safe operation of that aircraft; and

   (b) with intent to cause the death of a person or with reckless indifference to the safety of the life of a person,

   shall be guilty of an offence and liable to be imprisoned for life.

9. Section 11 thus expressly requires not only the intent to prejudice the safe operation of the aircraft but also intent to cause death or reckless indifference to the safety of the life of a person. It imposes a higher penalty. Where the evidence does not establish the commission of an offence against s 11 but establishes the commission of an offence against s 10, the accused may be found guilty under s 10 as an alternative.[27] 

   [27]   Aircraft Offences Act 1971 (SA), s 16.

10. The Act does not define the phrase “prejudicing the safe operation of an aircraft” or any of the separate components of that compendious phrase. 

11. While the Act does not contain an express statement of purpose, it is readily apparent from the provisions of the Act that the Act is intended to address potential threats to aircraft and associated, potential risks to those on board. It is patently an Act addressing aspects of the safety of aircraft travel. The second reading speech for the Act refers to increases in offences involving aircraft and the potential to place lives at risk. A narrow interpretation of “prejudicing the safe operation of an aircraft” would not be consistent with the purpose of the Act.

12. It is clear from the phrase “capable of prejudicing” in s 10 that actual prejudice is not a pre-requisite to the application of the section.

13. The Oxford Dictionary defines “safe” as “not exposed to danger; not liable to be harmed or lost; secure” and “safety” as “the state of being protected from or guarded against hurt or injury; freedom from danger”.  The Cambridge dictionary defines “safe” as “not in danger or likely to be harmed”; “not harmed or damaged”; “not dangerous or likely to cause harm” and “safety” as “a state or place where you are safe and not in danger or at risk”; “the state of being protected from danger or harm” and “the condition of not being likely to cause damage or harm”. 

14. “Operation” is defined as “the condition of functioning, or being operative or active” by the Oxford Dictionary and “the way that parts of a machine or system work together, or the process of making parts of a machine or system work together”; “the act or process of working, doing something, being in action, or having an effect” by the Cambridge Dictionary.

15. The definitions of “safe” focus on risk of exposure to potential harm or damage. Potential impact on “safe” operation entails the notion of risk of some harm, danger or damage. The qualification of “safe” in conjunction with “operation” must connote not only the intrinsic operations of a machine but also the interaction of the operator with the machine, otherwise it would significantly reduce the ambit of the section, contrary to its purpose. The operation of a machine may not be safe because the machine malfunctions, but it may also not be safe as a result of actions of the operator in relation to the machine. Section 10 is capable of applying in both contexts. Safe operation could thus be jeopardised by a person adversely interfering with the mechanics of the machine or by interfering with the ability of the operator appropriately and safely to operate the machine. We therefore do not accept Mr Carter’s submission insofar as it may seek to limit “safe operation” only to a machine doing the thing for which it was designed in a manner consistent with its design by reason of some issue associated with the machine itself.

16. The definitions set out above refer to exposure to, or danger or likelihood of, harm. The section is capable of applying to circumstances which give rise to a consequence of an increase in risk of harm or danger. While it can be accepted that such an increase in risk would need to be more than merely trivial or insignificant, it is not necessarily the case that “capability of prejudicing safe operation” is associated only with a consequence that is extreme or catastrophic. The phrase “capable of prejudicing the safe operation of an aircraft” can be contrasted with the different concept of “likely to endanger the safety of the aircraft” which is used in ss 13 and 15 of the Act. Mr Carter seeks to limit the concept of prejudicing the safe operation of an aircraft to circumstances which entail collision or destruction of the helicopter as a consequence. However, such an interpretation would practically equate the concept of prejudice to safe operation with one of endangering the safety of the aircraft. Given the differing concepts provided for within the Act, we reject Mr Carter’s contention that the jury had to be satisfied the accused sought to bring about risk to the helicopter in the nature of the helicopter colliding or being destroyed.

17. Further, as set out above, s 11 is expressly differentiated from s 10 by inclusion of the express requirement for the offender to intend to cause death or reckless indifference to the safety of life. In contrast to this express reference in relation to the necessary intention in s 11, neither s 10 nor s 11 contain an express requirement for the relevant act to give rise to a consequence of death or risk to safety of life. If Parliament had intended to so limit s 10 (or s 11), it can be expected such consequences would have been expressly included in the sections.

18. The concept of capability of prejudicing the safe operation of an aircraft could conceivably apply in a variety of circumstances involving some form of interaction or interference with an aircraft’s components, machinery or equipment or its passage of travel or with interaction or interference with an aircraft’s pilot or crew impacting upon their ability to safely operate the aircraft.  Accordingly, it follows that the section applies to acts across a spectrum from those which are capable of bringing about consequences which increase the risk of harm or danger in a manner which is more than insignificant, but not necessarily fatal, to those capable of causing potentially catastrophic consequences.  We reject Mr Carter’s contention that an act to distract or annoy a pilot would be insufficient to meet the requirements of the section.  It will always be a question of fact and degree in the particular circumstances of the case whether the consequences of an act would have the capability of prejudicing the safe operation of an aircraft. 

19. It requires little imagination to conceive of a range of circumstances in which distracting a person piloting a helicopter in a way which impacts on their vision and concentration may prejudice their steering or control of the helicopter so as to place the aircraft or the occupants at increased risk.  For example, adverse impact on the pilot’s vision may cause the helicopter to veer off course, lose altitude or tip which may injure persons or equipment on board or delay or preclude a safe landing.  Any directions given to a jury will need to be tailored to the evidence in the particular matter and it therefore is not helpful to endeavour to formulate a more precise definition capable of meeting the large variety of potential circumstances in which the section may apply.

20. It follows that Mr Carter does not succeed on this ground of appeal.

    Ground 9 – verdict is unsafe and cannot be supported

21. Mr Carter complained that the verdict was unsafe and cannot be supported having regard to the evidence.  Mr Carter contended it was not open to the jury to be satisfied beyond reasonable doubt that:

    he directed the laser pointer;

    the act alleged was capable of prejudicing the safe operation of the aircraft;

    he intended to direct the laser pointer at the helicopter and he intended to prejudice the safe operation of the aircraft. 

    Consideration

22. The task of the Court in considering whether the jury verdict is unreasonable or cannot be supported having regard to the evidence was set out by the High Court in M v The Queen[28] as confirmed in Pell v The Queen[29] and Dansie v The Queen.[30]The High Court in M v The Queen[31] stated:

    Where, notwithstanding that as a matter of law there is evidence to sustain a verdict, a court of criminal appeal is asked to conclude that the verdict is unsafe or unsatisfactory, the question which the court must ask itself is whether it thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty. But in answering that question the court must not disregard or discount either the consideration that the jury is the body entrusted with the primary responsibility of determining guilt or innocence, or the consideration that the jury has had the benefit of having seen and heard the witnesses. On the contrary, the court must pay full regard to those considerations.

    (Citations omitted)

    [28]   M v The Queen [1994] HCA 63; (1994) 181 CLR 487.

    [29]   Pell v The Queen [2020] HCA 12; (2020) 268 CLR 123.

    [30]   Dansie v The Queen [2022] HCA 25; (2022) 274 CLR 651.

    [31]   M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 492-3 (Mason CJ, Deane, Dawson and Toohey JJ).

23. The plurality further explained the Court’s task as follows:[32]

    In most cases a doubt experienced by an appellate court will be a doubt which a jury ought also to have experienced. It is only where a jury's advantage in seeing and hearing the evidence is capable of resolving a doubt experienced by a court of criminal appeal that the court may conclude that no miscarriage of justice occurred. That is to say, where the evidence lacks credibility for reasons which are not explained by the manner in which it was given, a reasonable doubt experienced by the court is a doubt which a reasonable jury ought to have experienced. If the evidence, upon the record itself, contains discrepancies, displays inadequacies, is tainted or otherwise lacks probative force in such a way as to lead the court of criminal appeal to conclude that, even making full allowance for the advantages enjoyed by the jury, there is a significant possibility that an innocent person has been convicted, then the court is bound to act and to set aside a verdict based upon that evidence. In doing so, the court is not substituting trial by a court of appeal for trial by jury, for the ultimate question must always be whether the court thinks that upon the whole of the evidence it was open to the jury to be satisfied beyond reasonable doubt that the accused was guilty.

    (Citations omitted)

    [32]   M v The Queen [1994] HCA 63; (1994) 181 CLR 487 at 494-5 (Mason CJ, Deane, Dawson and Toohey JJ).

24. Each member of this Court must apply the test in M v The Queen in independently assessing the sufficiency and quality of the whole of the evidence at trial to ask whether, on that evidence, it was reasonably open to the jury to be satisfied beyond reasonable doubt that Mr Carter was guilty.[33]  The Court must determine on its own independent assessment of the evidence whether, despite evidence upon which the jury might convict, it would be dangerous to allow the guilty verdict to stand, that is, whether there is a significant possibility an innocent person has been convicted.[34]  The Court must ask whether the jury must, as distinct from might, have entertained a doubt about Mr Carter’s guilty.[35] 

    [33]   Dansie v The Queen [2022] HCA 25; (2022) CLR 651 at [8] (Gageler J, Keane, Gordon, Steward and Gleeson JJ agreeing); Pell v The Queen [2020] HCA 12; (2020) 268 CLR 123 at [43]; [45] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).

    [34]   Pell v The Queen [2020] HCA 12; (2020) 268 CLR 123 at [119] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).

    [35]   Pell v The Queen [2020] HCA 12; (2020) 268 CLR 123 at [44]-[45] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ); Libke v The Queen [2007] HCA 30; (2007) 230 CLR 559 at [113] (Hayne J); Dansie v The Queen [2024] SASCA 26 at [9] (Kourakis CJ, Bleby and David JJA).

25. Where the case is one which proceeds on the basis that the evidence of a witness was assessed by the jury as credible and reliable, the Court will examine the record to see whether, notwithstanding that assessment, in light of other evidence or inconsistencies, discrepancies or other inadequacy, the Court is satisfied the jury, acting rationally, ought to have entertained a reasonable doubt as to guilt.[36]  The apparent acceptance by the jury of the credibility and reliability of a witness is not determinative.  The Court may take into account well known difficulties and inaccuracies in assessing credibility and reliability and the realities of human experience, including the fallibility of memory and the possibility of contamination of memory.[37] The question remains whether, despite inconsistencies, discrepancies, incongruities or implausibility in the evidence, it was still reasonably open to the jury to find it proved beyond reasonable doubt that the defendant committed the charged offending.

    [36]   Pell v The Queen [2020] HCA 12; (2020) 268 CLR 123 at [39] (Kiefel CJ, Bell, Gageler, Keane, Nettle, Gordon and Edelman JJ).

    [37]   Fennell v The Queen [2019] HCA 37; (2019) 93 ALJR 1219 at [81] (Kiefel CJ, Keane, Nettle, Gordon and Edelman JJ); DES v The Queen [2020] SASCFC 32 at [80]-[83] (Doyle J, Kourakis CJ and Livesey J agreeing).

26. Where the case is largely circumstantial, the appeal court must weigh all the circumstances in deciding whether it was open to the jury to draw the ultimate inference that the prosecution has proved guilt beyond reasonable doubt.  The Court must form its own judgment whether the prosecution has failed to exclude an inference consistent with innocence that was reasonably open.[38]

    [38]   Dansie v The Queen [2022] HCA 25; (2022) 274 CLR 651 at [12] (Gageler, Keane, Gordon, Steward and Gleeson JJ).

27. We now turn to consider whether, based on an independent assessment of the sufficiency and quality of all of the evidence at trial, it was open to the jury to be satisfied beyond reasonable doubt that Mr Carter was guilty of an offence pursuant to s 10 of the Act, that is, whether Mr Carter performed an act capable of prejudicing the safe operation of an aircraft with intent to prejudice the safe operation of the aircraft.

28. We have set out above a summary of the prosecution case which the respondent contended was sufficient to support the finding of guilt. 

29. Mr Carter challenged his conviction on the sufficiency of the evidence relevant to three of the elements of the offence.  Mr Carter’s challenge related to aspects of the evidence in respect of which the jury must have assessed the witnesses (Brevet Sergeant McFarlane and Mr O’Donnell) to be credible and reliable.  He also challenged the prosecution’s case on intention which was based on circumstantial evidence.

30. In challenging the quality, sufficiency and reliability of the evidence, Mr Carter relied on a number of matters including the following:

    Significant issues with the reliability of the evidence in relation to the issue of identification, including the time between the events and trial, Brevet Sergeant McFarlane’s failure to refer to long sleeves in his 11:24 pm description of the offender, and inconsistencies in the descriptions of the clothing worn by the offender given by Brevet Sergeant McFarlane and Brevet Sergeant Olivier.

    The image of his “innocent actions” in the infrared camera footage which he submitted focussed the jury’s attention as the only identification, notwithstanding the trial Judge’s warnings, and invited the jury to overlook the possibility that Tom or Aaron may have been in the rear yard. 

    The failure of police to search the entire house or neighbouring houses and the obstruction of parts of the infrared camera image of the property.

    Criticisms of the reliability of Mr O’Donnell’s evidence about the impacts of the laser on him in light of the safety report he prepared.

    The inference the laser was capable of being directed by hand towards the cockpit at a distance of over two kilometres with sufficient continuous accuracy and duration necessary to cause a loss of vision of such duration that loss of the aircraft occurred.

    Mr O’Donnell’s actions in continuing to fly the helicopter as inconsistent with the effective control of the aircraft being demonstrably, negatively impaired. 

    That Mr O’Donnell had landed the helicopter safely by the time the police had begun a search at the property.

    It was not possible to exclude as a reasonable possibility that the laser light was an unintended outcome of a moving aircraft flying into the path of the laser beam or that the laser was shone unintentionally, randomly and continuously into the night sky or the person was directing the laser to another terrestrial target.

    It was not possible to exclude as a reasonable possibility that the party operating the laser did not know it was capable of hitting the target at that significant distance.

    There was no basis for the jury to conclude Mr Carter could have known Mr O’Donnell was wearing night vision goggles or light would refract in the cockpit or that landing the helicopter was inherently more difficult at night. 

1. Mr Carter’s account necessarily entailed Tom and Aaron still being present at the house between about 11:17 pm to 11:24 pm as that was the approximate time range during when the laser was operated.  There was some force in Mr Carter’s criticism of the limitation of the evidence excluding Tom and Aaron’s ongoing presence.  The recorded infrared footage only commenced at 11:29 pm after the laser ceased operating and at times the property was not fully visible in that footage.  While Brevet Sergeant McFarlane gave evidence that he did not see anyone leave the property he did not have an uninterrupted view.  Senior Constable Edwards did not see Tom or Aaron, she did not go into the shed or check neighbouring properties.  Mr Hettner heard Tom’s voice, but his evidence did not assist on the topic whether Tom and Aaron were still present at the property given he had retired to bed earlier in the evening.  Ms McBain recalled hearing Mr Carter’s voice during the course of the evening.  However, Ms McBain’s evidence did not unequivocally support the presence of anyone in the vicinity of the back verandah after 11:00 pm as at about 11:00 pm she heard the shed door screech but she did not hear voices then or thereafter.  In combination with the evidence of Senior Constable Edwards and Brevet Sergeant McFarlane, Ms McBain’s evidence failed to support, and potentially undermined, Mr Carter’s account.

2. Mr Carter challenged the reliability of Brevet Sergeant McFarlane’s observations based on the size of the computer screen and the size of the observable figure on that screen.  After the laser hit the helicopter, Brevet Sergeant McFarlane and Brevet Sergeant Olivier were able rapidly to focus the cameras, identify the address and call police on the ground.  Recognising that the recorded infrared footage only commenced at 11:29 pm, it is possible clearly to see the figure on the back verandah and other items as set out above.  The clarity of the images in that footage enable an inference to be drawn about the quality of the images observable by Brevet Sergeant McFarlane on the screen in the helicopter at the time the person was pointing the laser at the helicopter.  In the recorded infrared footage, despite the distance between the helicopter and the property, the figure and objects on the back verandah are clearly observable, especially when the camera was zoomed in, providing potential support for Brevet Sergeant McFarlane’s account. 

3. Given the state of the evidence as a whole, the jury’s assessment of both Mr Carter’s evidence and Brevet Sergeant McFarlane’s evidence both generally and specifically on this topic was crucial.  If the jury did not accept any or all of Mr Carter’s evidence, the jury still had to be satisfied beyond reasonable doubt on the prosecution evidence that Mr Carter was the offender which depended critically on Brevet Sergeant McFarlane’s evidence of his observations at the actual time the laser was being pointed. 

4. The starting point in considering the challenge to the reliability of Brevet Sergeant McFarlane’s evidence is that the jury must have found that evidence credible and reliable.  On the clear directions of the trial Judge, the jury did not accept Brevet Sergeant McFarlane’s evidence about his observation of a male wearing shorts and long sleeves at the time the laser was being used, Mr Carter would have been acquitted.  The assessment by the jury of Brevet Sergeant McFarlane’s evidence of his observations at the time the laser was being used, including his explanation for why he did not provide a more complete description at 11:24 pm, must have played a crucial role in the jury accepting the evidence. 

5. The challenge to the reliability of that evidence relates principally to Brevet Sergeant McFarlane’s recorded communications with the communications operator as well as the conditions in the cockpit at the time he was making his observations.  As set out above, when asked for a description of the person by the communications operator, in the recorded message at 11:24 pm Brevet Sergeant McFarlane responded “negative” and referred to being under infrared.  The first reference by Brevet Sergeant McFarlane to “long sleeves” was at 11:32 pm, by which time Mr Carter was visible in the infrared footage and seen bending over the location of the laser on the back verandah.  The tone of voice used in the recording can reasonably be described as tentative, and the words he used are consistent with them reflecting contemporaneous observations.  This could be said to support the possibility that Brevet Sergeant McFarlane may have been mistaken when he said he recalled the person holding the laser as having long sleeves; that he in fact only made this observation from the infrared footage which was filmed, and hence when the laser was no longer being deployed.  Brevet Sergeant McFarlane’s recollection of long sleeves was also to be contrasted with that of Brevet Sergeant Olivier who recalled a male wearing shorts, but did not refer to sleeve length.  

6. The jury had the benefit of seeing and hearing Brevet Sergeant McFarlane, including his responses in cross-examination, and this Court must pay appropriate regard to that advantage held by the jury in assessing Brevet Sergeant McFarlane’s evidence.  The terms of the recorded messages at 11:24 pm and 11:32 pm had the potential to cast doubt on the reliability of Brevet Sergeant McFarlane’s evidence of his observations at the time the laser was pointed.  While clearly justifying careful consideration by the jury, we do not think the recorded messages were of themselves fatal to the credibility or reliability of Brevet Sergeant McFarlane’s evidence.  The jury were entitled to consider the messages in the light of their impressions of Brevet Sergeant McFarlane and Brevet Sergeant McFarlane’s explanations about why he failed to report long sleeves on the first occasion.  The discrepancies are not such that the jury ought to have experienced a reasonable doubt which was incapable of being resolved by the advantage the jury held in assessing Brevet Sergeant McFarlane’s evidence. 

7. The jury must have rejected Mr Carter’s account because acceptance of that account would have led to his acquittal.  The jury had the advantage over this Court in assessing Mr Carter’s evidence in his defence in the context of all of the evidence and the impressions the jury formed about Mr Carter.   It was reasonably open to the jury to reject Mr Carter’s account. 

8. The evidence in the trial supported the inference that only Mr Carter and James were at the property at the relevant time.  Mr Carter was wearing long sleeves and James was not.  This was sufficient in combination with Brevet Sergeant McFarlane’s evidence, as accepted by the jury, to establish beyond reasonable doubt that Mr Carter was the offender.

9. Having conducted an independent assessment of all the evidence, taking into account the jury’s advantage, we consider it was open to the jury to be satisfied beyond reasonable doubt that Mr Carter was the person pointing the laser.

10. Turning to the question of whether the act of pointing the laser was capable of prejudicing the safe operation of the aircraft, the jury’s assessment of the evidence of Mr O’Donnell was critical.  The jury had to be satisfied that the laser was pointed at the helicopter and impacted on the cockpit in the ways in which Mr O’Donnell and Brevet Sergeant McFarlane described.  The jury had to be satisfied beyond reasonable doubt that Mr O’Donnell experienced the impacts of which he gave evidence including the temporary loss of vision, the after images, his night goggles shutting down briefly, and piloting the helicopter only looking forward and to the left hand side.  Such satisfaction required assessment of Mr O’Donnell’s explanations for his failure to record on the safety report, completed the day after the incident, the consequences about which he gave evidence. 

11. To some extent Brevet Sergeant McFarlane’s evidence supported Mr O’Donnell’s evidence about the impacts of the laser light. 

12. While the inconsistency between the safety report and Mr O’Donnell’s evidence and the absence of a full account in that report also warranted careful consideration by the jury, we do not think the safety report was of itself fatal to the credibility or reliability of Mr O’Donnell’s evidence.  The discrepancy was not such that the jury ought to have experienced a reasonable doubt which was incapable of being resolved by the advantage the jury held in assessing Mr O’Donnell’s evidence and his explanations in relation to the safety report. 

13. The jury also had to be satisfied that the impacts of which Mr O’Donnell gave evidence were capable of prejudicing the safe operation of the helicopter.  This required acceptance of Mr O’Donnell’s evidence of those impacts together with inferences to be drawn about the potential consequences.  It can readily be inferred that a pilot’s vision plays a significant role in piloting a helicopter and an adverse impact on vision has the capability to consequentially impact on the pilot’s ability to control a helicopter and steer it in the direction and at the altitude it is to travel.  It was reasonably open to the jury to accept Mr O’Donnell’s evidence, as an experienced helicopter pilot, that it was not safe to land while the laser was operating.  For the reasons set out above, it was not necessary for the jury to be satisfied that a consequence of pointing the laser at the helicopter had to lead to the helicopter colliding or being destroyed.  Increasing the risk of potential harm to the aircraft or its occupants by adversely impacting the pilot’s vision with resulting impact on his ability to control and steer the helicopter was sufficient. 

14. Having conducted an independent assessment of all the evidence, taking into account the jury’s advantage, we consider it was open to the jury to be satisfied beyond reasonable doubt that the act of pointing the laser at the aircraft had the capability of prejudicing the safe operation of the aircraft.

15. The evidence in support of the intention element of the offence was circumstantial. 

16. A circumstantial case is not considered piecemeal.  The Court must consider and weigh all of the circumstances established by the evidence in determining whether there is a rational hypothesis consistent with an accused’s innocence.[39].

    [39]   R v Baden-Clay [2016] HCA 35; (2016) 258 CLR 308.

17. The evidence upon which the prosecution relied was the number of times the helicopter was struck by the laser, the duration of each such strike and the time frame across which the strikes occurred together with Mr Carter’s awareness of the nature of the laser. 

18. Mr Carter contended that it cannot be excluded that the striking was coincidental or the result of the aircraft moving into the path of the laser and pointed to factors such as the distance to the helicopter as inconsistent with the verdict.

19. It was reasonably open to the jury to accept Mr O’Donnell’s account that the laser hit the helicopter four to five times for times of 15 to 20 seconds duration on each occasion over a period of about 5 minutes.  If the evidence had been limited to one strike or strikes of very brief duration, Mr Carter’s submission would have had more force.  However, given the helicopter was moving, it is fanciful to suggest that any random pointing of the laser would coincidentally have succeeded in striking the helicopter on that number of occasions and for that duration on each occasion.  All of the circumstances established by the evidence exclude any rational hypothesis consistent with coincidental or accidental conduct.  For the laser to remain focussed on the moving helicopter for periods of 15 to 20 seconds at a time, the operator of the laser would have had to track the helicopter’s progress, which is consistent only with deliberate conduct. 

20. For similar reasons, the suggestion that the operator of the laser lacked the intention to impact upon the aircraft or its operator can be rejected as fanciful.  It was not necessary for the prosecution to establish that Mr Carter was aware of the specific circumstances of the pilot, such as the night goggles shutting down when exposed to light, to establish beyond reasonable doubt the intention to prejudice the safe operation of the helicopter.  The evidence establishes the laser was pointed at the helicopter and contact maintained with the moving helicopter for durations of 15 to 20 seconds at a time.  Mr Carter’s evidence he knew the laser would throw out a broad beam, he thought police would want to investigate use of a laser, together with his evidence about his intended use of it supports an inference that he was aware the laser was not simply a toy, but rather a serious item the use of which would pose a risk which police would want to investigate. 

21. Having undertaken an independent assessment of the evidence focusing on the probative force of the evidence as a whole, we are satisfied that the evidence excluded, as a reasonable possibility, that the laser was accidentally pointed at the helicopter.  We are also satisfied that the evidence excluded, as a reasonable possibility, that the intention of the person wielding the laser was anything other than to distract or adversely impact on the pilot so as to prejudice the safe operation of the helicopter.  Accordingly, the prosecution established beyond reasonable doubt the specific intention to prejudice the safe operation of the helicopter.  It was open to the jury, acting reasonably, to be satisfied beyond reasonable doubt that Mr Carter was guilty of the offence.

22. It follows that Mr Carter does not succeed on this ground of appeal.

23. Accordingly, the appeal must be dismissed.

    Orders

24. The appeal is dismissed.