Civil Aviation Safety Authority v Jonker - [2008] NTMC 27

CITATION: Civil Aviation Authority v Jonker [2008] NTMC 027

PARTIES: CIVIL AVIATION SAFETY AUTHORITY

TROY HAROLD JONKER

TITLE OF COURT: Court of Summary Jurisdiction

JURISDICTION: Justices Act, Civil Aviation Act

FILE NO(s): 20720666

DELIVERED ON: 24 April 2008

DELIVERED AT: Darwin

HEARING DATE(s): 2 & 3 April 2008

JUDGMENT OF: Jenny Blokland CM

CATCHWORDS:

REPRESENTATION:

Counsel:
Informant: Ms Dixon
Defendant: Mr Woodcock

Solicitors:
Informant: DPP (CW)
Defendant: Woodcock Solicitors

Judgment category classification: B
Judgment ID number: [2008] NTMC 027
Number of paragraphs: 34

IN THE COURT OF SUMMARY JURISDICTION
AT DARWIN IN THE NORTHERN
TERRITORY OF AUSTRALIA

No. 20720666
[2008] NTMC 027

BETWEEN:

CIVIL AVIATION SAFETY AUTHORITY
Informant

AND:

TROY HAROLD JONKER
Defendant

REASONS FOR DECISION

(Delivered 24 April 2008)

JENNY BLOKLAND CM:
Introduction
1. On 31 October 2006, the defendant Troy Harold Jonker agreed to fly a film crew in his Robinson R44 helicopter after being engaged to do so by the Australian Broadcasting Commission (ABC). The idea was to follow and film a vehicle being driven by Mr Dwyne Delaney. The purpose of the filming was to draw attention to the introduction of speed limits on highways in the Northern Territory where once there were none. The film made for the 7.30 Report was tendered (Exhibit P3) and played a number of times throughout the course of the hearing with various witnesses making comment about their position vis a vis the helicopter or vehicles, or their role in or opinion about various aspects of the flight. At the heart of the prosecution case it is alleged that Mr Jonker flew in a manner that could endanger certain named persons and that he was reckless in bringing this situation about.
2. He pleaded not guilty to five counts against ss 20A(2) and 29(1) of the Civil Aviation Act 1988 (Cth). Section 20A Civil Aviation Act 1988 reads as follows:
20A Reckless operation of aircraft
(1) A person must not operate an aircraft being reckless as to whether the manner of operation could endanger the life of another person.
(2) A person must not operate an aircraft being reckless as to whether the manner of operation could endanger the person or property of another person.
3. The effect of s 29 Civil Aviation Act when read with s 20A(2) is that as the defendant was the pilot, he is one of a number of entities who can be personally responsible for an offence if the operation of the aircraft results in an offence under s 20A(2).
4. Criminal responsibility concerning the Civil Aviation Act is governed by the Criminal Code (Cth). Section 7A of the Civil Aviation Act specifically makes reference to chapter 2 of the Criminal Code (Cth) as governing the general principals of criminal responsibility. As the fault element is recklessness under s 20A Civil Aviation Act, that is taken to be recklessness as defined and applied in the Criminal Code (Cth).
5. The particulars in relation to Count 1 are that the reckless flying occurred on…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2008] NTMC 27
Decision Date: 24 April 2008

CaseChat Overview and Summary

The Civil Aviation Safety Authority (CASA) initiated proceedings against Troy Harold Jonker, the pilot of a Robinson R44 helicopter, for allegedly flying in a manner that could endanger certain named persons. This incident occurred on 31 October 2006 when Mr Jonker was engaged by the Australian Broadcasting Commission (ABC) to fly a film crew to follow and film a vehicle being driven by Dwyne Delaney to highlight the introduction of speed limits on highways in the Northern Territory. CASA alleged that Mr Jonker's flight could endanger certain named persons and was reckless in bringing this situation about, contravening sections 20A(2) and 29(1) of the Civil Aviation Act 1988 (Cth). Mr Jonker pleaded not guilty to the five counts against him.

The court had to determine whether Mr Jonker was guilty of reckless operation of an aircraft, as defined by section 20A(2) of the Civil Aviation Act 1988 (Cth), and whether he was personally responsible for an offence under s 20A(2) as the pilot, as defined by section 29 when read with s 20A(2) of the Civil Aviation Act 1988 (Cth). The court also had to consider whether the recklessness of the defendant was proven beyond reasonable doubt.

The court considered the evidence of various witnesses, including Ms Barbara Ambjerg Pederson, Mr Jamie Cairncross, Mr Kirsty Manser, Mr Simon Manzie, Mr Jedadai Dupe, Mr Dwyne Delaney, Mr Murray McLaughlan, Mr Peter John Beasey, Mr Jonker, and Mr John Logan. The court accepted the evidence of some witnesses and rejected others based on their credibility and the consistency of their statements. The court found that Mr Jonker did fly the helicopter with two members of the camera crew to film Mr Delaney in his vehicle, taking safety issues seriously and flying at a safe speed. However, the court also found that the presence of the helicopter led to the two motorists having to brake as they had apprehensions concerning the presence of the helicopter in their view.

The court assessed whether Mr Jonker was reckless in operating the aircraft, as defined in the Criminal Code (Cth). The court found that although there was a risk of causing motorists to take evasive action and causing a potential collision, Mr Jonker was not fully aware of the risk at the critical time. The court also found that even if there were some risks that Mr Jonker was not cognisant of or did not completely eliminate, it was not enough to make out recklessness as defined in the Criminal Code (Cth).

Based on the court's findings, it was not proven beyond reasonable doubt that Mr Jonker was guilty of reckless operation of an aircraft. The court decided to dismiss the charges against Mr Jonker and would not require him to appear unless the prosecution advised the defence counsel otherwise.

Orders