Enders v McLennan

[1996] QCA 373

IN THE COURT OF APPEAL	[1996] QCA 373
SUPREME COURT OF QUEENSLAND

C.A. No. 228 of 1996.

Brisbane

[Enders v. McLennan]

NEIL MALCOLM ENDERS

Respondent

v.

PETER ROLAND McLENNAN

Appellant

_____________________________________________________________________

Davies J.A. Pincus J.A. Fryberg J.

_____________________________________________________________________

Judgment delivered 08/10/1996

Joint Reasons for Judgment of Pincus J.A. and Davies J.A.; separate Reasons for
Judgment of Fryberg J., dissenting in part.

_____________________________________________________________________

ORDERS ARE:

1.          COUNT 1 - APPEAL AGAINST CONVICTION ALLOWED, CONVICTION SET ASIDE.

2.          COUNT 2 - APPEAL AGAINST SENTENCE ALLOWED, SET ASIDE THE FINE OF $6,000.00 IMPOSED BELOW AND REPLACE IT BY A FINE OF $1,000.00.

3.          THE RESPONDENT TO PAY THE APPELLANT’S COSTS (IF ANY) OF THE PROCEEDINGS IN THIS COURT.

_____________________________________________________________________

CATCHWORDS: CRIMINAL LAW - reckless statement - Civil Aviation Act 1988 - dangerous goods - no question of anyone being misled - no definition of what claimed to be defect - recklessly consigned goods for carriage - irrelevant considerations on sentence - no evidence of dangerousness.

Counsel:	Appellant appeared on his own behalf. Mr A Rafter for the respondent.
Solicitors:	Appellant appeared on his own behalf. Commonwealth Director of Public Prosecutions for the respondent.
Hearing date:	19 September 1996.

JOINT REASONS FOR JUDGMENT - PINCUS J.A. AND DAVIES J.A.

Judgment delivered 08/10/1996

The appellant, having been convicted in the Magistrates Court of two infringements of the Civil Aviation Act 1988, applied to this Court for an extension of time within which to appeal against sentence and conviction. He was successful in respect of the first count, but, as to the second, the application was refused, so far as conviction went; he was granted leave to appeal against sentence. There has been a further hearing, by a differently-constituted Court, of the appeal and these reasons relate to those matters only.

Count 1

The appellant was charged that on or about the 24th day of January 1995 he did contrary to s. 23A(3) of the Civil Aviation Act 1988 in purported compliance with the requirements of regulation 262M(1)(b) of the Civil Aviation Regulations made for the purposes of s. 23A(1) recklessly make a statement about a crate presented for carriage that was misleading in a material particular. The statement complained of was contained in or consisted of a shipper’s declaration, which became Exhibit 2. The respect in which Exhibit 2 was alleged to be misleading was not properly identified by counsel for the prosecution in opening. In our opinion the magistrate, and indeed counsel for the prosecution, should have ensured that it was absolutely clear to the appellant, who appeared for himself, what it was that he was alleged to have done wrong.

After hearing evidence, the magistrate gave reasons which, so far as the first count was concerned, were in substance as follows. His Worship observed that there were some "extraneous and irrelevant matters raised by the defendant during the proceedings". Having read the cross-examination of the defendant, now appellant, we must say that it appears to us that he was courteous and restrained in the face of a barrage of questions, many of which had little if anything to do with the charge; further, concentration on what was relevant would have been easier if particulars of the offence had been given. His Worship said that the appellant’s company, Dangerous Goods Aviation Consultants Pty Ltd, was engaged to handle the return of certain items described as ferry survival kits; that the appellant prepared and signed a shipper’s declaration for dangerous goods (Exhibit 2); that a crate was prepared by the appellant and equipment mentioned on the declaration was packed by him and then it was delivered for shipment. With respect to Exhibit 2, the magistrate found in effect that the appellant made the statements in it. His Worship went on to hold in effect that the statements were misleading in a material particular which, as I understand the reasons, was that a life raft was declared, but no survival kits were specifically declared. The magistrate appeared to hold that the failure to mention two survival kits was misleading because under the regulations each survival kit should have been carried in a separate, inaccessible hold.

Exhibit 2 mentioned "Life-saving appliances, self-inflating" and also a wooden crate said to contain one life raft, two life jackets and "miscellaneous survival equipment". It seems clearly to be correct that as the magistrate held, Exhibit 2 does not say that there were two survival kits, so the question which the magistrate considered was whether the failure to say that there were two survival kits made the statement recklessly misleading. More generally, the magistrate gave attention to the question whether the description of the goods was full enough.

The point argued by the respondent in seeking to uphold the conviction was quite different, and so it is unnecessary to discuss the argument advanced below. It was said that what was really wrong with the content of Exhibit 2 was that it did not "accurately describe the aircraft survival kits by their proper shipping name". According to the submission the proper description was "life-saving appliances, not self-inflating". It is curious that the case which the appellant is asked to meet in this Court is quite different from the basis upon which he was convicted below. It is even more curious that what was put forward here as the proper description would itself have been misleading, for the evidence was that the raft which was part of the goods in question was self-inflating. As we understood the respondent’s argument, the assertion that the equipment was non-self-inflating should have been made because one of the relevant documents contemplated that non-self-inflating life-saving appliances might contain dangerous goods. This could not excuse the use of the misleading expression suggested and the argument put forward for the respondent must be rejected.

We find it puzzling that the charge in question was ever brought. There was no suggestion that anyone was in fact misled; the witness Hansen, called for the prosecution, said "we were happy with the documentation as it was", although he said there was some minor problem with it. Having brought the prosecution, the respondent has cast about for some plausible complaint to make about Exhibit 2 and has failed to find one. It is perhaps repetitive to say so, but what went wrong in the first place was that the prosecutor did not trouble to define precisely what was said to be the defect in Exhibit 2; particularly as the appellant was unrepresented, that should have been done. The appeal must be allowed and the conviction set aside.

Count 2

As we have explained above, the appellant failed to obtain an extension of time to appeal against the conviction on count 2 and is confined to challenging the sentence imposed, a fine of $6,000.

The conviction was on a charge of having, contrary to s. 23(2) of the Civil Aviation Act, recklessly consigned for carriage dangerous goods on board an aircraft otherwise than in accordance with the Civil Aviation Regulations or the written permission of the Civil Aviation Authority. One implication which may be taken from this language is that it would be possible to obtain permission of the Authority recklessly to consign dangerous goods on board an aircraft. That cannot be meant; presumably, the element of recklessness which is referred to lies in the breach of the regulations. It therefore becomes important to identify precisely in what respect the regulations were held to have been breached. In opening, the prosecutor informed the magistrate that the case was that the crate did not conform with the relevant requirements in that self- inflating jackets and the life raft ought to have been packed in individual crates; and that dangerous goods were not packaged properly so as to prevent movement around the crate.

In dealing with this charge the magistrate began by saying that the two charges were related, "one leading to the other". This appears, with respect, to be erroneous, as the two charges dealt with different subject matter and depended upon different considerations. His Worship went on to say that once the prosecution proved the consignment of dangerous goods on board an aircraft then the defendant had to prove that they were consigned in accordance with the regulations; this point is further discussed below.

The magistrate held in effect that the law required that the life raft and each survival kit be packed separately, not all in the one crate and that "all inner packagings should be packed as to prevent movement within the crate. They were not so packed". His Worship concluded:

"It follows that the dangerous goods were consigned for carriage otherwise than in accordance with the regulations, and I so find. The defendant has not discharged the onus that was on him."

According to the record, part 5(2)(13) of the ICAO Technical Instructions, which were conceded to be applicable, says that only one life raft may be carried in an inaccessible hold or one aircraft survival kit may be carried in an inaccessible hold. As we understand the magistrate’s reasons, his Worship was of opinion that this implied that "the life raft should have been packed separately to each survival kit and each survival kit packed separately again so that the carrier could then load each separate thing in a separate inaccessible hold". It is not easy to follow the reasoning; there are accessible holds and inaccessible holds and a requirement as to what may be carried in an inaccessible hold surely does not necessarily imply that all goods packed must be suitable to be put in such a hold. Unfortunately, the relevant document - i.e. the relevant Technical Instruction - is not in the record, nor was it tendered. But it seems clear from the language on which the prosecution relied (p. 12 of the record), that the relevant parts of it are loading instructions, not packing instructions. Even assuming that the magistrate was right in implying from the loading instructions that the items his Worship mentioned had to be packed separately, failing to make such an implication could not be reckless.

As to the other aspect of this charge, namely the failure to pack so as to prevent movement within the crate, packing instruction 905, on which the magistrate relied, reads so far as relevant as follows:

"Life-saving appliances, such as life-rafts, aircraft survival kits or aircraft evacuation slides, may be carried when packed in strong outer packagings and may contain dangerous goods in inner packagings packed so as to prevent movement and as listed below . . . "

The expression "packed so as to prevent movement" is the point; it seems clear from the photographic evidence that the various packages were loose inside the crate.

To return to the question of onus, there was no argument before us on the point, but it appears to us questionable whether the magistrate’s view was correct; his Worship relied on s. 14 of the Crimes Act 1914 and it seems desirable to say something about that. If that provision has the effect which the magistrate held it to have, then the prosecution had to prove that the appellant recklessly consigned for carriage dangerous goods on board an aircraft and the onus then fell on the appellant to show either that the goods had been consigned in accordance with the regulations or that they had been consigned with the written permission of the Civil Aviation Authority. On this construction, the word "recklessly" would have no discernible meaning. We have suggested above that in a case like the present, where there is no question of permission from the Authority, the recklessness must refer to the breach of the regulations. The question of statutory construction for the magistrate, as to the onus of proof, was whether the principle of liability laid down included or excluded, in the instant case, a breach of the regulations or whether such a breach constituted "some special grounds of excuse, justification or exculpation": Vines v. Djordjevitch (1955) 91 C.L.R. 512 at 519; see also Roddy v. Perry (No. 2) (1958) 58 S.R. N.S.W. 41 and Bannister v. Bowen (1985) 65 A.C.T.R. 3. But it is unnecessary to reach a conclusion on this point. It seems clear that if the conviction were based solely upon the supposed implication from the loading instructions it would be bad. Whether or not the implication we have discussed may properly be made, the failure to make it can as we have said scarcely be criminally reckless. The conviction, however, is supported by findings which amount to this: that the looseness of the parcels in the crate amounted to a reckless breach of the regulations. It appears to us, then, that the practical course is to reconsider the sentence, on the basis that the only criminality was that just mentioned.

The submissions made below on sentence were as follows. His Worship was told that it is "hard to imagine a more serious breach of the law by someone purporting to be an expert in the area" - an odd submission, when one of the alleged breaches was based on a contention not supported here and another depended in part upon a dubious implication from one of the loading requirements. The magistrate was assured that the appellant had been drinking heavily. It was stated that "this case is a case that is being carefully watched by the industry" and the magistrate was invited to take into account published assertions by one Dell - the content of which was not relied on before us - in determining the penalty. Then the contention was made that nothing other than imprisonment would suit the case.

Air safety is, as the prosecutor emphasised below, an important matter but there are serious breaches of air safety requirements and less serious ones. Despite the extravagance of the prosecutor’s submissions, nothing was put before the court to enable the magistrate to determine to what extent it made a practical difference that the crate was not crammed full of the packages or other material, but there was space left so that the packages could move within the crate. Of course, if the crate were roughly handled by airline staff (as sometimes occurs, in relation to items loaded on aircraft) it would not seem to matter much whether the packages inside were loosely or tightly packed together.

The prosecutor explained that the magistrate should "set a sentence that will arouse interest within the industry". The magistrate’s duty was clear: to assess, with such limited assistance as he was given, how serious the offence was and what, in all the circumstances which might properly be taken into account, was the appropriate penalty; whether or not the penalty would arouse interest in the industry, or elsewhere, should not have been a matter which concerned him.

The magistrate’s view was that the appellant had no previous convictions of relevance. As to the potential danger, he remarked:

"Of course there was definitely potential danger, in my view, whether it is as serious as is suggested, I do not really know, and I do not think the evidence indicates to me that it is."

In these circumstances, the reconsidered penalty must be somewhat arbitrary. This Court, like the magistrate, is unassisted by anything placed before the Magistrates Court as to the real dangerousness of what was done by the appellant.

We would allow the appeal and set aside the conviction on count 1. As to count 2, we would set aside the fine of $6,000 imposed below and replace it by a fine of $1,000. We note that the respondent asked for and was granted costs, on the failure of an appeal mistakenly made, relating to these convictions, in the District Court. We would order that the respondent pay the appellant’s costs (if any) of the proceedings in this Court.

REASONS FOR JUDGMENT - FRYBERG J.

Delivered the 8th day of October, 1996

At all material times the appellant was the principal and a director of Dangerous Goods Aviation Consultants Pty Ltd. In that capacity, in early 1995, he consigned certain dangerous goods for carriage by air from Brisbane to Prestwick in Scotland. Regulation 262M(1) of the Civil Aviation Regulations therefore applied to him:

"(1)For the purposes of section 23A of the Act..., a person who consigns cargo for carriage

on board an aircraft must make a written statement that:

(a)states that the cargo does not contain dangerous goods; or

(b)describes the contents of the cargo."

So far as relevant, s.23A of the Civil Aviation Act 1988 provided:

"(3)A person must not ... knowingly or recklessly make a statement that is false or

misleading in a material particular."

In purported compliance with reg.262M, the appellant made a written statement called "Shippers Declaration for Dangerous Goods". By it he declared that the contents of the consignment "are fully and accurately described above by the proper shipping name ...". "Proper shipping name" is a term of art used in the Technical Instructions for the Safe Transport of Dangerous Goods by Air approved and published by the International Civil Aviation Organisation. Those instructions were well-known to and regularly used by the appellant. They are extensively incorporated by reference into the regulations. A table contained in Chapter 11 of the Instructions set out in alphabetical order a list of dangerous goods with the proper shipping name shown in bold type. We were told by counsel for the respondent that the only entries relevant in the present case were:

"Aircraft survival kits, see Life-saving appliances

...

Life-saving appliances, not self-inflating containing dangerous goods as equipment

Life-saving appliances, self-inflating (applies to life-saving appliances that present a hazard if the self-inflating device is activated accidentally)".

The declaration completed by the appellant contained a number of columns. In the column headed "Proper shipping name", the appellant wrote, "Life-saving appliances, self-inflating". In the column headed "Quantity and type of packing" he wrote, "1 x WOODEN CRATE (contains 1 x RFD life raft, 2 x RFD life jackets and miscellaneous survival equipment)".

The goods which the appellant consigned were packed in one wooden crate. It contained a large blue vinyl bag, a smaller yellow self-inflating life raft done up as a parcel and some papers. The blue bag contained two back packs and two self-inflating life jackets. The back packs contained the contents of two survival kits. These included, in the smaller pack, flares, matches and a dixie set with hexamine solid fuel; and in the larger, flares and aerosol packs.

The papers included a letter from the appellant to the consignee, in which the appellant

wrote:

"I trust that these survival kits are returning okay.

I have to remove the self-heating food tins and I really should remove a couple of other items (fireless heater in dixie tin has hexamine tablets, and there should only be 30 matches in kit, but they are well enough packed that I left them in."

That letter was apparently seen by Qantas staff through the side of the case and was removed from it by them. It was undoubtedly the most inflammatory part of the consignment.

In the court below, the prosecution did not furnish the appellant with any particulars of the charge, or if they did, counsel before us was unable to identify them. We were told that the "material particular" in which the declaration was false or misleading was that it did not fully describe the contents of the consignment by the proper shipping name when it declared that it did. It therefore became necessary to identify what goods were not fully described and why.

Unlike Davies and Pincus JJ.A. whose reasons for judgment I have had the benefit of reading in draft, I did not understand counsel for the respondent to contend that the whole consignment, including the self-inflating raft, ought to have been described as "Life-saving appliances, non self- inflating". Perhaps that was because, in the course of the rigorous viva voce examination to which counsel for the respondent was subjected, he was seldom allowed to string more than three sentences together. As I understood the submission, it related to the two back packs containing the survival equipment. The proposition seemed to be that these ought to have been separately listed by the proper shipping name "Life-saving appliances, not self-inflating".

It is apparent from that statement of the prosecution case that no charge could have been sustained on the basis that the declaration was misleading. In this context it must be remembered that what is alleged to have been false or misleading was the declaration that the contents were fully described by the proper shipping name. The potential readers of the document may be assumed to be familiar with the ICAO Technical Instructions. One would not expect them to be misled on this point by the declaration, and the respondent made no attempt to call evidence of industry practice, training levels or anything else tending to show that the declaration had a misleading quality1. Perhaps this was because the document as completed by the appellant was, apart from the declaration, more precise (and arguably, less misleading) than it would have been had it been completed in the manner suggested by the respondent. Whether a statement is misleading is a question of fact, not solely a question of semantics. On the evidence, this one was not misleading in the manner alleged.

The other method by which the respondent could succeed was by proving the declaration was false. That requires it to be shown that upon their proper construction the Technical Instructions forbade the use of the proper shopping name "Life-saving appliances, self-inflating" where the consignment also contained miscellaneous survival equipment. I do not so read the instructions, either in the List of Dangerous Goods or in Packing Instruction 905 to which that List is cross- referenced. The only argument that counsel could address in support of the contrary proposition was that the item had no explicit reference to such appliances as containing anything, in contrast to the item for non-self-inflating appliances. That is an unconvincing argument.

I would add only that I do not think that it would have been misleading to have identified the two back packs in the way contended for by the respondent, that is, as "Life-saving appliances, not self-inflating". The full text of that item in the Technical Instructions makes it clear that it includes appliances containing dangerous goods as equipment. It is true that "appliances" is an inapt word to describe the back packs; but it should be remember we are construing an internationally agreed document, not an Act of the Australian Parliament. The alternative would be to require that each dangerous item be separately listed under some other heading (if there is an appropriate one), a totally unnecessary procedure.

The appeal against conviction should be allowed; the conviction set aside; and in lieu it should be ordered that the complaint be dismissed with costs (if any) to be taxed.

As to the appeal against sentence on the second count, I agree with Davies and Pincus JJ.A. that the sentence must be approached on the basis that the only criminality consisted in the looseness of the back packs inside the crate. Even so, I have great difficulty in seeing how there was a breach of Packing Instruction 905, as the magistrate found. This is particularly so since the magistrate also found that the dangerous goods were more than likely packed tightly enough within the back packs so as to comply with the Instruction. The magistrate made no finding that the looseness of the back packs caused any actual danger, nor was any such finding sought either before him or in this Court. It is difficult to see how such a finding could have been made.

The appellant had no previous convictions and it was not suggested he presented a risk of recidivism. The main reason for the fine of $6,000.00 which the magistrate imposed (half the maximum penalty for the offence) seems to have been deterrence of others. That is a perfectly proper factor to take into account when sentencing, but it must be done in an appropriate case. This was not such a case.

I would allow the appeal, set aside the fine imposed by the magistrate and in lieu thereof impose a fine of $200.00. I would allow the appellant one month to pay.

The respondent should pay the appellant's costs of and incidental to the appeal (if any) to be

taxed.

REASONS FOR JUDGMENT - THE COURT

Judgment delivered 08/10/1996
Further Order delivered 22/10/1996

When judgment was given in this appeal on 8 October 1996 an order was made for costs. Counsel for the respondent has drawn attention to the fact that the costs order was erroneous as being beyond power; it will therefore be deleted.

1Nor was there any evidence that anyone was in fact misled. Mr Steven Hanson, who was employed by Qantas as Freight Operations agent at Brisbane airport, gave evidence that he told the appellant in early February, after Qantas had received the crate, that they (Qantas) were happy with the documentation as it was. There is no evidence that at the time he said that to the appellant he was aware of the contents of the crate. He was not asked if the description misled him.