Farquharson v Byers
[2005] WASC 187
FARQUHARSON -v- BYERS [2005] WASC 187
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2005] WASC 187 | |
| Case No: | SJA:1003/2005 | 26 JULY 2005 | |
| Coram: | EM HEENAN J | 26/07/05 | |
| 6 | Judgment Part: | 1 of 1 | |
| Result: | Appeal allowed Conviction set aside, charges remitted for further consideration | ||
| B | |||
| PDF Version |
| Parties: | TERRY FARQUHARSON IAN HAROLD BYERS |
Catchwords: | Appeal Civil aviation Recklessness Safe outcome of challenged manoeuvre not itself determinative of lack of recklessness Remitted for further determination |
Legislation: | Civil Aviation Act 1988 Civil Aviation Regulations 1988 Criminal Appeals Act 2004 Criminal Code Act 1995 |
Case References: | Fitzgerald v Hazlen, unreported; SCt of SA; 29 November 1996 Hann v Commonwealth DPP [2004] SASC 86; 88 SASR 99 R v Crabbe (1985) 156 CLR 464 R v Kitchener [1993] 29 NSWLR 696 R v Moore [1954] NZLR 893 Young v Paddle Bros Pty Ltd [1956] VLR 38 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CIVIL
- Appellant
AND
IAN HAROLD BYERS
Respondent
ON APPEAL FROM:
Jurisdiction : COURT OF PETTY SESSIONS
Coram : MR R H BURTON SM
File No : PE 17105 of 2004
Catchwords:
Appeal - Civil aviation - Recklessness - Safe outcome of challenged manoeuvre not itself determinative of lack of recklessness - Remitted for further determination
Legislation:
Civil Aviation Act 1988
Civil Aviation Regulations 1988
(Page 2)
Criminal Appeals Act 2004
Criminal Code Act 1995
Result:
Appeal allowed
Conviction set aside, charges remitted for further consideration
Category: B
Representation:
Counsel:
Appellant : Mr D W L Renton
Respondent : Mr B C Sierakowski
Solicitors:
Appellant : Commonwealth Director of Public Prosecutions
Respondent : Brian C Sierakowski
Case(s) referred to in judgment(s):
Fitzgerald v Haslam, unreported; SCt of SA; Library No 55905; 29 November 1996
Case(s) also cited:
Hann v Commonwealth DPP [2004] SASC 86; 88 SASR 99
R v Crabbe (1985) 156 CLR 464
R v Kitchener [1993] 29 NSWLR 696
R v Moore [1954] NZLR 893
Young v Paddle Bros Pty Ltd [1956] VLR 38
(Page 3)
1 EM HEENAN J: This is an appeal from a decision of his Worship Mr R H Burton in the Court of Petty Sessions at Perth on 16 December 2004 when his Worship dealt with two charges laid by the appellant against the respondent alleging breaches of the Civil Aviation Regulations 1988 of the Commonwealth.
2 The first charge was that on or about 31 June 2002 between Forest and Kalgoorlie contrary to s 29(3) of the Civil Aviation Act 1988 ("the Act") the respondent contravened s 20A(1) in that he operated an aircraft, being reckless as to whether the manner of the operation could endanger the life of another person. For reasons which he gave, the learned Magistrate dismissed that charge and I shall refer to that as the recklessness charge.
3 The second charge framed additionally or alternatively was that the respondent flew an aircraft over an area at a height lower than 500 feet contrary to reg 157(1)(b) of the Civil Aviation Regulations 1988. This is what I will call the low-flying charge. The learned Magistrate convicted the respondent of that charge and there is no appeal from that conviction.
4 The appeal presently before the Court is by the prosecution for the dismissal of the recklessness charge. The grounds of the appeal in respect of which leave was granted by McKechnie J on 4 February 2005 are that the learned Magistrate erred in fact and law in the application of the meaning of recklessness in s 5.4 of the Criminal Code (Cth)of the facts of this case.
5 The proposition that the learned Magistrate misapplied the law in relation to the test of recklessness comes down to a challenge to the finding made on the last page of the reasons for decision which appear at page 32 of the appeal book, namely, that the fact that the defendant landed safely, proved that he had not flown an aircraft in a reckless manner so as to be likely to endanger human life.
6 The allegation against the respondent was that in the course of an aircraft flight from Nullarbor to Kalgoorlie he had flown consistently below 500 feet and on two occasions along the railway line across the Nullarbor Plain had buzzed a train, on one occasion a stationary train, on the second occasion a moving train, and that he had also flown in close proximity to some pylons standing above the ground.
7 The learned Magistrate concluded that, for most of the journey, flying under 500 feet was carried out due to stress of weather and that on the balance of probability the respondent had believed that higher head
(Page 4)
- winds prevailing during the course of the flight would result in him being short of fuel and endanger his safe arrival at his destination in Kalgoorlie. The learned Magistrate made a finding that the apprehended shortage of fuel due to higher than expected winds amounted to a stress of weather within the meaning of the legislation and that the five knots of greater than anticipated head winds satisfied this test. There was also a finding that on, arrival at Kalgoorlie, the respondent only had the reserve fuel left, implying another justification for the conclusion about the apprehended shortage of fuel.
8 Those conclusions to my mind indicate that, generally speaking, the learned Magistrate considered that flying at under 500 feet for this flight was acceptable. However, in relation to the episode where the defendant buzzed the two trains and several pylons, coming very close to each, the learned Magistrate rejected the reckless charge, on the basis that the safe performance of the manoeuvres indicated that the respondent had not flown an aircraft in a reckless manner so as to be likely to endanger human life.
9 The learned Magistrate found justification for that conclusion in the decision of Bollen J in Fitzgerald v Haslam, unreported; SCt of SA; Library No 55905; 29 November 1996 which dealt with provisions of the Civil Aviation Act 1988 which are not directly applicable in this case.
10 Reference to the test for recklessness, now to be found in s 5.4 of the Criminal Code requires a court dealing with a charge involving recklessness in respect to the circumstance to consider, "whether or not the person charged is aware of a substantial risk that the circumstance exists or will exist and, having regard to such circumstances known to him or her, it is unjustifiable to take the risk". I am satisfied that the learned Magistrate's decision specifically attended to those two aspects of the requirement of recklessness. However, the section goes on to say that the question of whether taking a risk is unjustifiable is one of fact and I accept the submissions for the appellant in this case that the learned Magistrate failed to have regard to whether or not, notwithstanding the safe outcome, the performance of these manoeuvres was nevertheless an engagement in an unjustifiable risk.
11 For that reason I am satisfied that the decision made by the learned Magistrate with respect to the charge of recklessness did not fully or correctly apply and evaluate the test for recklessness at law prescribed by the statute. For that reason I consider that the appeal should be allowed and that the case should be remitted to the learned Magistrate for further
(Page 5)
- consideration in the light of these reasons in order to determine whether or not, notwithstanding that the manoeuvres were in fact safely performed, they were nevertheless reckless.
12 That leaves the question of the significance of the conviction for the low-flying charge. This has not been directly the subject of any appeal or cross-appeal in these proceedings, yet it seems to me to be evident from the decision reached by the learned Magistrate that, notwithstanding his conclusion on the erroneous basis for the test of recklessness which was applied that that low-flying charge should have been dismissed. His Worship nevertheless concluded that, at least in relation to these manoeuvres concerning the trains and the pylons, flying lower than 500 feet was not justified either at all or because of the stress of weather defence.
13 The conviction which was imposed for flying lower than 500 feet in the vicinity of the trains and the pylons therefore seems to reflect a sense of disapproval by the learned Magistrate, perhaps well justified, that flying so low in the vicinity of the trains and the pylons was unacceptable. That does not square with the conclusion that flying for lower than 500 feet throughout the length of the journey because of the stress of weather was justifiable. It seems to me that to let that conviction stand in circumstances where the case is being remitted for further consideration which might - not necessarily must - result in a conviction on the recklessness charge would be wrong because, in one way, the conviction for the low-flying offence appears to be the product of a sense of disapproval of low-flying in the vicinity of the trains and the pylons.
14 I have had some hesitation as to whether or not I should order that that conviction should be set aside and the low-flying charge should be dismissed, leaving only the recklessness charge for further reconsideration, or whether I should simply set aside the conviction for low-flying and order that both charges be remitted for further consideration. I appreciate that in contemplating these orders I am embarking on the consideration of a conviction which was not specifically the subject of any appeal, but under s 14(1) of the Criminal Appeals (Act) 2004 this Court has the power to make any order it thinks fit on this appeal.
15 I have reached the conclusion that the conviction the low-flying charge in this case really represents a conclusion by the learned Magistrate that the particular low-flying in the vicinity of the trains and the pylons was not justified by stress of weather although it was not
(Page 6)
- reckless. I am not satisfied that that conviction must stand if there is potential for the charge of recklessness to result in a conviction, although there is the possibility that there could be two convictions.
16 In all the circumstances I think it best to order that the conviction for the low-flying offence should also be set aside and that that charge as well should be remitted for further consideration together with the recklessness charge. On that reconsideration, depending upon the details of the submissions made for the prosecution and for the defendant, it will then be necessary to consider whether there could or should be a conviction for one or both of the charges. If there is a conviction for both of the charges attention will need to be given to whether or not there should only be one penalty because the acts or omissions giving rise to both offences are essentially the same.
17 I am not able to say on the basis of the findings made in the reasons for decision of the learned Magistrate in this case whether or not there could, or could not, be two convictions or whether or not there must only be one penalty in the event that there are two convictions. Those are matters which I think can only be fully addressed once there has been a proper determination of whether or not the respondent acted recklessly as charged and then having regard to the basis upon which he so acted.
18 For those reasons therefore I will allow the appeal and the orders will be that the dismissal of the charge of recklessness should be set aside and that that charge should be remitted to the learned Magistrate for further consideration according to law, having regard to these reasons. Additionally I will order that the conviction for the low-flying offence shall be set aside and that that charge shall be remitted for further consideration by the learned Magistrate, having regard to these reasons, and the outcome, once it is eventually reached, of the charge for recklessness. Any penalty or orders made in respect to the low-flying charge should be set aside without prejudice to the right of the learned Magistrate to impose that or any other penalty in the event that he decides that that charge has been established.
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