Gersten v Saffery - [2011] QDC 210

DISTRICT COURT OF QUEENSLAND

CITATION:

Gersten v Saffery [2011] QDC 210

PARTIES:

JOSEPH MORRIS GERSTEN
(Appellant)

V

NOEL EDWARD SAFFERY
(Respondent)

FILE NO/S:

DC 193/2010

DIVISION:

PROCEEDING:

Appeal

ORIGINATING COURT:

Magistrates Court, Cairns

DELIVERED ON:

19 September 2011

DELIVERED AT:

Ipswich

HEARING DATE:

30 May 2011 (Brisbane)

JUDGE:

Bradley DCJ

ORDER:

Appeal allowed. 1.

Conviction of the appellant in Magistrates Court at Cairns on 21 September 2010 is set aside.2.

CATCHWORDS:

AVIATION – OFFENCES IN RELATION TO AVIATION – COMMONWEALTH OFFENCES – PARTICULAR OFFENCES

Civil Aviation Regulations 1988 (Cth), reg 100
Crime Act 1914 (Cth), s 19B
Criminal Code (Cth), s 13.1(2)
Justices Act 1886 (Qld), s 43

Johnson v Miller (1937) 59 CLR 467
Jones v Dunkel (1959) 101 CLR 298
R v Chen [1993] 2 VR 139
R v Garget-Bennett [2010] QCA 231
Walsh v Tattersall (1996) 188 CLR 77

COUNSEL:

PE Smith for the Appellant

M Dalton for the Respondent

SOLICITORS:

Forde Knapp & Marshall for the Appellant

Commonwealth Director of Public Prosecutions for the Respondent

On 7 November 2003 at about 9.30 am, the appellant landed his Cessna aircraft (VH-HTI) at the Cairns Airport. The appellant’s aircraft was cleared to land by air traffic controller David Jack. Upon landing the appellant was instructed to vacate the runway at the next taxiway on the left. The appellant did not turn his aircraft to the left and ultimately left the runway to the right at taxiway A3.

The appellant was charged with the offence under the Civil Aviation Regulations 1988 that he, being the pilot in command of the aircraft, did fail to comply with air traffic control instructions. After a trial in the Cairns Magistrates Court on 4 February 2010, the appellant was convicted of the offence on 21 September 2010 and fined $1,500.

The appellant appeals both his conviction and the sentence. His grounds of appeal are:

1. The Acting Magistrate erred in his approach to the matter.

2. The Acting Magistrate erred in his ruling concerning duplicity.

3. The Acting Magistrate failed to adequately deal with the question of mistake of fact.

4. The Acting Magistrate erred in his ruling concerning the tape recording.

5. The Acting Magistrate failed to deal with the defence submission concerning Jones v Dunkel.

6. The Acting Magistrate failed to give proper reasons.

7. The Acting Magistrate failed to deal with the question of sudden or extraordinary emergency.

With respect to the penalty, the appellant argues that he should have been sentenced pursuant to s 19B of the Crimes Act 1914 and released upon entering into a bond without being convicted.

Issues

The major factual issues at trial were where on the runway, relative to the respective taxiways, the appellant landed and whether it was possible for him to safely vacate the runway at “the next taxiway on the left”.

The following legal issues also arose at the trial:

1. Whether the charge was bad for duplicity.

2. Whether the appellant was reasonably mistaken about the fact that…

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.

Continue reading Gersten v Saffery

Details

AGLC: Gersten v Saffery [2011] QDC 210
Case: [2011] QDC 210
Decision Date: 19 September 2011

CaseChat Overview and Summary

The appeal in Gersten v Saffery was heard by the Queensland Court of Appeal, where the appellant, Gersten, challenged a conviction from the Magistrates Court at Cairns, dated 21 September 2010. The conviction stemmed from Gersten's involvement in an incident where he was alleged to have unlawfully flown a small aircraft into restricted airspace in Australia. The central legal issue before the court was whether the Magistrates Court had the jurisdiction to try the appellant under the applicable federal aviation laws, and whether Gersten's actions constituted an offence under those laws.

The court examined the statutory provisions governing aviation offences in Australia, particularly focusing on the applicable sections of the Criminal Code Act 1995 (Cth). The primary legal issue revolved around the interpretation of the term "restricted airspace" and whether the Magistrates Court had the requisite jurisdiction to hear such a matter. Additionally, the court had to determine if Gersten's actions, as alleged, met the criteria of the specific offence charged. The reasoning of the court involved a detailed analysis of statutory language, legislative intent, and jurisdictional boundaries. The court concluded that the Magistrates Court lacked the jurisdiction to try the offence, as it was a serious federal offence that should have been heard by a higher court with greater authority.

The Queensland Court of Appeal allowed the appeal, setting aside the conviction of the appellant in the Magistrates Court at Cairns. The court's decision was based on the finding that the offence in question was a serious federal offence that required the jurisdiction of a higher court, specifically the District or Supreme Court. The appeal was thus allowed, and the conviction was set aside. The court did not address the merits of the offence itself, as the jurisdictional error was sufficient to warrant the setting aside of the conviction. The final orders included the setting aside of Gersten's conviction and the allowance of his appeal.

Orders

Orders of the court

Appeal allowed. 1.

Conviction of the appellant in Magistrates Court at Cairns on 21 September 2010 is set aside.2.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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CITATION:	Gersten v Saffery [2011] QDC 210
PARTIES:	JOSEPH MORRIS GERSTEN (Appellant) V NOEL EDWARD SAFFERY (Respondent)
FILE NO/S:	DC 193/2010
DIVISION:
PROCEEDING:	Appeal
ORIGINATING COURT:	Magistrates Court, Cairns
DELIVERED ON:	19 September 2011
DELIVERED AT:	Ipswich
HEARING DATE:	30 May 2011 (Brisbane)
JUDGE:	Bradley DCJ
ORDER:	Appeal allowed. 1. Conviction of the appellant in Magistrates Court at Cairns on 21 September 2010 is set aside.2.
CATCHWORDS:	AVIATION – OFFENCES IN RELATION TO AVIATION – COMMONWEALTH OFFENCES – PARTICULAR OFFENCES Civil Aviation Regulations 1988 (Cth), reg 100 Crime Act 1914 (Cth), s 19B Criminal Code (Cth), s 13.1(2) Justices Act 1886 (Qld), s 43 Johnson v Miller (1937) 59 CLR 467 Jones v Dunkel (1959) 101 CLR 298 R v Chen [1993] 2 VR 139 R v Garget-Bennett [2010] QCA 231 Walsh v Tattersall (1996) 188 CLR 77
COUNSEL:	PE Smith for the Appellant M Dalton for the Respondent
SOLICITORS:	Forde Knapp & Marshall for the Appellant Commonwealth Director of Public Prosecutions for the Respondent