Hollis v Rogers - [2016] ACTSC 56

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	Hollis v Rogers
Citation:	[2016] ACTSC 56
Hearing Date:	21 October 2015
DecisionDate:	8 April 2016
Before:	Burns J
Decision:	The appeal is dismissed.
Catchwords:	AVIATION – Offences in Relation to Aviation – performing applicable safety sensitive aviation activity (SSAA) while showing positive result for a confirmatory alcohol test – appeal from Magistrates Court – appellant was performing or available to perform a SSAA – interval between initial and confirmatory test – reasonable doubt about the accuracy of the test results – discretion to record a conviction – appeal dismissed.
Legislation Cited:	Civil Aviation Act 1988 (Cth) ss 33, 34, 36 Civil Aviation Safety Regulations 1998 (Cth) regs 99.010, 99.015, 99.115, 99.020, 99.250, 99.255, 99.280, 99.285, 99.305, 99.375 Crimes Act 1914 (Cth) s 19B Magistrates Court Act 1930 (ACT) ss 208, 214
Cases Cited:	Commissioner of Taxation v Baffsky (2001) 192 ALR 92 Fox v Percy (2003) 214 CLR 118 House v The King (1936) 55 CLR 499 Theodorelos v Nexus Products Pty Ltd [2009] ACTSC 149
Parties:	David Hollis (Appellant) Darren Rogers (Respondent)
Representation:	Counsel Mr C McKeown (Appellant) Mr A Williams (Respondent)
Solicitors Canberra Chambers (Appellant) Commonwealth Director of Public Prosecutions (Respondent)
File Number:	SCA 43 of 2015
Decision under appeal:	Court/Tribunal: ACT Magistrates Court Before: Chief Magistrate Walker Date of Decision: 1 May 2015 Case Title: Rogers v Hollis Court File Number: CC14/40592

BURNS J:

The appellant was formerly employed by Virgin Australia Airlines as a pilot. He flew from the Gold Coast to Canberra on 10 August 2013 and spent the night in Canberra. On 11 August 2013, he was rostered to fly a commercial passenger flight between Canberra, Brisbane and Townsville with up to 96 passengers on board. After arriving at Canberra Airport on the morning of 11 August 2013, he was approached by a representative of the Civil Aviation Safety Authority (CASA) and was required to undergo an initial breath test. Regulation 99.375 of the Civil Aviation Safety Regulations 1998 (Cth) (the Regulations) prohibits a person from performing or being available to perform a Safety Sensitive Aviation Activity (SSAA) where the person, after testing as set out in the Regulations, has an alcohol level of 0.02 grams or more of alcohol per 210 litres of breath. The initial test undertaken by the appellant was positive, and a subsequent confirmatory test revealed an alcohol level of 0.059 grams of alcohol per 210 litres of breath.

The appellant was charged by way of summons with an offence contrary to reg 99.375 in the following terms:

On 11 August 2013, at Canberra airport in the Australian Capital Territory David John Hollis [redacted for legal reasons], while performing or being available to perform a safety sensitive aviation activity, namely activities undertaken by a member of the crew of an aircraft in the course of the person’s duties as a crew member, gave a body sample for an initial alcohol test under subpart 99.C of the Civil Aviation Safety…

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

AGLC: Hollis v Rogers [2016] ACTSC 56
Case: [2016] ACTSC 56
Decision Date: 8 April 2016

CaseChat Overview and Summary

The case of Hollis v Rogers involved the appellant, who was found to have tested positive for alcohol while performing a safety sensitive aviation activity (SSAA). The decision was made in the Magistrates Court, with the appellant subsequently appealing the decision. The primary legal issue that the court had to address was whether there was a reasonable doubt about the accuracy of the confirmatory alcohol test results, given the interval between the initial and confirmatory tests. The court also had to consider the appropriate use of discretion in recording a conviction in such cases.

The court examined the evidence presented, including the interval between the two tests and the potential for degradation of alcohol in the sample. The court found that there was no reasonable doubt about the accuracy of the test results and that the appellant's actions constituted an offence under the applicable legislation. The court held that the interval between the initial and confirmatory tests did not undermine the reliability of the results. In exercising its discretion, the court determined that recording a conviction was appropriate given the nature of the offence and the importance of maintaining safety standards in aviation.

The appeal was dismissed by the court, affirming the decision of the Magistrates Court. The court upheld the conviction and found no grounds to overturn the original decision. The appellant's argument regarding the interval between tests and the potential for alcohol degradation was rejected, and the conviction was maintained. The final orders of the court were to dismiss the appeal, leaving the conviction intact.

Orders

Orders of the court

The appeal is dismissed.

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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