John William Hogan v Gerard Patrick Comerford
[2002] ACTSC 42
JOHN WILLIAM HOGAN v GERARD PATRICK COMERFORD [2002] ACTSC 42
(23 May 2002)
CATCHWORDS
CRIMINAL LAW – alleged contravention of direction issued by Civil Aviation Authority – whether requirement that aircraft be “inspected” by licensed aircraft maintenance engineer requires actual visual inspection by that person – whether reference to inspection should be construed by reference to Civil Aviation Regulations 1988 – whether inspection carried out by pilot acting upon instructions from the engineer sufficient.
CRIMINAL LAW – requirement that contravention be “without reasonable excuse” – whether onus on Crown or defence – whether s 15D, Crimes Act 1914 (Cth) applicable – need for application of community standards - whether honest mistake as to the nature and extent of the requirement constituted a “reasonable excuse” in the circumstances.
Civil Aviation Regulations1998 (Cth), regs 2, 4, 42ZC(4), 134, schs 5, 6
Crimes Act 1914 (Cth), s 15D
Rook v Maynard(No 2) (1994) 3 Tas R 235
Mark and Ors v Henshaw (1998) 85 FCR 555
Cambridgeshire and Isle of Ely County Council v Rust [1972] 2 QB 426
Broome v Director of Public Prosecutions [1974] AC 587
R v Smith [1974] QB 354
Proudman v Dayman (1941) 67 CLR 536
Life Insurance Co of Australia Ltd v Phillips (1925) 36 CLR 60
NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 509
Neal v Department of Transport (1980) 3 ALD 97
Hope v The Council of the City of Bathurst (1980) 144 CLR 1
Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280
Sharp Corporation of Australia) Pty Ltd v Collector of Customs (1995) 59 FCR 6
APPEAL FROM THE MAGISTRATES COURT
No SCA 88 of 2001
Judge: Crispin J
Supreme Court of the ACT
Date: 23 May 2002
IN THE SUPREME COURT OF THE )
) No. SCA 88 of 2001
AUSTRALIAN CAPITAL TERRITORY )
BETWEEN: JOHN WILLIAM HOGAN
Appellant
AND: GERARD PATRICK COMERFORD
Respondent
ORDER
Judge: Crispin J
Date: 23 May 2002
Place: Canberra
THE COURT ORDERS THAT:
the appeal be upheld;
the conviction, sentence and order for costs be set aside; and
the Information be dismissed.
This is an appeal against a decision of the Chief Magistrate convicting the appellant of an offence that he:
On 16 July 1996 at Canberra [in the Australian Capital Territory] without reasonable excuse contravened a direction, namely the direction given in PERMIT TO FLY S/NOPF 96-010 issued on that date for the flight of aircraft VH-0YY SN 42130312 from Canberra to Bankstown on or before 18 July 1996 that prior to the proposed flight commencing “the aircraft is to be inspected by appropriately rated LAME(S) to such a depth as is necessary to determine the aircraft is fit to fly for the purposes of this permit”.
The essential facts were not in dispute. The aircraft, which was a Cessna 421C, had been operated by ACT Aerial Services Pty Ltd on behalf of the owner and had apparently been based in Canberra. A maintenance release in force for a period of 12 months and authorising the operation of the aircraft for up to 100 hours flying time had recently expired and it was necessary for the aircraft to be taken to Bankstown for servicing. Accordingly, the appellant, who was a director of the company, applied for a permit under reg 134 of the Civil Aviation Regulations1998 (Cth) (‘the Regulations’) enabling the plane to be flown to Bankstown. That permit was duly issued on 16 July 1996 but it was subject to a number of directions, including the following:
Prior to the proposed flight commencing the aircraft is to be inspected by appropriately rated LAME(S) to such a depth as is necessary to determine the aircraft is fit to fly for the purposes of this permit, and ALL Applicable Airworthiness Directive shall be carried out.
Regulation 134(2) of the Regulations then in force authorised the Civil Aviation Safety Authority to give such directions and sub-reg 2(A) provided that a person “must not, without reasonable excuse, contravene a direction”.
The acronym “LAME” refers to a licensed aircraft maintenance engineer. No specialised meaning seems to have been ascribed to the term “depth” and it was presumably used merely as a synonym for “extent”.
Mr Steven Hobson, who was a licensed aircraft maintenance engineer, was approached on the afternoon of 16 July 1996 to conduct the inspection. Mr Hobson was based in Bankstown and did not travel to Canberra for the purpose. He purported to carry out an inspection by various means which included the following:
· inspecting the maintenance records in log books which had been audited by a maintenance controller approved by the Civil Aviation Safety Authority and which contained details of what maintenance was due, how long the engine had to run “while any lifetime components are within their legal operating period”, and what airworthiness directives were required to be complied with by particular dates or flight times;
· speaking to eight members of his staff who had conducted the last maintenance inspection on the aircraft;
· taking into account his knowledge of the history of the aircraft and the manner in which it had been maintained;
· taking into account the fact that whilst the former maintenance release had expired due to the passage of time, that had occurred only about a week earlier and the aircraft had been flown for only 50 or 60 of the 100 hours that had been authorised;
· taking into account the fact that the flight from Canberra to Bankstown was only of about 20 minutes duration.
· making other, albeit unspecified, enquiries about the aircraft by telephone;
· taking into account other directions imposed in relation to the flight; and
· speaking to the pilot, Mr Damon Banks, who had been the last person to fly the aircraft, discussing the condition of the aircraft with him and arranging for him to carry out a series of checks and inspections.
Whilst Mr Hobson’s evidence as to the nature and extent of the discussion with Mr Banks seems to have been limited to the statement that he, “briefed him on a lot of questions as to its current status”, Mr Banks gave evidence that the discussion had related to “any unserviceabilities” or anything that could affect the safety of the flight. Whilst Mr Banks was not a LAME he held a commercial pilot’s license, was a chief flying instructor and an approved test officer holding a delegation from the Civil Aviation Safety Authority (‘the Authority’). He had also completed two years of study in aeronautical engineering. He said that following the discussion Mr Hobson had instructed him to “do a daily inspection and go fly it, take it up”. The requirements for a daily inspection are set out in sch 5 of the Regulations and the matters that are required to be checked or inspected are set out in 22 numbered paragraphs. Mr Banks also carried out what he described as “the normal operations check”. He said that he signed the relevant maintenance release certifying that he had completed the inspection which Mr Hobson had directed him to undertake. When he did so he was satisfied that “the aircraft was fit to fly for the purposes of the Permit”.
Mr Hobson gave evidence confirming that he had issued a maintenance release to certify that he had completed the required inspection prior to flight. He also gave evidence that at the time he did so the aircraft had been, in his opinion, fit to fly.
The appellant duly authorised the pilot to fly the plane to Bankstown and the flight proceeded.
The Crown maintained that whilst the course of enquiries pursued by Mr Hobson may have been prudent, they did not constitute an “inspection” of the kind contemplated by the relevant direction.
The delays in the institution and prosecution of proceedings were not explained. The Information was not laid until 2 October 1998, more than two years after the alleged commission of the offence, the hearing did not commence until 14 January 2000 and was then adjourned to 2 May 2000 when judgment was reserved. Judgment was delivered orally on 26 September 2001 when the Chief Magistrate found the offence proven.
For reasons that remain unexplained, the Chief Magistrate then purported to deliver a further judgment on 30 October 2001, again finding the offence proven. Whilst the appellant may not have been sentenced until that time, no further judgment on the issue of whether the appellant had committed the offence had been foreshadowed in the earlier oral judgment and the later judgment did not refer to the earlier one. Neither counsel was able to offer any explanation for the delivery of the second judgment and it appears that his Worship may have simply forgotten that he had already given judgment orally. Whatever the reason it was common ground his Worship had become functus officio upon the delivery of the first judgment and that, for the purpose of the appeal, the second judgment should be ignored.
Proceedings in this Court were delayed by successive amendments to the Notice of Appeal and a delay in settling the appeal papers which were lodged only on 29 April 2002. The appeal was heard on 13 May 2002.
Whilst there may have been reasons for the earlier delays which did not emerge in argument it is a matter of concern that an allegation of an offence of contravening a direction of the Civil Aviation Safety Authority intended to ensure public safety should not be resolved, even at first instance, for more than five years after the incident in question.
The appellant, who had been unrepresented in the proceedings before the Chief Magistrate, apparently argued that the Court had lacked jurisdiction and that a number of the relevant statutes had been invalid. His Worship rightly dismissed those arguments and, since Mr Pappas, who appeared for the appellant on the appeal, made no attempt to pursue them, it is unnecessary to describe them in any detail. More relevantly, his Worship said that the nature of the inspection required by the direction was the key issue in the case and, after adverting to the need to ensure public safety, found that a personal and physical inspection by the LAME was required. The other actions taken by Mr Hobson to satisfy himself of the airworthiness of the aircraft did not satisfy that description.
His Worship dealt with the issue of whether any such contravention had occurred “without reasonable excuse” substantially in the following passage.
This is not a case, in my view, where the operation of honest and reasonable mistake of fact can really operate, it seems to me that Mr Hogan was quite clear that he would fly the aircraft, and he did what had to be done, and was quite clear that he was relying upon the arguments I’ve mentioned before flying the aircraft. In my view that’s not open to be an honest and reasonable mistake of fact. Equally, I don’t believe that the concept of reasonable excuse is open. In this particular case it’s clear that Mr Hogan put into place a series of actions that clearly was intended to happen without Mr Hobson for various logistical reasons able to be personally present to inspect it. So he was quite clear about what he was doing, and had in fact set upon that course and arranged for the aircraft to be flown for maintenance without a physical inspection occurring.
Accordingly, he found the offence proven and subsequently proceeded to convict.
Mr Pappas submitted that the learned Magistrate had fallen into error in construing the relevant direction without regard to the terms of the Civil Aviation Regulations pursuant to which it had been given. He pointed out that sub-reg 42ZC(4) provided inter alia, that subject to sub-reg 5 a person might carry out maintenance on class B aircraft in Australian Territory if the person did so under the supervision of another person who held an Aircraft Maintenance Engineer License covering the maintenance and was permitted by par (a) or (b) of the sub-regulation to carry out the maintenance.
It was conceded that the aircraft to which the direction was related was a class B aircraft and it was not disputed that Mr Hobson fell within the description of a person entitled to provide supervision as envisaged in sub-reg 4.
The term “maintenance” was defined by reg 2 in terms which included “an inspection for the purpose of ascertaining whether the aircraft is in a fit state for flying”. Schedule 6 of the Regulations also provided, inter alia, that maintenance performed by a person permitted by sub-reg 42ZC(4) to carry out maintenance under the supervision of a suitably licensed and authorised aircraft maintenance engineer such as Mr Hobson should be taken to have been performed by the person who supervised the maintenance.
Hence, as Mr Pappas pointed out, the Regulations clearly contemplated that inspections to determine whether an aircraft was in a fit state to be flown need not involve a visual inspection by the relevant engineer but could be carried out by someone else acting under his or her supervision. Even if the provisions to which I have referred did not have a direct application to the directions issued pursuant to reg 134, there is no reason to suppose that in using the term “inspection” the Authority was intending to exclude modes of inspection normally recognised by the Regulations.
Mr White, who appeared for the respondent, argued that both the etymology of the word and its current usage clearly suggested that an actual visual examination was required. I accept that submission. However, in interpreting a direction issued by the Authority it is, in my opinion, necessary to consider the regulatory context in which the Authority operated and within which the direction was issued. Within that context it is clear that inspections carried out for the purpose of determining whether aircraft were fit to fly could be carried out by people working under the supervision of a suitably certified engineer and that such an inspection would be taken to be an inspection by the engineer.
It is true, of course, that the Authority’s power to issue directions was not constrained by the provisions of reg 42ZC or sch 6 and it would have been open to the Authority to have issued a direction requiring personal inspection by the engineer. However, in the absence of any explicit statement to that effect, there is no reason to suppose that the Authority did not intend the word “inspection” to embrace the modes of inspection normally authorised by the Regulations. Nor, conversely, is there any reason to suppose that people such as the appellant, who were working within the industry and were presumably conversant with the regulatory scheme for the maintenance of the aircraft they operated, would have interpreted it in any other way.
It is clear that in addition to making inquiries of his own, Mr Hobson gave the pilot specific instructions as to the inspection that he should carry out and did so only after discussing the condition of the aircraft with him. It is also clear that the pilot duly carried out those instructions. In these circumstances, I am obliged to conclude that the evidence did not prove beyond reasonable doubt that what was done was insufficient to constitute an “inspection” as required by the direction. The direction did not convey any specific statement as to the nature and extent of the inspection required. It stated only that the LAME should carry out such inspection as was necessary to determine that the aircraft was fit to fly. The Authority obviously intended to leave it to the LAME to determine what inspection was necessary and how it should be carried out.
His Worship assumed, in my view rightly, that the Authority should be taken to have been concerned to avoid any reduction in safety standards and would not have intended to leave open the “possibility of all sorts of interpretations and loose arrangements about inspections of aircraft for such purposes”. However, that consideration does not warrant a conclusion that the Authority had intended to impose requirements for the inspection of this aircraft more stringent than those that would normally have been required by the Regulations. Those Regulations imposed specific requirements as to the nature and extent of the inspections required and as to who could carry them out. There is no reason to suppose that construing words or phrases in directions by reference to the manner in which the same words or phrases were used in the Regulations would lead to a profusion of interpretations or loose arrangements. Nor is there any reason to suppose that the construction of directions by reference to the Regulations would create an unacceptable risk to public safety.
Furthermore, whilst the regulations clearly assumed that the LAME would assume overall responsibility for the inspection and there was no power of delegation, there may have been sound reasons for the provision in reg 42ZC enabling the LAME to have maintenance work, including inspection, carried out by others working under his or her supervision. In some cases a visual inspection by the LAME would presumably do nothing to resolve doubts about the aircraft’s airworthiness. In an increasingly technological age it will obviously be necessary for even an aircraft engineer to sometimes rely on the expert opinion of those in other professional fields. Concerns about the risk of “metal fatigue” in critical components might require x-ray examination by a metallurgist, concerns about electrical systems might require appraisal by electrical engineers and concerns about malfunctions in various computer based applications might require investigation by computer engineers. Other problems might require chemical or other scientific analysis. There may be many circumstances in which the LAME could learn nothing by personally making a visual inspection of the aircraft. There may be other circumstances in which the nature of the problem would not require his or her personal appraisal. For example, a LAME might reasonably conclude that someone acting under his or her instructions could adequately ensure that a cracked windscreen had been repaired, tyres had been replaced and the correct decals had been fixed to wings and fuselage. The Regulations appear to have envisaged that the LAME would be entitled to determine what work or inspection should be undertaken personally and what might be undertaken by others working under his or her instruction. In the present case, of course, it was not suggested that the aircraft had any defect at all. It required servicing only because the period of time covered by the previous maintenance release had elapsed. In any event, the nature and extent of any inspection required was a matter for the judgment of a suitably qualified expert such as Mr Hobson.
I am satisfied that his Worship fell into error by failing to consider the regulatory context within which the direction was issued and by construing the direction by reference to an assumption that, notwithstanding Mr Hobson’s expert opinion to the contrary, public safety could have been ensured only by personal, visual inspection by a LAME. The evidence did not, in my view, establish that there had been a contravention of the direction.
I am also satisfied that his Worship fell into error in finding that there had been no scope for acquittal on the ground that any such contravention had not been without reasonable excuse.
Mr White submitted that the onus of establishing a reasonable excuse rested upon the appellant by virtue of s 15D of the Crimes Act 1914 (Cth). He suggested that there was an apparent conflict of authority: the contention that a defendant bore the onus of proof on such an issue was supported by Zeeman J in Rook v Maynard(No 2) (1994) 3 Tas R 235 at 237-8, but a contrary view was taken by a Full Court of the Federal Court of Australia in Mark and Ors v Henshaw (1998) 85 FCR 555. He submitted, however, that the Full Court had apparently overlooked the provisions of s 15D and that the decision was per incuriam.
It should be noted, however, that the decisions to which he referred related to different phrases. In Rook v Maynard the relevant question was whether the term “lawful authority” in s 15D extended to a provision in which the word “authority” was used without the qualifying adjective. In Mark v Henshaw, as in the present case, the relevant term was not “authority” but “reasonable excuse”. The judgment in Rook v Maynard did not address any issue as to whether the reference in s 15D to “lawful excuse” extended to a provision in which the word “excuse”, was qualified by the adjective “reasonable” rather than the adjective “lawful”.
The distinction may be of considerable importance because it is has been held that to establish a “lawful excuse” an accused must show that he or she honestly believed on reasonable grounds that the facts were of a certain order and that, if they had been, his or her conduct would have been lawful. See: Cambridgeshire and Isle of Ely County Council v Rust [1972] 2 QB 426, see also Broome v Director of Public Prosecutions [1974] AC 587; R v Smith [1974] QB 354. On the other hand, whilst not specifically adverting to s 15D, the Full Court said in Mark v Henshaw at 558:
. . . the critical issue in determining whether the appellants entered upon the premises of Parkwood Eggs with a reasonable excuse is not the appellants’ belief or their state of mind. Whilst both factors are relevant it may afford some assistance to the trier of fact, the final answer will always come from an objective assessment of the particular facts of each case; that assessment requires a consideration of not merely the trespassers’ beliefs and state of mind: it requires the application of community standards. In particular it requires the trier of fact to determine whether the trespassers’ conduct is acceptable to the community.
The distinction between the concept of a “reasonable excuse” and that of a “lawful excuse” may explain why the Full Court did not advert to s 15D. In any event, the Full Court explicitly held that the onus rested upon the Crown to disprove, beyond reasonable doubt, the existence of any reasonable excuse. Despite Mr White’s careful submissions, I am not satisfied that the decision was per incuriam and, at least in the absence of such a finding, I am plainly bound to follow the Full Court’s decision. Accordingly, I find that the onus rested upon the Crown to prove the absence of any reasonable excuse advanced by the appellant for any contravention of the direction.
His Worship did not seem to appreciate that it had been incumbent upon the prosecution to prove beyond reasonable doubt that the appellant had acted without reasonable excuse. If I may say so with respect, his Worship also seemed to confuse the concept of reasonable excuse either with the concept of lawful excuse or with what is colloquially referred to as a “Proudman v Dayman defence”: see Proudman v Dayman (1941) 67 CLR 536. Such a defence arises when an accused establishes that he or she acted under an honest and reasonable mistake of fact and that had the relevant fact or circumstance been as he or she perceived it to be, no offence would have been committed. The distinction between these concepts was significant because the principle recognised by the High Court in Proudman v Dayman extends only to mistakes of fact whilst, in the present case, the Crown contended that any error that may have been made by the appellant was one of law.
I must say that I am not persuaded that even this submission was soundly based. The ordinary or non-technical meaning of a word or phrase is usually a question of fact: see, for example, Life Insurance Co of Australia Ltd v Phillips (1925) 36 CLR 60 at 78; NSW Associated Blue-Metal Quarries Ltd v Federal Commissioner of Taxation (1956) 94 CLR 509 at 512 and Neal v Department of Transport (1980) 3 ALD 97 at 107-108. It is true that the question of whether conduct falls within a statutory test is generally a question of law: see, for example, Hope v The Council of the City of Bathurst (1980) 144 CLR 1 at 7 and Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 43 FCR 280 at 286-8. However, in Sharp Corporation of Australia) Pty Ltd v Collector of Customs (1995) 59 FCR 6 it was held that the meaning of an ordinary word used in an ordinary sense in a statute was primarily a question of fact.
In any event, in my opinion, the concept of a “reasonable excuse” is not so confined and the question of whether the prosecution had discharged the burden of proof on this issue should have been determined by reference to the test posited in Mark v Henshaw. The evidence did not prove to the requisite standard that the appellant had not acted in the genuine belief that the inspection required by the direction could be carried out in the same way as other inspections required by the Regulations. Indeed, having regard to his involvement in the aviation industry and the fact that Mr Hobson, who was a licensed aircraft maintenance engineer, apparently shared that view, it is overwhelmingly likely that he did hold such a belief. An honest mistake of that kind made by a person who had sought to have the aircraft duly serviced, obtained the necessary permit and acted on the advice of a licensed expert could, in my opinion, constitute a reasonable excuse compatible with accepted community standards.
Accordingly, even if, contrary to my opinion, there was a contravention of the direction, the appellant should have been acquitted on the ground that the Crown had failed to prove that he had acted without reasonable excuse.
For these reasons the appeal must be upheld.
Mr Pappas also argued that the Chief Magistrate had fallen into error by failing to provide adequate reasons. However, it is unnecessary to consider this ground of appeal.
I will hear counsel as to costs.
I certify that the preceding thirty-eight (38) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Crispin.
Associate:
Date: 23 May 2002
Counsel for the appellant: Mr J Pappas
Solicitor for the appellant: John Nicholl & Co
Counsel for the respondent: Mr J White
Solicitor for the respondent: Commonwealth Director of Public Prosecutions
Date of hearing: 13 May 2002
Date of judgment: 23 May 2002
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