Lustig v R - [2009] NSWCCA 143

No judgment structure available for this case.

New South Wales
Court of Criminal Appeal

CITATION: Lustig v Regina [2009] NSWCCA 143

HEARING DATE(S): 17 April 2009

JUDGMENT DATE:
15 May 2009

JUDGMENT OF: Giles JA at 1; Grove J at 80; Hall J at 81

DECISION: Conviction quashed. New trial ordered.

CATCHWORDS: Criminal law - charge of doing act interfering with crew member of aircraft - common ground that meant interference with performance of crew member's duties - Crown relied on course of conduct - particular reference to three episodes in conduct - whether capable of interfering with crew member - could do so although no physical impedence - two episodes could interfere with crew member, third could not - difficulty flowing from reliance on course of conduct - need for careful explanation to jury - real risk that jury would understand that could convict if satisfied of third episode alone - open to convict on basis of other episodes - not appropriate to apply proviso - conviction quashed, new trial ordered.

CATEGORY: Principal judgment

CASES CITED: Cesan v The Queen [2008] HCA 52; (2009) 250 ALR 192;
Johnson v Miller (1937) 59 CLR 467;
R v Abusafiah (1991) 24 NSWLR 531;
R v Button and Griffen [2002] NSWCCA 159; (2002) 129 A Crim R 242;
R v Galvin (1998) 102 A Crim R 568;
R v ITA [2003] NSWCCA 174; (2003) 139 A Crim R 340;
R v Saengsi-Or [2004] NSWCCA 108; (2004) 61 NSWLR135;
Stanton v Abernathy (1990) 19 NSWLR 656;
Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300;

PARTIES: Peter Simon Lustig - Appellant
The Crown - Respondent

FILE NUMBER(S): CCA 2007/14927

COUNSEL: O P Holdenson QC & A H Swanwick - Applicant
W Abraham QC - Crown

SOLICITORS: Mr Simon Lustig, Gardenvale, Victoria - Applicant
Commonwealth Director of Public Prosecutions, Sydney - Crown

LOWER COURT JURISDICTION: District Court

LOWER COURT FILE NUMBER(S): DC 07/11/0505

LOWER COURT JUDICIAL OFFICER: Hock DCJ

LOWER COURT DATE OF DECISION: 12 December 2007 (jury conviction)l; 15 February 2008 (Sentence)

CCA 14927/07
DC 07/11/0505

GILES JA
GROVE J
HALL J
Friday 15 May 2009

Peter LUSTIG v REGINA

Judgment

1 GILES JA: The appellant stood trial before Hock DCJ and a jury on the charge that -

“On 6 April 2006 at Sydney in the State of New South Wales whilst on an aircraft [he] did an act that interfered with a crew member of that aircraft, namely Andrew Stocks.”

2 The offence charged lay under the then s 24(1)(a) of the Civil Aviation Act 1988 (C’th). As at 6 April 2006 s 24, since amended, provided -

“ 24. Interference with crew or aircraft

(a) do any act that interferes with a crew member; or

(a) an aircraft; or

if tampering with it may endanger the safety of the aircraft or any person or property.

3 The appellant was found guilty. He was convicted, fined and ordered to enter into a recognisance to be of good behaviour for a period of two years. A related offence (Criminal Procedure Act 1986, s 166) of behaviour on an aircraft in an offensive and disorderly manner (Civil Aviation Regulations 1988 reg 256AA(1)) was dismissed.

Outline facts

4 The charge arose from events when the appellant and a travelling companion, Mr Guiseppe De Simone, boarded a Qantas flight from Sydney to Melbourne.

5 Evidence in the Crown case was given by Mr Andrew Stocks, who was the customer service manager for the flight, and by Mr De Simone, by the aircraft’s captain Mr Robert Trayburn, by a flight attendant Mr Peter Bultitude, by an aircraft dispatcher Mr Nicolaos Athanassiou, by passengers Messrs Victor Craddock, Dr John Garrity and Mr Matthew Atkins (himself a Qantas pilot), and by a number of persons who became involved when the appellant was asked to leave the aircraft. Not unexpectedly, there were differing recollections of the events. What follows cannot, and does not attempt to, canvass all the evidence or resolve the differences.

6 The appellant and Mr De Simone boarded the flight in the early afternoon. The appellant is a solicitor, and Mr De Simone was his client. Members of the appellant’s family preceded them onto the aircraft.

7 The appellant and Mr De Simone were greeted by Mr Stocks on entering the aircraft. They were travelling economy, and had to pass through the business class section of the aircraft to reach their seats. There was a coat locker near the point of entry, before entrants came to the business class seating.

8 According to Mr Stocks, Mr De Simone asked if he could hang his jacket in the coat locker. According to the appellant and Mr De Simone, the appellant was carrying a suit bag and asked whether he could hang it in the coat locker.

9 Whatever the article and whoever asked, Mr Stocks replied in the negative. According to Mr Stocks, he said that there was a full business class and, as the appellant and Mr De Simone were in economy, the article could be placed in an overhead locker. According to the appellant and Mr De Simone, Mr Stocks said that the coat locker was full and the article could be placed in an overhead locker. Other witnesses gave evidence of hearing the exchange: the recollections of Mr Bultitude and Dr Garrity were broadly in accord with Mr Stock’s evidence, and the recollection of Mr Atkins was broadly in accord with that of the appellant and Mr De Simone.

10 One or other of the appellant and Mr De Simone opened the coat locker. It was not full. Again there were differences in the evidence. Mr De Simone either said to Mr Stocks that he was a liar, or said to the appellant in a manner which could be heard by Mr Stocks that Mr Stocks was a liar: on one version, “a bloody liar”. According to Mr Stocks, Mr De Simone spoke in “a very accusing manner” and pointed his finger at him, and he considered that in accordance with Qantas procedures he had to ask for modification of what he regarded as offensive behaviour and that, if there was not modification, passage should be refused. Mr Atkins recalled a passenger accusing the flight attendant of being a liar because the coat locker was not full, and that the flight attendant tried to calm the passenger down “and obviously made the comment that, ‘If you don’t settle down we could have you removed from the aircraft’,” and that that agitated the passenger even more.

11 There was a further exchange or exchanges between Mr Stocks and Mr De Simone before, at Mr Stocks’ request, the three of them left the aircraft and stood on the aerobridge adjacent to the doorway into the aircraft. Once more there were differences in the evidence. In brief, according to Mr Stocks the appellant and Mr De Simone were aggressive towards him; according to the appellant and Mr De Simone, the aggressiveness went the other way.

12 The effect of Mr Stocks’ evidence was that, in the face of aggression directed towards him, he told the appellant and Mr De Simone that they would not be allowed to travel on the flight unless they modified their behaviour. At some point Mr Stocks went into the aircraft’s flight deck to consult the captain, the door to the flight deck being to the left as one entered the aircraft. According to Mr Stocks, he then said to the appellant and Mr De Simone that things had got out of hand and that, if they were prepared to apologise and undertake that their behaviour would not continue in flight, they would be allowed to travel. Mr De Simone walked back onto the aircraft and to his seat, saying to Mr Stocks that he could talk to his lawyer, the appellant. Mr Stocks told the appellant that he would not be allowed to travel on the flight.

13 Mr Athanassiou was on the aerobridge in connection with the boarding of the aircraft. His evidence broadly supported that given by Mr Stocks.

14 These events were preliminary to the conduct on which the Crown relied for commission of the offence. The situation to this point and thereafter may have stemmed from a misunderstanding of what Mr Stocks had said about the coat locker, but it is plain that the appellant and Mr De Simone were upset. The flight had already been delayed by a baggage handlers strike, which cannot have assisted frayed tempers.

15 The appellant re-entered the aircraft from the aerobridge. According to Mr Stocks, the appellant said that he wanted to speak to the captain and moved towards the door to the flight deck. Mr Stocks shut the door to the flight deck; he said that he “had to reach over and shoulder [the appellant] and slam the front door”. There was no dispute over the request or demand to speak to the captain, but the appellant said that, while he may well have gestured towards the door to the flight deck, he did not think he moved towards it, and that Mr Bultitude had then closed the door. The evidence of Mr Athanassiou and Mr Bultitude included a move towards the flight deck and that Mr Stocks closed the door.

16 The interphone from the flight deck rang. Mr Stocks answered it, and then entered the flight deck to report to the captain. Either while he was answering the interphone or while he was in the flight deck the appellant addressed the passengers in the aircraft. He identified himself, and on his own account said that he was being told that he and Mr De Simone could not fly to Melbourne because Mr De Simone had told Mr Stocks that he had lied about the coat locker being full, and that he was upset and had children to collect from school that afternoon in Melbourne. He asked for witnesses to provide their business cards. Mr Bultitude said of this event that the appellant “yelled out to the rest of the passengers, ‘The reason why this aircraft is delayed, because this steward won’t hang my suit pack’.”

17 The appellant went to his seat in the aircraft. Airport personnel, including members of the Australian Protective Services, were called. The airport co-ordinator, Ms Lisa Shanahan, asked the appellant and Mr De Simone to leave the aircraft, but they refused. Mr Stocks said to them that if they left voluntarily no charges would be pressed. Other requests were made and refused, according to evidence given by some of the witnesses with the appellant and Mr De Simone yelling and pointing at Mr Stocks and calling him a liar. Eventually the appellant and Mr De Simone left the aircraft, but only after 10 or 15 minutes.

18 The Crown case as left to the jury was based on the appellant’s conduct from re-entering the aircraft after the discussion on the aerobridge until he left it some time later. Features of that conduct were that he moved to enter the flight deck causing Mr Stocks to close the door to the flight deck, his address to the passengers and his refusal to leave the aircraft despite a number of requests, but the Crown Prosecutor said in his address to the jury that he relied on the whole of the conduct. On the Crown case this conduct in the aircraft was an act interfering with a crew member, Mr Stocks.

Grounds of appeal 1, 2 and 3: An act interfering with a crew member

19 These grounds of appeal, which can conveniently be dealt with together, were -

“1. The learned trial judge erred in:

(a) directing the jury that the offence charged could be committed by a person doing an act which interfered with the performance by a crew member of their duties;

and as a consequence there has been a substantial miscarriage of justice.

2. The learned trial judge erred in directing the jury that:

(a) The Appellant in going, or motioning to go, towards or into the flight deck; and/or

was capable of constituting an act which interfered with the crew member of the aircraft (namely Andrew Stocks) and, as a consequence, there has been a substantial miscarriage of justice.

3. The learned trial judge erred in directing the jury tha:

(a) the Appellant in addressing the passengers in the plane; and/or

was capable of constituting an act which interfered with the crew member of the aircraft (namely Andrew Stocks) and, as a consequence, there has been a substantial miscarriage of justice.”

20 The judge did not direct the jury in the terms asserted in these grounds, which were not entirely apt to the submissions presented in their support. There was no objection from the Crown to the development which the grounds underwent in submissions. The submissions were concerned with “any act” in s 24(1)(a) and with “interferes with a crew member”.

21 Some background to the summing-up concerning those matters is appropriate.

22 The Crown had particularised as the act for the purposes of s 24(1)(a) the conduct of the appellant from the time the coat locker was opened until the appellant finally left the aircraft. The precise particulars are not in the appeal papers, and conduct on the aerobridge and so not in the aircraft may have been excluded. At the commencement of the trial counsel for the appellant complained, although his application was not made clear, that the conduct was a series of acts and that it was necessary for the Crown better to identify the act which interfered with the crew member. He made passing reference to Johnson v Miller (1937) 59 CLR 467, which was concerned with latent ambiguity of a complaint particularised by a number of events each of which could make out the offence. The judge accepted the Crown’s position that a course of conduct could be an act, and implicitly that the Crown could present a case on that basis. It was left that the Crown Prosecutor’s opening would make clear what the Crown case was.

23 The Crown Prosecutor opened that the act was the appellant’s “disruptive behaviour from when he opened the business class coat locker pretty much all the way through until he refuses to leave the plane but finishes when he actually does depart”. The conduct on the aerobridge was then excluded. It was said in the opening that “this act” interfered with a crew member, Mr Stocks, “by interfering with his ability to undertake his duties as I have outlined before”. The duties earlier outlined were welcoming and assisting passengers, making sure the cabin was “right for the doors to be closed”, seeing to arming the doors, and ensuring that the aircraft was in a position where it could be pushed away from the aerobridge and proceed to takeoff.

24 Apart from the act being a course of conduct, this brought in a gloss upon interfering with a crew member, through the reference to interfering with Mr Stocks’ ability to undertake his duties. Because the common ground remained on appeal, it is sufficient to say that in exchanges between counsel and the judge it became common ground at the trial that, although s 24(1)(a) did not say anything about performance of duties, in order to give it meaning it should be understood as requiring interference with a crew member in the performance of his or her duties. In due course the judge provided to the jury documents, first MFI 6 and then a slightly amended MFI 7, setting out the elements of the offence and including reference to interference with Mr Stocks in the course of performance of his duties. MFI 7 read -

“ TRIAL OF PETER SIMON LUSTIG

The Crown must prove beyond reasonable doubt that on 6 April 2006 at Sydney:

and

4) (a) the accused intended that to happen;

OR

(b) (i) the accused was aware of a substantial risk that the act would interfere with a crew member of that aircraft in the course of the performance of his duties; and

(ii) having regard to the circumstances known to him it was unjustifiable to take the risk.”

25 After the close of the Crown case counsel for the appellant made a no case application. It included that the “fundamental particular” of a “continuum” of conduct from opening the coat locker had been disproved, because the discussion on the aerobridge was not in the aircraft. There was reference, amongst other cases, to Johnson v Miller and Stanton v Abernathy (1990) 19 NSWLR 656, and it was submitted to the effect that, without cavilling with the judge’s earlier ruling, the Crown should be required to “elect” and be held to “a particular act”. The Crown Prosecutor narrowed his case to conduct commencing on re-entry into the aircraft, but affirmed that the Crown relied on “the whole of the conduct” thereafter. The judge refused the no case application, without comment on election.

26 Although MFI 6 had not then been provided to the jury, the Crown Prosecutor’s address to the jury plainly had it in mind. For reasons which will appear, it is appropriate to go to the address in a little detail.

27 The Crown Prosecutor said of an act and interference with a crew member -

“The first element is that the accused did an act. As the evidence has come out what the Crown relies upon as the act is the disruptive behaviour of the accused from when he re-entered the plane, because the offence has to have occurred on a plane, after the aerobridge argument, all the way through until when he refuses to leave the plane but finishes when he actually does depart. So that includes his conduct where he, on the Crown case, walks towards the cockpit door, causing Mr Stocks to have to reach over him and close the door, his address to the passengers in at least – because he agrees – the first six rows, and his repeated refusal despite at least four or five requests to leave the plane during the period of time he’s seated in his seat. That’s the act that the Crown relies upon.

…

The third element is that this act interfered with a crew member and as you’ve got the indictment the crew member who’s been identified in this case is Mr Andrew Stocks who was the customer service manager. The indictment doesn’t say this but you can’t just interfere with someone generally, there needs to be something that’s been interfered with. In this case it’s the performance of Mr Stock’s duties. In a minute I’ll go through what those duties were and talk about the evidence in relation to that. The fourth element is that the accused was aware of a substantial risk that his behaviour would interfere with Mr Stock’s performance of his duties and he unjustifiably decided to behave the way he did despite the risk. It’s called recklessness. But the description I’ve just given you is what I say for the purposes of now is what applies. And again I’ll touch upon the evidence as I go through but I say it shows that Mr Lustig was aware of this risk but decided to behave in the way that he did in any event.”

28 The Crown Prosecutor referred to evidence of Mr Stocks’ duties and the appellant’s knowledge of them. In the course of doing so he said that the duties “are the duties that the Crown says were ultimately interfered with by Mr Lustig’s behaviour”.

29 The Crown Prosecutor then posed the question, “So did the accused do an act while on an aircraft that he [sic] interfered with these duties of Mr Stocks?” He said it was easiest to start “at the end of the act that the Crown’s pointed out and work backwards”. He dealt with the appellant’s refusal to leave the aircraft despite requests, and with consequent delay. He said that there were “two other important incidents”. One, the “speech … to the other passengers”, was said to show that the appellant knew his behaviour was continuing to delay the aircraft’s departure and that “he was prepared to interfere with Mr Stocks’ duties, at the very least he was prepared to risk that the duties would be interfered with”. What the Crown Prosecutor said concerning the other, described as an attempt to walk towards the cockpit door demanding to see the captain, went in some detail to the facts but did not specifically link the move towards the door to the flight deck with performance of Mr Stocks’ duties.

30 The Crown Prosecutor’s address finished by saying that Mr Stocks could not close the aircraft’s door until the appellant had left the aircraft and, from the time the appellant re-entered the aircraft until he eventually left it, “[Mr Stocks’] duties were interfered with during that whole period of time”. It was said that the jury would conclude that the appellant was aware of at least a substantial risk “that his behaviour was interfering with Mr Stocks’ performance of his duties and without any justification … “.

31 Similar detail of the address of counsel for the appellant is not necessary. He addressed on the basis that there had not been interference with Mr Stocks’ duties, in substance suggesting that there was nothing unreasonable in the appellant’s reaction to (on the defence case) Mr Stocks’ lie and the unreasonable stance thereafter taken by Mr Stocks. He suggested also that it was part of Mr Stocks’ duties to deal with the appellant’s reasonable reaction. The address included the rhetorical question, in relation to asking to see the captain, “how are you interfering with anyone’s duties?”, and in relation to refusing to leave the aircraft that there was “no interference ultimately in the duties of Mr Stocks”.

32 I go then to the judge’s summing-up.

33 When her Honour provided MFI 6 to the jury she said -

“I will take you through it, members of the jury, and then I will outline to you what evidence the Crown relies on and what is in dispute. The Crown must prove beyond reasonable doubt that on 6 April 2006 at Sydney, first while on an aircraft, the accused did an act and – the ‘and’ is in bold to make clear that the Crown has to prove all four of these elements. (2) He intended – that is, he meant to do that act; and (3) the act interfered with a crew member of that aircraft in the course of the performance of his duties, namely Andrew Stocks. That is the crew member identified. And 4(a) the accused intended that to happen, that is, he intended that the act would interfere with the crew member in the performance of his duties; or alternatively the accused was reckless. I haven’t put the word ‘reckless’ but this is what (b) means – that the accused was aware of the substantial risk that the act would interfere with a crew member of the aircraft performing his duties, and having regard to the circumstances known to him it was unjustifiable, or not justifiable, to take the risk.”

34 A fairly lengthy extract from the summing-up should be set out. I underline one passage and put others in italics or in bold, for ease of reference hereafter -

“It is common ground that the Crown case is based on the accused’s conduct once he re-entered the plane from the aerobridge until he left the plane after he was spoken to in his seat. That is the whole of the accused’s conduct in that time. I am sure that conduct is clear in your mind, but it includes if you find it to be the fact – and this is one area that is in dispute – that he went, or motioned to go towards, the flight deck or into the captain’s cabin, causing Mr Stocks to close or to slam the door to the flight deck. That is one area of dispute to some extent you will recall, and you have heard a great deal of evidence on that topic.

It includes the accused’s address to the passengers, which you would be well aware is not in dispute and was referred to by the accused in his evidence, and his repeated refusal to leave the plane despite the requests of the various people from whom you heard evidence, Lisa Shanahan and Mr Stocks for example.

You do not have to be satisfied beyond reasonable doubt that the accused did all of those things – that is, each individual act, only that the accused’s conduct whilst on an aircraft satisfied that first element

interfered with Mr Stocks in the performance of his duties

So in essence, the act the Crown relies on is essentially the accused’s conduct from the time that he returned from the aerobridge into the aeroplane.

Moving now to the second element, which again as Mr McClintock says isn’t really in dispute, the accused intended – that is, he meant to do that act, that conduct, whichever conduct either including moving towards the flight deck or excluding that. Whatever you find, that is one of the findings of fact that y ou may find it necessary to resolve.

Intention and intent are familiar words and in a legal context they carry their ordinary meaning. What a person intends can be inferred or deduced from his conduct before, at the time and even after he did a particular act. What a person says about his intention may be looked for the purpose of finding out what his intention was at a relevant time.

Again, members of the jury, it is not as I understand it in dispute the accused intended his conduct, which the Crown relies on in respect of this first and second element.

The third element is in dispute. The third element, the act interfered with a crew member of the aircraft in the course of the performance of his duties – namely, Mr Andrew Stocks. Interfered also carries in this context its usual meaning, which in a dictionary definition means to come into opposition or collision with something or someone, with the effect of hampering action or procedure. That’s a Macquarie dictionary definition but it carries its usual ordinary meaning, members of the jury. Again, I do not think there is much dispute about this. To come into opposition or collision with someone, in this particular case, with the effect of hampering or hindering action or procedure.

‘Q. You allocate the positions to the flight attendants?
A. I always had to man the same door.

Q. What were your duties while you were standing there?
A. Well, after the last person has boarded, the ground staff will come and they will hand you a passenger manifest which has the names of the passengers on it, and any special requirements, again like a medical condition of something that needs to be monitored. After that is handed to me, you then liaise with the captain to see if all his paperwork is completed, and you can close the front door and the aircraft pushes back and flies.

interfere with a crew member in the performance of his duties

interfere with Mr Stocks

interfere with Mr Stocks, the performance of his duties

hindered in the performance of his duties

interfere

with the performance

of Mr Stocks’ duty

interfere with the crew member of the aircraft performing his duties

interfere with the performance of Mr Stocks’ duty

interfere with Mr Stocks’ duty

You look at what the accused knew about the circumstances, including that he was on a plane; that the plane was about to depart; and decide objectively whether you are satisfied beyond reasonable doubt that he was not justified in taking the risk. You may find it helpful here to consider if the conduct of the accused in the circumstances was a reasonable response in the circumstances as he knew them to be.

In the Crown case, it was not a reasonable response to the circumstances as he knew them to be. Mr McClintock argues that it was a reasonable response in the circumstances.

The Crown case, as I say, is that it was unjustified for the accused to take the risk, indeed, that you would be satisfied of 4(a) that the accused intended this interference, to cause this interference, but that if he didn’t intend it he acted recklessly in the sense as defined in 4(b)(i) and (ii).

interfere with Mr Stocks’ duties

That almost concludes what I have to say at this point in the summing up, members of the jury. You have the directions of law which fortunately are not particularly complicated in respect of this particular offence, and you have a brief summary of the evidence. As I repeat, if you want to be reminded of the actual evidence of any witness or witnesses, by being provided with the transcript, that can be provided if the foreman would write a note indicating in the note which witness or witnesses’ evidence you require, that will be provided to you.”

35 Neither the Crown Prosecutor nor counsel for the appellant took objection to the directions, save that counsel for the appellant asked that MFI 6 in relation to part of the fourth element, recklessness, be changed so that it was necessary that the appellant was aware of a substantial risk that the act would interfere with a crew member of the aircraft “in the course of the performance of his duties” rather than “in performing his duties”. That change was made, resulting in MFI 7, and MFI 7 was provided to the jury. The jury was told that the change was “probably of little moment”, but was made “to be completely accurate”.

36 The appellant specifically accepted in the appeal that the written directions in MFI 7 were correct. His complaint was not that there had been added the gloss of interference with a crew member in the course of the performance of his duties. It was that there had intruded a different notion of interference with performance of a crew member’s duties. It may be noted that the Civil Aviation Act was later amended so that s 24(1) now provides -

(a) the person does an act; and

(i) interferes with a crew member of an aircraft in the course of the performance of his or her duties as such a crew member; or

(ii) threatens the safety of an aircraft or of persons on board an aircraft.”

37 I go then to the grounds of appeal. Since no objection was taken at the trial, leave is required pursuant to r 4 of the Criminal Appeal Rules. The Crown submitted that it should be refused, referring to cases emphasising counsel’s responsibility to assist in ensuring that proper directions are given, see for example R v ITA [2003] NSWCCA 174; (2003) 139 A Crim R 340. The requirements of the rule are not a “mere technicality which may simply be brushed aside”: R v Abusafiah (1991) 24 NSWLR 531 at 536, see also R v Button and Griffen [2002] NSWCCA 159; (2002) 129 A Crim R 242 at [32]-[35], but it should not stand in the way of correcting a real injustice. I will return to this.

38 The submissions developing the grounds, put in cascading order, can be summarised as -

(a) that the jury had been misdirected according to an incorrect notion of interference with performance of a crew member’s duties;

(b) that the jury had been otherwise misdirected as to interference with Mr Stocks in the performance of his duties, and none of the conduct on which the Crown relied could constitute interference with him in the performance of his duties; and

(c) that at the least the conduct of the appellant involving his address to the passengers could not constitute interference with Mr Stocks in the performance of his duties, but the directions left it open to the jury to convict for that conduct alone.

(a) The notion of interference with performance of a crew member’s duties

39 The appellant submitted that there was a distinction between the two notions -

· doing an act which interferes with a crew member in the course of performing his or her duties; and

· doing an act which interferes with the performance of duties by a crew member.

40 Essential to the first notion was interference with the crew member. But, it was said, there could be interference with the performance of duties by a crew member in accordance with the second notion although there was not interference with the crew member: for example, it was said, an assault by one passenger on another during boarding might result in interference with the ability of the crew member to prepare the aircraft for departure while the assault was dealt with, thus delaying departure, but it would not be an interference with the crew member. The appellant recognised that an act could interfere with a crew member and also interfere with the performance of the crew member’s duties, for example physical obstruction of the crew member, although he submitted that the conduct on which the Crown relied could not fulfil either notion (see later in these reasons). He submitted that the jury was told, erroneously in law, that they could convict for interference with performance of duties absent interference with the crew member who had those duties.

41 MFI 7 did not convey that: as I have said, the appellant accepted that the written directions were correct. The appellant argued that, beginning with the addresses and then in the summing-up, there was conflation of the two notions, and that the conflation in the summing-up was the more significant because it followed the conflation in the addresses and failed to correct the intrusion of the incorrect notion of interference with performance of a crew members’ duties.

42 I have set out or described the relevant parts of the addresses and the summing-up. The Crown Prosecutor had largely used the language of interference with performance of Mr Stocks’ duties, and as I have said the address of counsel for the respondent was on the basis that there had not been interference with the duties of Mr Stocks. The judge began with MFI 6, and in what she then said first used the language of interference with Mr Stocks in the performance of his duties, see the passages in italics in the extract from the summing-up earlier set out. However, her Honour later used the language of interference with Mr Stocks’ duties, see the passages in bold. The passage in italics and bold can be seen as a transition.

43 I do not think that the grounds of appeal in this respect should be upheld.

44 The evidence in the Crown case was directed to conduct towards Mr Stocks’ affecting the performance of his duties in relation to preparing the aircraft for its departure, and with the consequences of the conduct in delay because he was not able to do what he would ordinarily have done. Whether all the conduct on which the Crown relied could affect the performance of his duties is another matter, see below; the case as put before the jury was that it could. In the conduct of the trial, there was not a true distinction between interference with performance of Mr Stocks’ duties and interference with Mr Stocks in the performance of his duties; if the former was made out, the latter was also made out. Dominant in the judge’s summing-up was the framing of the relevant elements of the offence in terms of interference with Mr Stocks in the course of performance of his duties, and although the Crown Prosecutor had used other language and the judge came to stray into other language I do not think the jury would have been diverted from considering whether interference with Mr Stocks, as part of interference with Mr Stocks in the course of performance of his duties, should be found beyond reasonable doubt.

45 This finds support in the absence of objection to the summing-up, including by counsel for the appellant whose address implicitly accepted that any interference with the duties of Mr Stocks was through interference with Mr Stocks and took issue with whether there had been interference with Mr Stocks’ duties. Counsel was plainly alive to the correct presentation of the elements of the offence, see the request for the change to the fourth element, and must have considered that in the trial context there was not a material difference in the way the gloss on interference with a crew member was presented to the jury.

(b) Interference with Mr Stocks in the performance of his duties

46 The judge told the jury that “interfered” carried its usual meaning, and referred to a dictionary definition involving coming into opposition or collision with Mr Stocks with the effect of hampering or hindering Mr Stocks’ action or procedure. The appellant submitted that more than hampering or hindering of action or procedure was required in law for interference with a crew member. He submitted that moving towards the flight deck did not interfere with Mr Stocks, because Mr Stocks was not touched, obstructed, or impeded; similarly, addressing the passengers and remaining in the seat although asked to leave the aircraft did not involve touching, obstructing or impeding him. It was said that nothing the appellant did prevented Mr Stocks from doing what Mr Stocks thought necessary to perform his duties. The substance of the submission was that interference within of s 24(1)(a) meant direct physical impedance, although not necessarily direct physical contact because it was accepted that (for example) blocking the aircraft aisle so that the crew member could not reach the aircraft’s address system would be interference with the crew member.

47 In my opinion, that is a too limited view of interference with a crew member. Interference with a thing may require physical contact. But not so interference with a person, and so in R v Galvin (1998) 102 A Crim R 568 unlawful interference with a conveyance required tampering with it which was distinguished (at 574) from interference with the driver of a motor vehicle – for the latter, obstruction or hindering in the driver’s operation of the vehicle. A person is animate, and there comes into consideration what the person would have done but for the act said to interfere with him or her. So in the Oxford English Dictionary “interfere” used of a person or persons is given the wide meaning “enter into something without right or invitation, or intending to hinder or obstruct”. Interference can be measured against what would otherwise have been done or attempted to be done; indeed, there can be interference simply by delaying a person in what he or she does.

48 Section 24(1)(a) was general, not restricted to any particular form of interference. By comparison with s 24(1)(b), it was not restricted to interference having safety implications. The Crimes (Aviation) Act 1991 provided for various offences from hijacking downwards, including (s 21) assaulting or intimidating a crew member in a manner “that results in … an interference with the member’s performance of function or duties connected with the operation of the aircraft”, and s 24(1)(a) was not limited to assault or intimidation. The offence under s 24(1)(a) relevantly lay in hindering or preventing the crew member from carrying out the crew member’s duties, and there can be hindrance or prevention although the crew member is not physically impeded, whether by direct physical contact or otherwise. There can be interference with the crew member who cannot reach the aircraft’s address system whether the crew member is physically restrained, is impeded by blocking the aisle, is threatened with a weapon, or is drawn into aggressive disputation; the last may be as effective, and perhaps may be deliberately intended to be as effective, as physical restraint.

49 Those features of the appellant’s conduct involving moving towards the flight deck and remaining in his seat when asked to leave were capable of making out interference with Mr Stocks in the course of performance of his duties. It was open to the jury to find that Mr Stocks was hindered, and for a time prevented, from doing what he would otherwise have done in relation to readying the aircraft for takeoff. If the jury accepted that Mr Stocks shouldered the appellant aside to shut the door to the flight deck, physical obstruction could have been found.

50 Not so the appellant’s conduct involving the address to the passengers. Mr Stocks was on the interphone and or in the flight deck. I do not think it was open to the jury to find that, in addressing the passengers, the appellant hindered Mr Stocks in or prevented him from doing anything. What he did, speaking on the interphone and/or going to and speaking to the captain on the flight deck, was not affected by the contemporaneous conduct involved in addressing the passengers. As I understand it, in submissions the Crown accepted that this feature of the appellant’s conduct could not of itself constitute interference with Mr Stocks in the performance of his duties.

(c) The conduct involving the appellant’s address to the passengers

51 It is not necessary to consider whether the Crown’s reliance on the appellant’s course of conduct from re-entering the aircraft until he eventually left it brought defectiveness through ambiguity of the kind considered in Johnson v Miller. No application to that effect was clearly made at trial, and no ground of appeal so asserted. However, the reliance on the appellant’s conduct as a whole meant that in directing the jury the judge had carefully to explain how the course of conduct, with the features of the appellant moving towards the flight deck, his address to the passengers and his refusal to leave the aircraft despite a number of requests, could be found to be an act interfering with Mr Stocks, and how the jury should approach acceptance of some parts of the conduct but not other parts.

52 The Crown Prosecutor had firmly said in his address that the Crown relied on all the appellant’s “disruptive behaviour”, and had said that the act “include[d]” the three features of the conduct to which I have referred. When the Crown Prosecutor was working through the act backwards from the end, the significance given to the address to the passengers was what it showed of the appellant’s knowledge going to intention or recklessness, rather than as interference in itself, but nonetheless it was put forward as an “incident” part of the act.

53 In the summing-up the judge took up the Crown’s reliance on the whole of the appellant’s conduct from re-entering the aircraft until leaving it, with its inclusion of the three features – correctly so, insofar as that was the way the Crown had chosen to present its case. Her Honour then said, in the passage underlined in the extract from the summing-up earlier set out which I repeat for convenience -

“You do not have to be satisfied beyond reasonable doubt that the accused did all of those things – that is, each individual act, only that the accused’s conduct whilst on an aircraft satisfied that first element.”

54 At this point there was the need for the careful explanation. If the appellant’s act, for the purposes of s 24(1)(a), was truly the whole of his conduct, the jury did have to be satisfied beyond reasonable doubt that the appellant did “all of those things” and “each individual act”. That had its own problem: how was the jury to understand “all of those things” and “each individual act”, and what individual acts beyond the three features of moving to enter the flight deck, the address to the passengers and refusal to leave the aircraft despite a number of requests? The jury had been told only that the course of conduct included those features, and what else was involved was left unexplained. If, however, doing one of “those things” or one “individual act” could make out interference with Mr Stocks in the course of his duties, and assuming that attention could be confined to the three featured acts, each of those acts had to be evaluated for its interference with Mr Stocks in the performance of his duties, albeit that the jury was told that it did not have to be satisfied as to each. The complaint made at the commencement of the trial had not borne fruit, but the difficulty underlying it remained.

55 The appellant submitted that there was misdirection, in that the jury was told that it could find the offence proved if satisfied beyond reasonable doubt as to the address to the passengers alone but (at the least) the address to the passengers was not capable of being interference with Mr Stocks in the performance of his duties. The Crown submitted that the summing-up should not be understood as saying that the jury could find the offence proved if satisfied as to the address to the passengers alone, because her Honour went on to direct the jury that the question was whether the cumulative conduct was an act interfering with Mr Stocks in the performance of his duties.

56 The Crown’s submission was a re-statement of the problem, not a solution to it. As I have said, the appellant’s conduct involving the address to the passengers could not be found to have hindered Mr Stocks or prevented him from carrying out his duties. That the appellant addressed the passengers was really not contentious, although the precise circumstances in which he did so was a matter which the jury had to consider, but the directions did not assist the jury in bringing satisfaction as to that “thing” or “individual act” into satisfaction that the appellant’s conduct as an act was an interference with Mr Stocks in the performance of his duties. There was in my opinion a real risk that the jury would understand that, if satisfied that the appellant had addressed the passengers, from the address to the passengers alone or together with other of the conduct they could find the offence proved. The real risk gives rise to a miscarriage of justice.

57 I return to r 4 of the Criminal Appeal Rules. The grounds of appeal so far as developed in (a) and (b) above may not have attracted leave. But the grounds as developed in (c) came back to the complaint made by counsel for the appellant at the beginning of the trial, repeated at the time of the no case application as a submission that the Crown had to elect and be held to a particular act. Counsel could have taken this up again at the time of the summing-up, but it is understandable that the judge’s acceptance that the Crown could present a case of a course of conduct constituting the act for the purposes of s 24(1)(a) was not re-agitated in objection to the summing-up. The source of the difficulty was the way the Crown had chosen to present its case. In the circumstances, the miscarriage of justice if the grounds as so developed were not permitted would in my view be such that leave should be granted.

Ground of appeal 5: Telephone records

58 Ground of appeal 5 was -

“5. The learned trial judge erred in failing to direct the jury that:

a. the evidence established that the person speaking loudly on a mobile telephone was not the appellant, but was Mr De Simone;

b. the jury should not give any weight as ‘context’ to the evidence that the Appellant had been speaking loudly and aggressively on a mobile telephone on the aerobridge;

c. it followed that Stokes [sic: Stocks] was in error in assessing the Appellant’s behaviour in speaking loudly and aggressively on the telephone as justifying a refusal to permit him to fly on the aircraft; and

and as a consequence there has been a substantial miscarriage of justice.”

59 Although the Crown case was based on the appellant’s conduct once he re-entered the aircraft from the aerobridge, there was much evidence of the prior events involving the first entry into the aircraft, the dispute over the coat locker and the subsequent discussions on the aerobridge. The trial judge told the jury that -

“ … all of that evidence which you heard is placed before you to put this later evidence in context. Otherwise you would be wondering why it was the accused went out to the aerobridge and then in the plane was asking to see the captain, or saying words to that effect. But no part of that earlier evidence is relied on by the Crown and you cannot use any part of that earlier evidence as comprising the act which the Crown says interfered with Mr Stocks in the performance of his duties. Both counsel have addressed in those terms and I am sure that is perfectly clear to you, members of the jury.”

60 According to Mr Stocks, when the appellant and Mr De Simone first came to his attention the appellant was “talking quite loudly and forcefully into his mobile phone”. He said that that “alarmed” him, and later described the manner of speaking as aggressive. It was put to him that the person talking on the mobile telephone was Mr De Simone, but he disagreed.

61 Mr Craddock gave evidence of a man speaking loudly and aggressively on a mobile phone, from his description of later events probably the appellant. Mr Bultitude said that one of the men he saw was talking loudly on the phone; contrary to the appellant’s submissions, in his descriptions of the men in later events probably Mr De Simone. Mr De Simone said in his evidence in chief that he was speaking on a mobile telephone while going down the aerobridge to board the aircraft. He said in cross-examination that, because of a hearing condition, he could have been speaking reasonably loudly. When the appellant gave evidence, he said that Mr De Simone “received a telephone call, so he was speaking on his mobile phone” as they came down the aerobridge, and that Mr De Simone was speaking quite loudly. The Crown Prosecutor did not suggest otherwise in cross-examination.

62 After the evidence of Mr Stocks, Mr Craddock and Mr De Simone, but before the evidence of Mr Bultitude, the Crown called Mr Jason Legge, an officer of the Australian Federal Police who had arrested and interviewed the appellant. His evidence included that he had obtained from Qantas some mobile phone telephone records, one stating the billing name of Mr Peter Lustig and the other stating the billing name of De Simone Consulting. Through Mr Legge, evidence was given of a telephone call on what was referred to as Mr Lustig’s phone for about 30 seconds at about 12.49 pm and then the next call at about 1.23 pm, and of a telephone call on what was referred to as Mr De Simone’s phone for a little over two minutes at about 12.49 pm and then the next call at 1.10 pm. The records themselves were not tendered. The call on Mr De Simone’s phone at about 12.49 pm was described in a question with which Mr Legge agreed as a call “to the mobile phone”, and he also agreed that Mr De Simone appeared to be “receiving” that call.

63 The appellant submitted that the telephone records made it clear beyond dispute that Mr De Simone’s mobile phone was in use immediately prior to the first entry into the aircraft. He said that Mr Stocks’ error in ascribing to the appellant the mobile phone call which caused him alarm was plain, and that recognition of the error would not only have detracted from Mr Stocks’ evidence of occasion to refuse passage to the appellant, but also would have strengthened the appellant’s case that he was being treated unfairly and was entitled to seek to speak to the captain and to remain on board the aircraft.

64 The appellant submitted that the telephone records provided a quite different context for the conduct on which the Crown relied, and that in the circumstances it was incumbent on the judge to ensure that the jury did not act upon Mr Stocks’ mis-identification to the appellant’s prejudice. He said that her Honour should have reminded the jury of the evidence of the telephone records, should have directed them that the telephone records established that the person making the loud telephone call was Mr De Simone and not the appellant, and should have directed them they must not give any weight in the context of the events to the erroneous suggestion of the appellant having spoken loudly and forcefully on a mobile phone.

65 It would have been quite wrong for the judge to have directed the jury in this manner. Fact-finding was for the jury, as was the weight to be given to evidence. Even as part of the context, who was speaking on the mobile phone was not a large matter. There was much evidence of the discussion on the aerobridge, of considerably more significance to aggressiveness and to what occurred when the appellant re-entered the aircraft. Who was speaking on the mobile phone can not have been perceived as significant in the conduct of the trial, because neither the Crown Prosecutor nor counsel for the appellant referred in their respective addresses to the mobile phone call as the appellant and Mr De Simone first went down the aerobridge to board the aircraft. Nor did the judge refer to it in her summing-up. Counsel for the appellant made no complaint.

66 Leave is required under r 4, and in my opinion leave to rely on this ground of appeal should be refused.

Ground of appeal 4: Unsupportable verdict

67 Ground of appeal 4 was -

“4. The verdict of the jury is unreasonable, or cannot be supported, having regard to the evidence.

PARTICULARS

(i) It was not open to the jury to find beyond reasonable doubt that the Appellant had done an act(s) which interfered with a crew member of the aircraft (namely Andrew Stocks), whether in the performance of his duties or otherwise.

68 In large part the ground of appeal rested upon the submissions made in support of grounds of appeal 1, 2 and 3. It was said in substance that the jury could not be satisfied of interference with Mr Stocks when none of moving towards the flight deck, addressing the passengers or refusing to leave the aircraft despite requests involved touching or threatening Mr Stocks, or preventing him from doing what he thought necessary to perform his duties. Rather, it was said, in dealing with the situation even as Mr Stocks perceived it he was carrying out his duties, albeit different duties from those which he would otherwise have been carrying out.

69 For reasons earlier given, I do not accept the limited view of interference with a crew member within the meaning of s 24(1)(a). There was ample evidence on which, if appropriately directed, the jury could have been satisfied beyond reasonable doubt of interference with Mr Stocks in the performance of his duties. Moving towards the door to the flight deck so that Mr Stocks “had to reach over and shoulder [the appellant] and slam the front door” could of itself amount to interference, and whether remaining in his seat and refusing to leave for some time was hindrance or prevention taking Mr Stocks outside the ordinary performance of his duties so as to amount to interference was for the jury.

70 The further matter in the submissions in support of this ground was concerned with what in particular (ii) was called justification.

71 The jury was directed, through MFI 7, that it was necessary that the appellant either intended that Mr Stocks would be interfered with in the performance of his duties, or -

“(i) … was aware of a substantial risk that his act would interfere with a crew member of that aircraft in the course of the performance of his duties; and

72 The alternatives were intention or recklessness. The terms in which recklessness was expressed came from s 5.4(1) of the Criminal Code (C’th).

73 The appellant submitted that the evidence did not permit a reasonable jury to be satisfied beyond reasonable doubt that, in the circumstances known to him, it was unjustifiable to take the risk of interference with a crew member, Mr Stocks. Even if his conduct would cause what the written submissions described as “a minor delay in having [Mr Stocks] finalise the departure preparations”, it was said that as a paying passenger who was being dealt with unfairly and had done nothing to warrant refusal to fly him, and was given what he knew to be false reasons why he was not to be allowed to fly, he was justified in taking the risk.

74 Apart from passing over the appellant’s intention as distinct from his recklessness, the submission is flawed. First, it assumes that the appellant’s account of events was accepted by the jury, and that his knowledge of the circumstances was found by them accordingly. But there was conflicting evidence, and it was for the jury to decide the facts. Secondly, it misapprehends “unjustifiable” in s 5.4. Whether taking a risk was unjustifiable calls for assessment of the likelihood of the risk eventuating according to its nature and in the circumstances, if the act is done, and whether the risk is one which should have been taken. Whether taking the risk was unjustifiable “requires the jury to make a moral or value judgment concerning the accused’s advertent disregard of the risk”: R v Saengsi-Or [2004] NSWCCA 108; (2004) 61 NSWLR 135 at [70] per Bell J, Wood CJ at CL and Simpson J agreeing. To focus on the two features of the conduct in question, moving towards the door to the flight deck would have been likely to have caused Mr Stocks to intervene as he said he did, and refusing to leave the aircraft of itself would in the circumstances have been likely to delay its departure. Even if the appellant was justified in the sense of being in the right, which so far as relevant was a matter for the jury, whether taking the risk was unjustifiable is a different question.

75 It was open to the jury to be satisfied beyond reasonable doubt that the appellant intended that his conduct would interfere with Mr Stocks in the performance of his duties. There was evidence on which the jury could be satisfied beyond reasonable doubt that he was aware of a substantial risk that his conduct would interfere with Mr Stocks, and that taking the risk was unjustifiable. It may be noted that the appellant had flown many times, that there was direct evidence that he knew that the aircraft was being delayed in Mr Bultitude’s account of his address to the passengers, and that if Mr Stocks’ evidence (supported by other witnesses) were accepted the jury could conclude that it was the appellant, not Mr Stocks, who was acting unreasonably.

The proviso

76 The Crown submitted that the Court should consider that no substantial miscarriage of justice had actually occurred, and dismiss the appeal pursuant to the proviso in s 6 of the Criminal Appeal Act 1912. It was submitted that the evidence of moving towards the flight deck, and particularly that the clear evidence of refusing to leave the aircraft despite requests, would on this Court’s assessment bring satisfaction of the appellant’s guilt beyond reasonable doubt: Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 at [35]-[36]; Cesan v The Queen [2008] HCA 52; (2009) 250 ALR 192 at [123].

77 There was conflicting evidence in relation to moving towards the flight deck, and finding with some precision what occurred is necessary and can not be done by us. Whether refusing to leave the aircraft despite requests was interference with Mr Stocks in the performance of his duties involved whether there was hindrance or prevention taking him outside the ordinary performance of his duties, a matter on which the jury’s evaluation was appropriate and which in part involved disputed facts. It is also necessary to consider intention or recklessness, which this Court can not properly do on the disputed evidence. I do not think the proviso should be applied.

The result

78 The appellant primarily sought an acquittal on the basis that it was not open to the jury to convict, alternatively a retrial. It was faintly suggested that we should decline to order a new trial because the judge had only imposed a fine and a bond, and because the Crown had contributed to the miscarriage through the way it had chosen to present its case. The view is open that excessive resources of the justice system have been devoted to the charge against the appellant, but the view is also open that, if the offence was committed, it was such as to warrant prosecution, and the sentence was not insignificant. Whether a new trial should not proceed should be a matter for the prosecuting authorities.

79 The foregoing reasons lead to quashing of the conviction and a new trial, and I propose orders accordingly:

80 GROVE J: I agree with Giles JA.

81 HALL J: I agree with Giles JA.

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Citations

Lustig v Regina [2009] NSWCCA 143

Most Recent Citation

Qantas Airways Ltd v Lustig [2015] FCA 253

Cases Citing This Decision

3

R v Nozhat (No 2) [2019] ACTSC 81

Fair Work Ombudsman v Ecosway Pty Ltd [2016] FCA 296

Qantas Airways Ltd v Lustig [2015] FCA 253

Cases Cited

9

Statutory Material Cited

0

Johnson v Miller [1937] HCA 77

R v B [2008] NSWCCA 85

CITATION:	Lustig v Regina [2009] NSWCCA 143
HEARING DATE(S):	17 April 2009
JUDGMENT DATE:	15 May 2009
JUDGMENT OF:	Giles JA at 1; Grove J at 80; Hall J at 81
DECISION:	Conviction quashed. New trial ordered.
CATCHWORDS:	Criminal law - charge of doing act interfering with crew member of aircraft - common ground that meant interference with performance of crew member's duties - Crown relied on course of conduct - particular reference to three episodes in conduct - whether capable of interfering with crew member - could do so although no physical impedence - two episodes could interfere with crew member, third could not - difficulty flowing from reliance on course of conduct - need for careful explanation to jury - real risk that jury would understand that could convict if satisfied of third episode alone - open to convict on basis of other episodes - not appropriate to apply proviso - conviction quashed, new trial ordered.
CATEGORY:	Principal judgment
CASES CITED:	Cesan v The Queen [2008] HCA 52; (2009) 250 ALR 192; Johnson v Miller (1937) 59 CLR 467; R v Abusafiah (1991) 24 NSWLR 531; R v Button and Griffen [2002] NSWCCA 159; (2002) 129 A Crim R 242; R v Galvin (1998) 102 A Crim R 568; R v ITA [2003] NSWCCA 174; (2003) 139 A Crim R 340; R v Saengsi-Or [2004] NSWCCA 108; (2004) 61 NSWLR135; Stanton v Abernathy (1990) 19 NSWLR 656; Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300;
PARTIES:	Peter Simon Lustig - Appellant The Crown - Respondent
FILE NUMBER(S):	CCA 2007/14927
COUNSEL:	O P Holdenson QC & A H Swanwick - Applicant W Abraham QC - Crown
SOLICITORS:	Mr Simon Lustig, Gardenvale, Victoria - Applicant Commonwealth Director of Public Prosecutions, Sydney - Crown
LOWER COURT JURISDICTION:	District Court
LOWER COURT FILE NUMBER(S):	DC 07/11/0505
LOWER COURT JUDICIAL OFFICER:	Hock DCJ
LOWER COURT DATE OF DECISION:	12 December 2007 (jury conviction)l; 15 February 2008 (Sentence)