Lustig v R - [2009] NSWCCA 143

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

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Lustig v R

Details

AGLC: Lustig v Regina [2009] NSWCCA 143
Case: [2009] NSWCCA 143
Decision Date: 15 May 2009

CaseChat Overview and Summary

The case of Lustig v R involved the appellant challenging his conviction for interfering with a member of an aircraft's crew, a charge that was based on a course of conduct involving multiple episodes. The High Court of Australia was tasked with examining the sufficiency of the evidence presented to establish the charge. The appellant's conviction hinged on whether his actions constituted an interference with the crew member's performance of their duties, without requiring physical impediment. The Crown argued that the appellant's conduct, specifically three distinct episodes, amounted to such interference.

The legal issues central to the appeal revolved around the interpretation of the charge, particularly the requirement for the interference to be with the performance of the crew member's duties, and the Crown's reliance on a course of conduct to establish the offence. The Court had to determine whether the course of conduct as a whole constituted an interference and whether it was open to convict the appellant based on certain episodes within that conduct. The challenge was to ensure that the jury understood that they could not convict solely on the basis of one episode but could consider the other episodes in combination.

In its reasoning, the Court held that two of the episodes could amount to interference with the crew member's duties, but the third could not. The Court noted that while the jury could consider the course of conduct as a whole, there was a risk that they might convict based on the third episode alone, which was insufficient. The Court emphasised the need for careful instructions to the jury to avoid misunderstanding the basis for conviction. Given the risk of a miscarriage of justice due to the jury's potential misinterpretation, the Court quashed the conviction and ordered a new trial.

The final orders of the Court were to quash the conviction and order a new trial, ensuring that the jury would receive proper instructions on the legal standards applicable to the charge of interfering with a crew member's duties. This decision underscored the importance of clear legal guidance to prevent a jury from convicting based on an incomplete or incorrect understanding of the evidence.

Orders