Morris v The Queen

[2005] HCATrans 168

[2005] HCATrans 168

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry
  Brisbane  No B64 of 2004

B e t w e e n -

WILLIAM MONTAGUE MORRIS

Applicant

and

THE QUEEN

Respondent

Application for special leave to appeal

KIRBY J
CALLINAN J

TRANSCRIPT OF PROCEEDINGS

AT BRISBANE ON MONDAY, 21 MARCH 2005, AT 2.04 PM

Copyright in the High Court of Australia

MR A.F. MAHER:   May it please the Court, I appear for the applicant.  (instructed by Ferrier & Associates)

MR J.A. LOGAN, SC:   If the Court pleases, I appear with MR S.J. LEE for the respondent.  (instructed by Crown Solicitor for the State of Queensland)

KIRBY J:   Yes, Mr Maher.

MR MAHER:   Thank you, your Honour.  In my respectful submission, this case exhibits features which go beyond the mere application of this law to Queensland, but in fact have international and possibly national dimensions, because it potentially applies to anyone flying in and out of Queensland airspace from any State or internationally.  Secondly, it reflects a clash of a general State law as against a particular federal enactment, and, thirdly, it brings to bear a tension between a broad law, objectively, defined and detailed, and a specific federal regulation.  It is for those reasons that I make the respectful submission that in fact it is an important case for the administration of justice, not just for Queensland, but in a broader sense.

KIRBY J:   It is an odd result that you are arguing for, though, is it not?  As Justice McPherson pointed out, it would mean that no matter how criminal and serious the action of a person in charge of an aircraft, the maximum penalty that could be imposed was 50 penalty units.  It is a very odd result.

MR MAHER:   Your Honour, that is what the Court of Appeal said and, with respect, that is infected with error, respectfully, because that is the wrong test – the wrong test of the field.  The applicant’s submission is that the field is a narrow one.  It is the field prescribed by the federal regulation.  In other words, the federal government has sought to prescribe that the height an aircraft can fly over a populated area is not less than 1,000 feet.  If I could illustrate what I say, respectfully, is the error in that proposition.  If I could take the Court to page 107 of the application book. 

KIRBY J:   Yes.

MR MAHER:   At about line 38 in his Honour Justice Williams’ judgment, with whom the other members of the court agreed his Honour says:

Further, there was the evidence of the experienced pilot of ultra‑light planes that flying at a height below 1500 feet above a country town was dangerous.

Your Honour, that illustrates the essence of the applicant’s point, with respect.  The federal government has said that you:

must not fly . . . lower than 1,000 feet –

regulation 157, and yet a jury has heard evidence, and been directed on evidence, that flying at 1,500 feet is dangerous.  Therefore, what the Commonwealth Government permits, the State says is nonetheless dangerous, and the pilot is in a no man’s land of what to obey.  It is likely that if someone was flying in the corridor of 1,000 to 1,500 feet, they are not in breach of the federal regulation, yet they could still be considered to be flying dangerously because they were flying too low.  Therein lies the tension, the field.

The applicant does not argue that this excludes any other law.  If someone kills someone on a plane or does something else, then they will  be charged with murder.  That is not in issue.

KIRBY J:   Yes, but once you concede that, you concede that the Code can operate with the federal law.

MR MAHER:   One concedes that the Code, as far as the provisions of murder or manslaughter or the other examples which were given in the Court of Appeal’s judgment, yes, but ‑ ‑ ‑

KIRBY J:   But once you concede that the two can operate together, then you are conceding that the federal law is concerned with the field of civil aviation and the criminal law is concerned with doing things with aircrafts that have a criminal purpose or intent and, as it were, take on an added dimension because of that element.

MR MAHER:   Yes, your Honour, and that would be an ultimate concession if it were not for the fact that none of that is agitated in this case.  In this case it was 328A under which the applicant was charged with dangerous operation of a vehicle.  It is that provision of the Criminal Code which is said to clash with regulation 157.  Wider arguments as to the possible location of criminal responsibility, in terms of operating an aircraft, are really not part of the applicant’s submission.

KIRBY J:   I know they are not, but we have to test your submission against the proposition that there are two fields and that they are incompatible.  Whereas the proposition that found favour in the Court of Appeal, without dissent, was that there are two fields, but they are compatible, because one is dealing with civil aviation regulation in the normal way and the other is dealing with cases such as the present, where, as I understand the facts, your client descended below a certain level and buzzed the house of his estranged wife and infant son.

MR MAHER:   Yes, your Honour.  That, really, is an argument, though, that the applicant ‑ ‑ ‑

KIRBY J:   That is a different quality of action.  One is an action which could happen accidentally or because a pilot is preoccupied – all sorts of extenuating or other circumstances – made a mistake, the altimeter was not working and so on – and the other is an action which is antisocial, to put it bluntly. 

CALLINAN J:   Mr Maher, how does the Commonwealth regulation apply to this as an entirely intrastate flight, anyway?

MR MAHER:   Yes, your Honour, it applied by virtue that the regulations apply to flight within Australia under the ‑ ‑ ‑

CALLINAN J:   Under some international convention, is it?

MR MAHER: No, your Honour, it is in the actual application of the Civil Aviation Regulations.

KIRBY J:   That is based on the Airlines Case, is it?

CALLINAN J:   Was that done by adoption of mirror legislation?

MR MAHER:   Yes, your Honour, there has been a raft of international treaties, starting with the Chicago Convention in 1944, which was ratified in 1947.  That led to the adoption of the first Act and then the second Civil Aviation Act and the ratification of the various treaties, Montreal ‑ ‑ ‑

CALLINAN J:   So flying an ultralight in Queensland is an external affair, is that what you are saying?

MR MAHER:   The Commonwealth has the power to regulate it, because the external affairs powers would have been one of the powers, yes, by which it can regulate.

CALLINAN J:   What other power is there?

MR MAHER:   The treaties power.

KIRBY J:   I thought that in the Airlines Case, though, the Court held that if you have a commingling of federal and State – if it is essential to the success of the federal regulation that you also regulate the intrastate aviation and that you could not, as it were, divorce the federal from the State regulation, that therefore it is sufficiently incidental to the federal power and you just cannot have a federal power operating without a State regulation, as for example, in the height levels of aircraft.  You just could not have two separate or inconsistent systems, could you?

MR MAHER:   That would be my submission, your Honour.

CALLINAN J:   Mr Logan is not going to argue that the legislation is not in power.

MR LOGAN:   No.

MR MAHER:   I would not have thought so, your Honour. 

CALLINAN J:   It might be an argument for another day, though.  Certainly, the external affairs power has been stretched.  But do not worry about it now.

KIRBY J:   It is the most beneficial power that is in the Constitution. It allows us to act as a nation.

CALLINAN J:   It is the most abused power.  The States are part of the federation. 

KIRBY J:   I think Justice Callinan and I will silence ourselves and give you a fair go.

MR MAHER:   If I might step back just a small way, your Honour.  Taking your Honours’ points, this case is not about a clash between general laws of criminal responsibility and the regulation.  The case was put forward on the basis that this man flew too low.  The Code says that it is an offence to operate a vehicle dangerously, and a “vehicle” includes an aircraft.  The gravamen of the offence was that he flew too low.  Consequently, he was close to houses and caused some anxiety to some onlookers. 

If that is the case, the case was about operating an aircraft and it is my respectful submission that the States have no part to play in regulating how an aircraft is to be operated.  It is the federal enactment which is clear.  There is a raft of rules in relation to the flying of aircraft which apply at any given point, because all aircraft operation is dangerous.  It is the scope and degree of that danger which is measured and which is taken into account in the various regulations which apply.

Therefore, in my submission, it is an error of the Court of Appeal to say, “Well, we look at two fields and you cannot exclude the operation of the State”, because this was not about general criminal responsibility.  The man was charged and convicted for flying a plane too low and once that is the essence of the charge, it is the submission of the applicant that regulation 157 cannot be modified or altered without there being an inconsistency in the constitutional sense.

If I may make the simple example, if it could be proved that a person was flying at 1,200 feet, but nonetheless someone was concerned and said, “Well, a jury considered that dangerous” or an expert said, “I think that was dangerous to fly at that height”, one could imagine a direct inconsistency between what the federal regulation allows and what the State Act is charging.  Therefore, in that respect, the fields are quite different and there is no room for the State to intrude upon the federal field.  Once the case is confined to an issue of height, there is no room for the dangerous operation of an aircraft to operate, in my respectful submission.

There are also other incidents to this, your Honour, such as the difference in penalty which is prescribed by the various regimes.  For instance, had this person been charged under, say, section 20A of the Commonwealth Act, which at the time was concerned with “careless” or “reckless” operation – it has since been amended to simply refer to “reckless” operation – the penalty would have been three years.  Under the Queensland Code, which was originally about driving motor cars – it was altered in 1997 to include aircraft – of course, there are three years, five years and seven year penalties, depending on the circumstances of aggravation which attend the offence. 

Therefore, as well as an inconsistency in what I have referred to as “the rules of the road” – if you will forgive the colloquial expression – there is a difference in penalty, and it would be my respectful submission that the correct approach of the court should have been to look first and see whether the State general law in any way alters the specific federal law.  If that is the case, as this Court has expressed in Victoria v Commonwealth, which is on the list before your Honours, then there is no need to go any further.  If that is not the case, then the field test applies to see if the Commonwealth evinces an intention to cover the field.

KIRBY J:   What is 50 penalty points?  How much is that?

MR MAHER:   50 penalty points is $5,500.

KIRBY J:   So that even for buzzing a house, say, with a jumbo jet, the most that, on your theory, could be imposed was $5000 penalty?

MR MAHER:   No, your Honour, because buzzing a house with a jumbo jet would invoke a number of matters under the federal law, including section 20A, which is careless or dangerous operation of an aircraft, depending when it occurred.  It simply is not ‑ ‑ ‑

KIRBY J:   But, even then, you would be limited to a three year penalty, is that correct?  On your theory.

MR MAHER: It would be more than that, because the Civil Aviation Regulations and Act are concerned not just with the operation of aircraft, but with licensing and restriction and creation of criminal offences. So it might well be that in a situation like that there would be greater penalties involved, because there would be other charges laid. It would not be confined to a $5,500 fine, certainly.

Your Honour, might I also – and I apologise for this anecdotal‑type treatment of this, but looking at the tension between these two laws, it is possible to imagine many, many situations where in fact things are objectively dangerous, they are done every day and therefore they do not result in anyone being prosecuted, but they well might.  For instance, air shows are objectively dangerous, taxiing on runways, a loaded jumbo jet taxiing on Sydney Airport with one landing within 100 metres of it is objectively dangerous.

That sort of thing is the reason why the submission is made that the two Acts cannot stand together once one looks at them in particular, because aircraft travel is objectively dangerous.  It is the degrees of that danger which have to be regulated.

KIRBY J:   Well, it is not really objectively dangerous.  It is safer to be in an aircraft than to be in a motor vehicle, on the statistics.  But it is not safe to buzz your spouse’s property and it is antisocial, not only to the spouse, but also to the child, also to the neighbours, and, because we do not normally see that happening, it is a source of fear, anxiety and distress.  That has a criminal element.  It is not just civil aviation.  It is crime.

MR MAHER:   Yes, your Honour, and, in my submission, could have been embraced by a charge under section 20A of the Act, had the ‑ ‑ ‑

KIRBY J:   But we are not dealing with 20A at the moment.  We are dealing with the regulation, which is, in a sense, against you, because the penalty that is imposed and the regulation that you invoke is a provision, on its face, to deal with the regulation of height restrictions of flying aircraft, not with criminal flying of aircraft.

MR MAHER:   Quite so, your Honour, but nonetheless the federal regulators and legislators have legislated that the penalty shall be 50 penalty units for going below 1,000 feet.  The other matters to which your Honour has referred, the social dimensions, really have no part to play.  If the federal legislature had deemed it to be somewhat more serious, they could have provided for other penalties.  In my respectful submission, we take regulation 157 as it reads.  Even though there might be other aspects to flying low that cause concern to people, nonetheless, it is still a breach of the regulation and the penalty units are prescribed.  The Code’s attempt to, in a general sense, intrude in this area is the gravamen of the problem, in my submission.

KIRBY J:   Could you help me on this?  There is a suggestion in the respondent’s submission that the factual substratum is not entirely clear.  Apparently, there was not absolute clarity as to the height at which your client flew, is that correct?

MR MAHER:   That is so, your Honour, yes.  He was charged over three days – Friday, Saturday and Sunday, twice on the Saturday – of flying.  The Crown did not particularise the height.  They were asked, yet could not.

KIRBY J:   Well, that was not relevant to the law that the Crown was invoking.

MR MAHER:   The Crown maintained, and the trial judge affirmed that they had to prove dangerousness, but the ‑ ‑ ‑

KIRBY J:   But if you were wanting to, as it were, squeeze yourself into the federal law and to say that the federal law covered the field, would you not have to ensure that that substratum of fact was brought out in the evidence in order to establish that?  Because, for all we know, it was $1,500 and the federal law that you invoke does not apply.

MR MAHER:   Yes.  That is the problem of them not particularising, your Honour.  I must – I do not want to mislead the Court.  Witnesses gave varying estimates between – Sergey, the son of the complainant, said 7 to 10 metres, Mrs Boone said 30 metres, someone else said about 20 metres/  Therefore, there were varying estimates which, if they were accepted, it has to be conceded, were probably under the 1,000 foot ceiling.

Nonetheless, the court heard from an expert, or someone purported to be an expert, and also other owners of these ultralight aircraft and it is that other owner quoted in the Court of Appeal judgment by Justice Williams.  It is a matter of, I would submit, importance that the court was prepared to hear and act on evidence that flying at a height below 1,500 feet above a country town was dangerous.  That is the essence of the problem there. 

KIRBY J:   Has the regulation been made metrical now, or not?

MR MAHER:   Not that I am aware, your Honour. 

KIRBY J:   It is still in feet, is it, because that is used in international aviation?

MR MAHER:   Essentially, a US‑led model of regulation, which we adopt.

KIRBY J:   Yes, I follow.

MR MAHER:   Your Honour, the submission of the applicant is that one would look to see if the State law in any way detracts from or alters the effect of the federal law.  In my submission, it does, because even if you are obeying the federal law, it may well be the case, now, that pilots over Biloela should fly above 1,500 feet to render themselves safe from prosecution.

Secondly, if the Court does not accept that, then one looks for the field and it is my submission, without question, that it is the federal government charged with safe airline travel in this country, not State governments.  It is a federal responsibility and for the States to intrude in a general way makes for uncertainty.  There is a question of public policy.

KIRBY J:   I think your solicitor was giving you a note.  I do not know if there is something that ‑ ‑ ‑

MR MAHER:   Your Honour, those are my submissions on the actual – it is a matter of simple compass. We do not know what height this aircraft was and it was never established.

KIRBY J:   It does seem, on that evidence that you have told us, that it was below the 1,000 feet.

MR MAHER:   They were some of the estimates.  Other witnesses, certainly for the applicant, put it at 1,500 feet or higher and Mr Morris himself gave evidence that at no stage were they below the required ‑ ‑ ‑

KIRBY J:   You do not challenge the definition of “vehicle” to include aircraft, except for the intersection of federal and State law?

MR MAHER:   Yes.  That is not under challenge, your Honour.  “Vehicle” was altered in 1977 on 1 July to include an aircraft.  There is nothing in the second reading speech which I could see which would have assisted this Court in understanding the rationale for the change, and therefore it has not been put before you.  In the applicant’s submission, this case is on point with some High Court cases which have considered this very question, including Blacklock’s Case, which was referred to in our materials and Telstra.

KIRBY J:   We have looked at your references to those.  Is there anything additional that you want to say?  We are a little bit more flexible in this panel than in the other panel.

MR MAHER:   Thank you, your Honour.

KIRBY J:   Your client got bail from Justice Heydon, did he not?

MR MAHER:   He is on bail and he is present, yes, your Honour.

KIRBY J:   Our decision, if it goes against him, means that he is taken into custody now to serve his sentence?

MR MAHER:   It does, your Honour.

KIRBY J:   Yes.  Is there anything else you want to say that is important?

MR MAHER:   Very briefly, your Honour.  This Court, as recently as 1999, in the Telstra Case followed the principle in Victoria v The Commonwealth about the two‑stage approach. 

KIRBY J:   Yes, we know that case.  We both sat in that case.

MR MAHER:   Yes, your Honours did.  Blacklock’s Case is on the point where a federal law, which was specific, was to be preferred over a State law of general application, which I would submit is apposite.  At 342 of Blacklock’s Case the High Court said that that is the law under which those acts should be punished, not a State law of general application.  That is the principle which I would urge upon this Court, respectfully.

KIRBY J:   Yes, thank you for your help, Mr Maher.  You are having an easy day today, Mr Logan.  The Court does not need your assistance. 

This application raises a constitutional question. The applicant challenges his convictions of offences of operating a vehicle (an aircraft) dangerously, contrary to section 328A of the Criminal Code (Qld). The dangerous conduct alleged was the action of the applicant, as an air pilot, in flying a light plane low over a house in which his estranged wife and infant son were living. The facts suggested that the applicant descended below 1,000 feet when flying over the house concerned. Although those facts are not entirely clear in the evidence before the jury, this Court, like the Court of Appeal, would be prepared to proceed on that basis.

By regulation 157 of the Civil Aviation Regulations 1988 (Cth), made under the Civil Aviation Act 1988 (Cth), it is a federal offence to fly an aircraft in a city, town or populous area at a height lower than 1,000 feet. The applicant has contended that thus federal law is inconsistent with the State criminal law, and, to the extent of the inconsistency, the federal law prevails, in accordance with section 109 of the Constitution.

The applicant’s submission was rejected by the trial judge, Boulton DCJ, and by the Queensland Court of Appeal.  In the Court of Appeal, Justice Williams correctly analysed the applicable authorities on constitutional inconsistency.  He found no direct or necessary inconsistency in the two laws and no inconsistency in terms of the test of covering the field, applicable where federal law exclusively regulates the subject matter, as explained by this Court in Ex parte McLean (1930) 63 CLR 472.

The two laws, federal and State, can operate harmoniously, in a case such as the present, for their respective purposes.  The federal law operates for the ordinary regulation of civil aviation; the State law for the use of an aeroplane dangerously and criminally.  The maximum penalty of 50 penalty units provided in the federal law tends to confirm the limited operation of the federal law concerned.  The constitutional challenge was, therefore, correctly rejected by the courts below. 

Special leave is, accordingly, refused.  The bail granted to the applicant to protect the utility of this application is revoked.  The applicant must surrender himself to serve his sentence. 

MR LOGAN:   There is no application for costs, if the Court pleases.  There is, though, this offer, as it were, if the Court were minded.  It might be recalled that in the Court of Appeal the order that a warrant issue was allowed to lie in the registry, to allow a voluntary surrender in a humane way.  There is an ability, it is submitted, that if the Court were so minded and the applicant wished to stay the operation of the dismissal perhaps for a short time, to allow a voluntary surrender.  But if that is not sought, then there is no pressing by the State, of course, for that.  It is just a consideration that is raised. 

KIRBY J:   Well, it would be unseemly if the applicant were suddenly bundled into prison without an appropriate ‑ ‑ ‑

MR LOGAN:   Yes. 

KIRBY J:   I am grateful to you for raising that.  I assume that you ask that the order continue to lie in the Queensland Court of Appeal for a period of what, a week or two days? 

MR MAHER:   Your Honour, I have taken instructions on that point and under normal circumstances would seek such an order, but my client has advised that he would rather surrender himself immediately. 

KIRBY J:   Yes.  He will surrender himself today, will he? 

MR MAHER:   Yes. 

KIRBY J:   Yes, very well.  I do not think, in those circumstances, it is necessary to say anything, because by the time anything is done he will have surrendered himself.  Thank you for raising that point.  Special leave is refused and we make no other order. 

The Court will now adjourn in order to be reconstituted. 

AT 2.31 PM THE MATTER WAS CONCLUDED