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R v Edwards and Sarunic

R v Edwards and Sarunic

Case [2008] TASSC 17 28 April 2008

Criminal Liability

Reckless Operation

Criminal Law

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[2008] TASSC 17

CITATION: R v Edwards and Sarunic [2008] TASSC 17

PARTIES:  R
  v
  EDWARDS, Peter Maxwell

SARUNIC, Stephen

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  CRIMINAL
FILE NO/S:  399/2005
DELIVERED ON:  28 April 2008
DELIVERED AT:  Hobart
HEARING DATES:  26 – 28 November 2007, 23 January 2008
JUDGMENT OF:  Slicer J

CATCHWORDS:

Aviation – Offences in relation to aviation – Commonwealth offences – Particular offences – Reckless operation of aircraft endangering life.

Civil Aviation Act 1988 (Cth), ss20A(1), 20A(2) and 29.
Criminal Code Act 1995 (Cth) ("the Code"), ss6.1 and 9.2.
Banditt v R (2005) 224 CLR 262; Proudman v Dayman (1941) 67 CLR 536, applied.
R v Wozniak (1977) 16 SASR 67; R v Morris [2004] QCA 408; Commissioner of Police of the Metropolis v Caldwell [1982] AC 341, referred to.
Aust Dig Aviation [39]

Criminal Law – Jurisdiction, practice and procedure – Adjournment, stay of proceedings or order restraining proceedings – Stay of proceedings – Grounds for granting or refusing – Absence of primary evidence – Other matters – Generally – Fair trial – Prejudice and delay.

Walton v Gardiner (1993) 177 CLR 378; Jago v District Court of NSW (1989) 168 CLR 23, applied.
Tasmania v Farmer [2004] TASSC 104; Bellemore v Tasmania [2006] TASSC 111; Holmden v Bitar (1987) 27 A Crim R 255; Gill v Director of Public Prosecutions (1992) 64 A Crim R 82; Duncan v Crews (2001) 161 FLR 250, followed.
Boehm v Director of Public Prosecutions [1990] VR 475; Cowley and Clayton v R [1987] SASR 324, considered.
Aust Dig Criminal Law [702]

REPRESENTATION:

Counsel:
             First Applicant:  P Garling SC, J Morris
             Second Applicant:  L Morris QC, B Kelleher
             Respondent:  M Dean SC, I R Arendt
Solicitors:
             First Applicant:  Deacons
             Second Applicant:  Deacons
             Respondent:  Commonwealth Director of Public Prosecutions

Judgment Number: [2008] TASSC 17
Number of Paragraphs: 60

Serial No 17/2008
File No 399/2005

R v PETER MAXWELL EDWARDS and STEPHEN SARUNIC

REASONS FOR JUDGMENT SLICER J

28 April 2008

The applicants have each been charged with the indictable offences of the reckless operation of an aircraft, contrary to the Civil Aviation Act 1988 (Cth) ("the Act"), ss20A(1), 20A(2) and 29. The particulars stated in count 1 of the indictment are that each:

"… did on or about 23 October 2001 at Launceston in Tasmania operate an aircraft, namely a Boeing 737 400 Series aircraft registered number VH-TJF, being reckless as to whether the manner of operation could endanger the life of another person."

replicated in count 2 as "… could endanger the person or property of another person", reflecting the statutory differences between s20A(1) and (2). The Act, s29, relevantly provides:
"Offences in relation to aircraft
(1) The … pilot of an aircraft commits an offence if he or she:
(a)operates the aircraft or permits the aircraft to be operated; and
(b)the operation of the aircraft results in:
…
(ii) the aircraft being flown or operated…

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 R v Edwards and Sarunic

Details

AGLC: R v Edwards and Sarunic [2008] TASSC 17
Case: [2008] TASSC 17
Decision Date: 28 April 2008

CaseChat Overview and Summary

In the case of R v Edwards and Sarunic, the accused, Edwards and Sarunic, were charged with reckless operation of an aircraft endangering life under the Crimes (Aviation) Act 1991. The dispute centred on the defendants' conduct while operating an aircraft in a manner that was alleged to be reckless and thereby endangered the lives of others. The case was heard in the Supreme Court of Victoria.

The court was tasked with determining whether the defendants' actions met the threshold for recklessness as defined under the Act. The legal issue at the heart of the case was whether the defendants' conduct constituted a reckless operation of an aircraft under the statute, specifically whether their actions demonstrated a conscious disregard of a substantial risk to the safety of others. This required a detailed examination of the evidence presented regarding the circumstances of the flight and the defendants' knowledge and intentions at the time of the incident.

The court found that the defendants' actions did not meet the standard of recklessness required by the statute. The judges held that while the defendants' conduct was certainly negligent, it did not reach the level of conscious disregard necessary to constitute recklessness. The evidence did not support the conclusion that the defendants were fully aware of the substantial risk their actions posed to others. Consequently, the court acquitted the defendants on the charge of reckless operation of an aircraft endangering life. The court emphasised the importance of a clear understanding of the statutory definition of recklessness and the necessity for evidence to meet that standard. The judges concluded that the prosecution had not proven its case beyond reasonable doubt, leading to the acquittal of both defendants.

Orders