R v Field - [1996] QCA 477

IN THE COURT OF APPEAL	[1996] QCA 477
SUPREME COURT OF QUEENSLAND

C.A. No. 428 of 1996

Brisbane

Before

Fitzgerald P.
Davies J.A.
Dowsett J.

[R. v. Field]

THE QUEEN

BARRY EDWARD FIELD

Appellant

Fitzgerald P.
Davies J.A.
Dowsett J.

Judgment delivered 29 November 1996

Judgment of the Court

APPEAL AGAINST CONVICTION DISMISSED.
APPLICATION FOR LEAVE TO APPEAL AGAINST SENTENCE GRANTED.
APPEAL AGAINST SENTENCE ALLOWED, AND THE PENALTY IMPOSED BELOW

SET ASIDE AND A PENALTY OF $1,000.00 SUBSTITUTED.

CATCHWORDS:	CONVICTION - operating a charter flight otherwise than in accordance with an Air Operator’s Certificate contrary to sub-s. 29(1)(b) of the Civil Aviation Act 1988 (Cth.) - whether the Commonwealth Director of Public Prosecutions has constitutional legislative power to prosecute offences that occur within a State - whether a hot air balloon is an aircraft - the requirement of mens rea - directions to the jury on the defence evidence.
Airlines of New South Wales Pty Ltd v. New South Wales (1964) 113 C.L.R. 1
Airlines of New South Wales Pty Ltd v. New South Wales [No. 2] (1965) 113 C.L.R. 54 Bourke v. State Bank of New South Wales (1990) 170 C.L.R. 276 Leask v. The Commonwealth (High Court of Australia, unreported, 5 November 1996) R. v. Burgess; ex p Henry (1936) 55 C.L.R. 608 R. v. Poole; ex p.Henry (1939) 61 C.L.R. 634
SENTENCE - mature man with an unblemished record who has suffered personally and commercially as a result of his conviction - importance of deterrence - attempts to have witnesses lie to investigators - absence of remorse and lack of cooperation - offence committed as part of a commercial operation.
Counsel:	Mr P.H. Clough (Solr.) for the appellant. Mr W. Sofronoff Q.C. for the respondent.
Solicitors:	Paul Clough & Associates for the appellant. Commonwealth Director of Public Prosecutions for the respondent.
Hearing Date:	19 November 1996
REASONS FOR JUDGMENT - THE COURT

Judgment delivered 29 November 1996

This is an appeal against the appellant’s conviction on 14 May 1996 of an offence of operating a charter flight otherwise than in accordance with an Air Operator’s Certificate contrary to sub-s. 29(1)(b) of the Civil Aviation Act 1988 (Cth.). On the day in question, the appellant took three persons for a flight in a hot air balloon near Beerwah, in the vicinity of the Glasshouse Mountains, at a cost of $150.00 per person. The appellant has also applied for leave to appeal against his sentence, which was a pecuniary penalty of $4,000.00. The maximum permissible penalty was a sentence of imprisonment for two years or a pecuniary penalty of $12,000.00.

It is not proposed to list the 20 grounds of appeal against conviction, but to deal with the matter by reference to what are called “THE FIRST POINT”, “THE SECOND POINT”, “THE THIRD POINT”, and “THE FOURTH POINT” in the appellant’s voluminous written outline of argument. “THE FIRST POINT” is that “the Commonwealth Director of Public Prosecutions does not have constitutional legislative power to prosecute offences that occur…

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 Field

Details

AGLC: R v Field [1996] QCA 477
Case: [1996] QCA 477
Decision Date: 29/11/1996

CaseChat Overview and Summary

The case of R v Field involved the Commonwealth Director of Public Prosecutions bringing charges against the defendant for operating a charter flight without a valid Air Operator’s Certificate, in violation of sub-section 29(1)(b) of the Civil Aviation Act 1988 (Cth). The defendant contested the charges, raising several issues including the constitutional power of the Commonwealth to prosecute offences occurring within a state, the classification of a hot air balloon as an aircraft, the requirement of mens rea, and the adequacy of jury directions regarding the defence evidence.

The primary legal issues before the court were whether the Commonwealth had the legislative authority to prosecute offences occurring within a state, and if so, whether the Commonwealth Director of Public Prosecutions could validly prosecute such an offence under the Civil Aviation Act 1988. Additionally, the court needed to determine whether a hot air balloon qualified as an aircraft for the purposes of the Act, and whether the prosecution had established the necessary mens rea for the offence. The court also had to consider whether the jury had been appropriately directed on the defence evidence.

The court held that the Commonwealth did have the constitutional power to prosecute offences occurring within a state, based on the external affairs power under section 51(xxix) of the Constitution. The court found that a hot air balloon was indeed an aircraft for the purposes of the Act, and that the prosecution had discharged its burden of proving mens rea. The court concluded that the jury had been properly directed on the defence evidence, ensuring that the trial was conducted fairly. The conviction was upheld, and the defendant’s appeal was dismissed.

As a result of the court's decision, the conviction of the defendant was upheld, and the appeal was dismissed. The court confirmed the Commonwealth's authority to prosecute aviation offences occurring within a state, clarified the classification of a hot air balloon as an aircraft, and affirmed the adequacy of the jury directions.

Orders