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

v.

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 wholly within the confines of a State”, which is related to the premise that the Civil Aviation Act does not, because as a Commonwealth statute it cannot, validly apply in relation to the operation of a Australian aircraft entirely within the State of Queensland. ‘THE SECOND POINT” is “Whether a balloon is an aircraft”. “THE THIRD POINT” is “The requirement of mens rea”. “THE FOURTH POINT” is “The directions to the jury on the defence evidence”.

The First Point, which occupied more than 20 pages of written submissions, was substantially based upon statements made in Airlines of New South Wales Pty Ltd v. New South Wales (1964) 113 C.L.R. 1 and Airlines of New South Wales Pty Ltd v. New South Wales [No. 2] (1965) 113 C.L.R. 54 (which were treated as a single decision), but the appellant’s argument also included reference to such matters as submissions made by the Civil Aviation Safety Authority (formerly the Civil Aviation Authority) to a coroner’s inquest, a public notice in a newspaper, the Queensland Government’s “worthy control of utilisation and access by air to national parks in Queensland”, a proposition, based on a misreading of Bourke v. State Bank of New South Wales (1990) 170 C.L.R. 276, related to the legislative power of the Commonwealth with respect to intrastate banking, some passages in the transcript of the proceeding below which were concerned with whether the flight the subject of the charge was safe, and “excellent”, and the Air Navigation Act 1937 (Qld.). For obvious reasons, it is not proposed to discuss all of these matters.

The Queensland Act was passed after the decision of the High Court in R. v. Burgess; ex p. Henry (1936) 55 C.L.R. 608, which was followed by the enactment of the Air Navigation Act 1936 (Cth.)[1] and a meeting of Commonwealth and State Ministers in April 1937, as a result of which all States passed substantially uniform air navigation legislation to control and regulate aviation in Australia. The respondent did not seek to rely on the Queensland legislation, and it is not proposed to refer to it further. It remains in effect, presumably as a precautionary measure. The Commonwealth’s material legislative power was again considered in the Airlines of New South Wales cases. The latter of those two cases, which explained what had been decided in the former and discussed Burgess and Poole, upheld the power of the Commonwealth Parliament to enact legislation such as the presently material provisions of the Civil Aviation Act pursuant to s. 51(xxix) of the Commonwealth Constitution (the external affairs power) in order to give effect to the Chicago Convention on International Civil Aviation and annexes thereto.[2] No decision since has thrown doubt upon that conclusion, and nothing said either in later decisions or on behalf of the appellant in this case gave this Court any reason not to proceed on the basis that the material provisions of the Civil Aviation Act are appropriate and adapted to that purpose,[3] and constitutionally valid.

[1]              See R. v. Poole; ex p. Henry (1939) 61 C.L.R. 634.

[2]              The Act also relies on s. 51(i), the trade and commerce power.

[3]           Leask v. The Commonwealth (High Court of Australia, unreported, 5 November 1996).

The Second Point, which is related to the circumstance that the material flight occurred in a hot air balloon, was expressly abandoned at the trial, when any substantive issue concerning whether such a balloon is an “aircraft” within the meaning of s. 3 of the Civil Aviation Act could, if necessary, have been resolved by expert evidence with respect to such factual questions as whether a hot air balloon “can derive support in the atmosphere from the reactions of the air”.

The Third Point was raised at trial solely by reference to the appellant’s claim that he lacked a guilty intent because the flight was not a charter flight but an instructional flight for which he had been told he did not need the relevant certificate. The evidence of the supposed “student” that it was a charter, not an instructional, flight was plainly accepted by the jury, which also had evidence that the appellant attempted to have the passengers falsely say to a Civil Aviation Safety Authority investigator “that they did not pay for the flight”. It was clearly open to the jury to be satisfied beyond reasonable doubt that the appellant carried out all acts involved voluntarily and intentionally and knew all matters material to the commission of the offence of which he was convicted, including that it was not a purpose of the flight to instruct a student. The Fourth Point related to a statement by the trial judge - in the absence of the jury - that, if the jury believed the passenger who was supposed to be the student, the appellant would be correctly convicted, and some evidence which involved that passenger in instructions and activities incidental to the flight which should, according to the appellant, have caused the jury to doubt the passenger’s evidence that it was not an instructional flight, especially because she was supposed to be too excited to notice that she was being instructed. The submission was made that it was open to the jury to believe the passenger but not convict the appellant, and that the jury should have been instructed accordingly. These submissions were based upon inaccurate statements with respect to the trial judge’s summing up to the jury and the conduct of the trial. The jury was told that the onus was on the prosecution to prove beyond reasonable doubt that the flight was not an instructional flight, and that, if it had a reasonable doubt concerning whether the flight was an instructional flight, it must acquit. No material redirection was asked for; instead, the trial judge was told by the appellant’s counsel at trial that he had “covered the law on the case we put forward in the case perfectly well”. Before this Court, it was made plain that that course was deliberately adopted for tactical reasons.

In summary, there is nothing in any of the arguments against conviction, and the appeal must
fail.
In its attempt to support the sentence imposed by the District Court Judge, the respondent
referred to his Honour’s description of the appellant’s story of taking one of the passengers on a
private instructional flight as “ridiculous” and referred to his Honour’s statements that the
appellant had displayed a “stubborn and unrealistic attitude towards this matter”, and that it was
necessary to deter similar offences by others. However, the trial judge also noted that there was
no suggestion of any lack of safety associated with the flight and that the appellant is not well off
financially. The respondent also emphasised the appellant’s attempt to have the witnesses lie to
the investigator and his absence of remorse, as demonstrated by his lack of cooperation. Further,
it was pointed out that the offence had been committed as part of a commercial operation.

Even so, the appellant is a mature man with an unblemished record, who has no doubt suffered personally and commercially from his conviction. Taking into account the nature and seriousness of the offence, the appellant’s attempt to have the investigator misled and his lack of remorse, we do not accede to the submission that it would be appropriate to discharge the appellant without penalty. However, we are satisfied that the penalty imposed is too severe having regard to other cases to which we were referred. We would reduce the amount of the penalty to $1,000.00.

In summary, the appeal against conviction should be dismissed, the application for leave to appeal against sentence granted, the appeal against sentence allowed, and the penalty imposed below set aside and a penalty of $1,000.00 substituted.