Reilly, James Stuart v Moss, John Richard

[1998] TASSC 39

39/1998

PARTIES:  REILLY, James Stuart
  v
  MOSS, John Richard

TITLE OF COURT:  SUPREME COURT OF TASMANIA
JURISDICTION:  APPELLATE
FILE NO/S:  LCA 13/1997
DELIVERED:  24 April 1998
HEARING DATE/S:  19 February 1998
JUDGMENT OF:  Cox CJ

CATCHWORDS:

Magistrates - Appeal from and control over magistrates - Tasmania - Motion to review - The hearing - Generally - Appeal against conviction for breach of Civil Aviation Regulations - Whether deeming provision in reg155(2) relevant to prosecutions for acrobatic flight under reg155(3) - Appeal dismissed.

Civil Aviation Regulations (Cth), regs155(3)(a) and 281.
Aust Dig Magistrates [272]

REPRESENTATION:

Counsel:
           Applicant:  G F M Williams
           Respondent:  J D Barnett
Solicitors:
           Applicant:  Crisp Hudson & Mann
           Respondent:  Australian Government Solicitor

Judgment category classification:
Court Computer Code:  
Judgment ID Number:  39/1998
Number of pages:  3

Serial No 39/1998
File No LCA 13/1997

JAMES STUART REILLY v JOHN RICHARD MOSS

REASONS FOR JUDGMENT  COX CJ

24 April 1998

The applicant was convicted in petty sessions of a breach of the Civil Aviation Regulations (Cth) ("the Regulations"), reg155(3)(a) and reg281 in that on or about 15 January 1995 at or near Gunns Plains in Tasmania he did, without the written permission of the Authority, engage in acrobatic flight in an aircraft at a height lower than 3,000 feet above the highest point of the terrain within a radius of 600 metres of a line extending vertically below the aircraft.  His grounds of appeal are:

"1The learned Magistrate erred in law in considering the definition of 'acrobatic flight' in Regulation 2(1) but failed to take into consideration the further deeming provision to acrobatic flight in Regulation 155(2) which states:-

'For the purposes of sub regulation (1), straight and steady stalls or turns in which the angle of bank does not exceed 60 degrees shall be deemed not to be acrobatic flight'.

2The learned Magistrate in failing to consider 1 above, satisfied himself of a manoevre [sic] decided on fact devoid of any evidence of the angle of 'banking'."

Acrobatic flight is defined by the Regulations in reg1 in the following terms:

"'acrobatic flight' means manoeuvres intentionally performed by an aircraft involving an abrupt change in its attitude, an abnormal attitude, or an abnormal variation in speed;"

Regulation 155 relevantly provides:

"155     (1)      An aircraft:

(a)   shall not be flown in acrobatic flight at night;
(b)   shall not be flown in acrobatic flight except in V.M.C.; and

(c)shall not be flown in acrobatic flight of a particular kind unless the certificate of airworthiness of, or the flight manual for, the aircraft specifies that the aircraft may perform that type of acrobatic flight.

(2)      For the purposes of subregulation (1), straight and steady stalls or turns in which the angle of bank does not exceed 60 degrees shall be deemed not to be acrobatic flight.

(3)      Except with the permission in writing of the Authority, a person shall not engage in acrobatic flight in an aircraft:

(a)at a height lower than 3,000 feet above the highest point of the terrain, or any obstacle thereon, within a radius of 600 metres of a line extending vertically below the aircraft; or

(b)over a city, town, populous area, regatta, race meeting or meeting for public games or sports."

V.M.C. is, in turn, defined in reg1 as "the symbol used to denote meteorological conditions in which the flight visibility and distances from cloud during a flight are equal to, or greater than, the applicable distances determined by the Authority under subregulation 172 (2)".

The learned magistrate, having heard evidence of manoeuvres by the aircraft which the applicant was admittedly flying, expressed himself satisfied that they amounted to acrobatic flight within the Regulations and that the aircraft had, while still executing those manoeuvres, been within the prohibited altitude.  The manoeuvres in question essentially involved the ejection of a roll of toilet paper from the cockpit at a height of 6,000 feet while the pilot held one end of it and when it was paid out and the end let go, the flying of the plane at lower and lower altitudes, cutting the paper each time the plane passed through the roll.  The applicant, in his evidence, had admitted that his minimum height following the toilet roll cutting sequence was probably 2,000 - 2,500 feet.  The evidence of other witnesses on the ground supported the learned magistrate's finding.

The grounds of appeal do not challenge the finding that the aircraft was flown in acrobatic flight as defined by reg1, nor that in the course of doing so it flew at a height of less than 3,000 feet.  The grounds complain that the learned magistrate failed to qualify the definition of acrobatic flight in reg1 by applying to it the deeming provision in reg155(2).

Regulation 155(1) imposes an absolute prohibition on acrobatic flying:

(a)     at night,

(b) when the meteorological conditions are other than those comprehended by the term "V.M.C.",

and

(c) unless the certificate of airworthiness or flight manual specifies that the aircraft may perform the particular type of acrobatic flight undertaken.

This absolute prohibition is, however, ameliorated by a relaxation of the definition of "acrobatic flight" so as to permit straight and steady stalls or turns in which the angle of bank does not exceed 60 degrees.  Such manoeuvres are deemed not to be acrobatic flight but only for the purposes of subreg(1).

Different prohibitions are contained in subreg(3) which:

(a)limits to not less than 3,000 feet the height at which acrobatic flight, as defined in reg1, may be undertaken; and

(b)      limits the areas above which such flight may be undertaken;

unless in each case the controlling Authority grants written permission.  There is no room for the application of the deeming provision in subreg(2) to the definition of "acrobatic flight" for the purposes of subreg(3).  Subregulation (2) does not apply either literally or by implication.  In consequence, the angle of the bank at which the applicant's manoeuvres were carried out were irrelevant in determining whether or not those manoeuvres amounted to acrobatic flight for the purposes of the prohibition contained in reg155(3) of which he was alleged to have been in breach.  The learned magistrate's failure to take into account the terms of reg155(2) or the fact that there was no evidence concerning the angle of bank in no way constituted any error on his part.

Counsel for the applicant relied on an unreported decision of the Administrative Appeals Tribunal delivered on 28 November 1986 entitled Re Laurence Charles Gruzman and Secretary to the Department of Aviation where Mr Gruzman was acquitted of a charge of a similar nature to one under the present reg155(3), namely one under reg131(3) of the Regulations as they then stood.  The Tribunal said that whatever abrupt or abnormal changes of attitude may have occurred, "we are not satisfied that [Mr Gruzman's] manoeuvres were 'intentionally performed' within the meaning of the definition of acrobatic flight" (at par94).  The Tribunal continued:

"Moreover we are not satisfied that the Cessna made any stalls or turns in which the angle of bank came close to let alone exceeded 60 degrees. 
It follows that no such flight was in breach of Regulation 131 (3) (a) ..." (ie, the equivalent of reg155(3)(a) as charged here) (at par95).

There is no indication in the Reasons for Judgment that the relevance of the angle of bank was challenged by the prosecution, nor did the Tribunal discuss the applicability of subreg(2) to prosecutions under subreg(3) as opposed to subreg(1); and in any event the reference to it was an obiter dictum as the Tribunal was not satisfied the manoeuvres were intentionally performed.

In my opinion the points raised by the notice to review must be resolved in favour of the respondent.  The appeal is dismissed.