Baker v The King
[2024] NZHC 3842
•9 December 2024
IN THE HIGH COURT OF NEW ZEALAND AUCKLAND REGISTRY
I TE KŌTI MATUA O AOTEAROA TĀMAKI MAKAURAU ROHE
CRI-2024-404-621
[2024] NZHC 3842
BETWEEN DANIEL WILLIAM BAKER
Appellant
AND
THE KING
Respondent
Hearing: 9 December 2024 Appearances:
A Spika for Appellant
C Purdon for Respondent
Judgment:
9 December 2024
(ORAL) JUDGMENT OF WILKINSON-SMITH J
Solicitors:
Public Defence Service, Auckland Meredith Connell, Auckland
BAKER v R [2024] NZHC 3842 [9 December 2024]
Introduction
[1] Following a Judge-alone trial on 23 July 2024, Judge M-E Sharp issued a decision finding Mr Baker guilty of one charge of endangering transport.1 The Judge‑alone trial took place over two days on 26 and 27 June 2024. The charge arose out of Mr Baker allegedly shining a high-power laser into the cockpit of a DHL cargo 767 aircraft (the 767) that was airborne over the Titirangi area at approximately 7,000 feet.
[2] Mr Baker appeals his conviction and submits that the Judge erred in finding that he reacted with reckless disregard for the safety or property of others resulting in a miscarriage of justice.
[3] Mr Baker contends that he was found guilty on the basis that he should have perceived the risk when the law requires him to have actually perceived it. In other words, the appellant says that the Judge applied an objective rather than a subjective test.
[4] The respondent opposes the appeal. It is submitted that the Judge did not err in concluding that Mr Baker acted with reckless disregard for the safety of persons or property and that her Honour was entitled to draw inferences from the evidence adduced by the Crown that the appellant must have perceived a risk to aircraft when he shone the laser beam into the sky.
Background
[5] On Sunday 29 July 2022 at approximately 3 am, a DHL courier freight plane carrying cargo with two crew members on board was descending towards Auckland from Sydney. The pilot observed the cockpit of the aircraft illuminated by a bright green light emitted from a laser pointer. The light entered the left side of the cockpit for one to two seconds causing a distraction while the crew prepared the aircraft for arrival.
1 New Zealand Police v Baker [2024] NZDC 17136.
[6] The appellant was in possession of a laser pointer at his home address in Point Chevalier. His defence was that he was waving the laser around and the beam accidently struck the aircraft. The aircraft was somewhere between four and ten, although probably closer to ten, kilometres away at the time. The appellant says that the crew members avoided looking directly at the beam during the critical flight phase and the plane landed without issue.
[7] The appellant was located a short time later by the police Eagle helicopter at his home address in Point Chevalier using the laser pointer and directing it toward the Eagle helicopter. Upon arrest, he was in possession of methamphetamine and cannabis.
The District Court decision
[8] The District Court Judge set out in her decision that Mr Baker initially faced two charges of interfering with a transport facility with reckless disregard for persons or property. The second charge related to the Eagle helicopter.
[9] After hearing Crown evidence and an application to dismiss Charge 2 under s 147 of the Criminal Procedure Act 2011, the Judge amended the charge to one of attempting with reckless disregard for the safety of persons or property to interfere with a transport facility. The Judge noted that she briefly considered whether the offence could be amended to an attempt because of the recklessness element but ultimately decided that the attempt attached to the actus reus, which was the interference, rather than to the element of recklessness. The Judge later considered that conclusion was wrong because of a line of authority to the effect that attempts under s 72 of the Crimes Act 1961 require intent to be proved for the full offence thus offences that are defined solely in terms of recklessness or negligence are not within the section and do not carry liability for attempt. Having come to that conclusion, the Judge dismissed Charge 2.
[10] The factual finding that the appellant had attempted to interfere with the Eagle helicopter remained relevant to the decision on Charge 1 as propensity evidence.
[11] The decision under appeal relates to Charge 1. The Judge set out the factual background and then set out the issues as being:
(a)did the laser beam enter the cockpit as a result of the perpetrator’s reckless disregard for the safety of persons of property; and
(b)has the Crown proven beyond doubt that Mr Baker was the person who used the laser beam to interfere with the aircraft.
[12] The Judge traversed the Crown and defence positions and in particular the defence submission that there was no evidence from which the Court could properly draw an inference that the appellant either was the person who directed a laser beam that struck the aircraft or draw an inference that at the time the appellant appreciated that danger to persons or property was a real possibility and unreasonably continued to use the laser in the way he did.
[13] The Judge set out that the appellant did not deny that high-power laser pointers are dangerous, but submitted that recklessness requires evidence that, at the time he used the laser, Mr Baker recognised that danger to persons or property was a real possibility. It was the appellant’s case that there was no evidence that Mr Baker did have that appreciation, nor was there evidence that it was Mr Baker’s laser beam which struck the aircraft.
[14] The Judge also set out the defence submission that something more than just light entering the cockpit is required for interference. In this case, the light entered the cockpit for one to two seconds and flashed around the clouds but did not catch the pilot’s eyes. It is clear that the pilot took some evasive action moving his seat to avoid that effect. The appellant submitted that, at that range and for that short a time at that altitude, it could not be said that there was interference. The Judge disagreed saying that there was interference no matter how fleeting. The Judge did not accept the defence submission that there has to be something else as well as just light entering the cockpit to constitute interference. The Judge noted that while there was no authority on that proposition, she regarded it as a matter of logic.
[15] The Judge then turned to the issue of recklessness and set out the defence submission that even the experts do not seem to be able to say at what distance a laser of this power is able to cause a distraction or glare. The Judge asked herself whether there was sufficient evidence from which an inference of recklessness could be drawn.
[16] The Judge set out the Crown position and factors which the Crown said allowed the inference to be drawn which included the amount of publicity in recent years about the dangers of people of shining laser beams in the sky, either directed at aircraft or otherwise. The Judge agreed with this proposition. In addition, the Crown said that logic dictates that if a person is directing a high-power laser beam at an aircraft, they must have recognised the danger because it is within the general knowledge of people that lasers are capable of causing injury. The expert called by the Crown, Professor Roderick said that when turned on the laser beam used by the appellant was painful to look at. I accept though that is not necessarily evidence as to the effect of the laser at a distance and at an altitude that the freight plane was at.
[17] Evidence was given of the significant risk posed for pilots, aircraft, their passengers, and people on the ground from laser beams.
[18] Propensity evidence was available because Mr Baker shone the laser beam into the sky at the Eagle helicopter later that same night. The Crown invited the Judge to engage in propensity reasoning saying the similarities between the two events made it more likely that it was Mr Baker who pointed the laser beam in the sky or at the 767. He had a tendency on that night to act in that way.
[19] The Judge said that she was satisfied beyond reasonable doubt it was Mr Baker who shone the laser at both aircraft for the following reasons:
(a)The evidence placed the source of the laser beam which struck the 767 in the region of Point Chevalier.
(b)The police helicopter Eagle was tasked immediately with tracking the source of the laser beam. When approaching the Westmere area in the
early hours of the same morning, the occupants of the police helicopter, Eagle, observed the laser beam come from that locality.
(c)When the officers saw the laser beam, they zoomed in to identify the exact location and were only able to pinpoint a relatively close proximity before the laser was turned off. However, after it was turned on and off again in fairly quick succession, police identified that it was coming from the appellant’s address.
(d)The evidence of the officer in the police helicopter was that it appeared that the laser was searching for them and coming in their direction. Police staff were dispatched to the area whilst the Eagle maintained observations on the house. During the observations they saw movements between a shed on the property and the house. They were asked to circle and maintain observations awaiting police arrival. At one point a person appeared from the rear shed and walked to the main dwelling. The laser beam went on again just before the police went onto the property. Mr Baker was located in the house with a laser. It is not in contest that he had with him the laser that was later tested.
[20] The Judge was satisfied it was Mr Baker using the laser in the sky when the Eagle was overhead and there were sufficient similarities between the events in both charges to establish that Mr Baker used the laser when its beam interfered with the 767 aircraft in Charge 1. Those similarities showed that he had a tendency to point laser beams into the sky at night. His behaviour followed a pattern.
[21] The Judge then considered whether Mr Baker was reckless. The Judge accepted there must be evidence from which the Court could draw the conclusion that, at the time he used the laser which interfered with the 767, Mr Baker recognised that danger to persons or property was a real possibility.
[22] The Judge considered that contrary to the defence submission, there was evidence from which she could properly draw that conclusion. She said that the matters raised by the Crown allowed her to do so, specifically the wealth of public
knowledge about the dangers of lasers being shone at aircraft, not to mention the physical dangers that they pose if hitting a human eye. The aviation industry’s own safety procedures for laser strikes reflects the serious nature of the problem, corroborated by the actions the pilot took immediately after the laser entered the cockpit. The Judge considered that the general public is, and should be, aware that aircraft do not land themselves without manual assistance from the pilot and if the pilot is temporarily or otherwise blinded, there would be a potential catastrophe.
[23] The Judge took on judicial notice that it is within the general knowledge of people that lasers are capable of causing injury to people and property if shone at them.
[24] The Judge concluded that she was unable to determine that Mr Baker intended to “hit” the 767 as there was no evidence from which the Judge could conclude that he targeted this plane or could even see it — in other words it could have been an accidental strike. Nevertheless, the Judge inferred that Mr Baker recognised there was a real possibility that pointing a high-power laser into the sky at night could cause danger to an aircraft. Having regard to that risk, Mr Baker’s actions were unreasonable. The Judge said it was immaterial that the laser had the wrong label on it indicating a lower power level than it in fact had. The Judge found the recklessness element of Charge 1 to be proven beyond reasonable doubt.
[25] In making these findings, the Judge reminded herself that the starting point was the presumption of innocence, and she must treat the appellant as innocent until the prosecution proved his guilt. The presumption of innocence meant that Mr Baker did not have to give or call evidence, which he chose not to do and did not have to establish his innocence. The Judge stated that it was for the Crown to prove that Mr Baker was guilty beyond reasonable doubt, which is a high standard of proof that the Crown will have met only if at the end of the case the Judge was sure Mr Baker was guilty. The Judge reminded herself that it was not enough for the prosecution to persuade her that Mr Baker was probably guilty or even very likely guilty.
[26] The Judge said that she had carefully and impartially considered the evidence and reached the conclusion that she was sure Mr Baker was guilty on Charge 1.
The appeal
[27] The appellant cites Cameron v R where the Supreme Court confirmed the legal element of recklessness is established if:2
(a)the defendant recognised that there was a real possibility that
(i)his actions would bring about the proscribed result; and/or
(ii)that the proscribed circumstances existed; and
(b)having regard to that risk those actions were unreasonable.
[28] The appellant submits that the prosecution must prove foresight or recognition that causing danger to safety by shining the laser pointer at the sky was a real possibility; and that he then intentionally continued with that conduct unreasonably despite the risk.
[29] The appellant submits that the Judge erred in finding him guilty on the basis that he should have perceived a risk rather than that he actually perceived it.
[30] The appellant complains that the District Court relied primarily upon general facts in inferring the recklessness element was established including: a wealth of public information about laser safety; the aviation industry safety procedures; and aircraft landing processes. The appellant says there was no evidence that he was aware of those matters nor crucially that he turned his mind to them at the time. It is submitted for the appellant that the majority of the circumstantial facts and evidence point away from him having acted with reckless disregard including: the time of the night being 3am which is an hour when there are very few planes taking off and landing; the location being Point Chevalier which is not in close proximity to any airport; the distance from the aircraft; the brief accidental contact; and the laser showing an incorrect lower power level on the label of less than 10 mW rather than about 50 mW when tested.
[31] The appellant says that the objective facts that the District Court relied on to infer recklessness would exist in all laser pointer cases going forward and it is
2 Cameron v R [2017] NZSC 89, [2018] 1 NZLR 161 at [73].
therefore difficult to envisage a case where the of shining a high-power laser pointer into the sky would not be deemed reckless as to the safety of persons or property. The appellant says this would effectively create a strict liability offence.
[32] The appellant referenced legislation, s 41 of the Civil Aviation Act 2023, due to come into force on 5 April 2025 which introduces new provisions containing offences of causing unnecessary danger to persons or property, including finable only offences where a person commits the act whether or not they know that unnecessary danger to persons or property will be caused. Where a person does know danger will result or is reckless, the maximum penalty is five years’ imprisonment. The appellant contrasts the charges about to come into force with the higher maximum penalty in the Crimes Act charge of endangering transport.
Approach on appeal against conviction
[33] An appeal against conviction is governed by s 232(2)(b) and (c) of the Criminal Procedure Act 2011. The Court must allow the appeal if satisfied that:
(a)the trial Judge erred in the assessment of the evidence to such an extent that a miscarriage of justice has occurred; or
(b)a miscarriage of justice has occurred for any reason.
[34] A miscarriage of justice means any error, irregularity or occurrence in or in relation to or affecting the trial that:3
(a)has created a real risk that the outcome of the trial was affected; or
(b)has resulted in an unfair trial or a trial that was a nullity.
[35] The appeal is by way of rehearing.4 The appellate court must form its own view of the evidence.5 In doing so, the appellate court must recognise any advantages
3 Criminal Procedure Act 2011, s 232(4).
4 Sena v Police [2019] NZSC 55, [2019] 1 NZLR 575 at [20] and [26].
5 Austin, Nichols & Co Inc v Stichting Lodestar [2007] NZSC 103, [2008] 2 NZLR 141 at [13] and [16].
enjoyed by the trial judge in assessing evidence and must exercise “customary caution” where the challenge is to credibility findings based on contested oral evidence.6 If the appellate court comes to a different view of the evidence to the trial judge, that is necessarily indicative of error, and the appeal must be allowed.7 It is for the appellant to show that the judge erred either by pointing to an error in the assessment of the evidence or by pointing to a miscarriage which occurred for some other reason.8
[36] Not every error in the assessment of evidence will result in a successful appeal. The error must lead to a miscarriage of justice either because of a real risk that, without the error the appellant would have secured a more favourable result; or because the error made the trial unfair.9
[37] Further not every error or irregularity will result in an unfair trial. The assessment is to be made in respect of the trial overall.10 What is required is a fair trial not a perfect trial.11
Discussion
[38] In this case, the Judge specifically recognised that the test is subjective. It is not a case where the Judge has incorrectly applied an objective test. I agree that the ruling was based on a combination of both general facts about lasers and facts specific to Mr Baker, including that his laser was painful to look at which he could be supposed to know; and that he was a person who shone a laser pointer at a helicopter on the same night. I agree that there is no impropriety in considering both factors together.
[39] I also agree that a high-power laser pointer is an item that is generally known to be dangerous to aeroplanes. It would seem incredible that a person who chose to have such an object was unaware of that. Mr Baker appears to have deliberately targeted the police helicopter. Given that he apparently wanted to target the police
6 Sena v Police, above n 4, at [38].
7 At [38].
8 At [38].
9 Haunui v R [2020] NZSC 153, [2021] 1 NZLR 189 at [67].
10 Wiley v R [2016] NZCA 28, [2016] 3 NZLR 1 at [35].
11 E (CA727/09) v R [2010] NZCA 202 at [67]–[68]; R v Matenga [2009] NZSC 18, [2009] 3 NZLR
145 at [30]; and Ellis v R [2011] NZCA 90 at [58], citing R v Find [2001] 1 SCR 863.
helicopter, it would seem coincidental in the extreme that he would have accidently and unintentionally targeted the 767 without any knowledge of the risk to aircraft in pointing a laser beam into the night sky.
[40] It is important to remember that assessment of risk does not need to be a carefully considered assessment; it is simply necessary that the appellant was aware that what he was doing carried a risk of danger to aircraft and chose to continue regardless in a way that was unreasonable. Whether or not an action is unreasonable might depend on the reason it was undertaken. The appellant does not raise any reasonable grounds for pointing the laser beam into the sky that would outweigh the risk that he must have known he was taking, nor does the evidence establish any such reasonable ground. While it is not for the appellant to prove anything, where there is no evidence of any reason to undertake the act, undertaking an act that is inherently risky despite knowing that it is risky is likely to be found to be unreasonable.
[41] The question is whether the Judge was able on the evidence to find that Mr Baker recognised that pointing a laser beam into the sky at night could interfere with the safety of aircraft and continued unreasonably to point the laser.
[42] Assessing recklessness always involves assessing what is in the mind of a defendant and, unless there are admissions, always involves drawing an inference. Inferences can properly be drawn from proven facts. There is no doubt that it is well known that high-power laser pointers pose a danger to aircraft. Pointing a high‑powered laser into the sky at night is inherently reckless. The fact that the defendant apparently turned the laser off when the helicopter approached but then turned it on again and, according to the police officers, appeared to be targeting the police helicopters shows that he was not motivated to avoid any risk to aircraft.
[43] In my view, the Judge was perfectly entitled to come to the findings that she did regarding recklessness.
[44] Applying the test in Cameron, it was open to the Judge to come to the view that the defendant recognised that there was a real possibility that his actions would
have the effect of causing danger to the safety of an aircraft. Nevertheless, he chose to go ahead and aim the laser beam into the sky at night.
[45] I am not persuaded by the argument that such a finding would mean that almost everyone who points a laser beam into the sky at night would meet the test of recklessness. That may well be the case but that is not an unjust or inherently incorrect outcome. It simply reflects that those who point high-power laser beams into the sky at night are undertaking an inherently dangerous act and it is difficult to see that they would not appreciate that. Everyone who deliberately drives a car at someone is likely to be presumed to know that the act is at least reckless. Everyone who points a loaded firearm at someone is likely to be presumed to know the same. That just reflects the inherent danger in the various actions.
[46] Mr Baker submits that the Judge could not be sure that he knew that what he was doing was inherently dangerous to aircraft or that he knew that there may have been aircraft present when he shone his laser into the sky. The Judge rejected that submission and I find that was open to her to do so and not an error. I agree with her.
[47] The fact that the legislature has passed a law aimed specifically at this type of endangerment of transport with a lesser maximum does not alter the fact that the elements of the Crimes Act charge were made out. That charge carries a higher penalty because it covers a wide range of potential offending behaviour. This offending is at a lower level — but not the lowest level because any interference with an aircraft could have such catastrophic results. Having different charges that cover similar behaviour is not unknown in criminal law. The most common example is dangerous driving causing death which also meets all the elements of manslaughter.
[48] In my view, there is no error in the approach taken by the Judge. Looking at the matter afresh I would not come to a different result.
Result
[49]The appeal is dismissed.
Wilkinson-Smith J
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