Civil Aviation Authority of New Zealand v Witschke-Rudd
[2015] NZCA 280
•30 June 2015 at 11.45 am
| IN THE COURT OF APPEAL OF NEW ZEALAND |
| CA688/2014 [2015] NZCA 280 |
| BETWEEN | CIVIL AVIATION AUTHORITY OF NEW ZEALAND |
| AND | PHILLIP HUGH WITSCHKE-RUDD |
| Hearing: | 16 June 2015 |
Court: | Stevens, Andrews and Gilbert JJ |
Counsel: | A F Pilditch and C E Zhu for Appellant |
Judgment: | 30 June 2015 at 11.45 am |
JUDGMENT OF THE COURT
AThe appeal is dismissed.
BThere is no order as to costs.
____________________________________________________________________
REASONS OF THE COURT
(Given by Stevens J)
A question of statutory interpretation
The respondent, Mr Witschke-Rudd, purchased a helicopter. In order to apply for a helicopter licence he was required to obtain medical certification under pt 2A of the Civil Aviation Act 1990 (the Act). This necessitated the completion of an application form for the requisite medical certificate.[1]
[1]An applicant is required by the Civil Aviation Act 1990 [the Act] to obtain a Class 2 medical certificate, meet with a medical examiner, undergo a physical examination and have some tests conducted.
The prescribed form posed a number of questions for applicants including: “Have you ever experienced any of the following: … Use of legal or illegal recreational drugs or substances”. Mr Witschke-Rudd put a circle around “N” signifying his answer was “no”. There is no dispute the answer was incorrect as Mr Witschke-Rudd had previously admitted to using cannabis from the age of 18 years.
Mr Witschke-Rudd was charged with making a misleading statement in the application form for the medical certificate, contrary to s 46B(1)(a) of the Act. The charge was heard in the District Court where the Judge identified the issue for determination as “whether the wrong answer was given intentionally”.[2] This was because the Judge held the offence was one requiring proof that the wrong answer was given deliberately.[3] As the Judge was not satisfied beyond reasonable doubt the answer given was intentionally wrong, Mr Witschke-Rudd was acquitted of the charge.[4]
[2]Civil Aviation Authority v Witschke-Rudd DC Tauranga CRI-2013-070-2104, 4 March 2014 [District Court judgment] at [15].
[3]At [15].
[4]At [34].
The Director of Civil Aviation (the Director) appealed by way of case stated to the High Court to determine whether the charge of making a misleading statement contrary to s 46B(1)(a) of the Act requires proof of intention or whether recklessness is a sufficient mens rea. The question for determination was “whether [the Judge’s] failure to consider recklessness as a mens rea element for the “misleading” limb of s 46B(1)(a) was erroneous in point of law”.
In the High Court Ellis J held the answer to this question was no: the Judge did not err by failing to consider recklessness as a mens rea element for the “misleading” limb of s 46B(1)(a).[5] Later the Judge granted the Director leave to appeal to this Court.[6]
[5]Director of Civil Aviation v Witschke-Rudd [2014] NZHC 2700 [High Court judgment] at [24].
[6]Director of Civil Aviation v Witschke-Rudd [2014] NZHC 2951.
Mr Pilditch, counsel for the Director, says the appeal is brought due to the public importance of the question and the significance of the process of medical certification of pilots generally. As in the High Court, the Director does not seek any substantive remedy against Mr Witschke-Rudd if successful: he only seeks to clarify the law.[7]
The statutory provisions
[7]We were told Mr Witschke-Rudd’s Class 2 PPL licence has since been suspended.
The relevant part of s 46B(1) of the Act provides:
46BFraudulent, misleading, or intentionally false statements to obtain medical certificate
(1)Every person commits an offence who makes or causes to be made—
(a)any fraudulent, misleading, or intentionally false statement for the purpose of obtaining a medical certificate under Part 2A; …
Section 46B appears in pt 5 of the Act which is described as applying to “Offences and Penalties – Safety Offences”. The provision appears in conjunction with other safety offences such as causing endangerment, operating an aircraft in a careless manner, or acting without a necessary aviation document including a medical certificate.[8] The broader context for s 46B is pt 2A of the Act, inserted in April 2009 to establish the medical certification regime.[9]
[8]This can be contrasted with the “General Offences” in ss 48–53A.
[9]Civil Aviation (Medical Certification) Amendment Act 2001.
Part 2A provides for the Director, after considering an application for a medical certificate to issue a medical certificate “if he or she is satisfied that the applicant meets the medical standards prescribed in the rules”.[10] The Director can decline to issue a medical certificate if he or she has reasonable grounds to believe that the applicant “has any characteristic that may interfere with the safe exercise of the privileges to which the medical certificate relates”.[11]
[10]Section 27B(1).
[11]Section 27B(1).
Applications for medical certificates are required from a range of persons, including those seeking entry into civil aviation for the first time, those looking to re‑enter after an extended absence (such as the appellant), or regular private or commercial pilots who need a current medical certificate to continue flying. The medical examiner relies on the content of the medical application form to inform the medical examination. Answers to questions can prompt further inquiries, investigations and tests by specialists.
The High Court judgment
Ellis J observed that viewed in isolation the words “makes or causes to be made … any … misleading … statement” arguably imported no mental element.[12] Thus the focus would be what effect the statement would have objectively on the recipient: would a medical practitioner receiving the application form objectively be misled by its contents?[13]
[12]High Court judgment, above n 5, at [9].
[13]At [9] the High Court held this could be viewed as an “orthodox” interpretation supported by the approach of Tipping J in Marcol Manufacturers Ltd v Commerce Commission [1991] 2 NZLR 502 (HC). It might also suggest the drafters of the legislation had in mind a strict liability offence.
However Ellis J noted the available definition of misleading in Black’s Law Dictionary as “delusive, calculated to be misunderstood”.[14] If such a definition applied it would suggest the need for some form of design or intention on the part of the person who makes the statement.[15]
[14]At [10]; Bryan A Garner (ed) Black’s Law Dictionary (10th ed, Thomson Reuters, United States of America, 2014) at 1151. The High Court noted at footnote 6 that an earlier edition defined “misleading” as “delusive; calculated to lead astray or lead into error”.
[15]High Court judgment, above n 5, at [10]–[11].
Ellis J then referred to another available approach using the principle of noscitur a sociis.[16] On that basis conduct that is fraudulent imports a mental element of dishonesty or an intention to deceive. The words “intentionally false” used in s 46B(1)(a) also import the requirement of deceit. The issue was whether the linkage in the subsection of the adjective “misleading” with those other words requiring an intention to deceive means that “misleading” should be read as incorporating the notion of intention.[17]
[16]At [12]. Noscitur a sociis is described in Oliver James (ed) Bennion on Statutory Interpretation (6th ed, LexisNexis, United Kingdom, 2013) at 1100 as follows: “A statutory term is recognised by its associated words. The Latin maxim noscitur a sociis states this contextual principle, whereby a word or phrase is not to be construed as if it stood alone but in the light of its surroundings.” See also Ross Carter Burrows and Carter Statute Law in New Zealand (5th ed, LexisNexis NZ, Wellington, 2015) at 253–254; and below at [32].
[17]At [14].
Ellis J also referred to another arguably open interpretation that the subsection provided for three distinct offences namely the offences of making (or causing to be made):
(a)a fraudulent statement for the purpose of obtaining a medical certificate; or
(b)a misleading statement for the purpose of obtaining a medical certificate; or
(c)an intentionally false statement for the purpose of obtaining a medical certificate.
The Judge noted another High Court case which had considered an analogous provision, namely, s 46(1)(b).[18] However, that section is somewhat different from that in s 46B(1)(a). Section 46(1)(b) draws a clearer distinction using the words “either … or” between the separate defences. Because the section only had two parts, the principle of noscitur a sociis was less readily available on the basis that there was only one potential member of the relevant group.[19]
[18]Director of Civil Aviation v Barr [2010] 1 NZLR 138 (HC) which considered whether the offences created by s 46(1)(b) of the Act involved strict liability or mens rea offences.
[19]High Court judgment, above n 5, at [18].
Having referred to the above possible approaches to interpretation the Judge said this:
[19] Although there are undoubtedly good policy (safety) reasons for the creation of a strict liability offence involving the making of misleading statements in the context of certification processes under the Act, I do not consider that there is anything weighty enough here to displace the ordinary prerequisite of a guilty mind in this case. In fact the indicators go in the other direction. By way of summary, those indicators are:
(a)the absence of any clear Parliamentary intention that the subsection was to incorporate three separate offences; and
(b)the wider meaning of the word “misleading” set out … above; and
(c)(alternatively) the application of the noscitur a sociis rule.
[20] The point made at (a) is further supported by the fact that there appears to me to be little, if any, difference between a “fraudulent” statement and one that is “intentionally false”. This similarity suggests that s 46B(1) (and the other subsections which adopt identical wording) is merely an example of an archaic and unfortunate drafting style where doubtlets, triplets or strings of (virtual) synonyms are carelessly (or possibly recklessly) reeled off together, for the avoidance of (im)possible doubt. The presumption against surplusage has been rebutted.
[21] The one interpretation of s 46B(1) for which I can find no real support is that proposed by the Director in this appeal, namely that recklessness should be inferred as sufficient mens rea for the “misleading” aspect of the offence. It seems to me that such an interpretation can be justified neither by reference to the literal meaning of the words nor by an application of orthodox interpretive principles.
Accordingly, Ellis J found there was no interpretive basis upon which she could conclude recklessness was a sufficient mental element in relation to the making of a misleading statement. The answer to the question on the case stated was therefore that the District Court Judge made no error of law.
Submissions on appeal
Mr Pilditch properly emphasises the policy objectives of the Act including the promotion of safety in the civil aviation system within New Zealand. He describes the 1988 review of civil aviation regulations as heralding major changes whereby the Director became responsible for civil aviation safety. Participants in the system also had particular responsibilities for safety.[20] An individual was expected to carry out the privileges of his or her licence according to prescribed standards and to observe any limitations and conditions imposed on that licence. Failure to do so would have defined consequences.
[20]Section 12 of the Act dealt with functions, powers and duties of participants in the civil aviation system in a manner consistent with this premise by establishing “general requirements” for those involved.
Once the medical certification system was enacted in 2001, the obligations on participants to obtain a medical certificate as a prerequisite to a licence were subject to the enforcement regime in pt 5. These changes evinced a clear statutory intention to place compliance responsibility on an applicant for a licence. This is consistent with the risk and complexity of involvement in the civil aviation industry.
Turning then to the statutory indicia, Mr Pilditch first notes the use of alternatives in s 46B(1). He argues this is central to the understanding of the provision. The concepts “false”, “misleading” and “fraudulent” should be seen as overlapping to an extent, but are available to be used in a prosecution interchangeably. Parliament has differentiated the concepts with one distinguishing feature – the mental element of the offences. There is a spectrum on which these are “alternative charging options”, recognising the fact that the creation of incorrect statements could be accompanied by varying states of mind.
Rather than construing the overlapping concepts as redundant, in the way Ellis J did, the Director contends the repetition should be viewed purposively. Parliament created a comprehensive offence provision, intended to avoid any gaps in potential liability. This was careful and scrupulous drafting, rather than “careless” and “archaic”, as the Judge found.[21]
[21]At [20].
The Director also contends the Judge erred because, while the terms “intentionally false” and “fraudulent” connote intention on the part of the offender, the word “misleading” contains no explicit reference to a state of mind. While misleading conduct can be established by proof of intent to deceive, the analysis should not stop at that point and exclude recklessness. Thus excluding recklessness is inconsistent with Parliament’s intention to create different offences. The use of alternatives points to a meaning of “misleading” that draws a distinction from the two other terms used; one capable of capturing something other than the purely intentional and dishonest conduct caught by the other elements of the section. This is because a person who incorrectly completes the medical application form in a cavalier way, indifferent to the accuracy of the content, but cognisant of the risk that the information will mislead, poses as much risk to aviation safety as the person who sets out to deliberately falsify information. Mr Pilditch cites a number of authorities from this Court to support the notion of subjective recklessness as the mental element of misleading.[22] Accordingly the Director invites this Court to rule that recklessness should be a sufficient standard to discharge any requirement for intention under s 46B(1)(a).
[22]R v Howe [1982] 1 NZLR 618 (CA); R v Harney [1987] 2 NZLR 576 (CA) and R v Tipple CA217/05, 22 December 2005. The commentaries by Bruce Roberston (ed) Adams on Criminal Law (looseleaf ed, Weslaw NZ) and A P Simester and W J Brookbanks (eds) Principles of Criminal Law (4th ed, Thomson Reuters, Wellington, 2012) at [5.2] were also relied upon.
Mr Mabey QC appeared as amicus to support the Judge’s conclusions. In summary he submits as follows:
(a)The wording “fraudulent, misleading or intentionally false” does not in fact create three separate offences. Rather, both fraudulent and intentionally false connote dishonest conduct and there is no distinction between these alternatives. This undermines the submission by the Director that Parliament’s intention was to create three alternative offences.
(b)The submission that the aviation safety policy of the Act requires a lesser mens rea than intention does not withstand scrutiny. The policy imperatives relied upon by the Director would theoretically support a strict liability offence, for which the Director does not contend. There are other ways, short of intention or even recklessness, that inaccurate information can compromise aviation safety.
(c)If Parliament had intended to import a recklessness standard, it would have (and could easily have) incorporated a specific reference into the offence provision. It did so in other sections of the Act (for example s 56(1)). The equivalent section in the United Kingdom Act expressly provides for knowledge or recklessness as to accuracy as the relevant mental elements.[23]
Our analysis
[23]Section 52 of the Civil Aviation Act 2012 (UK) relevantly provides:
52 Penalty for providing false information, destroying documents etc
(1) The CAA may impose a penalty on a person if, in relevant circumstances, the person provides information to the CAA that is false or misleading in a material respect and—
(a) The person knows that the information is false or misleading; or
(b) The person is reckless as to whether the information is false or misleading.
We are satisfied the Director’s appeal must be dismissed. Despite the importance of the point to the Director, elaborated in submissions carefully and comprehensively presented by Mr Pilditch, the interpretation of the wording of s 46B(1)(a) of the Act can be resolved quite shortly. We agree with the decision of Ellis J, in particular for the reasons given, upon which we offer some brief elaboration.
As noted, s 46B(1)(a) is contained within pt 5 of the Act dealing with offences and penalties. The specific class of offences are safety offences, as opposed to general offences.[24] There is no doubt about the statutory purposes and policy.
[24]Other offences in this category include endangerment of persons or property (s 43), careless or dangerous operation of an aircraft (ss 43A and 44) or failure to comply with inspection or monitoring request (s 44A).
The nature of the fault or mens rea required to be proved is a matter of statutory interpretation. The traditional starting point is the wording used,[25] in light of its purpose.[26] In some situations the statutory meaning may be difficult to discern. The judgment of Cooke P and Richardson J in Millar v Ministry of Transport offers the following guidance:[27]
… as a general approach to statutory offences when the words give no clear indication of legislative intent and there is no overriding judicial history, it will be right to begin by asking whether there is really anything weighty enough to displace the ordinary rule that a guilty mind is an essential ingredient of criminal liability.
[25]Which necessarily must be understood in its direct context: see Ross Carter Statute Law in New Zealand, above n 16, at 251–267.
[26]Interpretation Act 1999, s 5; Commerce Commission v Fonterra Co-operative Group Ltd [2007] NZSC 36, [2007] 3 NZLR 767 at [22]; Ross Carter Statute Law in New Zealand, above n 16, at 220–221.
[27]Millar v Ministry of Transport [1986] 1 NZLR 660 (CA) at 668. See also Tell v Maritime Safety Authority [2008] NZAR 306 (CA) at [12]–[14].
In the present case the Director accepts he cannot support a claim the section creates strict liability. Some form of mens rea is required: the issue is whether it includes recklessness within the concept of “misleading”.
That argument must immediately confront the fact that s 56 (within the same Part) used the specific concept of recklessness when formulating the offences of communicating false information affecting safety.[28] Thus when the drafters formulated s 46B for the Civil Aviation (Medical Certification) Amendment Act 2001, they would have been aware that such wording was an available option. Yet the amending legislation did not use that approach, a choice which must have been deliberate.
[28]Section 56(1) relevantly states: “Every person commits an offence who by any means provides to another person information relating to the safety of an aircraft … knowing the information to be false or in a manner reckless as to whether it is false.
The drafters would also have been aware of the formulation used in s 46(1)(d) of the Act which created an offence of acting without necessary aviation document. The section relevantly states:
(1) Every person commits an offence who—
…
(b) Does any other act in respect of—
any aircraft, aeronautical product, or aviation related service, either without holding the appropriate current aviation document or knowing that a current aviation document is required to be held in respect of that aircraft, product, or service before that act may lawfully be done and knowing that the appropriate aviation document is not held.
This provision was considered by the High Court in Director of Civil Aviation Authority v Barr.[29] On the point whether a mental element was required, Lang J held the subsection created two separate offences: one (doing an act knowing that the requisite aviation document is not held) required knowledge as the relevant mens rea, while the other (doing an act without the appropriate aviation document) was a strict liability offence. These two offences were drafted as a single alternative leading the Judge to conclude:[30]
The inclusion of a knowledge offence immediately after the creation of an offence appearing to be one of strict liability leads, as I have already indicated, to the inevitable conclusion that Parliament intended the words creating the first offence to be applied literally.
[29]Director of Civil Aviation Authority v Barr, above n 18.
[30]At [67].
The broader context to s 46B(1)(a) therefore provides an example of drafting using alternative offences. This mode too was not adopted when s 46B(1)(a) was enacted. We agree with Ellis J this does not suggest a Parliamentary intention to create three separate offences, but rather a single offence.
It therefore falls to interpret the content (in terms of mens rea) of the word “misleading” which is sandwiched between the words “fraudulent” and “intentionally false”. We think this provides a classic example of the “linguistic canon of construction”[31] whereby a statutory term is recognised by its associated words. This is sometimes referred to by the Latin maxim noscitur a sociis, translated as “it is known by its associates”.[32] In plain language it is a contextual principle whereby a word or phrase is not to be construed as if it stood alone but in the light of its surroundings.[33] Each of the associated words imports intention as the mens rea. We consider that is what the drafters intended for the word “misleading”.
[31]Bennion on Statutory Interpretation, above n 16, at 1100.
[32]Black’s Law Dictionary, above n 16, at 1939. See generally R H Kersley (ed) Broom’s Legal Maxims (10th ed, Sweet & Maxwell, London, 1939) at 396–401.
[33]Bennion on Statutory Interpretation, above n 16, at 1100; Ross Carter Statute Law in New Zealand, above n 16, at 253–254.
We see no good reason, as a matter of statutory interpretation, for reading in the word “reckless” into s 46B(1)(a) of the Act. In fact, such indicia as they are go the other way. While the drafting could have been clearer, it follows that the making of a misleading statement where the actor can only be shown to have been reckless, is not sufficient to establish criminal liability.
Both the District Court Judge and Ellis J were therefore correct to conclude that “misleading” meant deliberately misleading.
Result
The High Court Judge correctly answered the case stated. If the Director wishes to ensure that the reckless making of a statement to obtain a medical certificate is to be the subject of criminal liability, statutory amendment will need to be sought.
We were told that may take time and this could potentially cause an issue with aviation safety. Although it was not canvassed at the hearing, a more immediate improvement could involve a revision of the application form for a medical certificate. We note the question regarding smoking is dealt with in a separate box with a simple question “Have you ever smoked?: Yes or No”. If the illegal drugs question were separated out the same formula might be contemplated. “Have you ever used illegal drugs: Yes or No”.[34] While this might be much clearer, we appreciate it is a matter for the Director.
[34]The same suggestion was made in the District Court judgment, above n 2, at [32].
The appeal is dismissed.
There is no order for costs.
Solicitors:
Civil Aviation Authority, Wellington for Appellant
0
3
0