Director of Civil Aviation Authority v Barr HC Rotorua CRI 2008-463-39
[2009] NZHC 1691
•28 April 2009
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IN THE HIGH COURT OF NEW ZEALAND ROTORUA REGISTRY
CRI-2008-463-39
DIRECTOR OF CIVIL AVIATION AUTHORITY
Appellant
v
GRAEME JAMES WILLIAM BARR
Respondent
Hearing: 4 March 2009 and by subsequent memoranda
Appearances: Mr F Pilditch and Mr C H Macklin for Appellant
Mr P H Fisher for Respondent
Judgment: 28 April 2009 at 4.15 pm
JUDGMENT OF LANG J
[on appeal by way of case stated]
This judgment was delivered by me on 28 April 2009 at 4.15 pm, pursuant to Rule 11.5 of the High Court Rules.
Registrar/Deputy Registrar
Date……………
Solicitors:
Crown Solicitor, RotoruaClancy Fisher Oxner & Bryant, Tokoroa
DIRECTOR OF CIVIL AVIATION AUTHORITY V BARR HC ROT CRI-2008-463-39 28 April 2009
[1] Mr Barr is a professional helicopter pilot who operates in the agricultural sector.
[2] Every aspect of Mr Barr’s activities as a commercial pilot is strictly regulated by the provisions of the Civil Aviation Act 1990 and the rules that have been promulgated pursuant to the Act. They govern the current documentation that Mr Barr must hold, and the maintenance and certification requirements that he must observe, in relation to any aircraft that he operates.
[3] The Civil Aviation Authority (“CAA”) of New Zealand is responsible for the enforcement of the Act and rules. The Director of the Civil Aviation Authority is the chief executive of the CAA, and the CAA institutes any prosecutions under the Act in his name.
[4] In 2005 the CAA came to believe that Mr Barr was operating a commercial agricultural air service in breach of his obligations under the Act. After carrying out an investigation, it laid eleven informations against Mr Barr under s 46(1)(b) of the Act. The informations alleged that Mr Barr was operating a helicopter on a commercial agricultural operation without holding current aviation documents. The documents in question were a Grade 2 Agricultural Rating (Helicopter) Certificate (four charges) and a Part 137 Air Operator’s Certificate (seven charges).
[5] Mr Barr denied the charges, and they were the subject of a defended hearing in the District Court at Tokoroa that lasted several days. His Honour Judge Blackie ultimately dismissed all of the informations in a written decision that he delivered on
31 October 2007.
[6] The CAA now appeals by way of case stated against the Judge’s decision. It contends that the Judge incorrectly determined the level of knowledge, or fault, that the prosecution was required to establish on the part of Mr Barr before he could be convicted on the charges that he faced. It asks this Court to re-examine that issue on appeal.
The scope of the appeal
[7] The CAA brings this appeal in order to obtain clarification of an issue of legal principle that will be important to it in the future. It says that clarification of that issue will be of assistance to both the CAA and Judges in the District Court when they are required to consider prosecutions under the Act in the future.
[8] The CAA accepts, however, that a considerable period of time has now passed since the events that led to the charges that Mr Barr faced. It also accepts that the public interest does not require the incidents that led to the charges to be revisited. For these reasons the CAA does not ask the Court to enter convictions against Mr Barr even if it decides the appeal in favour of the CAA. Neither does it ask for the charges to be remitted to the District Court for further consideration by that Court in light of the opinion of this Court. The CAA asks only that this Court determine the issue of principle that the case stated raises.
[9] This approach means that it is possible for the appeal to be determined on a very narrow basis. In particular, it is not necessary for me to traverse the factual background as disclosed by the evidence given in the District Court. This is because it will not be necessary for me to apply the principles that I find to be correct to the facts of the case. It also relieves me of any obligation to embark upon the tortuous exercise, undertaken by necessity in the District Court, of extracting from the Act and rules the precise obligations that Mr Barr was required to observe. Neither will I be required to determine whether he failed to meet those obligations.
[10] I therefore proceed directly to the issue to be determined on appeal.
The issue
[11] Section 46 of the Act provides as follows:
46 Acting without necessary aviation document
(1)Every person commits an offence who— (a) Operates, maintains, or services; or
(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.
(2) Every person who commits an offence against subsection (1) of this section is liable,—
(a)In the case of an individual, to imprisonment for a term not exceeding 12 months or a fine not exceeding $10,000; or
(b) In the case of [a body corporate], to a fine not exceeding
$100,000.
[12] The informations in the present case alleged that on specified dates Mr Barr operated a helicopter on a commercial agricultural operation without holding the appropriate current aviation documents. The informations did not contain any allegations to the effect that Mr Barr knew that he was required to hold those documents, or that he knew that he did not hold them.
[13] The principal issue in the District Court, and the only issue on appeal, is whether the charges that Mr Barr faced were offences of strict liability or whether the prosecution was required to prove knowledge on his part.
[14] In this context the informant in an offence involving strict liability has the burden of proving the physical elements of the charge, or the actus reus, beyond reasonable doubt. It is not, however, required to prove that the defendant knew of the circumstances giving rise to the charges or that he or she intended to commit the offence. It is for the defendant to prove, on the balance of probabilities, that he or she was not at fault in committing the acts that give rise to the charge.
[15] This concept of strict liability is now well established as a result of decisions of the Court of Appeal in cases such as Civil Aviation Department v MacKenzie [1983] NZLR 78 and Millar v Ministry of Transport [1986] 1 NZLR 660. Strict liability is generally likely to be imposed in prosecutions under legislation having a public welfare regulatory character.
[16] By way of contrast, if the informant was required to prove knowledge on the part of the defendant, it would have to go further than would be the case in a strict liability offence. The prosecution would be required to establish not only the actus reus, but also that the defendant knew of the circumstances that created the offence and that he or she intended to commit the offence.
The competing views
[17] The issue that has given rise to the present appeal flows from the fact that the wording of s 46(1)(b) appears to allow for both possibilities. It appears to impose strict liability in the opening segment up until the word “or” in the third line of the subsection. Thereafter, however, the subsection expressly requires proof that the defendant knew that he or she needed to hold a particular document, and also that the defendant knew that he or she did not hold that document. Those requirements are obviously far more stringent than would be the case in an offence involving strict liability.
[18] The CAA takes the view that s 46(1)(b) creates two separate offences. It says that the opening words of the subsection create an offence involving strict liability. In order to establish guilt under this head, the informant is only required to prove the actus reus. This means that it must prove that the defendant committed the act alleged in circumstances where he or she did not hold the appropriate current aviation document. Thereafter it is for the defendant to prove absence of fault on his or her part in accordance with the principles established in MacKenzie and Millar.
[19] The CAA contends that the remainder of s 46(1)(b) creates a separate, and more serious, offence. In order to establish that offence the informant must prove three elements. First, it must establish the actus reus. In addition, the informant must establish two further elements. First, it must prove that the defendant knew that he or she was required to hold an appropriate current aviation document in relation to the act alleged. Secondly, it must establish that the defendant knew that he or she did not hold that document.
[20] Mr Barr does not accept that the section creates an offence of strict liability. His counsel contends that in any prosecution under the section the informant must establish the three elements to which I have just referred.
The Judge’s decision
[21] The Judge gave careful and detailed consideration to the issue of whether or not the charges that Mr Barr faced were offences of strict liability. That issue was clearly one of the major points in dispute during the hearing before him. After summarising the submissions of both counsel, the Judge considered several cases in which s 46 has been considered by both the District Court and this Court. He concluded, however, that the question to be determined in the present case had never been the subject of an authoritative decision in either court.
[22] The Judge summarised the issues that the question raised in the following terms:
[72] It may well be that Judge Doherty was correct when he described s
46 as a mixture of strict liability and mens rea (Civil Aviation Authority v
Western Air). In other words, a hybrid. This raises the question as to how such a section can operate logically, and in practice. Does it allow the prosecution to elect whether to proceed under the “either” provision, as distinct from the “or” provision? In reality, no prosecutor is going to complicate his/her case or allow the defence with an escape route by adopting the “or” part of the section when laying an information. Such a course would have no logic. On the other hand, how is the defendant ever to be able to advance or require the prosecution to prove knowledge? Clearly, Parliament must have intended there to be cases when the prosecution would be required to provide knowledge, otherwise it would not have inserted the word “knowing” not once, but twice, in sub-section (1)(b).
[23] The Judge then set out several factors that, in his view, undermined the argument advanced on behalf of the CAA. These can be summarised as follows:
1. If the CAA’s argument was correct, the knowledge element of s
46(1)(b) was superfluous, because the informant will always have the ability to control the way in which the information is framed. By this comment I take the Judge to be saying that no prosecutor is likely to lay a charge in which knowledge must be proved when the strict liability
alternative is available. He had earlier expressed that view more directly in the passage that I have just cited.
2.The same penalty applies to both offences. Parliament has therefore declined to draw a distinction for the purposes of penalty between cases involving knowledge and those in which strict liability is imposed.
3.The CAA cannot point to any authority supporting its submission that the section creates two separate offences.
4.No assistance could be derived from the fact that s 68 of the Maritime Transport Act 1994 contained an offences provision that had some similarities to s 46(1)(b) of the Civil Aviation Act 1990.
5.Sweet v Parsley [1970] AC 132, a long standing and respected decision of the House of Lords, was authority for the proposition that, where a penal provision is reasonably capable of two interpretations, the court must adopt the interpretation that is most favourable to the defendant.
6.The Judge also noted comments made by Lord Steyn in B (a minor) v Director of Public Prosecutions [2000] AC 428 at 470 to the effect that Parliament is not presumed by general and ambiguous words to override fundamental rights.
7.The Court of Appeal in Millar had made it clear that the starting point in considering whether an offence is one of strict liability is to ask whether “there is really anything weighty enough to displace the ordinary rule that a guilty mind is an essential ingredient of criminal liability”.
8.His Honour also derived support from the decision of Fisher J in R v Gedsen HC ROT T 51/97 4 December 1997. In that case Fisher J held that the prosecution was required to prove knowledge when alleging that there had been a breach of Regulations 18 and 173(2) of the Civil
Aviation Regulations. That regulation prohibited the unauthorised modification or repairs to aircraft.
[24] The Judge then expressed his conclusion in the following terms:
[84] … In the present case, the Court is not faced with two possible interpretations, it is faced with two approaches towards the prosecution – the first in favour of the informant and the second in favour of the defendant. Like two possible interpretations, when confronted with two possible approaches, the Court must return to the presumption in favour of the defendant and adopt the approach favourable to the defendant. To do otherwise would render the balance of s 46(1)(b) after the word it involved “or” superfluous and, indeed, meaningless.
Decision
The wording of the section
[25] The starting point in the present case must be the wording that Parliament has chosen to use in drafting the section. I consider that there can be no doubt that the wording used in s 46(1)(b) creates two separate offences. That is the only conclusion available given the fact that the legislature has used the word “or” in the third line of the subsection. That must be viewed as a deliberate choice of wording by Parliament. It must also be presumed that Parliament intended its choice of words to be given effect.
[26] Mr Barr contends, and the Judge accepted, that the natural and ordinary meaning of the word “or” was to be ignored. Instead, it should be construed as meaning “and”. I respectfully take a different view. I do not consider that there is any justification for departing from the natural and ordinary meaning of the word that Parliament has chosen to use. I consider that the words of the subsection must be interpreted and applied according to their natural and ordinary meaning.
[27] As the Judge suggested might be the case, the section is therefore of a somewhat “hybrid” nature. It is hybrid in the sense that two separate offences are created within the same subsection. There is no doubt that the second offence, namely that created by the latter part of the subsection, is one that requires the informant to prove knowledge on the part of the defendant. The real issue for
present purposes is whether the prosecution must satisfy the same requirement in relation to the offence created by the first three lines of s 46(1)(b).
[28] There is nothing in the wording of the opening words of the section to indicate that knowledge is an ingredient of that offence. Read literally, the section required the prosecution to prove three elements in order to establish guilt on the part of Mr Barr. These were:
1. That Mr Barr operated an aircraft, namely a helicopter; and
2. That he did so for commercial agricultural purposes; and
3.That at the time of operating the aircraft he did not hold the current appropriate aviation documents for that activity.
[29] The plain wording of the section therefore suggests that Parliament did not intend that the prosecution should be required to prove knowledge in order to establish liability under the first offence created by s 46(1)(b).
[30] In my view the matter is placed beyond doubt by the fact that, immediately after creating an offence appearing to be one of strict liability, the legislature has chosen to create a second offence in which knowledge is expressly included as one of the prescribed elements. If knowledge had been a component of the first offence, there would have been no need for Parliament to enact the second part of the subsection. The fact that Parliament elected to create a knowledge offence immediately after it had created an offence of strict liability is the clearest possible indicator, in my view, that it recognised that the informant would not need to prove knowledge in order to establish liability under the first offence.
[31] This conclusion alone is sufficient to answer the question posed in the case stated. There are, however, several additional factors that support the conclusion that I have reached.
Parliament’s intention
[32] The interpretation advanced on behalf of Mr Barr, and accepted by the Judge, necessarily means that the opening words of the subsection are robbed of any utility. This is because that interpretation renders the elements of the first offence identical to those of the second offence. That cannot have been Parliament’s intention. The legislature must, in my view, have intended the elements of the two offences to be different. If it had not, there would have been no need for the subsection to have been drafted in such a way that it created two separate offences.
[33] I agree that the structure of s 46 is unusual. Counsel have not been able to locate any other statutory provisions having exactly the same structure as s 46, and neither have I. This factor prompted me to ask counsel, at the conclusion of the hearing, to undertake further research in order to try to ascertain the reason that Parliament elected to draft the subsection in the way that it did. In particular, I wished to know whether that issue was discussed during Parliamentary debate at the time that the Civil Aviation Act 1990 was passed. I am grateful to counsel for the appellant for the efforts that he made to locate such material as exists on this topic.
[34] The material reveals that subsection 46(1)(b) was included in the bill that eventually became the Act at the time that the Select Committee reported back to the House. There is nothing in the Select Committee’s report, however, to explain why it decided to recommend that the bill be amended in this way. The debate that took place at the second reading of the bill does not shed light on this issue either. There is therefore nothing in the material that counsel was able to find that sheds further light on Parliament’s intention when it enacted s 46 in its present form.
Comparable legislation
[35] Parliament has often chosen other methods of prescribing strict liability offences in the public welfare regulatory context. One method that it adopts is to expressly provide that the informant need not prove intention on the part of the defendant. The legislature then prescribes the matters that the defendant must prove in order to establish absence of fault. Provisions of this type may be viewed as a
statutory recognition of the principles that the courts have developed, in MacKenzie and the cases that followed it, regarding strict liability and absence of fault. A good example is to be found in s 341 of the Resource Management Act 1991.
[36] The essential nature of the structure of s 46 is not, however, completely without precedent. The offence provisions of the Maritime Transport Act 1994 are similar to it in some respects. Section 68 of that Act provides:
68 Acting without necessary maritime document
(1)Every person commits an offence who— (a) Operates, maintains, or services; or (b) Does any other act in respect of—
any ship or maritime product, without holding the appropriate current maritime document.
(2)Every person commits an offence who— (a) Operates, maintains, or services; or (b) Does any other act in respect of—
any ship or maritime product knowing that a current maritime document is required to be held in respect of that ship or product before that act may lawfully be done and knowing that the appropriate document is not held.
…
[37] The structure of s 68 is different to that of s 46 because the two offences that the section creates are contained in separate subsections. Section 46, on the other hand, seeks to achieve this by using the word “or”. I accept that the purpose and effect of s 68 is probably easier to discern than is the case in relation to s 46. In the end, however, I consider that both sections achieve the same object. The existence of s 68 also demonstrates that Parliament has chosen to enact, albeit in another context, a “hybrid” section that creates two offences, one apparently an offence of strict liability and the other clearly requiring knowledge on the part of the defendant.
[38] It is also perhaps of some significance that both provisions appear within the offence provisions of legislation governing different fields within the transport sector. It appears that Parliament has viewed the offence provisions of legislation
relating to that sector as requiring a different structure to those in comparable provisions of other types of legislation.
[39] There are, however, no cases in which the structure and meaning of s 68 have been discussed. In the District Court counsel for the informant referred the Judge to Tell v Maritime Safety Authority CA 230/02, 27 November 2002. That case involved a prosecution under s 65(1)(a) of the Maritime Transport Act 1994, which makes it an offence to operate a vessel in a manner that caused unnecessary danger or risk to persons or property. The appellant was charged after he fell asleep whilst at the wheel of his fishing boat.
[40] The Court of Appeal upheld the conclusion of the Judges in the courts below that s 65(1) created an offence of strict liability. As a result, the informant did not have to prove that it was necessary for the defendant to have consciously appreciated the risk he was taking when he operated the vessel with knowledge that he was liable to fall asleep. In reaching that conclusion the Court of Appeal noted that s 65 was within a category of offence dealing with safety generally in relation to maritime activity. I agree with Judge Blackie, however, that Tell provides limited assistance in the present context because it did not involve s 68 of the Act. It does, however, provide another example of strict liability being imposed in relation to a public welfare regulatory offence.
The purpose of the section
[41] I consider that the purpose of the s 46 is to provide the informant with two choices when considering whether to lay a charge of failing hold the appropriate current aviation documents. In cases where the informant may not be able to prove knowledge on the part of the defendant, it may lay a charge using the strict liability provisions. In cases where it can prove knowledge, on the other hand, the informant may lay a charge alleging an offence under the knowledge provisions.
[42] It is not difficult to think of situations in which the informant is likely to proceed under the knowledge provisions. That will occur, for example, when the defendant has admitted, perhaps when being interviewed by the CAA, that he or she
knew that he or she did not hold the required documents at the time of operating a particular air service. It may also occur where the CAA has obtained other evidence confirming that to be the case. This could arise, for example, where the defendant had unsuccessfully sought to obtain the documentation necessary for a particular air service and then proceeded to operate that air service notwithstanding that fact.
[43] I therefore do not accept, as the Judge appears to have done, that prosecuting authorities will inevitably resort to the strict liability provisions because charges laid under those provisions will be easier to establish.
The relevance of the penalty provisions
[44] Offending in which knowledge is proved will generally be more serious than offending that has come about through ignorance or inadvertence. Cases where knowledge is proved will therefore be likely to attract more severe penalties than will be the case for offending involving ignorance or inadvertence.
[45] In this respect I respectfully also differ from the Judge’s comment that the penalty for both types of offence within s 46 is the same. Section 46(2) of the Act does not provide a single penalty, or even a minimum penalty for offences against the section. Rather, it provides for a range of penalties. These include a fine not exceeding $10,000 and imprisonment for up to 12 months in the case of an individual. A fine of up to $100,000 may be imposed in the case of a company.
[46] In serious cases involving individuals rather than companies, the sentencer will also be entitled to select a penalty from the wide range of non-custodial sentences that are now available. These include community work, community detention and home detention. One would therefore expect a conviction for a knowledge offence to attract a sentence towards the upper end of the range, whilst offences involving ignorance or inadvertence will generally attract lower penalties.
The nature of the Act
[47] The Act is, in my view, a clear example of public welfare regulatory legislation. It is concerned with regulating the aviation industry in order to safeguard the welfare of all those who have contact with it.
[48] The long title to the Act provides that it is an Act “to establish rules of operation and divisions of responsibility within the New Zealand civil aviation system in order to promote aviation safety”. It sets out to achieve that object by prescribing the standards that participants at all levels of the aviation industry must meet.
[49] The Act is designed to operate on the premise that those who operate within the field of aviation accept responsibility for meeting their prescribed obligations under the Act. Although the Director of the Authority is responsible for enforcing the Act, he or she cannot be everywhere and will not have access to unlimited resources. It therefore makes perfect sense for the Act to impose the primary obligation upon participants within the industry.
[50] There is nothing untoward, in my view, about a regulatory system that requires a commercial operator such as Mr Barr to ensure that he holds the appropriate current aviation documents whenever he undertakes flying operations. If he does not, the onus should be upon him to establish that his non-compliance with the Act occurred without any fault on his part.
The importance of the required documents
[51] It also needs to be remembered that the documents that Mr Barr is required to hold do not exist in a vacuum. As counsel for the informant pointed out, standards within the aviation industry are maintained through the documents that participants in the industry are required to hold. The documents assist the CAA to monitor and enforce the standards that the Act requires. They also inform participants in the industry, such as Mr Barr, of what they can and cannot do.
[52] The documents cannot be obtained merely by the payment of a prescribed fee in the same way that a person might previously have purchased a television licence. Rather, they record the fact that the holder of the document has passed the prescribed tests and is therefore qualified to operate a particular type of air service to which the document relates. The documentary system therefore lies at the heart of the aviation regulatory system. The offence provisions are the means by which the CAA enforces the obligations that the Act imposes upon participants in the industry.
Consistency of approach to interpretation of the Act
[53] I do not consider that the imposition of strict liability in relation to offending under s 46 will produce a skewed or inconsistent approach to interpretation of the Act. Section 46 is contained within a section of the Act that is headed “Safety offences”. It is but one of several offences that may be committed against the Act.
[54] Other examples of offences within this section of the Act are to be found in ss
43 and 44. Section 43 makes it an offence to do any act that causes unnecessary danger to any other person or to any property. Section 44 makes it an offence to operate, maintain, or service any aircraft or aeronautical product in a manner that causes unnecessary danger to any other person or property. Those offences have been held by this Court to be offences of strict liability: See eg Holland v Police HC HAM AP 26/46 17 April 1997 and Imstepf v Civil Aviation Authority HC HAM CRI
2005 419 0003 6 July 2006.
[55] Another recent example of strict liability being applied to an offence within this section of the Act is to be found in Civil Aviation Authority of New Zealand v Van Den Burg HC WHG CRI 2007 488 0017 15 April 2008. In that case the appellant had been charged under s 43A of the Act, which makes it an offence to operate an aircraft in a careless manner. Stevens J held that the principles enunciated in MacKenzie and Millar applied, and that s 43A created an offence of strict liability. In doing so he undertook (at [39] to [44]) an analysis of relevant provisions in the Act. This led him to conclude that the offence created by s 43A was a public welfare offence. This conclusion, coupled with the fact that reasonably substantial penalties
applied, led Stevens J to hold that the offence was properly categorised as one of strict liability. Similar comments could obviously be made about s 46.
[56] I therefore consider that my conclusion that s 46 creates a strict liability offence as well as a knowledge offence is consistent with conclusions that this Court has reached in relation to other similar offence provisions within the Act.
Conclusion
[57] For all of these reasons, but in particular the manner in which s 46(1)(b) is structured, I have reached the conclusion that it creates both a strict liability offence and a knowledge offence. It follows that I respectfully reach a different conclusion to that reached by Judge Blackie in the District Court.
[58] This means, in the context of the present case, that the informant was not required to prove knowledge on the part of Mr Barr. It was only required to prove that he had operated his helicopter on a commercial agricultural operation in circumstances where he did not hold current aviation documents appropriate for that activity. Once it proved those elements the onus was on Mr Barr to show, on the balance of probabilities, that he was not at fault.
[59] Given the very careful way in which the Judge came to his decision, however, I consider it appropriate to analyse the other matters that persuaded him to a different view.
Other matters that the Judge in the District Court considered to be of importance
Ambiguity
[60] The Judge’s decision suggests that he was troubled by an apparent ambiguity in the wording of s 46. It will be obvious from what I have said that I do not consider that the wording of s 46 creates any ambiguity. I consider that it clearly establishes two offences, one being a strict liability offence and the other being a knowledge offence.
Abrogation of the fundamental right that the informant must prove guilty knowledge
[61] It is equally clear that the Judge was concerned about adopting an interpretation that removed the otherwise fundamental requirement that the informant be required to prove knowledge, or mens rea, on the part of the defendant. He may also have been influenced in this context by the severity of the penalties that could potentially be imposed upon Mr Barr in the event that he was convicted.
[62] These concerns led the Judge to set out the following passages from the speech of Lord Steyn in B (a minor) v Director of Public Prosecutions at 470:
Parliament legislates against the background of the principle of legality, seen as a constitutional principle: and Parliament does not write on a blank sheet, but rather is not presumed to override fundamental rights by general and ambiguous words.
[63] The Judge then said:
Lord Steyn referred to the work of Professor Sir Rupert Cross, Statutory
Interpretation, Third Edition (1995) at page 166, stating:
In successive editions of his classic work, Professor Rupert Cross cited as the paradigm of the principle the “presumption” that mens rea is required in the case of statutory crimes … Sir Rupert explained that such presumptions are of general application and are not depending on finding an ambiguity in the text. He said that they:
“not only supplement the text, they also operate at a higher level as expressions of fundamental principles governing both civil liberties and the relations between Parliament, the Executives and the Courts. They operate as constitutional principles which are not easily displayed by a statutory text.”
“In other words, in the absence of express words or a truly necessary implication, Parliament must be presumed to legislate on the presumption that the principle of legality will supplement the text.”
[64] I accept without reservation the correctness of the principles to which Lord Steyn refers in these passages. I also accept that the principles referred to in the other passage that the Judge cited, this time from the well-known speech of Lord Reid in Sweet v Parsley, remain as valid today as they have ever been. Lord Reid said at 149:
It is a universal principle that if a penal provision is reasonable capable of two interpretations, that the interpretation which is most favourable to the accused must be adopted.
…
It is also firmly established that the fact that other sections of the Act expressly require mens rea, for example because they contain the word “knowingly”, it is not in itself sufficient to justify a decision that a section which is silent as to mens rea creates an absolute offence. In the absence of a clear indication in the Act that a offence is intended to be an absolute offence it is necessary to go outside the Act and examine all relevant circumstances in order to establish that there must have been the intention of Parliament.
[65] The statements of principle that their Lordships make do not, however, stand in isolation. The reality is that the courts of New Zealand have now been imposing strict liability in relation to public welfare regulatory offences for more than 25 years. They have taken that step because they have been required to give effect to a plethora of public welfare regulatory legislation, virtually all of which contain offence provisions. The courts have also taken that step because they have recognised that the traditional approach to knowledge and intention, or mens rea, is not particularly apt when dealing with this type of legislation. Richardson J explained this in the following passage from MacKenzie (at 85):
There are two reasons why in our judgment the Court should now follow the path taken by the Canadian decision [in Sault Ste Marie] and recognise, first, that in the case of public welfare regulatory offences such as we are concerned with in this case under s 24 a defence of total absence of fault is available unless clearly excluded in terms of the legislation; and, second, that the onus of proving such a defence to the balance of probabilities standard rests on the defendant. First, it is artificial to speak in terms of mens rea. Liability under legislation of this kind rarely turns on the presence or absence of any particular state of mind. But in social policy terms compliance with an objective standard of conduct is highly relevant. Courts must be able to accord sufficient weight to the promotion of public health and safety without at the same time snaring the diligent and socially responsible. The principle of English criminal law that the burden of proof of a requisite mental state rests on the prosecution is not whittled down where in matters of public welfare regulation in an increasingly complex society the defence of due diligence is allowed because it is recognised that the price of absolute liability is too high. Second, as was emphasised in Sault Ste Marie, the defendant will ordinarily know far better than the prosecution how the breach occurred and what he had done to avoid it. In so far as the emphasis in public welfare regulations is on the protection of the interests of society as a whole, it is not unreasonable to require a defendant to bear the burden of proving that the breach occurred without fault on his part. As was emphasised in Creedon [Police v Creedon [1976] 1 NZLR 571 (CA)], a high standard of care is properly expected of a defendant in such a case and he
must prove that he did what a reasonable man would have done. It would not in our view be appropriate to have a variable standard of negligence depending on subjective considerations affecting the individual concerned, as was suggested in argument at one point. (emphasis added)
[66] The modern approach, as the Court of Appeal confirmed in Tell at [14], is to be ascertained in the following passage from the judgment of Cooke P and Richardson J in Millar (at 668):
But 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.
[67] I consider that the manner in which Parliament has chosen to structure s
46(1)(b) answers that question firmly in favour of strict liability. 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.
The choice of alternative approaches to prosecution
[68] The second matter that troubled the Judge is the fact that, under the argument for the CAA, the section gave the informant the choice of proceeding under either the strict liability provisions or those creating a knowledge offence. Faced with that prospect, he elected to interpret the strict liability provisions as requiring the informant to prove the same elements as it would need to prove in a prosecution brought under the knowledge provisions.
[69] I have already indicated my disagreement with the Judge’s view that the availability of a choice will inevitably lead an informant to use the strict liability provisions. Of greater importance in this context, however, is the principle that the courts must apply the law in accordance with the intention of the legislature. The courts must accept that Parliament has seen fit to provide informants with the choice that is contained within s 46(1)(b).
[70] As the Judge noted in the passage set out at [14], Parliament has elected to enact s 46 in its present form notwithstanding the fact that one approach will favour the prosecution and the other will favour the defendant. In the end, however, it is a matter for the informant, and not the court, to determine which of the two alternatives it wishes to use in any given case.
[71] Any other approach runs the risk that the courts will interfere with the exercise of prosecutorial discretion. It is a long standing principle of the criminal law that the courts have no power to review the manner in which the prosecutor exercises his or her discretion to lay charges against a defendant: See eg Police v Hall [1976] 2 NZLR 678 at 683. The courts have no role to play in relation to that function.
[72] The courts have no function at all until such time as charges are actually laid. Thereafter they have a limited power to intervene to prevent an abuse of the Court’s process and to review the sufficiency of the evidence adduced in support of the charge. For the most part, however, their function is to determine the charges that the informant chooses to lay. Any approach that subverts, or fails to recognise, this separation of responsibilities would obviously be wrong.
[73] For these reasons I do not share the concerns that the Judge expressed in relation to the fact that s 46 contains two possible approaches to a prosecution.
R v Gedson
[74] The final matter that I have yet to consider is the reliance that the Judge placed on the decision of Fisher J in R v Gedson. The accused in that case was charged with manslaughter after a helicopter crashed with fatal consequences for a passenger. The prosecution alleged that the accused had carried out unauthorised repairs or modifications to the helicopter, and that these were a substantial and operating cause of the crash that caused the death of the passenger.
[75] The Crown alleged that the accused was guilty of manslaughter on several bases. One of these was that he had committed culpable homicide by killing the
passenger by an unlawful act. The unlawful act was said to be a breach of
Regulations 18 and 173(2) of the Civil Aviation Regulations 1953. Regulation
173(2) provided:
The operator of an aircraft in respect of which an airworthiness certificate has been issued under rules made under the Civil Aviation Act 1990 shall not carry out or cause or permit to be carried out any unapproved modification or repairs to the aircraft or to any component of the aircraft.
[76] Such conduct was made an offence by virtue of Regulation 18(1), which provides:
(1)Any person who contravenes or fails to comply with any provision of these regulations (including any condition or direction subject to which any aerodrome, air route or airway facility, air route or airway may be used, any condition of the issue of any certificate, licence, or rating issued or rendered valid under these regulations, or any lawful direction or condition specified in any notice to airmen, Civil Aviation Safety Order, or New Zealand Civil Airworthiness Requirements shall be guilty of an offence against these regulations.
[77] The Crown contended that the accused had fitted unapproved blades to the helicopter, and that this was likely to cause harm to other people. The issue then arose as to whether the offence created by Regulations 18(1) and 173(2) was one of strict liability, or whether the Crown was required to prove that the accused knew that the repair was unapproved.
[78] Fisher J observed (at 7) that some of the principles referred to in MacKenzie and Millar favoured an interpretation involving strict liability. In particular, the Regulations in question could properly be described as being public welfare regulations. He noted, however, that, of itself, the fact that a public safety regulatory provision is involved will not necessarily mean that strict liability must follow.
[79] As against that approach, Fisher J noted (at 8) that liability potentially arose in the case before him arose as a result of the alleged conduct of the accused when he carried out the unauthorised modifications. Liability had arisen in MacKenzie by virtue of the existence of a state of affairs that was contrary to public safety. Fisher J took the view that this factor must count as a consideration against strict liability.
[80] Faced with those competing interpretations, Fisher J returned to the presumption in favour of the defendant to which Lord Reid referred in Sweet v Parsley and to the passage from Millar set out at [66] above. He concluded (at 9) that there was “nothing sufficiently weighty to displace the ordinary rule that a guilty mind is an essential ingredient of criminal liability. For that reason he held that the regulation created an offence in which the prosecution was required to prove that the accused not only intentionally caused the repair in question, but also that at that time he had a guilty mind.
[81] It can be seen from this analysis that the critical factor that influenced Fisher J was that he was faced with two competing interpretations of the regulation that he was considering. In those circumstances he elected to apply the principles referred to in Sweet v Parsley and Millar, and to proceed on the basis that was most favourable to the accused.
[82] There is, however, a vital factor that distinguishes the situation in the present case from that which confronted Fisher J in Gedson. The regulation that was the subject of consideration in Gedson did not contain two separate and alternative offences in the way that s 46(1)(b) does. Instead, it contained a single offence. As a result, Fisher J was only required to determine whether that single offence was one of strict liability or not.
[83] The conclusion that I have reached in relation to the meaning to be ascribed to s 46 decides this issue firmly in favour of the interpretation for which the CAA contends. It is not necessary for me to resort to the principles set out in Sweet v Parsley in order to resolve any ambiguity or to decide between two competing interpretations.
[84] Whilst I understand why Fisher J took the approach that he did in Gedson, I am therefore satisfied that it would not be appropriate to adopt the same approach in the present case.
[85] It follows that none of the other factors to which Judge Blackie referred affects my conclusion regarding the manner in which s 46 is to be interpreted.
Result
[86] The question that the case stated poses is as follows:
The question for the opinion of the Court is whether [the Judge’s] decision that s 46 of the Civil Aviation Act 1990 required the prosecution to prove mens rea in every case was erroneous in law?
[87] For the reasons set out above I answer that question “Yes”. In the case of charges laid under the first limb of s 46(1)(b) it is not necessary for the prosecution to prove knowledge or mens rea on the part of the defendant. That requirement does, however, apply to charges laid under the second limb of the subsection.
[88] As indicated earlier, at the request of the appellant I make no consequential orders or directions.
Lang J
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