Director of Civil Aviation v Witschke-Rudd

[2014] NZHC 2951

IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY

CRI-2014-470-000010 [2014] NZHC 2951

BETWEEN

DIRECTOR OF CIVIL AVIATION

Appellant

AND

PHILIP HUGH WITSCHKE-RUDD Respondent

Hearing:	On the papers
Counsel:	F Pilditch for the Appellant Respondent in person P Mabey QC as amicus
Judgment:	25 November 2014

JUDGMENT OF ELLIS J

This judgment was delivered by me on Tuesday 25 November 2014 at 12.00 pm pursuant to Rule 11.5 of the High Court Rules.

Registrar/Deputy Registrar

Date:………………………….

Counsel/Solicitors:

F Pilditch, Barrister, Auckland
P Mabey QC, Barrister, Tauranga

Copy to the Respondent

DIRECTOR OF CIVIL AVIATION v WITSCHKE-RUDD [2014] NZHC 2951 [25 November 2014]

[1]      The Director seeks leave to appeal my decision dated 31 October 2014 in which I dismissed his (case stated) appeal relating to the mens rea in relation to one aspect of s 46B of the Civil Aviation Act 1990 (making a misleading, statement for the purpose of obtaining a medical certificate under Part 2A of that Act).1

[2]      Leave is sought pursuant to s 144 of the Summary Proceedings Act 1957, although it seems that that provision has been repealed and replaced by the more general “second appeals” provision contained in the Criminal Procedure Act 2011 (s 303).  In any event, the grounds upon which leave may be granted are the same, namely that the Court is satisfied that:

(a)       the appeal involves a matter of general or public importance; or

(b)      a miscarriage of justice may have occurred, or may occur unless the appeal is heard.

[3]      Mr Pilditch also advises that consent to bring the appeal has been obtained from the Solicitor-General.

[4]      The Director does not seek to have Mr Witschke-Rudd’s acquittal in the District Court overturned and he played no part in the hearing of the appeal before me and would play no part in any further appeal.2    Accordingly there is thus no opposition to the grant of leave.   For the same reason, however, there can be no question of any miscarriage of justice; the second ground for the grant of leave is not engaged.

[5]      In any event, I accept that the issue raised by the proposed appeal is a matter of general importance.   I say that not only because the proper interpretation and application of any offence provision is a matter of public interest but also because the interpretation of s 46B potentially has a direct bearing on aviation safety.  I note that Mr Pilditch advises that while statutory amendment remains a long term option, the reality of the legislative process means that the effect of my decision is that the

Director’s powers will be curtailed for some considerable time.

1      Director of Civil Aviation v Witschke-Rudd [2014] NZHC 2700.

2      It is for that reason that Mr Mabey QC appeared as amicus in the appeal before me.

[6]      Leave to appeal is granted accordingly.  It will be for the Court of Appeal to

determine whether Mr Mabey should again be appointed to assist.

Rebecca Ellis J