Director of Civil Aviation v Witschke-Rudd
[2014] NZHC 2700
•31 October 2014
IN THE HIGH COURT OF NEW ZEALAND TAURANGA REGISTRY
CRI-2014-470-000010 [2014] NZHC 2700
BETWEEN DIRECTOR OF CIVIL AVIATION
Appellant
AND
PHILIP HUGH WITSCHKE-RUDD Respondent
Hearing: 15 August 2014 Appearances:
F Pilditch for the Appellant
Respondent in person
P G Mabey QC as amicusJudgment:
31 October 2014
JUDGMENT OF ELLIS J
This judgment was delivered by me on Friday 31 October 2014 at 4.00 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 2700 [31 October 2014]
[1] As part of the process of applying for a helicopter licence, Mr Witschke-Rudd completed an application form for the requisite medical certificate. One of the questions on the form was:
Have you ever experienced … use of legal or illegal recreational drugs or substances?
[2] Mr Witschke-Rudd circled “N”, indicating that his answer was “No”. It is not disputed that this answer was incorrect. Mr Witschke-Rudd had previously admitted to using cannabis from the age of 18.
[3] Accordingly Mr Witschke-Rudd was charged with making a misleading statement, contrary to s 46B(1)(a) of the Civil Aviation Act 1990 (the Act) which 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; or
…
District Court decision
[4] The learned District Court Judge who determined the charge stated that “The issue for determination is whether the wrong answer was given intentionally”.1 In that respect he held:
[32] To make a finding of an intentional answer which was false, I would have to draw the inference from the proven facts having rejected the defendant’s account of innocent mistake…
[34] …. It is clearly very, very suspicious that he answered the question falsely to prevent further enquiry which would probably have gone against him in his application. Suspicion is not enough, I have to be satisfied beyond
1 Civil Aviation Authority v Philip Witschke-Rudd DC Tauranga CRI-2013-070-2104, 4 March
2014.
reasonable doubt. Mr Rudd gets the benefit of that doubt. Despite some shortcomings in his evidence, the charge will be dismissed.
The case stated appeal
[5] In bringing this case stated appeal against the District Court decision, the Director does not seek to have it overturned in any substantive way (by which I mean in a way that would result in Mr Witschke-Rudd’s conviction). Rather, the Director seeks clarification of the legal position for the future. The specific question raised is whether, for the purposes of the “misleading” limb of s 46B(1)(a),
recklessness is a sufficient mens rea.2
[6] The Director submitted that in confining the requisite mens rea to intention the Judge was in error.3 He says that if the Director could prove beyond reasonable doubt that Mr Witschke-Rudd consciously took the risk of making a statement which he knew could be misleading, and which was in fact misleading, a conviction should follow.
[7] Previous District Court decisions appear to have differed on the issue of whether recklessness is a sufficient mental element for the “misleading” limb of s 46B(1)(a).4
Position of the amicus
[8] Because Mr Witschke-Rudd took no active role in the appeal, Mr Mabey QC (who had represented Mr Witschke-Rudd in the District Court) was appointed to assist the Court. His submission was that the learned District Court Judge was correct to conclude that the conduct proscribed by the relevant part of s 46B was
limited to statements that were intentionally misleading.
2 Based on the evidence set out in the judgment (see [17]-[19] and [23]), it may be that if recklessness was the relevant standard, Mr Witschke-Rudd would have been found guilty. But I do not need to determine that issue.
3 The precise terms of the question stated by the learned District Court Judge was “whether my
failure to consider recklessness as a mens rea element for the “misleading” limb of s 46B(1)(a)
was erroneous in point of law”.
4 See Civil Aviation Authority v Madden DC Auckland CRN3004631789, 21 February 2005 and
Civil Aviation Authority v Griffiths [2010] DCR 169.
Analysis
[9] Viewed in isolation, the words “misleading … statement” arguably import no mental element. Rather, they focus the reader on the effect the statement would (objectively) have on the recipient, namely whether he would (objectively) be misled by it. This appears to be the orthodox interpretation. As Tipping J said in Marcol Manufacturers Ltd v Commerce Commission, a representation will be misleading if
it leads the mind of the representee into error.5 If that is correct then there might be a
question as to whether the drafters had in mind a strict liability offence.
[10] Equally, however, the Black’s Law Dictionary definition of “misleading” is:6
Delusive; calculated to be misunderstood.
[11] That definition suggests that there might need to be some form of “design” or intention on the part of the person who makes the statement. The concept of “calculation” would not, however, embrace recklessness.
[12] There is another, obviously open, way of looking at the section. That involves reading the word in light of noscitur a sociis principles. Conduct that is “fraudulent” or dishonest imports a mental element, namely dishonesty or an intent to deceive.7 The requirement for deceit is, of course, explicit in the words “intentionally false”. The issue thus becomes whether the linkage in the subsection of the adjective “misleading” with those other adjectives which require an intention
to deceive means that “misleading” is also to be read as “intentionally misleading”.
It might be said that the word “misleading” keeps the society of deceit.
[13] Another interpretation that is arguably open on the plain words of the subsection is that three distinct offences are effectively created by it, namely
offences of making (or causing to be made):
5 Marcol Manufacturers Ltd v Commerce Commission [1991] 2 NZLR 502 (HC).
6 Black’s Law Dictionary (10th ed, Thomson Reuters, 2014) at 1151. Mr Mabey QC pointed out that an earlier edition defined misleading as “delusive; calculated to lead astray or lead into error”.
7 By way of recent authority see Heenan v Attorney-General [2014] NZHC 1911 where Fogarty J said at [68]: “Fraud has never been defined. This is a deliberate decision of the common law. The essence of fraud is obtaining advantage dishonestly.”
(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.
[14] The argument would be that while (a) and (c) require intention, (b) is a strict liability offence, based on the orthodox interpretation of the word “misleading” that I have noted at [9] above. On that analysis the absence of mens rea would become a factor to be taken into account in sentencing.
[15] In the context of the Civil Aviation Act there is some precedent for interpreting a single offence provision in this way. In Director of Civil Aviation v Barr (also a case stated appeal) this Court was required to consider a similar issue of mens rea in relation to s 46(1)(b) of the Act, which provided:8
(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.
[16] After a careful and closely reasoned analysis, Lang J’s conclusion on the requisite mental element(s) under s 46(1)(b) differed from that of the District Court Judge. He held that the subsection created two separate offences. One (doing an act knowing that the requisite aviation document is not held) had knowledge as the relevant mens rea, but the other (doing an act without the appropriate aviation
document) was a strict liability offence.
8 Director of Civil Aviation v Barr [2010] 1 NZLR 138 (HC).
[17] As Lang J noted, the modern approach to strict liability offences is that expressed in the judgment of Cooke P and Richardson J in Millar v Ministry of Transport:9
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.
[18] In the present case, the provision in question here is somewhat different from s 46(1)(b), which, arguably, drew a clearer (“either … or”) distinction between the separate offences. And because the subsection had only two parts, a noscitur a sociis interpretation was less readily available (there was only one potential member of any relevant “society”). Indeed, the existence of the single alternative influenced Lang J in the opposite direction. He said:10
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.
[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 at [10] above; and
(c) (alternatively) the application of the noscitur a sociis rule.
9 Millar v Ministry of Transport [1986] 1 NZLR 660 (CA) at 668. This approach was confirmed by the Court of Appeal in Tell v Maritime Safety Authority [2008] NZAR 306 CA at [14].
10 Director of Civil Aviation v Barr, above n 8, at [67].
[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 48B(1) (and the other subsections which adopt identical wording) is merely an example of an archaic and unfortunate drafting style where doublets, 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 48B(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.
[22] Mr Mabey referred me to a passage in Adams on Criminal Law which states:11
In most cases when the statute does not expressly provide for the requisite mental element, recklessness will be a sufficient but minimum degree of fault for liability, and it is not uncommon for statutes to expressly provide that recklessness suffices. Nevertheless, whether a requirement of recklessness will be read in is a matter of statutory interpretation and will depend on the wording of the provision and the history and nature of the offence created. In R v Saengsai-Or, referring to a redrafted provision that was silent as to the mens rea required but where the offence had previously required intent, the Court declined to read the provision as imposing liability for recklessness. In the absence of a clear indication in the section, the Legislature should not be assumed to have intended to make life easier for the Crown by providing a lower threshold for liability.
[23] Here, the Director quite rightly did not contend that recklessness as to whether a statement is true is not sufficient mens rea for the making of a “fraudulent” statement. Nor did he say that it could be so in relation to making a statement that is “intentionally false”. Indeed, other offence provisions in the Act expressly refer to recklessness as the relevant mens rea.12 As I have said, I can really
see no interpretive basis upon which the Court could conclude that it should be
11 Bruce Robertson (ed) Adams on Criminal Law (online looseleaf ed, Brookers) at [CA20.22] (citations omitted).
12 See for example s 56 (Communicating false information affecting safety).
inferred to be a sufficient mental element in relation to the making of a “misleading”
statement.
Conclusion
[24] For the reasons I have given my conclusion is that the answer to the case stated by Judge Bidois is “no”. In short, the Judge’s “failure” to consider recklessness as a mens rea element for the “misleading” limb of s 46B(1)(a) was not erroneous in point of law”.
[25] For the reasons given earlier, I make no consequential orders or directions. There is no issue as to costs.
Rebecca Ellis J
2