Gallon v Civil Aviation Authority - [2019] NZCA 74

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

CA561/2018
[2019] NZCA 74

BETWEEN	ANTHONY LAURENCE GALLON Applicant
AND	CIVIL AVIATION AUTHORITY Respondent

Court:	French, Dobson and Brewer JJ
Counsel:	Applicant in person M S Jenkins for Respondent
Judgment: (On the papers)	28 March 2019 at 2 pm

JUDGMENT OF THE COURT

The application for leave to bring a second appeal is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Dobson J)

Introduction

The applicant (Mr Gallon) applies for leave to bring a second appeal under s 237(1) of the Criminal Procedure Act 2011, which provides that a convicted person may, with leave of the court appealed to, appeal the first appeal court’s determination. Leave may only be granted where a matter of general or public importance is involved, or a miscarriage of justice may have occurred or may occur unless the appeal is heard.
The respondent (Civil Aviation Authority) opposes the application, submitting that as Mr Gallon was acquitted on his first appeal to the High Court, he falls outside the definition of a “convicted person”. Mr Gallon therefore lacks standing and has no grounds to seek a second appeal against conviction and sentence. Accordingly, it is submitted that the application should be dismissed.

Background

In the course of a trans-Tasman flight on 30 December 2016, Mr Gallon became concerned at some parents’ treatment of their distressed baby in seats opposite his own. He confronted the parents. The inflight service manager assessed the situation and concluded that there was nothing wrong with the parents’ conduct. Mr Gallon continued talking to the family from his seat, as a result of which he was moved four rows forward, with his agreement.
Mr Gallon remained concerned at the inflight service manager’s refusal to intervene, repeatedly pushing the call button and writing a note to the aircraft captain stating that, in not assigning supervision to the child, he was tolerating child abuse.
There was some dispute as to the order in which later events occurred, but Mr Gallon apparently left his seat and attempted to go back to the parents. He was given a final warning and told that, if he did not remain seated, he would be handcuffed and met by Police upon landing.
After the aircraft landed, Mr Gallon was spoken to by a Police officer and issued with an infringement notice. When he indicated he wished to dispute this notice, a charging document was filed alleging that he had, while on an aircraft, behaved in a disorderly manner towards a crew member, which is an offence under s 65G(1)(b) of the Civil Aviation Act 1990 (the Act).

District Court hearing

A judge-alone trial was held at the Wellington District Court on 6 March 2018. In a reserved judgment issued on 20 March 2018, Judge Harrop found that Mr Gallon had “behaved in a disorderly manner towards [the inflight service manager] at a level beyond which a reasonable crew member should be expected to bear”.[1] He…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] NZCA 74
Decision Date: 28 March 2019 at 2 pm

CaseChat Overview and Summary

In the Court of Appeal of New Zealand, Anthony Laurence Gallon sought leave to bring a second appeal against a conviction for disorderly conduct under the Civil Aviation Act 1990. The case involved Gallon confronting parents about their treatment of their distressed baby on a flight, leading to a series of events resulting in his conviction. The initial appeal to the High Court saw his conviction quashed, leading to his acquittal. Gallon now sought leave for a second appeal, arguing that the High Court failed to properly consider his complaint about his trial counsel and that the court record of events misrepresented the truth, potentially damaging his reputation. The Civil Aviation Authority opposed the application, asserting that Gallon had been acquitted and was no longer a "convicted person" under the Criminal Procedure Act 2011, thus lacking standing to appeal.

The court examined whether Gallon's application for a second appeal met the criteria for leave under s 237(1) of the Criminal Procedure Act. The court noted that Gallon’s appeal did not involve a matter of general or public importance, nor did it present a miscarriage of justice. The court also considered whether Gallon could be considered a "convicted person" despite his acquittal, ultimately deciding against extending the definition of "convicted person" in this context. The court concluded that Gallon's concerns about his reputation did not warrant a second appeal as they did not rise to the level of a miscarriage of justice or a matter of general or public importance.

The application for leave to bring a second appeal was declined. The Court of Appeal determined that Gallon was no longer a "convicted person" since his conviction had been quashed and he was acquitted. The court found that his concerns about his reputation, while legitimate, did not meet the threshold for allowing a second appeal. Consequently, the application was dismissed, and Gallon was not granted leave to bring a second appeal against his conviction.

Orders