R v Morris[2004] QCA 408

SUPREME COURT OF QUEENSLAND

[1]  McPHERSON JA:  I agree with the reasons of Williams JA for dismissing the appeal against conviction. I also agree with the terms in which his Honour proposes that orders should be made in these matters.

[2]  The appellant flew an aircraft, which he was found by the jury to be piloting, over the house where his estranged wife and infant son were living in Biloela. Section 328A of the Criminal Code of Queensland makes it a misdemeanour to operate a vehicle “dangerously” in any place.  The appellant was charged, tried and convicted of doing so. The word “vehicle” includes an aircraft; and it is not now contested that “in any place” includes the air space above the house and land in Biloela. Having found the appellant guilty of the offence under s 328A, the jury must necessarily have found the “operation” or flying of the aircraft was carried out dangerously within the meaning of s 328A of the Code.

[3]  That would, apart from the other matters dealt with in the reasons of Williams JA, be the end of the matter were it not for the appellant’s submission that s 328A is inconsistent with a law of the Commonwealth and consequently invalid by force of s 109 of the Constitution. The relevant Commonwealth law is reg 157 of the Civil Aviation Regulations 1988 made under the authority of the Civil Aviation Act 1988. So far as material it provides:

“(1)  An aircraft must not fly over:

(a)  any … town or populous area at a height lower than 1000 feet …”.

If not proved by evidence (which I think it was in this case), it is a matter for judicial notice that Biloela or the relevant part of it is a town or, at any rate, a populous area. The evidence suggests that the appellant flew over the house at a height below 1000 feet. He was not, however, charged, tried and punished for committing an offence under reg 157, but with an offence under s 328A of the Code. Only if the latter provision of the law is inconsistent with reg 157(1)(a) will it be invalidated by s 109 of the Constitution.

[4]  I do not understand it to be argued that there is a direct inconsistency between reg 157 and s 328A. The former makes it an offence under certain circumstances to fly an aircraft under 1000 feet. The latter makes it an offence to fly or “operate” an aircraft, at whatever height above ground, “dangerously”. To make good the appellant’s point, the inconsistency asserted here must depend on a determination that the Commonwealth regulation was intended to cover the field. To speak of legislation “covering the field” is a metaphorical and not a literal use of language, and one that is not especially apt in the case of air space. Perhaps that is one reason why in McWaters v Day (1989) 168 CLR 289, 296, the High Court said it was necessary to inquire whether the Commonwealth law “evinces an intention to cover the subject matter to the exclusion of any other law”.

[5]  This raises two questions. The first is the identity of the “subject matter” of the Commonwealth law. Like s 328A, it applies to an aircraft, but, so far as relevant here, only to one that is being flown under the height of 1000 feet. The second question is whether, so understood, it is intended to be exclusive of any other law. This is the critical issue in this aspect of the present case.

[6]  The Commonwealth law imposed by reg 157 is not expressly declared to be exclusive of any or all other forms of State or local law applying in the air space up to the level of 1000 feet over Biloela or anywhere else in Australia. If it is intended within that space to operate in that way, it can only be because of some intention not expressed but implicit in the regulation itself. It seems inherently improbable that reg 157 was designed to be an exclusive or exhaustive statement or code regulating all forms of conduct consisting of flying an aircraft within 1000 feet above ground level of populous areas.

[7]  There is nothing in the regulation itself, which is quite specific and limited in its terms and scope or elsewhere in the Act or Regulations, that suggests such a conclusion.  If it were to be so, it would displace the operation within that space of all of the other and more general provisions of the Criminal Code and otherwise that affect to regulate human conduct by penalising as criminal acts and omissions in this State. Murder and manslaughter are two that are mentioned in the reasons of Williams JA and there are, of course, many others. All criminal offences in Queensland are now statutory in origin: see  s 5 of the Criminal Code Act 1899, to which the Code itself is a schedule. It is impossible to suppose that reg 157(1)(a) was intended to create a lawless zone in which no such statute law would or could operate to proscribe human conduct, save and except the stark and simple rule that within it no one should fly an aircraft at a height lower than 1000 feet above ground level.

[8]  The appellant’s attempt to invoke s 109 of the Constitution as an answer to the proceedings against him under s 328A of the Code is therefore without foundation in law. He is not entitled on that ground to assert that his conviction was invalid.

[9]  WILLIAMS JA:  The appellant was convicted after a trial in the District Court at Rockhampton of four counts of dangerous operation of a vehicle, namely an aircraft; s 328A of the Criminal Code.  He appeals against the convictions on a number of grounds.  The submission was made at trial, and renewed on the hearing of the appeal, that s 328A was invalid in consequence of s 109 of the Constitution to the extent that it purported to extend to the operation of an aircraft in air space because it was inconsistent with s 20A of the Civil Aviation Act 1988 (Cth).  On the hearing of the appeal it was contended that there was also such inconsistency with reg 157 of the Civil Aviation Regulations 1988 (Cth).  In addition it was contended that the verdict was unsafe and unsatisfactory.  On the hearing of the appeal leave was given to raise the ground that fresh evidence was now available and there was a significant possibility that a jury, acting reasonably, would have acquitted the appellant had that evidence been adduced at trial.  There was also an application for leave to appeal against sentence.

[10]  The prosecution case was that on 9 March 2001, on two occasions on 10 March 2001, and on 11 March 2001 the appellant, who was the registered owner of an ultra-light Thruster plane, flew that plane at low altitude over the house in Glanville Street, Biloela, in which his estranged wife was then residing with their baby son.  The contention was that it was dangerous to fly that aircraft at that height.  Evidence was given by an experienced pilot of ultra-light planes that flying at a height below 1500 feet above a country town was dangerous.  The appellant’s evidence was that he flew the aircraft on 9 and 11 March accompanied by the witness Weir, but that at the material time on 11 March Weir acted as the pilot.  He denied any low level flying over houses in Biloela on either of those dates.  According to his evidence, though this contradicted the aircraft log he himself compiled, Weir flew the aircraft solo on 10 March.  Weir gave evidence that he was the pilot, accompanied by the appellant, on 9 March, and that on 10 March he flew solo.  According to Weir on 11 March the appellant took over the controls and twice circled the area where the appellant’s wife resided at a height between 1000 and 1500 feet.

[11]  There was evidence led by the prosecution from a number of witnesses on the ground who said that they could see that it was the appellant who was flying the plane on each occasion when it passed over the house in question at low altitude.  Photographs of the aircraft indicated that it would be possible to identify the pilot if the plane was at reasonably low altitude.

[12]  The court adopted the approach of hearing the evidence claimed to be “fresh evidence” reserving the question whether it satisfied the test of being “fresh” according to the test applied in Green v The King (1939) 61 CLR 167; Ratten v The Queen (1974) 131 CLR 510 and Lawless v The Queen (1979) 142 CLR 659.

[13]  The evidence in question from the appellant and a Bavin Clarke was to the effect that the appellant telephoned Clarke at a time when he was allegedly operating the aircraft on 10 March 2001.  In his affidavit the appellant referred to the fact that between February and March 2001 he made a total of 141 phone calls to Clarke who was his spiritual advisor providing support in relation to the separation from his wife.  The appellant exhibited to his affidavit his telephone records obtained from Telstra, including phone calls from phone number 4995 8499 which he said was his “airfield and flying school phone” which was “locked in my absence”.

[14]  Paragraphs 6 and 7 of that affidavit are in the following terms:

“6.  Item 400 at page 14 of 17 (issued 12 April 2001) is a call made to Fr Clarke by me at 7.16 am Saturday 10 March 2001.  This was after the time that was established that Mr Weir had left on a solo navigational exercise.  The call was made from the school land line.

7. Item 396 page 14 of 17 (issued 12 April 2001) is a call made to Fr Clarke at his home at the time of 9-58 am Saturday 10 March 2001.”

[15]  According to the appellant’s affidavit the telephone records were “only sourced after my trial on the suggestion of Fr Clarke.”  He claimed he was in a “deeply troubled state of mind before the trial, and it did not occur to me to put forward my telephone records.”

[16]  In his affidavit Clarke refers to “pastoral contact” with the appellant and confirms he received a large number of telephone calls from him.  Relevantly he said in his affidavit:  “I confirm that he did speak to me by telephone as he states in his affidavit, at 7.16 am and 9.58 am on 10 March 2001.”

[17]  What casts doubt on the reliability of all that evidence is that the telephone records in fact disclose that calls were made to Clarke from telephone service 4995 8499 at 7.16 am and 9.58 pm on 10 March.  Under cross-examination neither deponent could explain why in the affidavits the second call was stated to be at 9.58 am.

[18]  Clarke in oral evidence purported to recall a phone call at 7.16 am on 10 March from the appellant because it was so early as to awaken his family.  Again his reliability has to be questioned because the phone records reveal at least one other phone call shortly before that date at an early hour.  There was a call to Clarke from 4995 8499 at 7.30 am on 24 February.  Clarke was not able to differentiate between the numerous calls he received from the appellant about that time.

[19]  It is true that aviation records of plane movements show that the ultra-light in question took off from Thangool at 6.37 am on 10 March and landed at the same airport at 10.38 am on that day.  One only has the word of the appellant that the phone service in question could only have been used by him.

[20]  The alleged offences, as already noted, occurred in the period 9-11 March 2001, and the trial commenced on 29 March 2004.  The telephone records were available then and they could readily have been made available to defence lawyers at trial.  Clearly by the exercise of reasonable diligence that evidence could have been utilised at trial.  The evidence therefore fails the threshold test.

[21]  But in any event the evidence does not in my view satisfy the test laid down in Gallagher v The Queen (1986) 160 CLR 392, namely that there is a significant possibility that a jury acting reasonably would have acquitted the appellant had the fresh evidence been before it at the trial.  The contention that the appellant was not in the aircraft on 10 March at the relevant time was a major issue at the trial and the jury clearly accepted the evidence of witnesses on the ground that the appellant was then in the plane.  The evidence of telephone records that a phone call was made at 7.16 am on 10 March is in no way conclusive of the fact that the call was made by the appellant.

[22]  Ultimately I have come to the conclusion that it has not been demonstrated that there was a significant possibility that the alleged fresh evidence would have resulted in the acquittal of the appellant.

[23]  Leaving aside the alleged fresh evidence, it was contended on behalf of the appellant that the jury verdicts were unsafe and unsatisfactory.  That was primarily based on the proposition that no reasonable jury could have totally disregarded the evidence of the witness Weir.  There were, however, significant issues for the jury to consider when evaluating his evidence.  Weir’s evidence that he flew solo on 10 March was contradicted by the flight records completed by the appellant which asserted that the appellant was the pilot on that day.  There was also a significant discrepancy between the evidence of the appellant and that of Weir as to who controlled the aircraft above Biloela on 11 March.  The jury could well have accepted Weir’s evidence that, with the appellant at the controls, the aircraft twice circled the area where the appellant’s wife resided at a height between 1000 and 1500 feet.  It would not be unreasonable for a jury in those circumstances to reject parts of the evidence of each of the appellant and Weir.

[24]  It should also be noted that the prosecution case was that the appellant either himself flew the plane dangerously or procured someone else (presumably Weir) to fly it that way.  The plane in question was of a distinctive colour and there was no doubt that it was in the air at all the relevant times.  The email admittedly sent by the appellant to his estranged wife on 10 March could also have been regarded by the jury as significant.  In it he said:  “We have established contact again.”  As that was sent at 9.24 pm on March 10 a jury could well have concluded that that statement was a reference to the contact made by low flying over the house earlier that day (and perhaps on the preceding day).

[25]  Counsel for the appellant also challenged the evidence by the various witnesses on the ground who purported to identify the appellant as being in the plane at the material time.  As already noted the aircraft was distinctive in colour, and even on Weir’s evidence it circled the relevant area twice on 11 March.  In those circumstances a jury may well have had no difficulty in concluding that it was the appellant’s aircraft which they saw on the three days.

[26]  Looked at in isolation it probably could be said that the evidence of the witnesses on the ground identifying the appellant as the pilot was relatively weak.  But that evidence had to be considered in the light of other facts.  It was the appellant’s plane, and he admitted being in it on 9 and 11 March.  Further, Weir’s evidence was that, with the appellant at the controls, the aircraft twice circled the relevant area on 11 March.  Weir had no interest in the house in Glanville Street and the height at which the aircraft flew over that house could be regarded as designed to intimidate persons living in it.  Further, there is the email referred to above.  This was really a circumstantial case of identification and at the end of the day it could be said that there was ample evidence on which the jury could conclude that the appellant was relevantly in control of the plane at all material times.

[27]  Finally on this ground it was submitted by counsel for the appellant that the evidence as to the height of the aircraft was unsatisfactory.  Each of the witnesses on the ground was pressed to make an estimate of the plane’s height at material times.  In many instances the height was given as a number of metres above the roof of the house.  It is, of course, as one experienced witness said, very difficult for ordinary citizens to gauge the height above ground of an aircraft.  But in this case it was not necessary to establish any particular height with precision.  All the prosecution had to prove was that the height was such that the flying could objectively be regarded as dangerous.  Here there was evidence that the plane was flying so low that people on the ground felt threatened by it.  Further, there was the evidence of the experienced pilot of ultra-light planes that flying at a height below 1500 feet above a country town was dangerous.  Weir confirmed that on 11 March the aircraft flew over the house in question below that height.  In all of those circumstances there was ample evidence on which the jury could be satisfied beyond reasonable doubt that the flying in question on each day was dangerous.

[28]  Against all that background I have come to the conclusion that the verdict was not unsafe and unsatisfactory.

[29]  That leaves for consideration the question of the constitutional validity of s 328A of the Code.  Section 328A(1) provides:

“A person who operates, or in any way interferes with the operation of, a vehicle dangerously in any place commits a misdemeanour.”

[30]  “Vehicle” is defined in s 1 as including an “aircraft”.  There is also a definition of “aircraft” in that section; it is not necessary to set out that definition because it is clear that the ultra-light aeroplane in question here was caught by the definition.

[31]  Section 20A of the Civil Aviation Act 1988 (Cth) is in these terms:

“(1)No person may operate an aircraft in a careless or reckless manner so as to endanger the life of another person.

(2) No person may operate an aircraft in a careless or reckless manner so as to endanger the person or property of another person.”

[32]  Section 98 of that Act conferred on the Governor-General power to make regulations not inconsistent with it; pursuant to that power the Civil Aviation Regulations 1988 have been enacted.  Regulation 157 deals with “low flying” and relevantly is in these terms:

“(1)An aircraft must not fly over:

(a)any city, town or populous area at a height lower than 1,000 feet; or

(b)any other area at a height lower than 500 feet.

Penalty:  50 penalty units”

[33]  There follow a number of conditions and qualifications relevant to that Regulation, but they are not relevant for present purposes.

[34]  Before this court no question was raised as to the constitutional validity of the Civil Aviation Act and Regulations thereunder.  It was assumed that a combination of the external affairs power, the trade and commerce power and the incidental power afforded the necessary constitutional support for the legislation.

[35]  In McWaters v Day (1989) 168 CLR 289 the High Court relevantly said at 295-6:

“As evidence of the inconsistency contended for, the respondent points to the different penalties which the respective laws stipulate and to the fact that the Commonwealth offence differs in substance by containing a requirement that the person charged be incapable of having proper control of the vehicle concerned.  It is true that a difference in penalties prescribed for conduct prohibited by Commonwealth and State laws has been held to give rise to inconsistency between those laws for purposes of s. 109; Hume v. Palmer (1926) 38 C.L.R. 441; Ex parte McLean (1930) 43 C.L.R. 472; Reg. v. Loewenthal; Ex parte Blacklock (1974) 131 C.L.R. 338.  Equally, a difference between the rules of conduct prescribed by Commonwealth and State laws might give rise to such inconsistency.  But the mere fact that such differences exist is insufficient to establish an inconsistency in the relevant sense.  It is necessary to inquire whether the Commonwealth statute, in prescribing the rule to be observed, evinces an intention to cover the subject-matter to the exclusion of any other law:  Ex parte McLean at p. 483; Blacklock at p. 347; Reg. v. Winneke; Ex parte Gallagher (1982) 152 C.L.R. 211 at pp. 218, 224, 233; University of Wollongong v. Metwally (1984) 158 CLR 447 at p. 456.  In the words of Dixon J. in Ex parte McLean at p. 483:

‘The inconsistency does not lie in the mere coexistence of two laws which are susceptible of simultaneous obedience.  It depends upon the intention of the paramount Legislature to express by its enactment, completely, exhaustively, or exclusively, what shall be the law governing the particular conduct or matter to which its attention is directed.’”

[36]  That reasoning adopted and clarified the statement of Mason J in The Queen v Winneke; ex parte Gallagher at 224 to the following effect:

“It is, of course, commonplace that the doing of a single act may involve the actor in the commission of more than one criminal offence.  Moreover, it may amount to an offence against a law of the Commonwealth and a law of a State.  So much at least is recognized by s. 30(2) of the Acts Interpretation Act 1901 (Cth), as amended, and s. 11 of the Crimes Act 1914 (Cth) which are designed to ensure that in such a case the offender will not be punished twice where he has first been punished under State law.  These two provisions proceed in accordance with the principle that there is no prima facie presumption that a Commonwealth statute, by making it an offence to do a particular act, evinces an intention to deal with that act to the exclusion of any other law.”

(Section 11 is now s 4C of the Crimes Act.)

[37]  The Civil Aviation Act creates few offences.  Its primary purpose, as evidenced by the Explanatory Memorandum and the second reading speech, was to create an Authority to regulate aviation within Australia.  It cannot be said that the Civil Aviation Act evinced an intention to cover the field of offences relating to the use of aircraft to the exclusion of other legislation.  That that is so is clearly demonstrated by the provisions of the Crimes (Aviation) Act 1991 (Cth).  Even that statute does not cover the field of all criminal offences committed involving a relationship with aircraft or aircraft navigation.  It is not difficult to envisage situations in which the crime of murder or manslaughter could be committed involving an aircraft or its navigation which would not be covered by the provisions of the 1991 Act.

[38]  Ultimately counsel for the appellant retreated to the submission that reg 157 covered the field with respect to the low flying of an aircraft.  The legislation considered by the court in R v Loewenthal; ex parte Blacklock, namely s 29 of the Crimes Act, is probably the most obvious instance of a statute held to cover a limited field of operation.  There the statutory provision related to wilfully and unlawfully destroying or damaging property belonging to the Commonwealth.  Given that the statutory provision was limited to Commonwealth property it is understandable that it was held that that law covered the field of criminal liability for destroying or damaging Commonwealth property.  In my view Blacklock’s case does not avail the appellant here.

[39]  Section 328A of the Code is much wider than reg 157 which is limited to flying below a particular altitude.  One can clearly operate an aircraft dangerously at a height somewhat above that altitude and that, in itself, establishes that there is no necessary conflict between the two provisions.

[40]  Applying the test derived from the High Court decisions to which reference has been made above, I am of the view that there is no inconsistency between s 328A of the Code and either s 20A of the Civil Aviation Act or reg 157 of the Civil Aviation Regulations.  It follows that s 328A is not invalid as being inconsistent with a Commonwealth statutory provision.

[41]  It follows that all challenges to the convictions fail, and it remains to consider the question of penalty.

[42]  The appellant was sentenced to imprisonment for 18 months, suspended after two months, with an operational period of two years.  It was declared that he had spent five days in presentence custody which was to be taken into account. 

[43]  The appellant was born on 21 October 1944 making him 57 at the time the offences were committed, and 59 when sentenced.  His prior criminal history was of no real relevance for present purposes.  He was fined (no conviction recorded) for a firearms offence in February 2001, and had some relatively minor traffic convictions.

[44]  The learned sentencing judge noted that the offences were committed at a time when the appellant was distressed by the marriage break-up and believed that his wife was trying to conceal his baby son’s whereabouts from him.  He also noted that a number of people were in fear and distressed by the appellant’s conduct and that the flying was such that there was a risk of the plane crashing in a populated area.  In consequence he concluded that a prison term was warranted as the appellant deliberately flew dangerously over three days on four occasions. 

[45]  Against that the appellant had a good record as a pilot over some 40 years.  No actual damage either to person or property was occasioned as a result of the manner of flying.  As a result of the conviction the appellant will no longer be able to earn income as a flying instructor.

[46]  The deliberate dangerous driving of a motor vehicle has resulted in most instances in actual custodial penalties being imposed.  There are, not surprisingly, no comparable cases involving the dangerous operation of an aircraft.

[47]  Counsel for the appellant submitted that a wholly suspended sentence should have been imposed.  That would have been an option available to the learned sentencing judge, but the question for this court is whether the sentence in fact imposed was manifestly excessive.  Given that the offences were committed on four occasions over a three day period I am not persuaded that the sentence in fact imposed was manifestly excessive and in consequence the application for leave to appeal against sentence should be refused.

[48]  The orders of the court should therefore be:

1. Appeal against conviction dismissed.

2. Application for leave to appeal against sentence refused.

3. A warrant should issue for the arrest of the appellant but it should remain in the registry for seven days.

[49]  WHITE J:  I have read the reasons for judgment of Williams JA in this appeal and agree with his Honour that the so-called “fresh” evidence passes neither the threshold test nor was its quality such that there was a significant possibility that a jury might have acquitted the appellant had the fresh evidence been before it at the trial. 

[50]  I agree with his Honour that there was nothing unsafe or unsatisfactory about the verdict.

[51]  On the constitutional question it is clear that the Commonwealth legislation does not purport to cover the field of aviation within Australia and accordingly s 328A of the Criminal Code is not inconsistent with either s 20A of the Civil Aviation Act 1988 (Cth) or Reg 157 of the Civil Aviation Regulations.

[52]  I agree with his Honour that the application for leave to appeal against sentence should be refused.

[53]  I agree with the orders proposed by Williams JA.