Tasman Australia Airlines Pty Ltd (Can 074835760), Andrew Reid & Peter McGee v Andrew Ogil, Director of Civil Aviation Authority (2009) N3808

• Jurisdiction: Papua New Guinea
• Judge: Paliau, AJ
• Judgment Date: 11 December 2009
• Citation: (2009) N3808
• Docket Number: CIA No. 466 OF 2004
• Court: National Court
• Year: 2009
• Judgement Number: N3808

Full Title: CIA No. 466 OF 2004; Tasman Australia Airlines Pty Ltd (Can 074835760), Andrew Reid & Peter McGee v Andrew Ogil, Director of Civil Aviation Authority (2009) N3808

National Court: Paliau, AJ

Judgment Delivered: 11 December 2009

N3808

PAPUA NEW GUINEA

[IN THE NATIONAL COURT OF JUSTICE]

CIA No. 466 OF 2004

BETWEEN:

TASMAN AUSTRALIA AIRLINES PTY LTD (CAN 074835760), ANDREW REID & PETER McGEE

Appellants

AND:

ANDREW OGIL, DIRECTOR OF CIVIL AVIATION AUTHORITY

Respondent

Waigani: Paliau, AJ

2009: 4th November & 11th December

APPEAL – Appeal from District Court pursuant to s.219 of the District Courts Act.

APPEAL – On the ground of Mixed fact and law in that the District Court Magistrate erred in finding that the Appellants did cause an aircraft to be operated in a careless manner which caused unnecessary danger to other persons and/or property under ss.277 and 278 of the Civil Aviation Act. Also on the ground that the Court erred in fact and law by imposing harsh sentence on the Appellants.

APPEAL – First ground of appeal dismissed in its entirety – Magistrate did not err in mixed fact and law.

APPEAL – Second ground of appeal upheld in relation to Appellants being punished twice for the offences. And partially dismissed in relation to whether the sentences were harsh.

APPEAL – Appeal dismissed with costs to be bourn by the Appellants.

Cases cited:

SCR No. 1 of 1980: Re Section 22A(b)

of the Police Offences Act (Papua) [1981]PNGLR 28

Tasman Australia Airlines Pty Ltd v. Andrew Ogil (2004) N2711.

Karo Gamogo v. The State [1981] PNGLR 443

Tapopwa Thomas v. The State [1979] PNGLR 140

Counsels:

G. J. Sheppard, with D. Salika, for the Appellants

T. Manjin, for the Respondent

D E C I S I O N

11th December, 2009

1. PALIAU, AJ: This is an appeal from a decision of the Grade 5 District Court which convicted the Appellants severally and jointly for six (6) counts. The six (6) counts were laid pursuant to ss.277 and 278 of the Civil Aviation Act 2000 (“the Act”). These counts were in relation to the operating of a Cessna C550 Jet, Australian Aircraft registration number, VH-WNZ (“the aircraft”). This aircraft belongs to Tasman Australia Airline. The Appellants were charged for the operation of the aircraft in a careless and dangerous manner.

2. The appeal is made pursuant to s.219 of the District Courts Act and the Appellants Amended Notice of Appeal filed on 17th June 2009.

3. The decision appealed against is the District Court decision of 10th December 2004, whereby the Court found the Appellants guilty as charged and imposed the following sentences severally and jointly against the Appellants:

(a) For charges under s.277 of the Act, the Defendants:

(i) Peter Alfred McGee and Andrew James Reid were convicted, cautioned and discharged; and

(ii) Tasman Australian Airlines was convicted and fined K50, 000.00.

(b) For charges under s.278 of the Act, the Defendants:

(i) Andrew James Reid was convicted and fined K 50, 000.00, in default twelve (12) months in hard labour; and

(ii) Peter Alfred McGee was convicted and fined K 30, 000.00, in default twelve (12) months in hard labour; and

(iii) Tasman Australian Airlines was convicted and fined K200, 000.00.

(c) All the above fines totaling K 330, 000.00 were to be paid by 4:00 pm today (Friday, 10th December 2004) if in default the Defendants be imprisoned at the Bomana CIS, for twelve (12) months with hard labour.

(d) The aircraft be released to the Defendants only when all fines and costs are paid.

(e) It was further ordered that the Defendants will pay all costs and expenses in prosecuting this case, if not agreed, than this Court will have these costs taxed.

(f) That Peter Alfred McGee’s flying license be suspended for a period of twelve (12) months from today (Friday, 10th December 2004) from flying any form of aircraft in the territorial boundaries of Papua New Guinea.

4. The grounds of appeal as contained in the Amended Notice of Appeal are:

(a) The District Court Magistrate erred in mixed fact and law in finding that the Defendants did cause an aircraft a Cessna Citation Jet, Australian registration number, VH-WNZ, to be operated in a careless manner which caused unnecessary danger to other persons and/or property, when the evidence before the Court was such that the Court could not be satisfied to the required standard that the Defendants did cause the aircraft to operated in an unnecessarily dangerous manner to other persons or property.

(b) The District Court Magistrate erred in fact and in law by imposing a harsh sentence on the Appellants when there was no existence of circumstances of aggravation going toward the imposition of a harsh sentence.

5. The order which the Appellants seek in lieu of the decisions appealed from is that:

(a) the Defendants be acquitted and found not guilty of the charges and all bail and recognizance moneys paid by the Defendants be refunded forthwith;

Or alternatively;

(b) a lesser non-custodial sentence be imposed against the Defendants.

THE FACTS

6. The facts for which the charges arose from were these. On 27th September 2004 the aircraft was issued a flight clearance to operate into Papua New Guinea.

7. On 29th September 2004 a flight plan was lodged in Brisbane. In the flight plan the route to be taken by the aircraft was Cairns, Port Moresby, Buka, Tokua, Buka, Port Moresby and Cairns.

8. On 30th September 2004 at 9:45am the aircraft departed Cairns for Port Moresby with the Appellants on board.

9. On 30th September 2004 at 2:01pm the aircraft departed Port Moresby for Buka. The Appellants with ten (10) other passengers were on board the aircraft. The aircraft landed in Buka at 3:45pm.

10. On 30th September 2004 at 4:25pm the aircraft departed Buka with the Appellants and passengers on board.

11. On 30th September 2004 at 4:45pm the aircraft landed at Aropa airport with the Appellants and their passengers on board.

12. On 10th December 2004, the Appellants were convicted on the charges that, on 30th September 2004 they:

(a) Did cause an aircraft a Cessna Citation Jet, Australian registration number VM-WNZ to be operated in a careless manner; and

(b) Did cause an aircraft a Cessna Citation Jet, Australian registration number VM-WNZ to be operated in a manner which caused unnecessary danger to other persons and/or property.

thereby purportedly contravening sections 277 and 278 of the Act.

ISSUES

13. The issues that I consider for determination by the Court from the facts and the grounds of appeal are:

A. Whether the Appellants caused the aircraft to be operated in a careless manner and in a manner which caused unnecessary danger to other persons and or property.

B. Whether the imposition of the sentences on the Appellants were harsh and whether there was in existence circumstances of aggravation that justified the imposition of those harsh sentences.

Issue A

14. The issue will be dealt with following the charges that were laid against the Appellants as per ss.277 and 278 of the Act.

“s. 277. OPERATING AN AIRCRAFT IN A CARELESS MANNER

(1) A person, who operates an aircraft in a careless manner, is guilty of an offence.

Penalty: Where a person convicted on an offence is:

(a) a corporation – a fine not exceeding K 50, 000.00; and

(b) other than a corporation – a fine not exceeding K 10, 000.00 or imprisonment for a term not exceeding three months, or both.

(2) The provisions of Subsection (1) are in addition to and not in derogation of any regulations or rules made under this Act.”

15. “s. 278. DANGEROUS ACTIVITY INVOLVING AIRCRAFT, AERONAUTICAL PRODUCT, OBJECTS AFFECTING NAVIGABLE AIRSPACE OR AVIATION RELATED SERVICE

(1) A person, who:

(a) operates, maintains, or services; or

(b) does nay other act in respect of an aircraft, aeronautical product or service, or

(c) causes or permits and aircraft, aeronautical product or aviation related service to be operated, maintained, or serviced; or

(d) causes or permits any other act to be done in respect of an aircraft, aeronautical product or aviation related service.

in a manner which causes unnecessary danger to any other person or to any property, is guilty of an offence.

Penalty: Where a person convicted on an offence is:

(a) a corporation – a fine not exceeding K 200, 000.00; and

(b) other than a corporation – a fine not exceeding K 50, 000.00 or imprisonment for a term not exceeding 2 years, or both.

(2) The provisions of Subsection (1) shall be in addition to and not in derogation of any regulation or rules made under this Act.”

16. The elements of the offences under ss.277 and 278 that the prosecution or the respondent was required to prove in the lower Court were:

(a) Corporation;

(b) Operation of an aircraft;

(c) Operation of an aircraft in a careless manner;

(d) Operation of an aircraft in a dangerous manner; and

(e) Operation of an aircraft to and from a de-commissioned aerodrome.

Element of operation of an aircraft

17. From the evidence adduced in the lower Court, it was not in contention or not in dispute that the Appellants operated an aircraft. And that aircraft was a Cessna Citation (C550), Australian aircraft registration number VH-WNZ.

18. This element of operation of aircraft under ss.277 and 278 of the Act on the 30th September 2004 was...