Civil Aviation Authority of New Zealand v Witschke-Rudd

JurisdictionNew Zealand
CourtCourt of Appeal
JudgeStevens J
Judgment Date30 June 2015
Neutral Citation[2015] NZCA 280
Date30 June 2015
Docket NumberCA688/2014

[2015] NZCA 280



Stevens, Andrews and Gilbert JJ


Civil Aviation Authority Of New Zealand
Phillip Hugh Witschke-Rudd

A F Pilditch and C E Zhu for Appellant

P G Mabey QC as counsel assisting the Court No appearance by the Respondent

Appeal against a decision of the High Court (HC) that a failure to consider recklessness as a mens rea element for the “misleading” limb of s46B(1)(a) Civil Aviation Act 1990 (Every person commits an offence who makes … any fraudulent, misleading, or intentionally false statement for the purpose of obtaining a medical certificate) — respondent had applied for a helicopter licence — on the application form for the requisite medical certificate he had indicated a “no” answer to the question of whether he used legal or illegal recreational drugs–answer was incorrect as the respondent had previously admitted to using cannabis-District Court was not satisfied beyond reasonable doubt the answer given was intentionally wrong and the respondent was acquitted-HC held that although there were undoubtedly good policy (safety) reasons for the creation of a strict liability offence, there was nothing to displace the ordinary prerequisite of a guilty mind in this case — whether the mens rea included recklessness within the concept of “misleading”.

The issue was whether the mens rea included recklessness within the concept of “misleading”.

Held: The Director accepted he could not support a claim the section created strict liability. Some form of mens rea was required.

Section 56 (within the same Part) used the specific concept of recklessness when formulating the offences of communicating false information affecting safety. Therefore when the drafters formulated s46B for the Civil Aviation (Medical Certification) Amendment Act 2001, they would have been aware that such wording was an available option. Yet the amending legislation did not use that approach. This choice must have been deliberate.

The drafters would also have been aware of the formulation used in s46(1)(d) CAA which created an offence of acting without necessary aviation document. The section to the doing of acts “…either without holding the appropriate current aviation document or knowing that a current aviation document is required to be held …before that act [could] be done and knowing that the appropriate aviation document was not held”. The HC in Director of Civil Aviation Authority v Barr held the subsection created two separate offences: one (doing an act knowing that the requisite aviation document was not held) required knowledge as the relevant mens rea, while the other (doing an act without the appropriate aviation document) was a strict liability offence. These two offences were drafted as a single alternative. The Judge therefore concluded that the inclusion of a knowledge offence immediately after the creation of an offence appearing to be one of strict liability led to the inevitable conclusion that Parliament intended the words creating the first offence to be applied literally.

The broader context to s46B(1)(a) therefore provided an example of drafting using alternative offences. The failure to adopt this mode when s46B(1)(a) was enacted suggested that Parliament did not intend to create three separate offences, but rather a single offence.

The word “misleading” was sandwiched between the words “fraudulent” and “intentionally false”. This provided a classic example of the linguistic canon of construction whereby a statutory term was recognised by its associated words. This was sometimes referred to by the Latin maxim noscitur a sociis, translated as “it is known by its associates”. It was a contextual principle whereby a word or phrase was not to be construed as if it stood alone but in the light of its surroundings. Each of the associated words imported intention as the mens rea. That was what the drafters intended for the word “misleading”.

There was no good reason, as a matter of statutory interpretation, for reading the word “reckless” into s46B(1)(a) CAA. The indicia went the other way. While the drafting could have been clearer, it followed that the making of a misleading statement where the actor could only be shown to have been reckless, was not sufficient to establish criminal liability.

“Misleading” means deliberately misleading.

Appeal dismissed.

  • A The appeal is dismissed.

  • B There is no order as to costs.


(Given by Stevens J)

A question of statutory interpretation

The respondent, Mr Witschke-Rudd, purchased a helicopter. In order to apply for a helicopter licence he was required to obtain medical certification under pt 2A of the Civil Aviation Act 1990 (the Act). This necessitated the completion of an application form for the requisite medical certificate. 1


The prescribed form posed a number of questions for applicants including: “Have you ever experienced any of the following: … Use of legal or illegal recreational drugs or substances”. Mr Witschke-Rudd put a circle around “N” signifying his answer was “no”. There is no dispute the answer was incorrect as Mr Witschke-Rudd had previously admitted to using cannabis from the age of 18 years.


Mr Witschke-Rudd was charged with making a misleading statement in the application form for the medical certificate, contrary to s 46B(1)(a) of the Act. The charge was heard in the District Court where the Judge identified the issue for determination as “whether the wrong answer was given intentionally”. 2 This was because the Judge held the offence was one requiring proof that the wrong answer was given deliberately. 3 As the Judge was not satisfied beyond reasonable doubt the answer given was intentionally wrong, Mr Witschke-Rudd was acquitted of the charge. 4


The Director of Civil Aviation (the Director) appealed by way of case stated to the High Court to determine whether the charge of making a misleading statement contrary to s 46B(1)(a) of the Act requires proof of intention or whether recklessness is a sufficient mens rea. The question for determination was “whether [the Judge's] failure to consider recklessness as a mens rea element for the “misleading” limb of s 46B(1)(a) was erroneous in point of law”.


In the High Court Ellis J held the answer to this question was no: the Judge did not err by failing to consider recklessness as a mens rea element for the

“misleading” limb of s 46B(1)(a). 5 Later the Judge granted the Director leave to appeal to this Court. 6

Mr Pilditch, counsel for the Director, says the appeal is brought due to the public importance of the question and the significance of the process of medical certification of pilots generally. As in the High Court, the Director does not seek any substantive remedy against Mr Witschke-Rudd if successful: he only seeks to clarify the law. 7

The statutory provisions

The relevant part of s 46B(1) of the Act provides:

46B Fraudulent, 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; …

46B Fraudulent, misleading, or intentionally false statements to obtain medical certificate

Section 46B appears in pt 5 of the Act which is described as applying to “Offences and Penalties – Safety Offences”. The provision appears in conjunction with other safety offences such as causing endangerment, operating an aircraft in a careless manner, or acting without a necessary aviation document including a medical certificate. 8 The broader context for s 46B is pt 2A of the Act, inserted in April 2009 to establish the medical certification regime. 9


Part 2A provides for the Director, after considering an application for a medical certificate to issue a medical certificate “if he or she is satisfied that the applicant meets the medical standards prescribed in the rules”. 10 The Director can decline to issue a medical certificate if he or she has reasonable grounds to believe

that the applicant “has any characteristic that may interfere with the safe exercise of the privileges to which the medical certificate relates”. 11

Applications for medical certificates are required from a range of persons, including those seeking entry into civil aviation for the first time, those looking to re-enter after an extended absence (such as the appellant), or regular private or commercial pilots who need a current medical certificate to continue flying. The medical examiner relies on the content of the medical application form to inform the medical examination. Answers to questions can prompt further inquiries, investigations and tests by specialists.

The High Court judgment

Ellis J observed that viewed in isolation the words “makes or causes to be made … any … misleading … statement” arguably imported no mental element. 12 Thus the focus would be what effect the statement would have objectively on the recipient: would a medical practitioner receiving the application form objectively be misled by its contents? 13


However Ellis J noted the available definition of misleading in Black's Law Dictionary as “delusive, calculated to be misunderstood”. 14 If such a definition applied it would suggest the need for some form of design or intention on the part of the person who makes the statement. 15


Ellis J then referred to another available approach using the principle of

noscitur a sociis.16 On that basis conduct that is fraudulent imports a mental element of dishonesty or an intention to deceive. The words “intentionally false” used in s 46B(1)(a) also import the requirement of deceit. The issue was whether the linkage in the subsection of the adjective...

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