Civil Aviation Authority of New Zealand v Witschke-Rudd
| Jurisdiction | New Zealand |
| Judge | Stevens J |
| Judgment Date | 30 June 2015 |
| Neutral Citation | [2015] NZCA 280 |
| Docket Number | CA688/2014 |
| Court | Court of Appeal |
| Date | 30 June 2015 |
[2015] NZCA 280
Stevens, Andrews and Gilbert JJ
CA688/2014
IN THE COURT OF APPEAL OF NEW ZEALAND
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”.
A F Pilditch and C E Zhu for Appellant
P G Mabey QC as counsel assisting the Court No appearance by the Respondent
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A The appeal is dismissed.
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B There is no order as to costs.
(Given by Stevens J)
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
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 relevant part of s 46B(1) of the Act provides:
(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; …
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
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.
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
Ellis J also referred to another arguably open interpretation that the subsection provided for three distinct offences namely the offences of making (or causing to be made):
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(a) a fraudulent statement for the purpose of obtaining a medical certificate; or
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(b) a misleading statement for the purpose of obtaining a medical certificate; or
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(c) an intentionally false statement for the purpose of obtaining a medical certificate.
The Judge noted another High Court case which had considered an analogous provision, namely, s 46(1)(b). 18 However, that section is somewhat different from that in s 46B(1)(a). Section 46(1)(b) draws a clearer distinction using the words “either … or” between the separate defences. Because the section only had two parts, the principle of noscitur a sociis was less readily available on the basis that there was only one potential member of the relevant group. 19
Having referred to the above possible approaches to interpretation the Judge said this:
[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 … above; and
(c) (alternatively) the application of the noscitur a sociis rule.
[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 46B(1) (and the other subsections which adopt identical wording) is merely an example of an archaic and unfortunate drafting style where doubtlets, 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 46B(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.
Accordingly, Ellis J found there was no interpretive basis upon which she could conclude recklessness was a sufficient mental element in relation to the making of a misleading statement. The answer to the question on the case stated was therefore that the District Court Judge made no error of law.
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