Citation: Lustig v Regina [2009] NSWCCA 143
Court: NSW Court of Criminal Appeal
Date: 15 May 2009
Judge(s): Giles JA; Grove J; Hall J
Background
The appellant, a solicitor, boarded a Qantas flight from Sydney to Melbourne with a client. A dispute arose at the aircraft entrance over whether a jacket or suit bag could be stored in a coat locker. The exchange escalated, the client called the customer service manager a liar, and a confrontation continued on the aerobridge. The customer service manager ultimately told the appellant he would not be permitted to travel.
The appellant re-entered the aircraft, asked to speak to the captain, and according to some witnesses moved toward the flight deck door. He also refused repeated requests to leave the aircraft, causing a delay before police arrived and removed him.
The appellant was charged in the District Court with doing an act that interfered with a crew member while on an aircraft, contrary to s 24(1)(a) of the Civil Aviation Act 1988 (Cth). A jury convicted him, and the trial judge imposed a fine and a two-year good behaviour bond.
Legal Issues
- Whether the conduct relied upon by the Crown was capable, as a matter of law, of constituting interference with a crew member within the meaning of s 24(1)(a) of the Civil Aviation Act 1988 (Cth)
- Whether the trial judge's directions adequately explained to the jury which episodes in the course of conduct could, and which could not, found a conviction
- Whether a real risk existed that the jury may have convicted on the basis of an episode that was not capable of amounting to the offence
- Whether the proviso under s 6 of the Criminal Appeal Act 1912 should be applied to dismiss the appeal despite any error
Decision
The Court of Criminal Appeal accepted, consistently with common ground between the parties, that interference with a crew member under s 24(1)(a) meant interference with the performance of that crew member's duties. The court confirmed that such interference does not require physical impediment: conduct that hinders or prevents a crew member from performing duties ordinarily falling within their role is sufficient.
The Crown relied on a course of conduct comprising three episodes: the confrontation during boarding, the appellant moving toward the flight deck door, and the appellant's refusal to leave the aircraft when requested. The court found that two of those episodes were capable of constituting interference with the crew member's duties. The third episode, however, was not capable of amounting to the offence charged.
The difficulty was that the trial judge's directions did not adequately draw this distinction for the jury. There was a real risk that the jury understood it could convict if satisfied of the incapable episode alone. Where a course of conduct is relied upon and individual episodes within it carry different legal weight, careful direction is required to ensure the jury does not convict on a legally insufficient basis.
The Court declined to apply the proviso. The evidence on the remaining episodes was in dispute, findings of fact were necessary that the Court of Criminal Appeal could not properly make, and questions of intention or recklessness also remained contested. Applying the proviso in those circumstances was not appropriate.
Orders Made
- Conviction quashed
- New trial ordered
Key Takeaways
- Under s 24(1)(a) of the Civil Aviation Act 1988 (Cth), interference with a crew member does not require physical impediment; conduct that hinders or prevents a crew member from performing their ordinary duties is capable of satisfying the provision.
- Where the Crown relies on a course of conduct made up of several distinct episodes, not every episode in that course necessarily amounts to the charged offence, and the trial judge must direct the jury carefully about which episodes are legally capable of founding a conviction.
- A real risk of conviction on a legally insufficient episode, without adequate corrective direction, constitutes a misdirection warranting appellate intervention.
- The proviso under s 6 of the Criminal Appeal Act 1912 will not be applied where the remaining evidence is disputed, where findings of fact cannot appropriately be made by the appellate court, and where questions of mental element remain unresolved.
- The Court of Criminal Appeal noted that whether to proceed with a new trial was properly a matter for the prosecuting authorities, declining to order an acquittal despite the comparatively modest sentence originally imposed.
Legislation and Cases Referenced
Legislation
- Civil Aviation Act 1988 (Cth), s 24(1)(a) (since amended)
- Civil Aviation Regulations 1988 (Cth), reg 256AA(1)
- Criminal Procedure Act 1986 (NSW), s 166
- Criminal Appeal Act 1912 (NSW), s 6
Cases
- Cesan v The Queen [2008] HCA 52; (2009) 250 ALR 192
- Johnson v Miller (1937) 59 CLR 467
- R v Abusafiah (1991) 24 NSWLR 531
- R v Button and Griffen [2002] NSWCCA 159; (2002) 129 A Crim R 242
- R v Galvin (1998) 102 A Crim R 568
- R v ITA [2003] NSWCCA 174; (2003) 139 A Crim R 340
- R v Saengsi-Or [2004] NSWCCA 108; (2004) 61 NSWLR 135
- Stanton v Abernathy (1990) 19 NSWLR 656
- Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300