Gallon v Civil Aviation Authority

[2019] NZCA 74

IN THE COURT OF APPEAL OF NEW ZEALAND

I TE KŌTI PĪRA O AOTEAROA

 CA561/2018
 [2019] NZCA 74

BETWEEN	ANTHONY LAURENCE GALLON Applicant
AND	CIVIL AVIATION AUTHORITY Respondent

Court:	French, Dobson and Brewer JJ
Counsel:	Applicant in person M S Jenkins for Respondent
Judgment: (On the papers)	28 March 2019 at 2 pm

JUDGMENT OF THE COURT

The application for leave to bring a second appeal is declined.

____________________________________________________________________

REASONS OF THE COURT

(Given by Dobson J)

Introduction

1. The applicant (Mr Gallon) applies for leave to bring a second appeal under s 237(1) of the Criminal Procedure Act 2011, which provides that a convicted person may, with leave of the court appealed to, appeal the first appeal court’s determination.  Leave may only be granted where a matter of general or public importance is involved, or a miscarriage of justice may have occurred or may occur unless the appeal is heard.

2. The respondent (Civil Aviation Authority) opposes the application, submitting that as Mr Gallon was acquitted on his first appeal to the High Court, he falls outside the definition of a “convicted person”.  Mr Gallon therefore lacks standing and has no grounds to seek a second appeal against conviction and sentence.  Accordingly, it is submitted that the application should be dismissed.

Background

1. In the course of a trans-Tasman flight on 30 December 2016, Mr Gallon became concerned at some parents’ treatment of their distressed baby in seats opposite his own.  He confronted the parents.  The inflight service manager assessed the situation and concluded that there was nothing wrong with the parents’ conduct.  Mr Gallon continued talking to the family from his seat, as a result of which he was moved four rows forward, with his agreement. 

2. Mr Gallon remained concerned at the inflight service manager’s refusal to intervene, repeatedly pushing the call button and writing a note to the aircraft captain stating that, in not assigning supervision to the child, he was tolerating child abuse.

3. There was some dispute as to the order in which later events occurred, but Mr Gallon apparently left his seat and attempted to go back to the parents.  He was given a final warning and told that, if he did not remain seated, he would be handcuffed and met by Police upon landing. 

4. After the aircraft landed, Mr Gallon was spoken to by a Police officer and issued with an infringement notice.  When he indicated he wished to dispute this notice, a charging document was filed alleging that he had, while on an aircraft, behaved in a disorderly manner towards a crew member, which is an offence under s 65G(1)(b) of the Civil Aviation Act 1990 (the Act). 

District Court hearing

1. A judge-alone trial was held at the Wellington District Court on 6 March 2018.  In a reserved judgment issued on 20 March 2018, Judge Harrop found that Mr Gallon had “behaved in a disorderly manner towards [the inflight service manager] at a level beyond which a reasonable crew member should be expected to bear”.[1]  He continued:

   [62]     … I accept that he acted generally with genuine concern about the child’s welfare and that he may well not have intended to be disrespectful or disorderly to [the complainant], because he believed he was right and she was wrong.  Nevertheless, on an objective view of his conduct towards her, directly and indirectly, he created a disturbance and created anxiety beyond the acceptable level.

   [1]Civil Aviation Authority v Gallon [2018] NZDC 4966 at [61]. 

2. The Judge concluded that the requisite elements of the charge were proved in that Mr Gallon, while on an aircraft, had behaved in a disorderly manner towards a crew member.[2]

   [2]At [63].

3. Mr Gallon applied for a discharge without conviction, which was refused, the Judge instead entering a conviction and imposing a fine of $750.[3]

First appeal

[3]Civil Aviation Authority v Gallon [2018] NZDC 11040.

1. Mr Gallon acted for himself on an appeal to the High Court against his conviction.  He criticised both the conduct of his counsel at trial in not properly leading his evidence, and the District Court for not ascertaining the true events.[4]  Cooke J found that Mr Gallon’s full story was not outlined in his evidence-in-chief.[5]  He accepted Mr Gallon’s argument that his conviction involved an unfair assessment of the facts and held that the District Court Judge had not correctly formulated the requirements for the offence.[6]  He concluded that a miscarriage of justice had arisen due to the District Court’s misstatement of the test and, on the facts, Mr Gallon had not committed any of the relevant offences under the Act.[7]  His conviction was accordingly quashed and, as the facts did not support a conviction, no retrial was ordered.

Discussion

[4]Gallon v Civil Aviation Authority [2018] NZHC 2416 at [58].

[5]At [59].

[6]At [69].

[7]At [70].

1. Mr Gallon submits that the High Court erred in not giving due consideration to his complaint that his trial counsel failed to represent his interests in the District Court.  He submits that a miscarriage continues because the Court records contain an inaccurate account of events that took place on the flight, leading members of the public to believe that he had acted in an objectionable manner.  Mr Gallon contends that a retrial is necessary to establish the true facts of the event.

2. For a second appeal such as this, leave from the court appealed to is required pursuant to s 237 of the Criminal Procedure Act, which provides as follows:

   237      Right of appeal against determination of first appeal court

   (1) A convicted person may, with the leave of the second appeal court, appeal to that court against the determination of the person’s first appeal under this subpart.

   (2) The High Court or the Court of Appeal must not give leave for a second appeal under this subpart unless satisfied that —

   (a) the appeal involves a matter of general or public importance; or

   (b) a miscarriage of justice may have occurred, or may occur unless the appeal is heard.

3. The Supreme Court has expressed doubt that an applicant for leave, whose conviction appeal had been allowed by the Court of Appeal on terms directing a retrial, remained a “convicted person”.[8]  Mr Gallon’s position is more straightforward in that he is no longer a convicted person, and there is no prospect of his actions leading to a retrial.  Nor are there any policy justifications for giving the expression “convicted person” any wider meaning than that naturally and ordinarily applied to it.  His challenge to the charging document has been vindicated, and the criminal appellate procedure does not exist to assuage any affront to personal feelings that might be caused by the court record of evidence given in the hearing of the charge. 

   [8]S (SC37/2015) v R [2015] NZSC 103 at [3].

4. Even if some extended definition of “convicted person” was permissible, we would not be persuaded that any question of general or public importance arises.  Mr Gallon’s concerns for his reputation are not such as to warrant a second appeal on the grounds that any miscarriage of justice occurred. 

Outcome

1. The application for leave to bring a second appeal is declined.

Solicitors:
Crown Solicitor, Rotorua for Respondent