GALLON v CIVIL AVIATION AUTHORITY [2019] NZCA 74

GALLON v CIVIL AVIATION AUTHORITY [2019] NZCA 74 [28 March 2019]IN THE COURT OF APPEAL OF NEW ZEALANDI TE KŌTI PĪRA O AOTEAROACA561/2018[2019] NZCA 74BETWEEN ANTHONY LAURENCE GALLONApplicantAND CIVIL AVIATION AUTHORITYRespondentCourt: French, Dobson and Brewer JJCounsel: Applicant in personM S Jenkins for RespondentJudgment:(On the papers)28 March 2019 at 2 pmJUDGMENT OF THE COURTThe 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 unders 237(1) of the Criminal Procedure Act 2011, which provides that a convicted personmay, 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, submittingthat as Mr Gallon was acquitted on his first appeal to the High Court, he falls outsidethe definition of a "convicted person". Mr Gallon therefore lacks standing and has nogrounds to seek a second appeal against conviction and sentence. Accordingly, it issubmitted that the application should be dismissed.Background[3] In the course of a trans-Tasman flight on 30 December 2016, Mr Gallonbecame concerned at some parents' treatment of their distressed baby in seats oppositehis own. He confronted the parents. The inflight service manager assessed thesituation 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 wasmoved four rows forward, with his agreement.[4] Mr Gallon remained concerned at the inflight service manager's refusal tointervene, repeatedly pushing the call button and writing a note to the aircraft captainstating that, in not assigning supervision to the child, he was tolerating child abuse.[5] There was some dispute as to the order in which later events occurred, butMr Gallon apparently left his seat and attempted to go back to the parents. He wasgiven a final warning and told that, if he did not remain seated, he would be handcuffedand met by Police upon landing.[6] After the aircraft landed, Mr Gallon was spoken to by a Police officer andissued with an infringement notice. When he indicated he wished to dispute thisnotice, 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 unders 65G(1)(b) of the Civil Aviation Act 1990 (the Act).District Court hearing[7] 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 Gallonhad "behaved in a disorderly manner towards [the inflight service manager] at a levelbeyond which a reasonable crew member should be expected to bear".1 He continued:[62] I accept that he acted generally with genuine concern aboutthe child's welfare and that he may well not have intended to be disrespectfulor disorderly to [the complainant], because he believed he was right and shewas wrong. Nevertheless, on an objective view of his conduct towards her,directly and indirectly, he created a disturbance and created anxiety beyondthe acceptable level.[8] The Judge concluded that the requisite elements of the charge were proved inthat Mr Gallon, while on an aircraft, had behaved in a disorderly manner towardsa crew member.2[9] Mr Gallon applied for a discharge without conviction, which was refused,the Judge instead entering a conviction and imposing a fine of $750.3First appeal[10] Mr Gallon acted for himself on an appeal to the High Court againsthis conviction. He criticised both the conduct of his counsel at trial in not properlyleading his evidence, and the District Court for not ascertaining the true events.4Cooke J found that Mr Gallon's full story was not outlined in his evidence-in-chief.5He accepted Mr Gallon's argument that his conviction involved an unfair assessmentof the facts and held that the District Court Judge had not correctly formulatedthe requirements for the offence.6 He concluded that a miscarriage of justice hadarisen due to the District Court's misstatement of the test and, on the facts, Mr Gallonhad not committed any of the relevant offences under the Act.7 His conviction wasaccordingly quashed and, as the facts did not support a conviction, no retrial wasordered.1 Civil Aviation Authority v Gallon [2018] NZDC 4966 at [61].2 At [63].3 Civil Aviation Authority v Gallon [2018] NZDC 11040.4 Gallon v Civil Aviation Authority [2018] NZHC 2416 at [58].5 At [59].6 At [69].7 At [70].Discussion[11] Mr Gallon submits that the High Court erred in not giving due considerationto his complaint that his trial counsel failed to represent his interests in theDistrict Court. He submits that a miscarriage continues because the Court recordscontain an inaccurate account of events that took place on the flight, leading membersof the public to believe that he had acted in an objectionable manner. Mr Galloncontends that a retrial is necessary to establish the true facts of the event.[12] For a second appeal such as this, leave from the court appealed to is requiredpursuant 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'sfirst appeal under this subpart.(2) The High Court or the Court of Appeal must not give leave for asecond 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 occurunless the appeal is heard.[13] The Supreme Court has expressed doubt that an applicant for leave, whoseconviction 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 thathe is no longer a convicted person, and there is no prospect of his actions leading to aretrial. 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 criminalappellate procedure does not exist to assuage any affront to personal feelings thatmight be caused by the court record of evidence given in the hearing of the charge.[14] Even if some extended definition of "convicted person" was permissible, wewould not be persuaded that any question of general or public importance arises.8 S (SC37/2015) v R [2015] NZSC 103 at [3].Mr Gallon's concerns for his reputation are not such as to warrant a second appeal onthe grounds that any miscarriage of justice occurred.Outcome[15] The application for leave to bring a second appeal is declined.Solicitors:Crown Solicitor, Rotorua for Respondent