FEDERAL COURT OF AUSTRALIA

Jones v Civil Aviation Safety Authority [2011] FCA 632

THE COURT ORDERS THAT:

1.    The application is dismissed.

2.    The material in a sealed envelope and held by the Court as document 5 in the Court file is to be returned to the solicitor for the first respondent.

3.    The first respondent is as liberty to inspect and take possession of the contents of the sealed envelope.

4.    The applicant pay the first respondent’s costs of the application, including reserved costs, to be taxed in default of agreement.

Note:    Settlement and entry of orders is dealt with in Order 36 of the Federal Court Rules. The text of entered orders can be located using Federal Law Search on the Court’s website.

REASONS FOR JUDGMENT

1    This proceeding raises for consideration whether there was a proper basis for the issue of a warrant to seize material. This, in turn, necessitates an examination of the provisions of s 32AF of the Civil Aviation Act 1988 (Cth) (“the Act”). An answer will then be provided to the following question: did the second respondent Magistrate have a sufficient basis for being satisfied that there were reasonable grounds for suspecting that there was a particular thing on certain premises that may afford evidence of the commission of a civil aviation offence? For reasons that follow the answer to that question is, yes.

Background Facts

2    The applicant, Mr Jones, is a helicopter pilot who operates a large aviation business known as “North Australian Helicopters”. Together with the television production company, WTFN Entertainment Pty Ltd (“WTFN”), Mr Jones planned and made a 10 episode television series called “Keeping up with the Joneses” (“the television series”). The television series portrayed the life of Mr Jones and his family on a large cattle station in the Northern Territory called Coolibah Station.

3    The first respondent, Civil Aviation Safety Authority (“CASA”) is a statutory authority established under the Act. Its functions include conducting the safety regulation of civil air operations in Australia, including by developing effective enforcement strategies to secure compliance with aviation safety standards; see s 9 of the Act.

4    Mr Mark Haslam is an investigator employed by CASA. In November 2010, Mr Haslam commenced an investigation into possible breaches of the Act and the Civil Aviation Regulations 1988 (Cth) (“the Regulations”) by Mr Jones, arising from the television series.

5    Mr Haslam contacted Mr Ulm of WTFN and sought access to the raw data relating to the helicopter operations featured in the television series. Mr Haslam subsequently received a letter from Logie-Smith Lanyon, a firm of lawyers acting for WTFN. The lawyers advised Mr Haslam that WTFN would not produce any material unless compelled to do so. However the lawyers said that if CASA provided a description of the events the subject of the investigation, WTFN would provide a copy of the raw data in readable form.

6    Mr Haslam viewed the seven publicly available episodes of the television series, having accessed them via the channel 10 website. He identified possible breaches of the Act and the Regulations and gave a description to Logie-Smith Lanyon of helicopter operations contained in the television series which were of interest to his investigation. Mr Haslam then made arrangements with the lawyers for WTFN to seize two DVDs provided by WTFN which would be available for collection at the lawyers’ offices, subject to Mr Haslam obtaining a search warrant pursuant to s 32AF of the Act. An appointment was made for Mr Haslam to collect the DVDs at 9.00am on 2 March 2011.

7    On 1 March 2011, at 3.40pm Mr Haslam applied to the Magistrate for an offence related warrant under s 32AF of the Act (“the Warrant”). The Magistrate issued the Warrant. It authorised Mr Haslam to enter the premises of Logie-Smith Lanyon between the hours of 9.00am and 5.00pm on weekdays to search for and seize anything that satisfied all three conditions in the Warrant.

8    In the early afternoon of 1 March 2011, Mr Jones applied to this Court to stay the execution of the Warrant. The matter was listed for an urgent hearing at 3.00pm but by the time the parties had concluded their appearances in court that afternoon, the Warrant had been issued. The Court ordered that all material seized pursuant to the Warrant be placed in a sealed envelope which CASA was not to inspect but to deliver to the chambers of the docket judge.

Relief now sought

9    Mr Jones seeks final relief in the form of an injunction directed to CASA, under s 39B of the Judiciary Act 1903 (Cth) to prevent CASA from viewing any of the images on the DVDs. He seeks ancillary relief to return the seized material to WTFN. Mr Jones further seeks relief, directed to the Magistrate, in the form of a declaration that there were no reasonable grounds for the issuing of the Warrant and that the Warrant be set aside.

The legislative context

10    Section 32AF(1) of the Act permits an investigator to apply to a Magistrate for a warrant in relation to particular premises. The section is headed “offence related warrants”.

11    Sub-section (2) is central to this proceeding. It provides:

Subject to subsection (3), the magistrate may issue the warrant if satisfied, by information on oath, that there are reasonable grounds for suspecting that there is, or there may be within the next 72 hours, on the premises a particular thing that may afford evidence of the commission of a civil aviation offence.

12    Sub-section (3) is not relevant to the circumstances of this matter. It prevents the issue of a warrant in circumstances where a magistrate has required further information about the grounds on which the warrant was sought. There is no evidence that the Magistrate required further information from Mr Haslam.

13    Under s 32AF(4), a warrant must authorise an investigator named in it to enter particular premises, search the premises for “the thing” which is the subject of the warrant and seize it, if the thing is found. It must also specify the time for authorised entry and the day on which it ceases to have effect. A warrant must also state the purpose for which it is issued.

What information was before the Magistrate?

14    To determine whether the Magistrate had a sufficient basis for being satisfied that the DVD material may afford evidence of the commission of a civil aviation offence it is crucial to examine what information, on oath, was put before the Magistrate.

15    Mr Haslam swore an affidavit on 1 March 2011 which asserted, on the grounds set out in the affidavit, that there were reasonable grounds for suspecting that there was at the premises of Logie-Smith Lanyon, “things” which satisfied three conditions. The first condition referred to the DVDs as containing raw data obtained from WTFN relating to the television series. The second condition stipulated that the DVDs related to any one or more of:

    Mr Jones;

    Coolibah Station;

    WTFN; or

    the television series.

The third condition stipulated that there were reasonable grounds for suspecting that the DVDs would afford evidence of the commission of one or more of six offences which were then set out, as follows:

(i)     Civil Aviation Act (1988) Section 20A (2) which states:

“A person must not operate an aircraft being reckless as to whether the manner of operation could endanger the person or property of another person”

Penalty: (found in S.29(1)) Imprisonment for 2 years”

It is alleged that between August 2009 & August 2010, Mr Milton Jones was the pilot in command of a Robinson R22 helicopter registered VH-HZI when he towed a person underneath and behind the helicopter on a water ski endangering the person.

(ii)     Civil Aviation Act (1988) Section 20AB(1) which states:

“A person must not perform any duty that is essential to the operation of an Australian aircraft during flight time unless:

(a)     the person holds a civil aviation authorisation that is in force and authorises the person to perform that duty; or

(b)     the person is authorised by or under the regulations to perform that duty without the civil aviation authorisation concerned.

Penalty: Imprisonment for 2 years”.

It is alleged that between August 2009 & August 2010, Mr Milton Jones was the pilot in command of Robinson R22 and Robinson R44 helicopters and performing commercial operations (collection of crocodile eggs) for which a commercial helicopter licence is required when he was only the holder of a private helicopter licence.

(iii) Civil Aviation Regulation (1988) 256(3) states:

“A person shall not act as, or perform any duties or functions preparatory to acting as, a member of the operating crew of an aircraft if the person has, during the period of 8 hours immediately preceding the departure of the aircraft consumed any alcoholic liquor.

Penalty:   50 penalty units.

It is alleged that between August 2009 & August 2010, Mr Milton Jones was the pilot in command of Robinson R22, helicopter registered VH-HZI when he consumed alcoholic liquor within 8 hours of the departure of the aircraft.

(iv) Civil Aviation Regulation (1988) 225(1) states:

“The pilot in command must ensure that 1 pilot is at the controls of an aircraft from the time at which the engine or engines is or are stated prior to a flight until the engine or engines is or are stopped at the termination of a flight.

Penalty: 50 penalty units.”

It is alleged that between August 2009 & August 2010, Mr Milton Jones was the pilot in command of Robinson R22 and Robinson R44 helicopters and on a number of occasions, left the engine running and rotors turning when there was no pilot at the controls.

(v) Civil Aviation Regulation (1988) 151(1) states:

“The pilot in command of an aircraft in flight must not allow persons or objects to be picked up by the aircraft.

Penalty: 50 penalty units.”

It is alleged that between August 2009 & August 2010, Mr Milton Jones was the pilot in command of Robinson R22 helicopter registered VH-HZI when he picked up a person in flight.

(vi) Civil Aviation Regulation (1988) 149(1) states:

“Subject to this regulation, the pilot in command of an aircraft in flight shall not permit anything to be towed by the aircraft.

Penalty: 50 penalty units”.

It is alleged that between August 2009 & August 2010, Mr Milton Jones was the pilot in command of a Robinson R22 helicopter registered VH-HZI when he towed a person underneath and behind the helicopter on a water ski.

16    In the balance of the affidavit Mr Haslam referred to various matters including the following:

    he viewed all seven available episodes of the television series and identified issues relevant to his enquiries;

    he recognised that some of the material aired in the television series may contain poetic licence, “for entertainment value rather than being a true account of what actually took place during filming.” In this context Mr Haslam gave an example of footage which gave the impression that the pilot was consuming alcohol immediately before flying a helicopter, whereas this could have been an editing issue. Therefore Mr Haslam stated: “the raw data is required to ascertain the true nature of the filming and timing between events”; and

    he attached a spreadsheet which identified parts of the raw footage required on the basis of matters observed from a viewing of the footage on the channel 10 website. For example, some 13 minutes into episode 1 it is noted that there is vision of “(an) engine running and no person at the controls”. It is also noted in the spreadsheet that in episode 4 there is a picture of Mr Jones “chasing jet ski” with a further narration: “(w)as consuming alcohol during footage shown prior”.

Another example is the notation that in episode 5 in one segment there are “(c)hildren in helicopter when engine started – no pilot at controls”. A final example is the footage at the end of episode 7 which shows a person “slung under a helicopter for the purpose of processing croc eggs.” Earlier in the spreadsheet there is a reference to a person who is “… seen to water ski underneath and behind helicopter.”

Mr Jones’ contentions on s 32AF(2)

17    Counsel for Mr Jones, Mr Ribbands, submitted that there was insufficient information before the Magistrate to satisfy him that there were reasonable grounds for the relevant suspicion. More specifically, he contended that there was no basis on which the Magistrate could reasonably suspect that the DVDs may afford evidence of the commission of a civil aviation offence. Mr Ribbands said that the evidence put by Mr Haslam before the Magistrate was not such to found a suspicion as to whether Mr Jones had committed an offence.

18    In his written outline of submissions, Mr Ribbands said:

In his affidavit sworn 1 March 2011 Mark Haslam has merely identified a variety of offences under the [Act], without in any way suggesting the applicant was possibly guilty of them, and then stated that he would like to examine material from WTFN so as to see if there was an offence. In our submission this is contrary to rationale for ensuring strict compliance with the statutory conditions as referred to in George v Rockett.

George v Rockett

19    George v Rockett (1990) 170 CLR 104 is a judgment of the High Court of Australia dealing with a challenge to a search warrant obtained under s 679 of the Criminal Code (Queensland). The crucial wording of the relevant provision, which may be contrasted with s 32AF of the Act, was contained in s 679(b) of the Criminal Code (Queensland) which referred to: “Anything…as to which there are reasonable grounds for believing that it will of itself or by scientific examination, afford evidence as to the commission of an offence”.

20    At page 111 in George, the Full High Court referred to the need for the justice to be satisfied that those who apply for a warrant have fulfilled the conditions for its issue. Their Honours said:

When the justice is so satisfied and a warrant is issued, the warrant should express the justice’s satisfaction that there are reasonable grounds for the suspicion and belief…”

21    Under s 32AF, there is only a requirement for a reasonable ground for the suspicion as to the commission of an offence and not to the belief as to the occurrence of an offence. Even so, as demonstrated in George at page 113, there must be a “relevant foundation” for the suspicion. See also at page 114 where the High Court said:

The requirement is that the sworn complaint should contain sufficient facts to found the reasonable suspicion and the reasonable belief respectively mentioned in s 679.

22    George is instructive as to the relevant meaning of “suspicion”. At page 115 the Court referred to the judgment of Kitto J in Queensland Bacon Pty Ltd v Rees (1966) 115 CLR 266 where his Honour said at page 303:

A suspicion that something exists is more than a mere idle wondering whether it exists or not; it is a positive feeling of actual apprehension or mistrust, amounting to ‘a slight opinion, but without sufficient evidence’, as Chambers’ Dictionary expresses it. Consequently, a reason to suspect that a fact exists is more than a reason to consider or look into the possibility of its existence. The notion which ‘reason to suspect’ expresses in sub-s (4) is, I think, of something which in all the circumstances would create in the mind of a reasonable person in the position of the payee an actual apprehension or fear that the situation of the payer is in actual fact that which the sub-section describes — a mistrust of the payer's ability to pay his debts as they become due and of the effect which acceptance of the payment would have as between the payee and the other creditors.

23    At page 116 the High Court referred to “(t)he objective circumstances sufficient to show a reason to believe something” as needing to “point more clearly to the subject matter of the belief”. But even then the High Court made clear that “belief” is not the same as “proof”.

24    In the current context, it is only necessary to consider whether the Magistrate had a sufficient basis to form a reasonable suspicion that the DVDs may afford evidence of a civil aviation offence. All that was required was the holding of “a slight opinion, but without sufficient evidence” but nonetheless an “actual apprehension” created in the mind of a reasonable person that the thing sought to be seized may (not will), afford evidence of the commission of a civil aviation offence.

Consideration

25    Having regard to the analysis contained in George and the distinguishing features between that case and the current circumstances, the Court considers that Mr Haslam’s affidavit contained sufficient material to enable the Magistrate to have reasonable grounds for suspecting that the DVDs may afford evidence of offences against the Act and the Regulations.

26    The Warrant expresses the relevant state of satisfaction on the basis of possible breaches of various sections of the Act and various regulations which are set out in the Warrant, being those sections and regulations set out in the “Third Condition” in paragraph 4 of Mr Haslam’s affidavit (set out at paragraph 15 above). The relevant suspicion is also reasonably generated having regard to the text of the spreadsheet annexed to the affidavit and its notation of incidents shown on the footage viewed by Mr Haslam, which may be traced back to the possible commission of civil aviation offences.

27    The reasonableness of the relevant suspicion is not diminished by Mr Haslam’s frank acknowledgement in his affidavit that some of the footage he has viewed may have involved poetic licence by WTFW. That does no more than show that reasonable suspicion may be capable of being held after viewing the material contained in the DVDs. But until that happens there are real, prima facie grounds for concern that safety legislation has been flouted.

28    The Court agrees with the submissions of counsel for CASA, Mr Harrington, that based on Mr Haslam’s affidavit the Magistrate was capable of being satisfied that there were reasonable grounds for suspecting that the DVDs may afford evidence of the commission of a civil aviation offence. In so concluding, for the reasons expressed above and in reliance on George, the Court acknowledges the rationale in George at page 110-111 that strict compliance with statutory conditions governing the issue of search warrants is necessary, given their intrusive nature. However, the Court has examined carefully the contents of Mr Haslam’s affidavit, the terms of the Warrant and the provisions of s 32AF of the Act. It considers that the Magistrate complied strictly with the statutory conditions governing the issue of the Warrant. It must be borne in mind that there was no requirement for the Magistrate to have a belief as to whether civil aviation offences had actually been committed by Mr Jones. The attack on the validity of the Warrant is rejected.

Orders

29    Having regard to the foregoing the Court will order as follows:

1.    The application is dismissed.

2.    The material in a sealed envelope and held by the Court as document 5 in the Court file is to be returned to the solicitor for the first respondent.

3.    The first respondent is as liberty to inspect and take possession of the contents of the sealed envelope.

4.    The applicant pay the first respondent’s costs of the application, including reserved costs, to be taxed in default of agreement.

Associate:

Dated:    6 June 2011