Tell v Maritime Safety Authority (CA)

IN THE COURT OF APPEAL OF NEW ZEALAND
CA230/02

BETWEEN: SHANE VINCENT JOHN TELL
Appellant

AND: MARITIME SAFETY AUTHORITY
Respondent

Coram: Keith J, Blanchard J, Tipping J, McGrath J, Anderson J

Hearing: 11 November 2002

Counsel: P W David and K A Harmes for Appellant
T J Broadmore and R K P Stewart for Respondent

Judgment date: 27 November 2002

JUDGMENT OF THE COURT DELIVERED BY TIPPING J

Introduction

1. The appellant, Mr Tell, fell asleep at the wheel of his fishing boat. He was charged with two offences under s65(1) of the Maritime Transport Act 1994 (the Act). They were charges of operating a vessel in a manner which caused unnecessary danger or risk to persons (first charge) and to property (second charge). The issue on this appeal is whether those offences required proof of mens rea or were offences of strict liability. Both Judge Thorburn in the District Court and Morris J in the High Court held that the offences were of strict liability and that Mr Tell had not proved he was without fault. He was therefore convicted and fined a total of $2500.00 and the conviction was upheld on appeal. By consent Mr Tell was granted leave to bring a further appeal to this Court on the classification issue.

2. On 6 March 2000 Mr Tell was the skipper of the fishing vessel ‘Bounty’. He was returning at night to the Port of Auckland. His deckhand had initially taken the wheel. Mr Tell took over while the deckhand got some sleep. As the vessel was coming into the Rangitoto Channel, following the leading light at Takapuna, Mr Tell was feeling tired and thought of getting the deckhand up from his rest to do the last hour’s sailing. It was suggested in the Courts below that Mr Tell fell asleep suddenly. Neither Judge accepted that proposition. Morris J expressly rejected it, finding that Mr Tell had not established a reasonable possibility he became unconscious involuntarily. In fact the evidence was reasonably plain that he fell asleep when he ought not to have and in circumstances entirely within his control. That is why the Judge found Mr Tell could not be said to have behaved without fault.

3. As a result of its skipper falling asleep at the wheel, the fishing vessel went aground off Takapuna Beach under the leading light. It was extensively damaged but no-one was injured. As well as the offences under s65, Mr Tell was also convicted of failing to maintain a proper look-out at all times, contrary to Rule 22.39(2) set out in Schedule I to the Maritime (Offences) Regulations 1998. It is accepted that if the primary offences involve strict liability, this offence cannot be materially different. In the circumstances it is unnecessary to give it separate attention.

4. Section 65 of the Act is in Part VI, the primary heading of which is Offences in Relation to Maritime Activity. The first sub-heading in Part VI which relates to ss61, 62 and 63 is Offences Against Health and Safety on Ships. Sections 64-67 have a sub-heading saying simply Safety Offences. It is thus clear that Parliament saw s65 as being in a category of offence dealing with safety generally in respect of maritime activity. The section is in these terms:

65 Dangerous activity involving ships or maritime products

(1) Every person commits an offence who—

(a) Operates, maintains, or services; or

(b) Does any other act in respect of—

any ship or maritime product in a manner which causes unnecessary danger or risk to any other person or to any property, irrespective of whether or not in fact any injury or damage occurs.

(2) Every person commits an offence who—

(a) Causes or permits any ship or maritime product to be operated, maintained, or serviced; or

(b) Causes or permits any other act to be done in respect of any ship or maritime product,—

in a manner which causes unnecessary danger or risk to any other person or to any property, irrespective of whether or not in fact any injury or damage occurs.

(3) Every person who commits an offence against subsection (1) or subsection (2) of this section is liable,—

(a) In the case of an individual, to imprisonment for a term not exceeding 12 months or a fine not exceeding $10,000:

(b) In the case of a body corporate, to a fine not exceeding $100,000:

(c) In any case, to an additional penalty under section 409 of this Act.

5. Clearly the operation of which s65(1)(a) speaks must be a voluntary and conscious operation of the ship concerned. Mr Tell was not charged on the basis that he operated the vessel while he was asleep. He was charged and convicted on the basis that he continued to operate the vessel with knowledge that he was liable to fall asleep. That was held to be operation in a manner which caused unnecessary danger or risk.

6. Mr David did not submit that there had to be an intention on Mr Tell’s part to cause such danger or risk. Rather he submitted that it was necessary for Mr Tell consciously to have appreciated the risk he was taking. The issue is therefore whether mens rea, in the sense contended for, is a necessary ingredient of an offence under s65(1)(a) in relation to proof of the proscribed manner of operation. Given that the ship must have been consciously operated, does the prosecutor have to prove that the operator consciously appreciated that the manner of operation was causing unnecessary danger or risk?

7. Bearing in mind the statutory setting of s65, as well as its own terms, we have no hesitation in upholding the view taken by both Judges below that in the relevant respect the offence involved is one of strict liability. The prosecutor does not have to prove the conscious appreciation for which Mr David contended. We accept Mr Broadmore’s submissions for the respondent in this respect.

Section 65

8. We agree with Mr David’s submission that mens rea should be regarded as a necessary ingredient of all offences unless Parliament has made it clear, expressly or by necessary implication, that proof of mens rea is not necessary. As we have already noted, the operation of the ship must be intentional. The question concerning mens rea relates to the manner of operation. Essentially it is whether the operator must know, or be reckless whether, his manner of operation is causing unnecessary danger or risk. We consider that there is a clear and necessary implication from the terms of s65 that such knowledge or recklessness is not a necessary ingredient of the offence. While the absence of any reference to knowledge or recklessness is not of itself decisive, the statutory method of expression, both in subs (1) and subs (2), leads us to the conclusion that the subjectivity of the offence is confined to the "operates" element, and that the question whether the manner of operation caused unnecessary risk has to be judged from an objective standpoint.

The statutory setting

9. The conclusion we have reached on the basis of the text of s65 is reinforced when consideration is given to the provisions surrounding it. The offences created by subss (1) and (2) of s61 require knowledge of reasonably likely harm. This requirement is in clear contradistinction to the absence of such a requirement in s65. Furthermore s66 provides that in prosecutions for breaches of ss64 and 65, but not in respect of breaches of s61, proof of the breach of a relevant maritime rule shall, in the absence of proof to the contrary, be presumed to have caused unnecessary danger or risk, irrespective of whether injury or damage occurred. A presumption of this kind, couched in that way, is a clear pointer to offences against ss64 and 65 being offences of strict liability. Section 67 is concerned with communicating false information affecting safety. Its significance lies in its express reference to "knowing the information to be false or in a manner reckless as to whether it is false". Parliament has thereby clearly signalled the need for knowledge or recklessness when that is intended, and in a section in close proximity to s65 which contains no such words.

10. Mr David drew attention to s81 which is headed Strict Liability and Defences. He suggested that this was the full extent of the reach of strict liability under the Act. It is, however, important to note that s81 is directed specifically and solely to s62, which concerns failure to comply with any provision of Part II. We do not consider it follows that offences created by Part VI are therefore incapable of having elements of strict liability. Part II offences are concerned with non-fulfilment of duties relating to safety and health on ships and in relation to seafarers. They mirror in that context general health and safety legislation. The fact that strict liability has been provided for in their respect does not, in our view, mean that Parliament viewed all other offences as necessarily involving mens rea, irrespective of their terms, their statutory context and their purpose.

11. Mr David also pointed out that the penalties in s65 were at the same level as those in s61. That is certainly a matter to be borne in mind, but we do not regard it as outweighing the strength of the contrary indicators which favour strict liability in respect of s65. We also bear in mind, as Mr David urged, s25(c) of the New Zealand Bill of Rights Act 1990 which affirms the presumption of innocence "until proved guilty according to law". As the law was correctly applied in the Courts below Mr Tell was proved guilty in accordance with it.

Legislative history/authorities

12. The leading cases in this field are Civil Aviation Department v MacKenzie [1983] NZLR 78 (CA), and Millar v Ministry of Transport [1986] 1 NZLR 660 (CA). The judgments are well known and need not be discussed in any detail. The seven-fold classification in Millar can for ordinary purposes be reduced to three: (1) offences involving mens rea, (2) offences of strict liability, and (3) absolute offences.

13. Those in the first category involve proof by the prosecutor of mens rea, generally intention or recklessness or relevant knowledge. Offences in the second category require proof only of the actus reus (the conduct constituting the offence) but the defendant is entitled to be acquitted if able to establish lack of fault on the balance of probabilities. Absolute offences are complete on proof of the prohibited conduct without any escape on account of lack of fault or otherwise. Such offences are rarely created and the contest is generally between categories 1 and 2.

14. Millar’s case is also important for the statement at 668 in the joint judgment of Cooke P and Richardson P concerning the correct approach to issues such as the present:

But as a general approach to statutory offences when the words give no clear indication of legislative intent and there is no overriding judicial history, it will be right to begin by asking whether there is really anything weighty enough to displace the ordinary rule that a guilty mind is an essential ingredient of criminal liability.

We have adopted that approach, the essence of which is captured in the first sentence of paragraph [8] above.

15. MacKenzie was a case under s24(1) of the Civil Aviation Act 1964 which relevantly provided:

(1) Where an aircraft is operated in such a manner as to be the cause of unnecessary danger to any person or property, the pilot or the person in charge of the aircraft, and also the owner thereof unless he proves to the satisfaction of the Court that the aircraft was so operated without his actual fault or privity, shall be liable on summary conviction to a fine not exceeding $2,000 or to imprisonment for a term not exceeding twelve months, or to both …

16. Section 24 became s44 of the Civil Aviation Act 1990, which is in materially the same terms as regards aircraft as s65 of the Maritime Transport Act 1994 with which we are at present concerned. We do not regard the changes made to the section which was in issue in MacKenzie as detracting from the force of the submission made by Mr Broadmore that as s24(1) of the Civil Aviation Act 1964 was held to create an offence of strict liability, so too should s65(1) of the Maritime Transport Act. The change from "where an aircraft is operated" in s24(1) to "every person who operates an aircraft [ship]" in ss44 and 65 cannot be regarded as affecting the present issue. Nor can the dropping of the reference to "actual fault or privity" as regards owners. The new sections address that issue within the concepts of causing or permitting in their respective subss (2).

17. Our consideration of the legislative history and the relevant authorities supports the conclusion that s65(1) of the Act creates an offence of strict liability. That conclusion is also supported by what we consider to be the principal purpose of s65. This is not so much to punish knowingly reprehensible conduct but rather to provide a sanction in a case where the safety of persons or property is unnecessarily put in danger or at risk. The legislative purpose of ensuring public safety is reinforced by potentially stern penalties for conduct which objectively falls within the statutory proscription.

Conclusion

18. For these reasons we agree with the respondent’s submission that the Courts below correctly classified the two offences of which Mr Tell was convicted. Neither the District Court nor the High Court erred in law. The appeal is accordingly dismissed with costs to the respondent of $2500.00 plus disbursements to be fixed if necessary by the Registrar.

Solicitors
Wilson Harle, Auckland, for Appellant
Izard Weston, Wellington, for Respondent