IN THE HIGH COURT OF NEW ZEALAND WELLINGTON REGISTRY

I TE KŌTI MATUA O AOTEAROA TE WHANGANUI-A-TARA ROHE	
CRI-2018-485-49
[2018] NZHC 2416	

BETWEEN	ANTHONY LAURENCE GALLON
Appellant	
AND	CIVIL AVIATION AUTHORITY
Respondent	

Hearing:	4 September 2018	
Appearances:	A L Gallon self-represented Appellant M Jenkins for the Respondent	
Judgment:	13 September 2018	

JUDGMENT OF COOKE J

Table of Contents
Background	[2]
District Court decision	[8]
Disorderly behaviour under the Summary of Offences Act 1981	[12]
The Part 5A offences	[29]
Fact of this case	[41]
Language used by Mr Gallon	[47]
Mr Gallon’s demeanour	[52]
Implicit instruction not to talk further to the parents	[53]
Disobeying the final warning	[55]
Holistic assessment	[63]
Substituted charges	[66]
Conclusion	[69]

[1]	The appellant appeals against the decision of the District Court convicting him of an offence against s 65G of the Civil Aviation Act 1990 (the Act). The reasons for

GALLON v CIVIL AVIATION AUTHORITY [2018] NZHC 2416 [13 September 2018]

the conviction are set out in a decision of Judge S M Harrop of 20 March 2018.1 On 25 May 2018 the Judge refused an application for discharge without conviction and sentenced Mr Gallon to a fine of $750.

Background

[2]	Although the facts and circumstances were the subject of more detailed comments and findings later in the judgment, a summary was set out by the District Court in the beginning of its judgment in the following terms:

[1]	Mr Gallon was a passenger on an Air New Zealand flight from Melbourne to Wellington on the evening of 30 December 2016. He became concerned at the way in which parents seated across the aisle from him were treating their distressed baby. He considered their actions amounted to a form of child abuse or child torture. After the father was challenged by Mr Gallon about what he was doing, the father called over the inflight service manager, Ms Takiwa. She did not consider there was anything wrong with the parents’ actions and asked Mr Gallon to return to his seat, which he did. He continued however talking to the family from his seat which led to Ms Takiwa to inform the captain of a developing situation. As a result Mr Gallon was, with his agreement, moved four rows forward. He asserted that Ms Takiwa, by not doing anything about the situation was condoning the parents’ unacceptable behaviour. He wrote down her details and (although this is disputed by Mr Gallon) took his cell phone out and recorded a video or took photographs of her. He frantically wrote a note to the captain expressing his concern about the parents’ behaviour and at Ms Takiwa’s refusal to allow him to ensure that the child was not further ill-treated. He told the captain that if he would not “assign supervision to the child”, then he would be choosing to tolerate child abuse.

[2]	After being given a final warning in respect of his behaviour and threatened with being handcuffed and met by the Police when the plane landed, Mr Gallon initially became compliant but then attempted to return to the row where the family was sitting.

[3]	Section 65G, which is located in Part 5A of the Act, provides as follows:

65G	Disruptive conduct towards crew member

(1)	Every person commits an offence who, while in an aircraft,—

(a)	uses any threatening, offensive, or insulting words towards a crew member; or

(b)	behaves in a threatening, offensive, insulting, or disorderly manner towards a crew member; or

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

(c)	behaves in a manner that interferes with the performance by a crew member of his or her duties; or

(d)	intentionally interferes with the performance by a crew member of his or her duties.

(2)	Every person who commits an offence against subsection (1)(a) or (b) or (c) is liable on conviction to a fine not exceeding $5,000.

(3)	Every person who commits an offence against subsection (1)(d) is liable on conviction to imprisonment for a term not exceeding 2 years or a fine not exceeding $10,000.

(4)	It is a defence in a prosecution under subsection (1)(a) for using offensive or insulting words if the defendant proves that he or she had reasonable grounds to believe that his or her words would not be overheard by a crew member.

[4]	In the present case, the specific charge was that Mr Gallon had contravened   s 65G(1)(b) by behaving in a disorderly manner towards Ms Takiwa.

[5]	Section 232 of the Criminal Procedure Act 2011 provides that an appeal court must allow an appeal if the Judge erred in his or her assessment of the evidence to such an extent that a miscarriage of justice had occurred, or if a miscarriage has occurred for any other reason. A miscarriage of justice is defined to mean any error, irregularity or occurrence that has created a real risk that the outcome of the trial was affected, or that has resulted in an unfair trial or a trial that was a nullity.

[6]	Mr Gallon represents himself on appeal. In his written documentation in support of his appeal he has relied on a number of matters, including that the District Court made errors in the assessments of the facts, that his counsel at trial failed to lead his evidence appropriately so that those facts were before the Court, and that the District Court erred in proceeding on the basis that Ms Takiwa embodied a reasonable crew member for the purposes of applying the tests relevant to establishing whether there had been disorderly behaviour of  the  kind  contemplated  by  s  65G(1)(b).  Mr Gallon seeks an order setting aside his conviction, and that a retrial be ordered.

[7]	Mr Jenkins for the Civil Aviation Authority supported the District Court decision, and responded to the arguments addressed by Mr Gallon.

District Court decision

[8]	In order to identify the elements of the offence outlined in s 65G, the District Court referred to the decision of the Supreme Court in Brooker v Police relating to the similarly worded offence in s 4 of the Summary Offences Act 1981.2 After setting out passages from the judgment in that case, the District Court held:

[15]	While these tests are with respect indeed helpful, clearly there must be special regard to the environment on an aircraft to which this charge applies and to the requirement that the behaviour be directed towards a crew member who of course has special responsibility but also special power in respect of passengers. Cabin crew and in particular the inflight service manager have responsibility for the safety and comfort of all passengers in a confined space on any given flight. Clearly what may not be disorderly behaviour in a less confined environment may be so in the specially enclosed environment of an aircraft.

[16]	It is against this background that I proceed on the basis that to succeed the prosecution must prove beyond reasonable doubt that Mr Gallon behaved in a way that caused anxiety or disturbance at a level beyond that which a reasonable crew member should be expected to bear in the context of the environment in which the crew member discharges their duties.

[9]	Then after making more detailed findings and observations in relation to the relevant events, which are summarised in less detailed terms in the passage quoted at
[2]	above, the District Court held:

[61]	The combination of the conduct I have identified, even on Mr Gallon’s version of events where there is dispute with that of Ms Takiwa, is in my view clearly sufficient to establish that he behaved in a disorderly manner towards her at a level beyond which a reasonable crew member should be expected to bear.

[62]	As I have noted, 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 Ms Takiwa, 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.

[63]	For these reasons I am satisfied beyond reasonable doubt that the requisite elements of the charge are proved. I find it proved that Mr Gallon was in an aircraft, namely on Air New Zealand flight NZ850, and that in that aircraft he behaved in a disorderly manner towards at least Ms Takiwa, if not another crew member.

2	Brooker v Police [2007] NZSC 30, [2007] 3 NZLR 91.

[10]	I have formed the view that the approach adopted by the District Court, and the conclusion reached is erroneous. That is for three inter-related reasons:

(a)	The District Court paid insufficient regard when formulating the legal test to be applied in this case to the requirements identified by the Supreme Court in relation to the disorderly behaviour offences under the Summary Offences Act, including the need for the conduct to be productive of disorder.

(b)	In any event, the test adopted by the District Court did not reflect the fact that s 65G is one of a series of interrelated offences set out in Part 5A of the Act, each of which has a particular focus.

(c)	The District Court also made one error in the factual findings leading to the conviction, which in my view was significant to any conclusion that Mr Gallon had engaged in conduct that would be an offence under Part 5A of the Act.

[11]	For those reasons, which I will elaborate on in greater detail below, I have reached the  conclusion  that  there  has  been  a  miscarriage  of  justice  and  that  Mr Gallon’s conviction should be quashed. I have also reached the view that it would not be appropriate to order a retrial.

Disorderly behaviour under the Summary of Offences Act 1981

[12]	In drawing on the Supreme Court’s decision in Brooker v Police, the District Court did not identify matters of importance stressed by the Supreme Court, and in doing so did not identify the correct dividing line for when conduct becomes disorderly conduct amounting to a criminal offence.

[13]	I begin by observing that the Summary Offences Act cases concerning the requirements for the disorderly behaviour provisions are not easy to apply in practice. First, the legal analysis undertaken in the authorities is complex. In Brooker v Police alone there were five separate judgments, including two separate judgments in dissent.

The Supreme Court then returned to these provisions in Morse v Police.3 Here there were again five separate judgments with subtle differences in analysis.

[14]	The inherent difficulty in deciding the outcome of individual cases against that background has also been recognised. In Brooker v Police, Blanchard J observed:

[64] In the course of time trial courts will be informed by a body of individual cases applying s 4(1)(a) to differing factual situations. It may be that in the meantime there will be room for the minds of judges to differ as to results, as they clearly have done in the present case. But, as I have already indicated, I see that as inevitable, at least at the present stage of our legal development, when courts are confronted with provisions such as s 4(1) which address a potentially wide range of factual situations using everyday language which is relatively imprecise.

[15]	The position is further complicated by the scheme of Part 5A of the present Act, which deals with “Unruly passenger offences”, and which prescribes a series of separate offences that can be committed on an aircraft. A difficult question arises as to whether the analysis under the Summary Offences Act directly applies, and also in terms of how the separate offences in Part 5A relate to one another. I will address that in greater detail below. It is appropriate to note at this point, however, that under s 65C of the Act certain provisions of the Summary Offences Act apply to conduct on an aircraft, including the offence of disorderly behaviour under s 3 of the Summary Offences Act (but not the offence under s 4 of the Summary Offences Act). To make matters even more difficult the relevant offences in Part 5A of the Act are not subject to any previous authority.

[16]	The key difficulty overall is in identifying the dividing line where conduct will meet the requirements for a disorderly behaviour offence. On this question, there are three key features of the cases concerning s 4 of the Summary Offences Act, which is similar to s 65K of the Act (and potentially also to s 65G), that are significant. Focusing on these key features may provide the greatest guidance on when conduct crosses the line to become a criminal offence.

3	Morse v Police [2011] NZSC 45, [2002] 2 NZLR 1.

[17]	First, the relevant behaviour in question must be productive of public disorder. That requirement is evident from Brooker v Police, but was more clearly articulated in the judgments in Morse v Police. There Elias CJ held:4
… unless behaviour is disruptive or provocative of disruption of public order, objectively assessed, it is neither “disorderly” nor “offensive” within the meaning and purpose of s 4(1)(a).

[18]	Similar observations were made in relation to the link in s 4 between disorderly behaviour and offensive behaviour. Elias CJ held:

[33] The structure of s 4 links offensive with disorderly behaviour. The  same linkage is to be seen in s 3. The coupling of “offensive” with “disorderly” suggests equivalence. If they cover different types of offending (so that one is concerned with behaviour that offends others and the other with behaviour that creates disorder), it is unclear why they are separated out from the other offences in s 4(1)(a) by such close association. The coupling of the two suggests that offensive behaviour is behaviour that tends to provoke or bring about disorder, thus closing the circle of conduct that impacts on public order at a lower threshold of seriousness than the disruption envisaged by s 3.

[19]	Similar observations were made in the other judgments, including Blanchard J who indicated that the possible suggestions that there was no need to prove that the conduct was productive of disorder in his earlier judgments were in error.5

[20]	This feature provides real guidance on when conduct is regarded as disorderly behaviour of the type triggering the offence. The behaviour must involve disorder in itself, or behaviour which provokes that disorder by others.

[21]	The second key feature arising from the cases is the respect paid to the rights recognised by the New Zealand Bill of Rights Act 1990 (NZBORA), and particularly the right to freedom of expression under s 14. The provisions of NZBORA have already had a role in relation to the first feature, as the requirement for the conduct to be productive of public disorder partly arises because of the interpretative mandate in NZBORA. But it may also assist when identifying the dividing line for when behaviour becomes an offence. As Blanchard J held in Brooker:6

4	Morse, above n 3, at [7].
5	At [61]. See Tipping J at [70]–[73], McGrath J at [103] and Anderson J at [124].
6	(Footnote omitted); see also Tipping J at [92]. In Taueki v Police [2013] NZHC 1710 at [22], Kós J referred to this as “an augmented threshold”.

[59]   But when the behaviour in question involves an exercise of the right  to convey information or express an opinion, which is protected by s 14 of the New Zealand Bill of Rights Act 1990 (the Bill of Rights), or engages some other right guaranteed by that Act there is a further and most important consideration. A characterisation of the behaviour of the defendant as disorderly then cannot be made without an assessment against the overriding requirement of s 5 of the Bill of Rights that the exercise of any guaranteed right may be subjected only to such reasonable limits prescribed by law as can be demonstrably justified in a free and democratic society. The value protected by the Bill of Rights must be specifically considered and weighed against the value of public order. The court must ask itself whether treating the particular behaviour in the particular circumstances as disorderly constitutes a justified limitation on the defendant’s exercise of the right in question. As a result, public order will less readily be seen to have been disturbed by conduct which is intended to convey information or express an opinion than by other forms of behaviour. The manner in which the defendant chose to exercise the right and the time and place are of course relevant to that inquiry.

[22]	The third feature is that the required approach no longer involves the tests formulated in the earlier cases. As Blanchard J said in Brooker:7

[63] Section 4 and its predecessors have always been easier to explain or interpret in the abstract, as I have attempted to do, than to apply to the facts of an individual case. The difficulty increases for a trial judge when there is a need to factor in a provision of the Bill of Rights. Little guidance can now be obtained from pre-Bill of Rights cases. The leading case in that period involving protest action was the decision of the Court of Appeal in Melser v Police, in which the common theme in two of the judgments affirming the convictions was that the defendants’ behaviour was “of a character which is likely to cause annoyance to others who are present” or “conduct at least causing annoyance to well-conducted citizens”. That, it seems to me, is an inappropriate test of what is disorderly behaviour, especially in a case involving protest action. It would criminalise behaviour which, while impolite or inconsiderate to other persons, is not necessarily a cause of public disorder. McCarthy J was minded to require something more, for his test was that the defendant’s conduct must have been “likely to cause a disturbance or to annoy others considerably”. That formulation is also unsatisfactory, even in cases which do not involve the Bill of Rights, because it does not sufficiently recognise that someone should not be convicted of disorderly behaviour unless there has been a substantial disruption of public order in or about a public place, although that disruption does not have to have created or been likely to create a breach of the peace. Causing annoyance, even considerable annoyance, to citizens does not suffice. I should perhaps make it clear, however, that in criticising the tests enunciated in Melser I am not expressing a view on the result in that case on its own facts.

[23]	These three features are not cumulative, and they are closely inter-related. Considering them may provide the best guidance on the dividing line.

7	(Footnotes omitted) referring to Melser v Police [1967] NZLR 437. See also Elias CJ at [42] and Tipping J at [80]–[84].

[24]	Guidance too can be taken from the actual result of the two cases. In Brooker, the accused went to the home of a police officer who had just come off night duty and knocked on his door, and then retreated to the grass verge near the road where he took out his guitar and then spent time singing songs. This was held not to be disorderly behaviour. In Morse, the Supreme Court overturned a conviction in circumstances where a protester burned the New Zealand flag, and blew a horn close to the dawn parade on ANZAC Day. The Court concluded that the trial had not been guided by the correct legal principles, but considered a retrial would be inappropriate, so simply quashed the conviction.

[25]	In the present case, the District Court made no reference to the requirement for the conduct to be productive of disorder, or the right to freedom of expression. Moreover, the test adopted – that Mr Gallon’s conduct caused anxiety or disturbance at a level beyond that which a reasonable crew member should be expected to bear – is close to the test formulated in Melser v Police, which has been held to no longer apply.8

[26]	It is true that the District Court relied on passages from the judgments in Brooker to formulate the test that it applied, and that those passages read in isolation could be said to support that test. But it is necessary to also identify the other aspects of the judgments referred to above to understand their overall effect. I doubt whether formulating the test by reference to a reasonable person assists in identifying when behaviour involves an offence. Without more it suggests an approach influenced by ideas of appropriate behaviour from a social perspective, which was the weakness with the Melser formulation. Asking whether the behaviour is productive of disorder allows the offence to be considered without any influence of the perspective of a hypothetical reasonable person.

[27]	It should be remembered that the issue is whether an offence has been committed. It is not whether the behaviour is unjustified, unacceptable, or meets some other description that involves value judgments. Focussing on the standards of a reasonable person may not help in identifying the dividing line for when conduct

8	Melser v Police [1967] NZLR 437 (SC).

becomes disorderly for this reason. Equally referring to conduct that warrants the interference of the criminal law may provide a degree of emphasis, but may also just beg the question. The real question which identifies the dividing line is whether the words or conduct are productive of public disorder.

[28]	Whether the formulation of the test by the District Court has resulted in a miscarriage of justice will be addressed below. That will require consideration of the particular offences in the present Act, and a consideration of the conduct in question. An important reason for the District Court setting the threshold for disorderly behaviour where it did was the fact that the conduct took place on an aircraft. The particular regime controlling order on an aircraft, set out in Part 5A, is accordingly important.

The Part 5A offences

[29]	There are a series of offences prescribed under Part 5A, including:

(a)	endangering the aircraft or any person on the aircraft under s 65F;

(b)	interfering with the aircraft or its equipment, including the smoke detectors, under s 65H;

(c)	boarding an aircraft while being intoxicated, or becoming intoxicated on board the aircraft, under s 65I;

(d)	operating portable electric devices in breach of the rules under s 65L;

(e)	smoking in breach of requirements under s 65N;

(f)	carrying dangerous goods under s 65O;

(g)	non-compliance with seating and seatbelt instructions under s 65M;

(h)	non-compliance with commands  from  the  pilot-in-command  under s 65J;

(i)	offensive or disorderly behaviour under s 65K; and

(j)	the offence of which Mr Gallon was convicted, involving disruptive conduct towards crew members under s 65G.

[30]	As the District Court emphasised it is highly relevant that the alleged conduct here occurred on an aircraft, as will invariably be the case for most offences under Part 5A. An aircraft is a highly confined space. There is a general expectation of calm. Passengers cannot avoid the conduct of other persons as they might in a more public place. There are also elements of safety involved in the conduct of passengers. Section 4 of the Summary Offences Act covers a wide range of possible circumstances, but that is not so of the offences in Part 5A. A question arises whether that makes a material difference to the application of the principles under the above jurisprudence to the offences under Part 5A.

[31]	The most closely corresponding provision to s 4 of the Summary Offences Act is s 65K, which provides:

65K Offensive behaviour or words

(1)	Every person commits an offence who, on any aircraft,—

(a)	behaves in a threatening, offensive, insulting, or disorderly manner; or

(b)	uses threatening, offensive, or insulting words.

(2)	Every person who commits an offence against subsection (1) is liable on conviction to a fine not exceeding $2,500.

(3)	It is a defence in a prosecution under subsection (1)(b) for using offensive or insulting words if the defendant proves that he or she had reasonable grounds to believe that his or her words would not be overheard.

[32]	In my view the formulation of the offence in s 65K involves the analysis applicable to s 4 of the Summary Offences Act outlined above. In particular, the requirements that the conduct be productive of disorder, and that regard be had to the freedom of expression, apply. There is a very close similarity in language, and notwithstanding that s 4 of the Summary Offences Act has not been carried across by s 65C in the same way as s 3 there is no reason to interpret the provision differently.

Section 65K differs from s 4 of the Summary Offences Act by the addition of the words “threatening” and “insulting”. But it is difficult to discern what the addition of these words, and their different shades of meaning, really add. To my mind it would be overly complex to suggest that these additions change the essential approach described by the Supreme Court.

[33]	The offences against s 65K accordingly involve a requirement to show that the words or conduct were productive of disorder. In the circumstances of conduct in an aircraft that would involve disturbance to the environment of the aircraft to the point that the general good order is threatened. For example, a heated argument between passengers may reach the point that other passengers are becoming involved, and the discipline or good order of the aircraft is at risk. The actions of a single person could do so if properly identified as disorderly – such as a person moving through the aircraft shouting or screaming for a prolonged period. That could fairly be described as conduct productive of disorder.

[34]	There may well be a need to control conduct on an aircraft well before that point is reached. It may have been the appreciation of that need that led the District Court to identify the conduct here as disorderly in the context of an aircraft. But this is where the other detailed provisions of Part 5A apply. It is obviously important that there is an ability to closely control conduct by passengers, and for offences to arise when that control does not prevent conduct reaching the point of wider disorder. The provision in s 65J seems to me to be of particular significance in that context. It provides:

65J	Non-compliance with commands given by pilot-in-command

(1)	Every person commits an offence who fails to comply with any commands given to the person directly by the pilot-in-command, or indirectly by the pilot-in-command through a crew member, in accordance with his or her duties under section 13 or the rules.

(2)	Despite section 28(6), every person who commits an offence against subsection (1) is liable on conviction to a fine not exceeding $5,000.

[35]	This provision ensures that with any developing situation, for example an argument between passengers, there is an ability to exercise authority over the situation backed up by an offence. Under s 13, the pilot-in-command has functions

and powers, including “… final authority … for the maintenance of discipline by all persons on board.” A crew member can consult with the pilot-in-command and convey specific instructions to the passengers. An offence is prescribed for any failure to comply with those instructions. This is a more serious offence than the offence of offensive or disorderly conduct under s 65K. So an argument between two passengers can be addressed and controlled well before it becomes conduct that is productive of disorder. That need for more exacting control is backed up by the other offences.

[36]	The detailed offences in Part 5A are not mutually exclusive. There will be overlap between them. A person who fails to follow commands given in accordance with s 65J may also commit an offence of disorderly behaviour under s 65K when the failure to follow instructions forms part of the disorderly conduct. So, for example, an argument may have got out of control such that it is productive of disorder, and it may also involve a failure to adhere to commands to desist. But there is still a carefully formulated regime in Part 5A to deal with different types of conduct on board an aircraft. Each of the separate provisions has a separate focus. Section 65J has a focus on the failure to follow instructions. The focus of s 65K retains the requirement for the conduct to be productive of public disorder.

[37]	The relevant offence here was under s 65G(1). Section 65G(1)(a) and (b) correspond to s 65K(1)(a) and (b), but with the addition of a further ingredient. That further ingredient is that the threatening, offensive, insulting or disorderly words or behaviour must be “towards a crew member”. This offence is a more serious offence than under s 65K, with the maximum penalty being $5,000 rather than $2,500 (and even higher for intentionally interfering with the performance by a crew member of his or her duties under s 65G(1)(d)). The additional ingredient requires that the words or conduct are not only productive of disorder, but that they must be directed towards the crew member. I interpret this additional requirement to involve personal, combative or challenging behaviour directed at that crew member. This requirement may be easier to understand in relation to threatening, offensive or insulting words. But it also applies to disorderly conduct. For example, an argument that has got out of control may involve deliberately refusing to follow instructions of the flight crew (whether or not they are directions from the pilot-in-command under s 65J) or other similar directed conduct, such as standing in the way of the flight crew in such a

situation. This scenario may be both productive of disorder and conduct towards a crew member.

[38]	I note that the separate offences in s 65G(1)(c) and (d) do not appear to be disorderly behaviour offences, but offences based on interference with the crew member’s duties. This further demonstrates the additional element of the more serious offences under s 65G.

[39]	The District Court in this case recognised the requirement for the offending conduct to be towards the crew member, but in my view did not correctly apply it. For instance, the District Court construed Mr Gallon’s conduct towards the parents as being “contemptuous” of Ms Takiwa’s instructions.9 That is a artificial way of converting conduct directed at the parents into conduct “towards a crew member”. I see the additional dimension as more accurately reflected in the disorderly conduct being actually directed at the crew member – that is some interaction with the flight crew that forms part of the conduct that is productive of disorder. So there is an additional issue with the application of the test for this offending by the District Court.

[40]	The District Court found the analogy with the law of contempt helpful in identifying whether the offending had been committed here, but the law of contempt seems to me to be a distraction. The law of disorderly behaviour is difficult enough to apply to particular factual circumstances in itself. Recourse to other principles of law is unlikely to assist. It may be that this analogy also recognises the obvious need for order to be maintained on an aircraft of a more exacting type. That need is satisfied by s 13 and the other detailed provisions in Part 5A, including s 65J. The disorderly behaviour offences should not expand to fill a gap that does not exist.

Fact of this case

[41]	It is necessary to consider the facts of this case given the requirements for the offending identified above. Did the formulation of the test for offending adopted by the District Court lead to a wrongful conviction?

9	Civil Aviation Authority v Gallon, above n 1, at [53].

[42]	In addressing that question, I do not limit myself to the offence under s 65G of the Act. Under s 136 of the Criminal Procedure Act 2011 a court can substitute a charge if the amendment makes the charge fit with what has been proved, provided the defendant has not been misled or prejudiced. Under s 234 the appeal court can do the same if it allows an appeal against conviction in relation to a particular offence, but where the defendant could have been found guilty of a difference offence. In the present case, it is necessary to consider the substitution of the offences under ss 65K and 65J.

[43]	Although the District Court assessed Mr Gallon’s conduct in an overall sense, its findings were critical of Mr Gallon in four ways:

(a)	that after Mr Gallon had first interacted with the parents he was asked to return to his seat, and that when he then returned to engage with the parents he acted inconsistently with an implicit instruction not to further interact with them;

(b)	that the form of the language that he used towards the parents was abusive, and contemptuous of the instructions he had been given;

(c)	that his criticism of the flight crew and the pilot, and the repeated call for their attention and insistence they take steps involved disorderly conduct directed towards the flight crew; and

(d)	that his action in moving from row two back to row six after a final warning had been given was further contemptuous action in breach of instructions.

[44]	I will address those considerations when assessing Mr Gallon’s conduct below, although it is appropriate to consider the conduct overall, as the District Court held. As I explain in greater detail below, there is also a material issue about the order of events which affects the assessment of Mr Gallon’s conduct.

[45]	The relevant conduct here begins with Mr Gallon interacting with the parents of the child, and making criticisms of their conduct. The parents did not give evidence, and neither did any surrounding  passengers.  The  relevant  evidence  came  from Ms Takiwa and Mr Gallon himself.

[46]	The District Court’s more detailed and factual findings appear at [22]–[47]. About an hour and a half into the three-and-a-half-hour-flight from Melbourne to Wellington, Mr Gallon became concerned at the parents’ treatment of their infant child, estimated to be approximately 12 months old. It was screaming and crying and the parents were physically restraining it while trying to feed it a bottle. Mr Gallon accepted he had no experience in parenting, but he formed the view that the child was being mistreated.  He stood up in the aisle and exchanged words with the parents.  Ms Takiwa came over and assessed the situation, and decided there was nothing wrong with the parents’ conduct and suggested Mr Gallon return to his seat, which he did. When she left the area, she could see that Mr Gallon had again stood up and resumed talking to the family from the aisle. At this stage, she obtained the pilot’s permission to move Mr Gallon to another seat. Mr Gallon duly moved from row six to row two. There was some dispute about  whether  this  resulted  from  an  instruction  from  Ms Takiwa or a request from Mr Gallon, but in any event, Mr Gallon agreed to move.

Language used by Mr Gallon

[47]	At this point I do not think it can be said that Mr Gallon had committed an offence. I disagree with the District Court that the language used by Mr Gallon, both towards the parents and towards the flight crew, was abusive. Whilst he plainly used direct and challenging words I do not think it can be regarded as language that met the thresholds for offending under s 65K or s 65G. During his interactions with the parents Mr Gallon had consulted his bible. From this he said God indicated “he is against oppression and he is for justice and so [Mr Gallon] had the confidence to stand up and see why the child was so distress”. The language chosen by Mr Gallon had this general flavour about it. In the affidavit that he subsequently provided to the District Court, he indicated that his initial question of the parents was “Is that your child, sir, or is it an orphan?” When Ms Takiwa arrived on the scene he asked her to

“bear witness”. He said that the child was being “oppressed” that it was “child torture”.

[48]	In his criticism of Ms Takiwa, he accused her of being as bad as the parents, that he would report her to the authorities, and that she was condoning torture and child abuse (although Mr Gallon denies making this last comment).

[49]	The note that Mr Gallon subsequently wrote to the pilot read as follows:

Sir, I am concerned for the well-being of the child in row 6, who has been restrained against its will, to the point of tears. Amanda has refused to allow me to ensure that it is not still being so treated, and I can hear some resemblance of screams over the noise of the aircraft.

If you will not assign supervision to the child, then you are choosing to tolerate child abuse. Please, do not treat lightly, the abuse of children in your aircraft.

[50]	Any parent who has attempted to deal with an inconsolable child on a flight knows the stress that that can involve. Mr Gallon’s intervention would no doubt have been extremely unwelcome. But his words could not be said to have met the threshold for becoming a criminal offence. The language was not threatening, offensive or insulting. Whilst it was challenging it did not involve swear words. There is no evidence he was using an aggressive tone. Indeed, Mr Gallon’s choice of words was somewhat unusual, and can fairly be described as idiosyncratic. They were certainly not productive of disorder. There is no evidence of the reaction of the surrounding passengers, or the parents, to that effect. The same can be said of Mr Gallon’s conduct towards the flight crew, and in particular Ms Takiwa.

[51]	Whilst this is not a case of political protest, the case does also engage the right to freedom of expression under NZBORA. Mr Gallon was expressing his views to the parents, and subsequently to Ms Takiwa and the pilot. He strongly disagreed with their conduct. It needs to be recognised that he had the fundamental right to express his views, even if he was misguided.

Mr Gallon’s demeanour

[52]	Mr Gallon accepted that he spoke at this stage in a loud voice, and that he was agitated. Whilst situations of raised temper, and raised voices, can well lead to a

situation where the relevant offences under s 65K and s 65G might be engaged, to my mind it is very important that Mr Gallon agreed at this point to move to another seat in the aircraft. The District Court also accepted that he was genuinely concerned about the child. The fact that he did move is also consistent with both the scheme of Part 5A, and the policy followed by the flight crew to deal with this kind of situation. The District Court explained Ms Takiwa’s evidence on this point as follows:

[25] Having seen Mr Gallon continue to talk to the family Ms Takiwa informed the pilot about the situation. She explained that there is a general strategy at Air New Zealand where there is a disgruntled passenger; at first the crew are “fair” with them and then if necessary they move to being “firm and final”. At this early stage Ms Takiwa simply informed the captain that a situation was starting and that she would keep him informed.

Implicit instruction not to talk further to the parents

[53]	The District Court found that when Ms Takiwa asked Mr Gallon to return to his seat in row six, he was not given a direct instruction not to talk further with the father. Nevertheless, the District Court held that Mr Gallon’s continued attempts to talk to the father were a “material disobedience of the direction to return to his seat”. I have a difficulty with that analysis if he was not actually given an instruction not to talk further to the father, or to stay in his seat. The later move forward from row six to row two appears to have been agreed to, and Mr Gallon otherwise appears to have obeyed the instructions of the crew. I am satisfied that had he been specifically instructed to stay in his seat in row six Mr Gallon would have done so. I do not agree that Mr Gallon acted in a way that was contemptuous of the flight crew, let alone that his words and conduct were productive of disorder.

[54]	The same is true of when Mr Gallon agreed to move forward to row two. There is no indication in the evidence that Mr Gallon was instructed to remain in his seat at the time, although he was later instructed to remain in his seat when he received the final warning. Accordingly, I do not regard any conduct by Mr Gallon in the intervening period between moving to row two and receiving the final warning as being in breach of any implicit instructions. The importance of this will become apparent after addressing the correct order of events below.

Disobeying the final warning

[55]	The events did not stop there. Notwithstanding that he had agreed to move forward to row 2, Mr Gallon remained concerned about the parents’ treatment of the child. He could still hear it screaming and he wished to go back “knowing that [his] presence would be helpful”. He attempted to do just that, but he never got back to the row where the child and its parents were. There is a dispute as to whether he was impeded by the service trolley, or by another flight attendant. But in any event, he did not make it.

[56]	Two other things that took place over the course of these events are not disputed. First, Mr Gallon wrote the note to the pilot quoted above, which was duly delivered by Ms Takiwa. Second, Mr Gallon received an instruction from the pilot, through Ms Takiwa, to remain seated in row two and not to leave his seat, and if he did not do so he would be restrained in handcuffs.

[57]	What is in dispute is the order of these events. The District Court found that Mr Gallon had made his attempt to go back again to row six after he had been given his final warning by the pilot through Ms Takiwa. That is evident from the summary of the events set out above at [2]. In the later findings, the District Court held:10
[58]	Whether or not Mr Gallon was prevented by the trolley or by the crew member in achieving his undoubted goal of returning to row 6, his effort to do so was clearly, and arguably on its own sufficiently, behaving in a disorderly manner towards Ms Takiwa and the other crew member who was assisting her. He was moved to row 2 to avoid any further contact with the family after his concerns had been noted but rejected by Ms Takiwa. In attempting to re- engage with the father, objectively Mr Gallon’s conduct was behaving in a disorderly manner towards Ms Takiwa both in respect of her moving him to row 2 and in respect of her final warning for his behaviour.

[58]	Mr Gallon complains about these findings on appeal. He is critical of the conduct of his counsel at the trial in not properly leading his evidence, and is also critical of the District Court itself for not ascertaining the true events, and the order of them.

10	Civil Aviation Authority v Gallon, above n 1, at [58].

[59]	It is true that the chronology of events was not fully outlined when Mr Gallon’s evidence-in-chief was led. It appears Mr Gallon’s counsel was against him giving evidence, and that he was following instructions in examining Mr Gallon. In any event, Mr Gallon’s full story was not outlined in his evidence-in-chief. In cross- examination, there was then a degree of ambiguity about the order of events. In particular, there was cross-examination about Mr Gallon leaving his seat after being given the final warning. Mr Gallon stated in cross-examination that was to go to the toilet, and that he had done so with permission. He was then asked in cross- examination about his earlier attempt to move back to the parents, and he agreed that he had done so. This may have been misunderstood by the District Court to have also been after his final warning. It was not squarely put to him that that had occurred after the final wording, however.

[60]	When Ms Takiwa gave evidence she initially gave very clear answers that  Mr Gallon had not attempted to move back to the parents after his final warning. She initially said in evidence-in-chief that after being given the final warning Mr Gallon “became very compliant”. Counsel was then given leave to provide her with a copy of an earlier statement she had made to jog her memory, and after doing so she then gave evidence that Mr Gallon had made this attempt to move back to the parents after the final warning.

[61]	It may be that the District Court thought that Mr Gallon had accepted that he made his attempt to go back after his warning. That would explain the finding that there was disorderly behaviour even on Mr Gallon’s version of events. Mr Jenkins accepted before me that there was no evidence from Mr Gallon to this effect. To the extent that the District Court made a factual finding notwithstanding Mr Gallon’s evidence, I do not think there was a proper foundation for it. Apart from the uncertainty arising from Ms Takiwa’s evidence, I also think it likely that there would have been some event that triggered the decision of the pilot to give the final warning and to raise the possibility of handcuffs. This was likely to have been Mr Gallon’s attempt to go back to see the parents after he had agreed to move seats. Moreover, as I mentioned earlier, Mr Gallon’s general conduct was ultimately to follow instructions. He had moved from row six to row two after discussion with Ms Takiwa, and his written note to the pilot also recognised the authority of the flight crew. In line with

my earlier finding, I do not regard Mr Gallon’s attempt to return to the parents as breaching any implicit instruction from the flight crew.

[62]	The fact that Mr Gallon repeatedly called for the attention of the flight crew after he had been moved forward, including by pushing the call button, and that he wrote the note to the pilot, cannot be characterised as disorderly conduct in my view. Indeed, in some ways it is evidence that Mr Gallon ultimately recognised their authority. If his pushing of the call button was causing annoyance he could have been given instructions to desist.

Holistic assessment

[63]	I bear in mind that the District Court reached its conclusion on the evidence in an overall sense. It was the combined effect of Mr Gallon’s words, conduct and demeanour that were said to give rise to disorderly behaviour:

[61] The combination of the conduct I have identified, even on Mr Gallon’s version of events where there is dispute with that of Ms Takiwa, is in my view clearly sufficient to establish that he behaved in a disorderly manner towards her at a level beyond which a reasonable crew member should be expected to bear.

[64]	I do not agree with this assessment. I have addressed the key events above. The only events that I have not addressed above are that at some point Mr Gallon used his phone to make a video recording of what was occurring. The precise order of those events is not clear from the evidence. What appears critical to the District Court’s finding that Mr Gallon engaged in disorderly conduct is the finding that he disobeyed the flight crew’s instructions. The District Court misunderstood Mr Gallon’s version of events when making that finding. Mr Gallon moved forward to row two when he was asked to. He was not instructed to stay seated at that time, and made an attempt to move back to row six. At that stage, he was given the instruction to stay seated, and that if he did not do so he would be handcuffed. He then complied with that instruction. Indeed, Ms Takiwa said that he became very compliant. His conduct was short of conduct that gives rise to an offence.

[65]	The District Court was concerned with assessing the conduct in the circumstances of a confined space of an aircraft during a flight. This is a very

important consideration when it comes to addressing potential offending. But the regime that applies to those circumstances is set out in detail in Part 5A, and it was correctly applied by the flight crew here. In accordance with Air New Zealand policy, the passenger is dealt with in a fair way, and if there is further difficulty in a firm way. That is what happened. After being dealt with in a firm way Mr Gallon complied. The system for maintaining order worked as it was supposed to.

Substituted charges

[66]	When I raised the issue of substituted charges, Mr Jenkins sought to argue that Mr Gallon had committed the offence under s 65G(1)(c) as he had interfered with Ms Takiwa’s performance of her duties. This was because she had been taken away from her normal duties by the need to constantly monitor Mr Gallon for the remainder of the flight. That does not seem to be what that provision is focused on. The requirement that the behaviour “interferes” with the performance of duties seems to me to involve some active impeding. If it is done intentionally it is a more serious offence under s 65G(1)(d). It is offending that does not also have the element of words on conduct productive of disorder. It is a further reflection of the complete cover of the regime in Part 5A. The fact that a flight crew member elects to concentrate his or her attention to a particular passenger for a large part of the flight, rather than on all passengers more generally, does not seem to me to meet the requirements of the section. The decision to focus on Mr Gallon at the expense of others was a matter of the flight crew’s decision-making rather than Mr Gallon’s interference.

[67]	It is also of some significance that when the flight landed Mr Gallon was met by Police and was issued with an “Unruly Passenger Infringement Notice”. The offence he was suggested to have committed in that Notice was an offence against    s 65M — non-compliance with seating and seatbelt instructions, not s 65G or s 65K. Mr Jenkins accepted before me that there could be no offence against s 65M, as     Mr Gallon had not failed to comply with an instruction to occupy a seat and fasten his seatbelt.

[68]	It will also be apparent from my analysis of Mr Gallon’s conduct above that it would inappropriate to substitute a charge under either s 65K or s 65J. The evidence

does not support the contention that Mr Gallon disobeyed an order given by the pilot- in-command, contrary to the District Court’s findings, so s 65J does not apply. Further, none of Mr Gallon’s conduct, including that not directed towards a crew member, was productive of disorder, so s 65K does not apply.

Conclusion

[69]	In the circumstances, I accept Mr Gallon’s argument that his conviction involved an unfair assessment of the facts. I have also found that the District Court did not correctly formulate the requirements for the offence. Given these findings I do not need to address Mr Gallon’s further ground of appeal involving criticism of his counsel.

[70]	Accordingly, I find that the District Court’s misstatement of the test for the offence has given rise to a miscarriage of justice. On the facts, Mr Gallon did not commit any of the relevant offences under Part 5A of the Act. I accordingly quash his conviction. As the facts given at trial do not support a conviction I do not order a re- trial.

Cooke J

Solicitors:
Crown Solicitor, Rotorua for the Respondent