Firkins v Anderson

[2011] WASC 51

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   FIRKINS -v- ANDERSON [2011] WASC 51

CORAM:   EM HEENAN J

HEARD:   16 & 17 AUGUST 2010

DELIVERED          :   2 MARCH 2011

FILE NO/S:   SJA 1023 of 2010

MATTER                :The Criminal Appeals Act 2004 pt 2

AND

Prosecution notice numbers 3304, 3306, 3308 and 3312 of 2008 in the Magistrates Court of Western Australia at Geraldton between James Benjamin William Firkins (Appellant) and John Robert Anderson (Respondent)

BETWEEN:   JAMES BENJAMIN WILLIAM FIRKINS

Appellant

AND

JOHN ROBERT ANDERSON
Respondent

FILE NO/S              :SJA 1024 of 2010

MATTER                :The Criminal Appeals Act 2004 pt 2

AND

Prosecution notice numbers 3292 - 3302 of 2008 in the Magistrates Court of Western Australia at Geraldton between James Benjamin William Firkins (Appellant) and Sean Joseph Doherty (Respondent)

BETWEEN              :JAMES BENJAMIN WILLIAM FIRKINS

Appellant

AND

SEAN JOSEPH DOHERTY
Respondent

ON APPEAL FROM:

For File No               :  SJA 1023 of 2010

Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram  :MAGISTRATE L JONES

File No  :GN 3304 of 2008, GN 3306 of 2008, GN 3308 of 2008, GN 3312 of 2008

For File No               :  SJA 1024 of 2010

Jurisdiction              :  MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram  :MAGISTRATE L JONES

File No  :GN 3392 of 2008, GN 3293 of 2008, GN 3294 of 2008, GN 3295 of 2008, GN 3296 of 2008, GN 3297 of 2008, GN 3298 of 2008, GN 3299 of 2008, GN 3300 of 2008, GN 3301 of 2008, GN 3302 of 2008

Catchwords:

Applications for leave to appeal - Extension of time - Appeals against dismissal of charges - Appeals against sentence - Civil Aviation Regulations 1988 (Cth) - Helicopter flights

Legislation:

Civil Aviation Act 1988 (Cth)
Civil Aviation Regulations 1988 (Cth), reg 43B, reg 133(1)(d) reg 215(9), reg 233(a)(b)
Crimes Act 1914 (Cth), s 16A. s 19B(1)
Criminal Appeals Act 2004 (WA), s 8, s 9 and 10(3)
Criminal Code Act 1995 (Cth), s 9.2(1)
Evidence Act 1905 (WA), s 32
Justices Act 1902 (WA) (repealed)

Result:

SJA 1023 of 2010
Time to apply extended
Leave to appeal granted
Appeals from dismissal of two charges allowed (GN 3306/08 and GN 3312/08)
Those matters remitted for retrial in Magistrates Court
Appeals against two sentences dismissed (GN 3304/08 and GN 3308/08)

SJA 1024 of 2010
Time to apply extended
Leave to appeal granted
Appeals from dismissal of 11 charges allowed
Orders for retrial of four of 11 charges (GN 3301/08, GN 3302/08, GN 3293/08 and GN 3297/08)
Orders for sentencing on seven of 11 charges (GN 3300/08, GN 3292/08, GN 3294/08, GN 3295/08, GN 3296/08, GN 3298/08 and GN 3299/08)
Orders for retrial of four charges in Magistrates Court
Seven other matters remitted to Magistrates Court for sentence

Category:    B

Representation:

SJA 1023 of 2010

Counsel:

Appellant:     Mr G Rice SC

Respondent:     Mr E J Myers

Solicitors:

Appellant:     Director of Public Prosecutions (Cth)

Respondent:     Maitland Lawyers

SJA 1024 of 2010

Counsel:

Appellant:     Mr G Rice SC

Respondent:     Mr E J Myers

Solicitors:

Appellant:     Director of Public Prosecutions (Cth)

Respondent:     Maitland Lawyers

Case(s) referred to in judgment(s):

Bardsley v The Queen [2004] WASCA 251; (2004) 29 WAR 338

Butler v The Queen (1989) 44 A Crim R 215

Cobiac v Liddy (1969) 119 CLR 257

Commissioner of Taxation v Baffsky (2001) 192 ALR 92

Eastough v The State of Western Australia [No 2] [2010] WASCA 88

House v The King (1936) 55 CLR 499

Lowndes v The Queen (1999) 195 CLR 665

Matta v Australian Competition and Consumer Commission [2000] FCA 729

Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473

1. EM HEENAN J:  The Abrolhos Islands consist of more than 100 small, low profile, coral reef islets lying in the Indian Ocean about 80 km west of Geraldton.  They are well‑known for their historical interest and their importance for the local fishing and rock lobster industry.  They are also a destination for small, controlled groups of specialist tourists, notably people interested in the biodiversity of the area and, especially, in fishing and diving.  Access to the islands from the mainland, usually from Geraldton, is either by boat or by air transport, namely helicopter.  These prosecutions concern commercial helicopter services operating between Geraldton and the islands and, in particular, preparations for and flying operations over a period from 30 March to 3 June 2007.

2. A company, OM Helicopter Company Pty Ltd ('OMHC') had business arrangements with several dive charter companies which involved OMHC flying passengers from Geraldton to the Abrolhos Islands for diving operations and return. OMHC held a certificate of registration for a Sikorsky S62A helicopter which made these flights. An associated company, Prestige Helicopters Pty Ltd ('Prestige Helicopters') held an air operator's certificate authorising the conduct of charter flights by that helicopter.

3. The respondent, John Robert Anderson (Mr Anderson), was a managing director of OMHC and its chief pilot.  The respondent, Sean Joseph Doherty (Mr Doherty), was a pilot employed by the company.  Another person who features in the cases is Mr Ronald Shortis, who was the head of aircraft airworthiness and maintenance control for Prestige Helicopters.  The significance of his role will emerge later.

4. These present applications arise from a joint trial in the Magistrates Court of Western Australia at Geraldton in February of 2010.  There were 22 separate charges against the respondents alleging various breaches of the Civil Aviation Regulations 1988 (Cth) or sections of the Civil Aviation Act 1988 (Cth). The charges against the respondent in SJA 1023 of 2010 were different to the charges against the respondent in SJA 1024 of 2010. Each arose from distinct activities, involving preparations for or flying operations on different dates, and invoked different provisions of the Act or Regulations. Nevertheless, all the charges were heard together before the same magistrate at a joint hearing.

5. Of the 22 charges dealt with by the learned magistrate the dispositions of seven have not attracted any applications for leave to appeal or appeal.  These present proceedings concern the judgments and orders of the Magistrates Court made in respect of the other 15 charges.

6. The present applications concern the dispositions of four charges against the respondent Anderson.  He was found to have committed two of the offences charged but no conviction was imposed by the learned magistrate in relation to either of those offences.  As a result, the appellant seeks leave to appeal from what it submits were inadequate sentences imposed by the learned magistrate in all the circumstances.  The two remaining charges against the respondent Anderson were dismissed by the learned magistrate and the appellant now seeks leave to appeal from those orders and contends that the respondent should have been convicted of each of those charges or, alternatively, that there should be a new trial of those charges. 

7. All 11 charges against the respondent Doherty were dismissed by the learned magistrate.  In these proceedings the appellant seeks leave to appeal from those orders and contends that Mr Doherty should be convicted of each of those charges or, alternatively, that there should be a new trial or trials of those charges.

Extension of time and leave to appeal

1. The 15 prosecutions with which the court is now concerned were all commenced by notices filed in the Magistrates Court in Geraldton on 27 June 2008 by the Commonwealth Director of Public Prosecutions on behalf of the appellant, James Benjamin William Firkins, whose official title is described as Aviation Safety Auditor Dangerous Goods. 

2. The joint trial of all the charges took place in the Magistrates Court at Geraldton on 1, 2 and 3 February 2010 whereupon the learned magistrate reserved his decision until 3.00 pm the following day, 4 February 2010.  On that afternoon the learned magistrate gave detailed reasons, which have been transcribed, for dismissing all the charges against the respondent Mr Doherty.  His Honour dealt with the charges against the respondent Mr Anderson and, as previously noted, found two of the charges proved (GN 3304/08 and GN 3308/08) and dismissed the other two charges against him (GN 3306/08 and GN 3312/08).  In relation to the two offences which had been proved the learned magistrate did not proceed to enter convictions but released the respondent Anderson upon him entering into recognisances in the sum of $1,000 to be of good behaviour for a period of 12 months in relation to each charge.  His Honour referred to this disposition as being 'two concurrent good behaviour bonds'.  All matters associated with the charges, except for costs, were concluded at the end of the hearing on 4 February 2010.

3. This means that the 28‑day period (s 10(3) Criminal Appeals Act 2004 (WA)) for the appellant to apply for leave to appeal expired on 4 March 2010. The applications for leave to appeal in both sets of appeals were filed on 17 March 2010 and were, therefore, 13 days out of time. They both include applications for extension of time within which to apply for leave to appeal.

4. Both sets of applications came before her Honour, Jenkins J on the papers on 13 April 2010.  By orders made on that date in each of the applications her Honour directed that each application for an extension of time within which to apply for leave to appeal and each application for leave to appeal should be heard at the same time as the appeal and that both appeals should be heard together. 

5. At this hearing each respondent opposed the respective application for an extension of time within which to apply for leave to appeal.

Legislation and background giving rise to alleged commission of offences

1. As required by reg 215 of the Civil Aviation Regulations, Prestige Helicopters issued an Operations Manual (exhibit P) which contained and set out procedures and instructions for the conduct of flight operations. Operations personnel were required to comply with the procedures and constructions of the Operations Manual by virtue of reg 215(9). These instructions included a direction to record passenger names and weights on a Flight Passenger Manifest and the carrying out of load calculations by the pilot in command to ensure the aircraft was not overloaded (par A4.1 and par A4.3 of exhibit P). Speaking generally, the prosecution alleged that on four flights of the Sikorsky helicopter piloted by the respondent Mr Doherty on 13 May, 26 May, 2 June and 3 June 2007, the Flight Passenger Manifests and associated load calculation sheets had been inaccurately completed by understating the number of passengers carried, their weight and/or the weight of luggage. The prosecution asserted that had the records been correctly kept and completed, they would have shown that on each of those four flights the helicopter was overloaded.

2. Consequently, in relation to each of those four flights, the respondent Mr Doherty was charged with a pair of charges under reg 215(9) and reg 233(1)(b). Those regulations, respectively, provided:

   215.Operations Manual

   (1)An operator shall provide an operations manual for the use and guidance of the operations personnel of the operator.

   Penalty:   25 penalty units.

   …

   (9)Each member of the operations personnel of an operator shall comply with all instructions contained in the operations manual in so far as they relate to his or her duties or activities.

   Penalty:   25 penalty units.

   …

   (11)An offence against subregulation (1), (2), (3A), (5), (6), (7), (8) or (9) is an offence of strict liability.

   Note  For strict liability, see section 6.1 of the Criminal Code.

   233.Responsibility of pilot in command before flight

   (1)The pilot in command of an aircraft must not commence a flight if he or she has not received evidence, and taken such action as is necessary to ensure, that:

   …

   (b)the gross weight of the aircraft does not exceed the limitations fixed by or under regulation 235 and is such that flight performance in accordance with the standards specified by CASA [Civil Aviation Safety Authority] for the type of operation to be undertaken is possible under the prevailing conditions; and

   …

   Penalty:  50 penalty units

3. Although not a point of contention at this hearing, reg 235 provides that CASA may for the purposes of the regulations give directions setting out the method of estimating, with respect to an aircraft at any time, the weight of the aircraft together with the weight of all persons and goods (including fuel) on board the aircraft at that time and other related matters.

4. These accounted for eight of the charges against the respondent Mr Doherty. He was also charged with three further offences of commencing flights on 24, 25 and 27 March 2007 when required maintenance had not been completed contrary to reg 133(1)(d). That regulation provides:

   133.Conditions to be met before Australian aircraft may fly

   (1)Subject to regulation 317 and regulation 21.197 of CASR, the pilot in command of an Australian aircraft must not commence a flight if each of the following requirements is not satisfied:

   …

   (d)any maintenance that is required to be carried out before the commencement of the flight, or that will be required to be carried out before the expiration of the flight, to comply with any requirement or condition imposed under these regulations with respect to the aircraft has been certified, in accordance with regulation 42ZE or 42ZN, to have been completed;

   …

   Penalty:50 penalty units

   …

   (3)An offence against subregulation (1) is an offence of strict liability.

   NoteFor strict liability, see section 6.1 of the Criminal Code.

5. As noted, all of these charges against the respondent Doherty were dismissed and it is from those judgments of dismissal that the appellant seeks leave to appeal.  It will be convenient to defer attention to the detailed allegations contained in each of these charges and of the grounds of appeal until later.

Charges against Anderson

1. The two charges of which the respondent Mr Anderson was convicted were under reg 133(1)(d) and reg 43B relating to a flight on 30 March 2007. Regulation 133(1)(d) has already been set out. Regulation 43B provides;

   43B.Time-in-service to be recorded on maintenance release

   (1)On the completion of flying operations on each day that an aircraft is flown, the owner, operator or pilot in command must record on the maintenance release the total time‑in‑service of the aircraft on the day.

   Penalty:25 penalty units.

   (2)An offence against subregulation (1) is an offence of strict liability.

   Note For strict liability, see section 6.1 of the Criminal Code.

2. It was in respect of these two convictions that the respondent Mr Anderson was subject to the good behaviour bonds.

3. Mr Anderson was also charged with two other offences arising from a flight on 7 April 2007. These alleged offences were under reg 233(1)(b) and reg 215(9). Both of those regulations have already been set out.

4. Again it will be convenient to defer attention to the precise details of these charges against Mr Anderson and the grounds of appeal in respect of the decisions on those charges until later.

Further charges against Anderson and Doherty

1. Mr Anderson was further charged with another offence arising from a flight on 30 March 2007 in which it was alleged he was in breach of reg 133(1)(d).

Chronology of events

1. None of the numerical sequence of the charges as they issued originally from the Magistrates Court in Geraldton; the order in which they were dealt with at the joint trial; nor the order in which they are mentioned in these applications for leave to appeal follows the chronological order of events giving rise to the alleged offences.  Nor do those sequences give a very clear indication of the respective roles or actions of the two individual respondents.  Accordingly, I have thought it convenient to set out the following summary of the charges, rearranging them in chronological order of events.  From this, it will be apparent that they fall into three groups. 

2. The first group comprises three charges against the respondent Mr Doherty, each alleging contraventions of reg 133(1)(d). They are charge numbers GN 3300/08, GN 3301/08 and GN 3302/08, and were alleged to have been committed respectively on 24, 25 and 27 March 2007. Each was dismissed by the learned magistrate.

3. The second group consists of four charges against the respondent Mr Anderson, alleging two offences committed on 30 March 2007 and a further two offences committed on 7 April 2007. They are, respectively, charge numbers GN 3304/08, GN 3308/08, GN 3306/08 and GN 3312/08 and were, respectively, alleging offences committed against reg 133(1)(d) and reg 43B of the Civil Aviation Regulations, and a breach of reg 233(1)(b) and reg 215(9) of the same Regulations. As explained earlier, the learned magistrate found that the first two of those charges had been proved but did not proceed to record a conviction, instead placing Mr Anderson on a good behaviour recognisance of $1,000 for 13 months in respect of each matter. He was acquitted of the third and fourth of these charges.

4. The third group consists of eight charges against the respondent Mr Doherty. These can further be subdivided into four pairs of charges, in each case alleging a breach of reg 215(9) and reg 233(1)(b) alleged, respectively, to have been committed on 13 May, 26 May, 2 June and 3 June 2007. All eight of these charges were dismissed.

5. The position in tabular form is as follows:

Date Of Alleged Offence	Charge No	Particular accused and nature of alleged offence		Result
Anderson	Doherty
24 March 2007	GN 3300/08	R 133(1)(d)	Dismissed
25 March 2007	GN 3301/08	R 133(1)(d)	Dismissed
27 March 2007	GN 3302/08	R 133(1)(d)	Dismissed
30 March 2007	GN 3304/08 GN 3308/08	R 133(1)(d) R 43B	Proved Bond Proved Bond
7 April 2007	GN 3306/08 GN 3312/08	R 233(1)(b) R 215(9)	Dismissed Dismissed
13 May 2007	GN 3292/08 GN 3296/08	R 215(9) R 233(1)(b)	Dismissed Dismissed
26 May 2007	GN 3293/08 GN 3297/08	R 215(9) R 233(1)(b)	Dismissed Dismissed
2 June 2007	GN 3294/08 GN 3298/08	R 215(9) R 233(1)(b)	Dismissed Dismissed
3 June 2007	GN 3295/08 GN 3299/08	R 215(9) R 233(1)(b)	Dismissed Dismissed

Application for extension of time within which to apply for leave to appeal

1. As already noted, these two applications for leave to appeal were each filed 13 days out of time and are accompanied by applications for an extension of time within which to apply for leave to appeal.

2. The transcript of the proceedings in the Magistrates Court at Geraldton on 4 February 2010 confirms (page 38) that counsel for the present applicant there and then sought an order for a copy of the transcript of the sentencing process to ensure that counsel and the solicitors for the then prosecutor would be able promptly to consider not only the transcript relating to the joint trial of the charges but to the sentencing remarks passed by his Honour.  They were assured by his Honour that an order would be made that that should be done.

3. In SJA 1023 of 2010 an affidavit of Mr D Jones sworn 16 March 2010 has been filed in support of the application for an extension of time.  In that affidavit he deposed that on 5 February 2010, the day after his Honour's decisions, he faxed a form to the Geraldton Magistrates Court seeking a full transcript of the proceedings from 1 to 4 February 2010 on behalf of the Commonwealth DPP.  Thereafter, he instructed a member of the staff of the DPP to check at regular intervals with the Geraldton Magistrates Court about the supply of the transcript.  In the course of these inquiries his office was informed, at first, that the only staff member of the Geraldton Magistrates Court who processed transcripts was away from work and would not be back until 11 February 2010.  Thereafter, at least five inquiries were made by the office of the DPP about the progress of the preparation of the transcript but it was not received until attached to an email sent on the afternoon of Friday, 26 February 2010 ‑ that is, 22 days after the decision. 

1. In his affidavit Mr Jones then says that the decision by the DPP whether or not to file notices of appeal in these matters involved detailed consideration of the transcript of the entire proceedings and that internal office procedures had to be followed to enable the Director to decide whether or not an appeal should be commenced.  Counsel for the respondents was notified by a letter sent by fax on 4 March 2010 that the DPP had received the transcript on 26 February 2010 and was considering an appeal.  Mr Jones went on to depose that within the office of the DPP this matter had been attended to as one of priority and without delay once the transcript had been received.  As already noted, the application for leave to appeal was filed in each matter on 17 March 2010.  A similar affidavit by Mr Jones, also sworn on 16 March 2010, was filed in the accompanying application for leave to appeal in SJA 1024 of 2010.

2. An affidavit of Mr E J Maitland, a legal practitioner of the solicitors for the respondent, was sworn on 30 March 2010 in opposition to both applications to extend time within which to apply for leave to appeal.  In this affidavit Mr Maitland deposes to the chronology of the litigation, beginning with the commencement of prosecutions on 2 May 2008 and then giving a timetable for the progress of the proceedings in the Geraldton Magistrates Court from 31 July 2008 to the conclusion of the trial on 4 February 2010.  Mr Maitland was present throughout the whole of the trial as instructing solicitor to counsel for the respondents and deposes that he saw the lawyers for the prosecution in attendance for the whole of the trial and for the delivery of the decisions.  He also says that the chief CASA investigator was also present at court for the entire three days of the evidence.  In this affidavit Mr Maitland confirms that there was no transcript available when the court delivered judgment and oral reasons for judgment on 4 February 2010.

3. Further, in Mr Maitland's affidavit he refers to the affidavit of Mr Jones, already described, and then says that he disagrees with the contentions of Mr Jones that the decision whether to file notices of appeal involved a detailed consideration of the transcripts of the entire proceedings, and points out that counsel and solicitors for the applicant and the investigator were present at court for the entire proceedings. 

4. Mr Maitland then says that the spectre of the prosecution of these charges had been hanging over the heads of the respondents for nearly three years and that, in addition, administrative proceedings had been brought by CASA to suspend or cancel the respondents' licences but that those proceedings had been stayed by orders of the Administrative Appeals Tribunal (AAT) pending the disposition of the criminal prosecutions.  Next, he deposes that the respondents returned to work in the Eastern States and New Guinea and so, by implication, significant inconvenience would follow if an extension of time for leave to appeal were granted on what it was submitted are charges of regulatory breaches which 'are in effect duplicated by the administrative actions being undertaken by CASA and subject to a stay by the AAT'.  For these reasons, counsel for the respondents have submitted that an extension of time should not be granted.

5. Those submissions are amplified, at length, in the respondents' written submissions where reference is made to a series of cases dealing with applications for an extension of time within which to appeal when the reasons for the delay were associated with applications for legal aid.  In these cases the courts in the past have stressed the importance of complying with applicable time limits; have emphasised the need for cogent explanations to be given for delay; and also have pointed out that the explanation for the delay needed to be more cogent the longer the delay endured.  These authorities show that there could well be cases in which, notwithstanding that a prospective appeal appears to have merit, the failure to give a satisfactory explanation for the delay could result in a refusal of any extension of time or leave to appeal as the case may be.  The authorities relied upon in this respect were Butler v The Queen (1989) 44 A Crim R 215; Bardsley v The Queen [2004] WASCA 251; (2004) 29 WAR 338, where the authorities are reviewed by Wheeler J at [97] ‑ [114]; and Eastough v The State of Western Australia [No 2] [2010] WASCA 88, where it is emphasised that the time limit for the commencement of an appeal must be taken seriously and every effort must be made to comply with it, and that the discretion to extend time is a wide one involving the broad question in each case of whether it is in the interests of justice to grant the extension.

6. Further written submissions for the respondents contend that the factual issues in the cases were relatively simple; that there is no valid reason why a notice of appeal could not have been filed in time (even pending the receipt of the transcript); and that there would be prejudice to the defendants should an extension of time be granted and either appeal allowed.

7. I am satisfied that the delay of 13 days in commencing this appeal after the expiration of time has been satisfactorily explained.  Having regard to the number of charges, the need for the applicants to decide whether or not to seek leave to appeal in respect of some, but not all, of the orders for dismissal of the charges and the need to give careful consideration to his Honour's reasons, this delay has not been gross.  It has largely been accounted for by the time it took to obtain a transcript of the trial and of the reasons for decision and that, in turn, is due, no doubt, in part to logistical problems in obtaining such transcripts from country courthouses.  While it would have been possible to institute an application for leave to appeal before the reasons had been obtained and before detailed grounds of appeal could be properly formulated, the idea of a holding notice of appeal has frequently evoked judicial disapproval in the past for reasons which need not be here rehearsed.  The respondents were on notice that an appeal was under consideration from 4 March 2010 onwards and it is difficult to see how the delay which has occurred would have resulted in avoidable prejudice or inconvenience.  It can hardly be suggested that the respondents would have stayed in Western Australia until the appeal had been heard had they received earlier notice of their institution.

8. These are both cases where I consider that the interests of justice require a grant of an extension of time within which to apply for leave to appeal and I would therefore grant both applications for extension up to and including the date upon which the applications were filed in this court.

Leave to appeal

1. Under s 9 of the Criminal Appeals Act 2004 (WA) leave of this court is required for each ground of appeal from the decisions of the learned magistrate and, by s 8, the grounds for appeal are limited to one or more of the following:

   (a)that the court of summary jurisdiction ‑

   (i)made an error of law or fact, or of both law and fact;

   (ii)acted without or in excess of jurisdiction;

   (iii)imposed a sentence that was inadequate or excessive;

   (b)that there has been a miscarriage of justice.

2. In Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 the Court of Appeal had occasion to consider the requirements for leave to appeal under the Criminal Appeals Act both under s 9 and s 27 of that Act and concluded that the same test applied whether to an appeal against conviction or sentence from the Magistrates Court to a single judge of the Supreme Court under s 9, from the decision of a single judge on such an appeal to the Court of Appeal under s 18, or from the Supreme or District Courts to the Court of Appeal under s 27. For reasons which have since been often cited and applied, their Honours explained that the court must refuse leave to appeal unless each particular ground has a reasonable prospect of succeeding and that this means that a ground is required to have a rational and logical prospect of succeeding; that is, it would not be irrational, fanciful or absurd to envisage it succeeding in that forum or, in effect, that it has a real prospect of success. This test introduced by the Criminal Appeals Act 2004 (WA) is regarded, and has been treated, as setting a higher threshold for the grant of leave to appeal than had been previously applied under s 187 of the Justices Act 1902 (WA) (since repealed).

3. In these cases the applicants contend in relation to appeal SJA 1023 of 2010 that the learned magistrate made errors of fact by making erroneous references to evidence, made errors of law, and imposed sentences which were manifestly inadequate in all the circumstances of the case, and in relation to appeal SJA 1024 of 2010, made errors of fact by making erroneous references to evidence, made errors of law by taking into account facts not in evidence and failing to take into account facts in evidence, and made errors of law in failing properly to address the relevant legislation.

4. The details and particulars of these alleged errors and the inadequacy of the sentencing are examined more fully in the following passages of these reasons. However, it is evident that the appellant seeks leave to appeal on grounds which come within the provisions of s 8 of the Act and, as the subsequent analysis of the details of the proposed grounds reveals, each of the grounds raises arguable contentions which at least have some reasonable prospect of success. This is sufficient to grant leave to appeal and I am satisfied that leave to appeal should be granted in each appeal and in relation to each of the proposed grounds of appeal.

Application for leave to appeal against sentence - Anderson - SJA 1023/2010

1. It was earlier noted that the respondent Anderson was convicted on charges GN 3304/08 and GN 3308/08 which were, respectively:

   GN 3304/08

   On 30 March 2007 at Geraldton in Western Australia, John Robert ANDERSON as a pilot in command of an Australian aircraft, namely a S62A Sikorsky helicopter VH‑ORP, commenced a flight when the following requirement under R 133(1)(d) Civil Aviation Regulations 1988 (Cth) was not satisfied; namely, that any maintenance required to be carried out before the commencement of the flight, or that would be required to be carried out before the expiration of the flight, to comply with any requirement or condition imposed under these regulations with respect to the aircraft, had been certified as completed, in accordance with R 42ZE or 42ZN.

   GN 3308/08

   On 30 March 2007 at Geraldton and elsewhere in the State of Western Australia, John Robert ANDERSON, on completion of flying operations on that day as pilot in command failed to record on the maintenance release the total time in service of the aircraft contrary to R 43B Civil Aviation Regulations 1988 (Cth).

2. The proposed grounds of appeal in relation to these two decisions of the learned magistrate for which leave is now granted are as follows  (the numbering comes from the attachment to the grounds of appeal in SJA 1023/2010):

   3.The sentence imposed was manifestly inadequate in all the circumstances of the case.

   Particulars

   3.1In relation to charges 3304/08 and 3308/08, the learned magistrate erred by failing to impose a sentence that reflected the seriousness of the offence and the need for deterrence, both general and personal.

   4.The learned magistrate erred in law by failing to properly determine whether s 19B(1) of the Crimes Act 1914 (Cth) was applicable.

   Particulars

   4.1The learned magistrate erred in finding that the Respondent's previous good character supported the exercise of the discretion under s 19B(1) of the Crimes Act 1914 (Cth);

   4.2The learned magistrate erred in finding that any possible ramifications of a criminal record on the Respondent's future employment prospects supported the exercise of the discretion under s 19B(1) of the Crimes Act 1914 (Cth);

   4.3The learned magistrate erred in law by not providing his reasons in respect of the second limb of the test for s 19B of the Crimes Act 1914 (Cth), namely consideration of the inexpediency of inflicting any punishment, any punishment other than nominal punishment or the expediency of releasing the Respondent on probation.

3. On 30 March 2007 the respondent Anderson was the pilot of the helicopter on several flights whilst the maintenance release (exhibit R) showed that the gearbox truss supports were overdue for inspection (charge GN 3304/08).  This was the same day that a letter (exhibit J) signed by Anderson and others was sent to CASA seeking the deferral of the inspection.  Although the offence was one of strict liability, the respondent admitted that he knew the inspection was due (ts 3/2/2010, page 55).  The learned magistrate's findings that charge GN 3304/08 had been proved are at ts 4/2/2010, page 18.

4. The second charge, GN 3308/08, relates to the entry on the maintenance release, in purported compliance with reg 43B(1) of 1.1 hours flight time, when the learned magistrate accepted that the actual flight time of four flights conducted by Anderson that day was 'at least a couple of hours in excess of that' (ts 4/2/2010, page 20).

5. The submissions made to the learned magistrate with respect to the sentence which should be imposed for these two offences are to be found at ts 4/2/2010, pages 26 ‑ 32 and his Honour's reasons for the orders which he made are at ts pages 32 ‑ 35.  His Honour addressed, and ultimately accepted, a submission made on behalf of the respondent that he should not proceed to impose a conviction but should release the respondent on a good behaviour bond.  This was opposed by counsel for the appellant who, while acknowledging that Anderson was a person of prior good character, submitted that the offences were not trivial; that, as chief pilot, Mr Anderson was in a position of extreme trust; and that offences of this nature struck at the heart of the regime of air safety in general. 

6. His Honour took account of Mr Anderson's long flying record without any history of prior blemish, his service in the regular army and his role in several community service organisations, together with his engagement in voluntary search and rescue operations.  His Honour referred to the respondent Mr Anderson as a person of exemplary character; the potential for a conviction to jeopardise his future employment; and concluded that there were some extenuating circumstances in the pressure of work that Anderson was under that day. 

7. His Honour had specifically been referred to s 19B of the Crimes Act by counsel and he himself also referred to s 16A of the Act which, in his words, required him to consider the respondent's character, antecedents, age and health. His Honour ultimately concluded as follows:

   You've successfully got to the stage where it would be a detrimental ‑ a conviction would be detrimental to you.  I believe, given all the circumstances, and the one's [sic] I've mentioned and that I've gone through ‑ I'm not going to go through them all over again, but in all the circumstances, I'm satisfied that - I discharge you - well, sorry, I find both of the offences proven … but without proceeding to a conviction, I'm going to have you released upon you entering into recognisance, self in the sum of $1000 to be of good behaviour for a period of 12 months.

8. As the foregoing grounds of appeal reveal, the appellant contends that these sentences were manifestly inadequate in all the circumstances and that his Honour failed properly to determine whether s 19B of the Crimes Act was applicable. In the written submissions counsel for the appellant developed these grounds by submitting that when making a s 19B order the court must be satisfied that one or more of the factors listed in s 19B(1)(b) reasonably supports the exercise of the discretion, and that that factor, when balanced with the circumstances listed in s 16A of the Crimes Act 1914, enables the court to conclude that it is inexpedient to inflict any punishment, or to inflict any punishment other than nominal punishment.  It was submitted, and I accept, that the approach is therefore a two‑step process:  Cobiac v Liddy (1969) 119 CLR 257; Commissioner of Taxation v Baffsky (2001) 192 ALR 92; and Matta v Australian Competition and Consumer Commission [2000] FCA 729.

9. The appellant's submissions proceeded to contend that the learned magistrate was taken to the two‑stage test whereupon it was submitted by the appellant that the expediency test could not be satisfied because of the seriousness of the offences because adherence to maintenance requirements is at the centre of the regime of air safety; that there were no genuine extenuating circumstances; in addition to which the respondent was a chief pilot at the time occupying a position of additional responsibility. The appellant then submitted that the learned magistrate did not at any stage address the expediency aspect of the process and simply found that there were some extenuating circumstances and that the respondent had 'successfully got to the stage where it would be a detrimental - a conviction would be detrimental to you'. The appellant's submission is that while a conclusion that a conviction would be detrimental to the appellant would have been relevant to the expediency test it did not determine that a s 19B disposition was appropriate. Counsel submitted that his Honour failed to apprehend or apply the appropriate test for the application of s 19B and that this means that the sentencing discretion has miscarried. The appellant submitted that the appropriate outcome would have been a fine to visit a tangible penalty on the offender in the interests of general deterrence and as a proper reflection of the relative seriousness of the offences.

10. Counsel for Mr Anderson, however, submits that the sentencing needs to be evaluated in the context in which the convictions occurred.  His Honour expressly concluded that the incorrect recording of the flight times on the maintenance release had not been done in order to conceal the offence of flying while the gearbox truss supports were overdue for inspection. 

11. Rather, the learned magistrate approached the question of the severity of the breach on the basis that Mr Shortis, who was aware of the maintenance release obligations, was one of the most experienced Sikorsky helicopter specialists in the country and that the company had written to CASA asking for a deferral of the time for inspection and, although subsequent to these events, the attitude of CASA to the request for inspection was to have the matter referred to Sikorsky; that if that company approved a deferral that would be acceptable; and that Sikorsky ultimately did give that approval.  For this reason, it was submitted that the breach of the regulation did not occasion any danger and that, in fact, the truss had been inspected in detail at 120 hours and no problems had been identified.  This, so it was submitted, provided a basis for the learned magistrate adopting the view that these particular breaches were not especially grave.

12. As to the submission that the learned magistrate failed to undertake the second stage of the s 19B test requiring him to be satisfied of matters set out under s 16A of the Crimes Act, it is apparent that his Honour did advert to the requirements of s 16A and considered himself to be addressing some at least of the matters specified under s 16A(2). The whole tenor of his Honour's remarks, given ex tempore at the end of lengthy reasons for decision dealing with this and other charges, was that a balancing exercise was being undertaken and that the balance favoured a disposition under s 19B. It is the case that his Honour did not use words expressly to that effect but, nevertheless, the reasoning and approach of his Honour seems to have unmistakably followed that course.

1. There were certainly many personal factors in favour of Mr Anderson which provided a basis for the exercise of the powers under s 19B and it is clear that his Honour addressed, if not explicitly item by item, nevertheless in substance, the provisions of s 16A(2) of the Act. His Honour was certainly aware of the submissions by the appellant that CASA regarded the offences as serious, striking at the heart of air safety, and calling for a penalty with both specific and general deterrence. The appellant's counsel had submitted that this was more so because of the role of the respondent Anderson as chief pilot. Those submissions had been expressly advanced to his Honour by counsel for the appellant during the sentencing process.

2. His Honour's decision to exercise the powers available to him under s 19B and to release Mr Anderson without imposing convictions was a discretionary judgment which his Honour was clearly empowered to make. The exercise of a discretion should not be disturbed by an appellate court unless demonstrable error is apparent and certainly not merely because another court or judicial officer may take a different view of the seriousness of the particular offence: House v The King (1936) 55 CLR 499 and Lowndes v The Queen (1999) 195 CLR 665, 671 ‑ 672.

3. In this case, I consider that it was open to the learned magistrate to dispose of these two offences by utilising the powers under s 19B of the Crimes Act and that by doing so it cannot be said that the sentence imposed was manifestly inadequate in all the circumstances.  Furthermore, in considering whether or not to exercise those powers in the exercise of his discretion, his Honour adverted to factors which were apparent from the evidence and which provided a basis for the exercise of the discretionary judgment which he ultimately decided upon.  I do not consider that any error has been demonstrated in the learned magistrate's disposition of these offences.  Accordingly, I consider that this point of appeal SJA 1023/2010 should be dismissed.

Anderson - Dismissal of charges GN 3306/08 and GN 3312/08 - SJA 1023/2010

1. These two charges against the respondent Mr Anderson alleged, respectively, breaches of reg 233 and reg 215(9) of the Civil Aviation Regulations 1988 (Cth). The charges are as follows.

   GN 3306/08

   On 7 April 2007 at Geraldton and elsewhere in the State of Western Australia John Robert ANDERSON being the pilot in command of an aircraft, a S62A Sikorsky Helicopter registered number VH‑ORP commenced a flight when he had not received evidence and taken such action as was necessary to ensure that the gross weight of the aircraft did not exceed the limitations fixed by or under Regulation 235 and was such that flight performance in accordance with the standards specified by CASA for the type of operation to be undertaken was possible under the prevailing conditions contrary to Regulation 233 Civil Aviation Regulations 1988 (Cth).

   GN 3312/08:

   On 7 April 2007 at Geraldton and elsewhere in the State of Western Australia John Robert ANDERSON as a member of the operations personnel of an operator did not comply with all instructions contained in the operations manual in so far as they relate to his duties or activities contrary to Regulation 215(9) Civil Aviation Regulations 1988 (Cth).

   Particulars of instructions not complied with:

   (a)Passengers and baggage were not weighed and the weights entered on the Flight Passenger Manifest

   (b)Standard weights required by the Operations Manual were not entered on the Weight and Balance Sheet

   (c)One passenger was entered as a child on the Manifest and Weight and Balance Sheet but is an adult male.

2. The grounds of appeal in relation to the order of the learned magistrate dismissing both charges are as follows:

   1.The learned magistrate erred in fact in that he made erroneous references to evidence in explaining the reasons for his decision.

   Particulars

   1.1In relation to charges 3306/08 and 3312/08 the learned magistrate erred in finding that there was a discrepancy between the evidence of two witnesses, Craig Marshall and Rachel Marshall, concerning the number of people on board the helicopter, when there was in fact no discrepancy in the evidence of these witnesses.

   2.The learned magistrate erred in law by misapprehending the application of evidence to the offence provisions.

   Particulars

   2.1The learned magistrate erroneously concluded that discrepancy between the evidence of witnesses and particular documentation was a failure of the prosecutor's evidence instead of interpreting that discrepancy as being proof offered by the prosecution in support of the commission of the offences by the Respondent.

3. In support of the appeals, counsel for the appellant submits that the Passenger Flight Manifest and Load Sheets (exhibit U) for this flight on 7 April 2007 record nine passengers including crew and '0' baggage.  Evidence from two of the passengers, Craig Marshall and his wife, Rachel Marshall, was to the effect that there were 11 people on board, including crew, and a significant quantity of dive gear (ts 1/2/2010, pages 40 and 45).  Mr Marshall, who weighed 140 kg, was recorded as a child and allocated a child's weight.  According to the appellant, an accurate record would have put the helicopter over maximum takeoff weight.

4. In concluding that charge GN 3306/08 had not been proved, the learned magistrate said (ts 4/2/2010, page 20):

   [The prosecution are] relying on evidence of Mr Marshall and he says there were nine people plus two crew.  His wife said … there were eleven people plus two crew, but the manifest said eight people plus one crew.

   … given the discrepancies between what Mr Marshall says, what his wife says, and then what the manifest says I have to once again give Mr Anderson the benefit of the doubt …

5. Similarly, in dealing with charge GN 3312/08, the learned magistrate said (ts 4/2/2010, page 21):

   For the same reasons I gave in relation to 3306 … Marshall said it was nine and two crew.  His wife said it was 11 and two crew.  The manifest says eight plus one crew.  I am satisfied that he has done all he needed to comply with the instructions of that manual.

6. At this point, it is necessary to note some of the formal admissions which were made by the respondent Mr Anderson at the trial pursuant to s 32 of the Evidence Act 1906 (WA). With respect to events on 7 April 2007, Anderson admitted that he was the pilot in command of the helicopter on a flight conducted that day and that he did not weigh passengers or their baggage on the flight conducted that day. In evidence the respondent Mr Anderson had no recollection of the number of passengers or crew on board the aircraft on that flight.

7. In fact, the evidence of Mr Craig Marshall was that there were 11 persons on board, being two pilots, the dive master and eight passengers.  Mr Marshall himself weighed 140 kg but on the face of the manifest he was shown with the letter C, standing for 'child', and a child's weight was entered on to the loads and balance sheet.  He also said that he carried 20 kg of gear himself and that other divers carried similar gear.  None of his evidence in that respect was challenged.  Mrs Marshall followed and gave evidence (ts 1/2/2010, page 45) essentially consistent with that of her husband, namely that the total number of occupants in the helicopter was 11, including two pilots, and that she and her husband had 20 kg of gear each.

8. The flight manifest for this trip is exhibit U and it shows zero baggage despite the evidence of the Marshalls that between them they had 40 kg of gear and that other divers had similar gear.  That manifest shows the total occupants as being nine, and there being one pilot and eight passengers. 

9. Accordingly, the evidence of the Marshalls was consistent and had remained unchallenged.  It could not be reconciled with the flight manifest, exhibit U.  Mr Anderson's position was that he simply relied on the system in operation, namely the completion of the flight manifest by another staff member, Mr Shortis.  Anderson had been given the documents while he was sitting in the cockpit and did not perform any other check.  According to him, the check was done in the office by the base manager.  He had not performed a head count of the passengers nor any inspection of the baggage.

10. The case was not resolved on the basis that Mr Anderson had an honest and reasonable but mistaken belief that the details in the flight manifest were correct or that there was in operation a system which reliably recorded the number of passengers, their weights and the weights of baggage.  While such an issue, had it been raised, may have been relevant, it would have itself triggered an investigation as to whether or not such a system did exist and whether it was reasonable for the pilot, consistent with his obligations under the regulations, to rely upon it. 

11. This scrutiny of the evidence demonstrates that there was, in fact, no discrepancy between the evidence of Mr Marshall and his wife, Mrs Rachel Marshall, about the number of passengers on board.  Nor was there any evidence to verify the accuracy of the flight manifest, exhibit U, which Mr Anderson claims to have relied upon and, in so far as that manifest records no baggage, it is inconsistent with the evidence of both Marshalls.

12. It follows that Mr Anderson did not take any action to ensure that the gross weight of the aircraft did not exceed the relevant limitations and was such that the flight performance in accordance with the standards specified by CASA was possible under the prevailing conditions.  Nor did he comply with the instructions contained in the operations manual relating to the weighing of passengers and baggage before a flight and recording those weights on the flight passenger manifest, nor was this a situation in which standard weights required by the operations manual could have been or were entered on the weight and balance sheet either.

13. It follows from this that a material error of fact has been made by the learned magistrate in the reasoning process which led to the dismissal of these charges and that, accordingly, the appellant has succeeded in establishing that the orders dismissing these two charges should be set aside.

14. In this situation counsel for Mr Anderson submits that, despite the learned magistrate being mistaken about the existence of a discrepancy in the evidence of Mr and Mrs Marshall, it is nevertheless evident that his Honour was not satisfied that the evidence of those two witnesses was correct in the face of the conflicting flight manifest.  Counsel for Mr Anderson also submits that the defence of honest and reasonable but mistaken belief was open.  I have already accepted that the latter defence was available but, as the trial developed, there does not seem to have been a basis laid for the existence of a reasonable, that is objective, mistake in the circumstances.  As for the appearance that the learned magistrate may not have accepted either of the Marshalls as witnesses of credit, that remains a possibility although, significantly, their evidence in relation to the number of passengers and the carriage of dive gear as baggage was not challenged during the course of cross‑examination. 

15. For the appellant's case to be proved it was necessary for the tribunal of fact to have been satisfied that all the essential elements of the offences had been proved beyond reasonable doubt.  For this court to set aside the orders dismissing these charges and to substitute orders of conviction, it would need to be satisfied of those matters to a similar degree of persuasion but, as that does involve, at least to some degree, evidence of reliability of the witnesses, I do not think it would be correct to reach a positive finding of proof merely on the basis of the transcript, persuasive although it appears to be.

16. In the circumstances, I consider that in relation to these two charges, leave to appeal having been granted, that this part of appeal 1023/2010 should be allowed and that the orders dismissing these charges should be set aside.  A further order of the court should be that these two charges be remitted to the Magistrates Court for retrial before another magistrate on a date to be fixed.

Doherty - Charges GN 3392/08 to GN 3302/08 - SJA 1024/2010

1. This appeal relates to the decisions of the learned magistrate to dismiss the 11 charges against the respondent Mr Doherty which were the subject of prosecution notices GN 3292/08 to GN 3302/08 (inclusive).

2. As the foregoing table shows, these charges can be conveniently divided into two groups. The first group chronologically comprises charges GN 3300/08 to GN 3302/08 which allege offences against reg 133(1)(d) being committed on 24, 25 and 27 March 2007. These three charges may conveniently referred to as flying without being satisfied that maintenance requirements have been carried out.

3. The second group of charges in chronological order comprise numbers GN 3292/08 to GN 3299/08 and involve flight activity on four days ‑ 13 and 26 May and 2 and 3 June 2007. There are four pairs of charges, each pair relating to one of those dates and alleging breaches of reg 215(9) and reg 233(1)(b) on each occasion. These may be referred to as charges involving the operation of the aircraft without complying with instructions to record passenger and baggage weights.

4. It will be convenient to deal with the two groups of charges separately.

Charges GN 3300/08 to GN 3302/08

1. These charges are as follows.

   GN 3300/08

   On 24 March 2007 at Geraldton and elsewhere in the State of Western Australia Sean Joseph DOHERTY as a pilot in command of an Australian Aircraft namely a S62A Sikorsky helicopter VH‑ORP commenced a flight when the following requirement under Regulation 133(1)(d) was not satisfied namely that any maintenance required to be carried out before the commencement of the flight, or that would be required to be carried out before the expiration of the flight, to comply with any requirement or condition imposed under these regulations with respect to the aircraft had been certified as completed, in accordance with regulation 42ZE or 42ZN contrary to Regulation 133 Civil Aviation Regulations 1988.

   GN 3301/08

   On 25 March 2007 at Geraldton and elsewhere in the State of Western Australia Sean Joseph DOHERTY as a pilot in command of an Australian Aircraft namely a S62A Sikorsky Helicopter VH‑ORP commenced a flight when the following requirement under Regulation 133(1)(d) was not satisfied namely that any maintenance required to be carried out before the commencement of the flight, or that would be required to be carried out before the expiration of the flight, to comply with any requirement or condition imposed under these regulations with respect to the aircraft had been certified as completed, in accordance with regulation 42ZE or 42ZN contrary to Regulation 133 Civil Aviation Regulations 1988.

   GN 3302/08

   On 27 March 2007 at Geraldton and elsewhere in the State of Western Australia Sean Joseph DOHERTY as pilot in command of an Australian Aircraft namely a S62A Sikorsky helicopter VH‑ORP commenced a flight when the following requirement under Regulation 133(1)(d) was not satisfied namely that any maintenance required to be carried out before the commencement of the flight, or that would be required to be carried out before the expiration of the flight, to comply with any requirement or condition imposed under these regulations with respect to the aircraft had been certified as completed, in accordance with regulation 42ZE or 42ZN contrary to Regulation 133 Civil Aviation Regulations 1988.

2. The grounds of appeal for which leave is granted in relation to these orders dismissing these charges (as numbered on the notice of appeal) are as follows:

   3.The learned magistrate erred in law by misapprehending the application of evidence to the offence provisions.

   Particulars

   3.1In relation to charges 3300/08, 3301/08 and 3302/08, the learned magistrate erred by evaluating an irrelevant part of the maintenance release, namely Part 3, and not considering the part relevant to the offence, namely Part 1.

   3.2In relation to charges 3300/08, 3301/08 and 3302/08, the learned magistrate erred by incorrectly referring to an irrelevant obligation under A3.1 of the operations manual, namely the obligation to review Part 2 of the maintenance release, and not referring to the relevant obligation under that part, namely the obligation to review Part 1 of the maintenance release.

   4.The learned magistrate erred in law by failing to properly address the relevant legislation.

   Particulars

   4.1The learned magistrate failed to give proper consideration to s 9.1(2) of the Criminal Code (Cth) and whether alleged mistake was reasonable in the circumstances in response to submissions made by the appellant.

   4.2The learned magistrate failed to give consideration to the second limb of Regulation 233(1); namely whether the pilot had taken such action as was necessary to ensure compliance with subsection [subregulation] (1)(b).

3. At this point, it is necessary to refer to some of the formal admissions made by the respondent Mr Doherty at the trial pursuant to s 32 of the Evidence Act 1906 (WA). Among those admissions the respondent Doherty stated that on each of 24, 25 and 27 March 2007 he was one of two pilots of a Sikorsky S62A helicopter registered number VH‑ORP on a flight from Geraldton. The flight on 24 March 2007 was a rescue flight and the flights on 25 and 27 March 2007 were flights from Geraldton to the Abrolhos Islands. On each occasion he states that he recorded the details of the particular flight in his pilot's logbook as required by regulation and he also stated that at all material times John Anderson was the chief pilot of Prestige Helicopters Pty Ltd.

4. The case advanced for the appellant in relation to these charges appears fully from his written submissions from which this part of these reasons are largely taken. This history and outline were expressly accepted by counsel for the respondent. The respondent Doherty was charged with flying the helicopter on these three days when the Maintenance Release (exhibit R) showed that the main gearbox truss supports were overdue for inspection, in breach of reg 133(1)(d). The Maintenance Release consisted of three Parts, with the first directed to those items of maintenance that would fall due during the life of the Maintenance Release, akin to scheduled maintenance. The second Part described various maintenance work certified as having been done. The third Part related to the carrying out of daily inspections and recording aircraft time in service ‑ (in addition, see Operations Manual exhibit P, par A3.1).

5. The prosecution case was that Part 1 of the Maintenance Release specified that an inspection of the main gearbox truss supports had to be completed by 17,189.6 hours.  The performance of this maintenance was not certified as completed by the maintenance engineer until 2 May 2007 (exhibit R, Part 1, item 25) and all three flights were undertaken with the maintenance overdue.  Paragraph A3.1 of the Operations Manual (exhibit P) requires the pilot to review Part 1 of the Maintenance Release before each flight to ensure that no maintenance is due.  That requirement is in addition to the daily inspection required under Part 3.  The prosecutor explicitly relied upon the requirement of Part 1 of the Maintenance Release in the course of the prosecution (see closing address, ts 3/2/2010, page 70).

6. According to the appellant, the case for Mr Doherty at trial relied on two forms of excuse for having conducted the flights without the maintenance having been performed.  The first was that the respondent had relied on the signatures of authorised personnel (Mr Anderson) on Part 3 of the Maintenance Release for each of the days that he was charged, as indicating that all maintenance checks had been carried out and that the aircraft was 'fit for flight' (see ts 3/2/2010, page 19).  Secondly, Mr Doherty gave evidence when cross‑examined that he had had a conversation on an unspecified date with Mr Shortis, who told him that the aircraft was 'okay to fly' and that maintenance on the gearbox truss supports was not required (see ts 3/2/2010, page 22).

1. In finding that none of these three charges had been proved, the learned magistrate made the following observations (ts 4/2/2010, page 25):

   Firstly, I look at those particular days in the maintenance release … and I note that on each of those days the maintenance release was signed off by Mr Anderson.

2. (The appellant's submission is that this is a reference by his Honour to the daily inspections recorded at Part 3 of the Maintenance Release.)

   I look at 3.1; the use of the maintenance release and it indicates that pilots must review part 2 of that maintenance release … to ensure that there are no (indistinct) that would impact on the intended flight.

   All entries must be cleared by an approved person, and it appears to me that Mr Anderson is an approved person.  He cleared it, it seems, in my view, that Mr Doherty is entitled to accept it as being cleared.

3. (Once more counsel for the appellant submits that his Honour was here referring to the daily inspections contained at Part 3 of the Maintenance Release.)

   He also gave evidence ‑ and he doesn't know when it was … he was aware of the truss requirement in the maintenance release order, but he was [told] by somebody ‑ he can't remember who, it may have been Mr Anderson, but he had been told that that had been all fixed and that the requirement for that to be done was cleared and it was okay.

   Therefore, in my view … notwithstanding that he has checked, and notwithstanding the provisions of 133(1)(d), and also noting the provisions of A3.1, that he would be entitled to rely on the excuse, in any event … contained in 9.1 given that Mr Anderson had signed off on that and that he had been, in fact, told ‑ he was under a reasonable belief that … the maintenance … was not necessarily required.

4. The case for the appellant, as developed by counsel at this hearing, is that in relation to the first of these excuses the learned magistrate misunderstood the structure and requirements of the Maintenance Release and, as a consequence, failed to address himself properly both to the question of whether the mistaken belief was genuinely held and, if so, to the reasonableness of the excuse. For a mistaken belief to constitute a defence under s 9.2(1) of the Criminal Code it must be reasonable. 

5. The relevant part of the Maintenance Release that identifies due maintenance, and which must be checked prior to flight according to Operations Manual par A3.1 (see page 48) is Part 1, not Part 2. In describing the evidence relied on to come to the conclusion that the respondent was entitled to accept that the maintenance was cleared, his Honour must be regarded as having referred to the daily inspections carried out by Mr Anderson noted in Part 3 (despite the incorrect reference to Part 2). However, the daily inspections have no relevance to the Operation Manual's instruction to pilots to review Part 1 prior to each flight and to treat endorsements on Part 1 as items of maintenance separate from daily inspections.

6. The written submissions of the appellant continue by contending that when his Honour accepted Mr Doherty's evidence that he had been told by Mr Shortis that the maintenance was not required, the learned magistrate did not consider evidence that would have fixed any such advice (if it was given) as having occurred after the three flights that were the subject of these charges.  Mr Anderson gave evidence that he knew the maintenance to the gearbox truss supports was due and that that was the reason why he and Mr Shortis signed the letter dated 30 March 2007 (exhibit J) to CASA seeking a deferral of the inspection.  A CASA officer, Mr McLaren (ts 2/2/2010, page 41) responded to the letter by requesting supporting documentary evidence from the manufacturer.  Mr Anderson went on to say that he had been told at some point by Mr Shortis that the manufacturer had said that the maintenance inspection could be deferred (ts 3/2/2010, page 65).  Exhibit J showed that Mr Shortis and Mr Anderson were aware as at 30 March 2007 that the inspection was due and any communication by either of them with the manufacturer about its deferral occurred after that date, whereas the charge flights occurred on 24, 25 and 27 March 2007.

7. The submissions advanced by the appellant which I have summarised in [81] ‑ [89] above are all accepted by the respondent Doherty except as to the manner by which a pilot might satisfy par A3.1 of the Operations Manual and Part 1 of the Maintenance Release.  The submission for Mr Doherty by his counsel in relation to these charges was that reg 42ZE permits maintenance to be certified in accordance with an approved system of maintenance and that it was common ground between the parties that the Operations Manual, par A3, contained an approved system of maintenance.  Pursuant to that part of the Operations Manual, only Mr Shortis and Mr Anderson were authorised to certify a maintenance release. 

8. The submissions for Mr Doherty then advanced the proposition that he, as an employed pilot, was entitled to rely on the signature of Shortis and/or Anderson when considering whether there had been compliance with maintenance release requirements and that he could not rely on any other persons within the organisation for such certification, nor could he certify himself.  At the trial Mr Doherty gave evidence that he saw the signature of Anderson on the maintenance release for 24, 25 and 27 March (exhibit R) and that he accepted that signature as being from an authorised person, as he was required to do.  There was further evidence of the signature of Anderson being on the daily running sheets for the helicopter and this, according to the respondent's submission, gave added strength to Mr Doherty's claim that he could rely on Anderson's signature.  His case, as put before the learned magistrate and again at this hearing, was that in these circumstances there was sufficient evidence upon which the learned magistrate could conclude that the prosecution had failed to exclude the defence of honest and reasonable but mistaken belief and, consequently, that his Honour was correct to dismiss these three charges.

9. The learned magistrate dealt with these charges in his reasons (ts 4/2/2010, pages 5, 16 ‑ 18 and 24 ‑ 26).  The learned magistrate referred to the maintenance release being signed off by Mr Anderson on each of these three days.  It is evident from those passages that his Honour has treated Anderson's signature on Part 3 of the Maintenance Release on each of those three days, following the daily inspections, as constituting an authorisation that the helicopter was fit for flight notwithstanding that the maintenance to the gearbox truss supports due as specified in Part 1 of the Maintenance Release had not been performed.  I am satisfied that his Honour was in error in concluding that any signature by Anderson in relation to Part 3 of the Maintenance Release relieved Mr Doherty of compliance with the requirements of par A3.1 and reg 133 (1)(d).

10. This left the issue of whether or not, as to the facts as they appeared, there was a defence available to Mr Doherty under s 9.1 of the Criminal Code, namely of an honest and reasonable belief that he could accept Mr Anderson's signature as dispensing with the need to be satisfied that the maintenance due had been performed. 

11. This issue was not distinctly explored in any detail in the evidence or in his Honour's reasons.  There was certainly no examination of whether or not such a mistake, if that is what occurred, was a reasonable one in the circumstances.  Furthermore, the learned magistrate's consideration of whether or not there was such an honest and reasonable but mistaken belief by Mr Doherty was affected by his examination of the evidence that Mr Doherty had been told by Mr Anderson, or someone else, that permission of CASA had been sought to fly the aircraft without completing that maintenance and that the response of CASA was to the effect that the manufacturer, Sikorsky, should be consulted and that Sikorsky's recommendation would be accepted by CASA.  The fact was that no such request to CASA had been put forward until 30 March 2007, that is after each of these three flights had been completed and, consequently, there was no basis, in fact, available at the time of these three flights to believe that CASA was deliberating on whether or not to allow the deferral of the maintenance.

12. In these circumstances, the evidence demonstrated that at the time of each of these three flights there was maintenance as specified in Part 1 of the Maintenance Release still outstanding and that this was, or should have been, known to Mr Doherty and that to commence a flight with that maintenance outstanding would, in the absence of a lawful excuse, constitute a breach of reg 133(1)(d) as charged. The next question was whether or not a lawful excuse for flying with the maintenance incomplete had been excluded and this, in turn, depended upon the nature, honesty and reasonableness of the belief held by Mr Doherty at the time of commencing each of the flights. The onus was upon the appellant to exclude, beyond reasonable doubt, the existence of any such honest, reasonable but mistaken belief by Mr Doherty. It sought to do this, as it has again sought to do so on these appeals, by submitting that the signature of an authorised person in relation to daily inspections under Part 3 of the Maintenance Release could not, and should not, reasonably be regarded as an authority to a pilot to disregard outstanding maintenance which had become due, or was about to become due, specified in Part 1 of the Maintenance Release.

13. That issue does not appear to have been examined or decided by the learned magistrate. His Honour's reasoning, clearly enough, was to treat the existence of the signature of an authorised person under Part 3 of the Maintenance Release as sufficient justification for the pilot to operate the aircraft notwithstanding outstanding maintenance specified in Part 1 of the Maintenance Release. Accordingly, there has been a failure by the learned magistrate to determine that issue. More significantly, the determination made by his Honour that a defence under s 9.1 of the Criminal Code had not been excluded was, to a material extent, influenced by the lack of appreciation that the conversation or conversations relied upon by Mr Doherty as to the permission of CASA being sought about the issue of maintenance of gearbox truss supports had only occurred after these three flights.

14. It follows that his Honour's consideration of whether or not the prosecution had excluded any defence under s 9.1 of the Criminal Code in this particular respect failed to address either of the particular issues relied upon by the prosecution.  In those circumstances, I consider that the appellant has made out his grounds of appeal and that, consequently, in respect of these three charges the appeal should be allowed.  The proper order for this court now to make in that respect is that the orders dismissing these three charges should be set aside and that these three charges should be remitted for retrial before a different magistrate upon a date to be fixed.

Doherty - charges GN 3296/08; GN 3292/08; GN 3297/08; GN 3293/08; GN 3298/08; GN 3294/08; GN 3299/08; and GN 3295/08

1. These eight charges brought against the respondent Doherty constitute the third and last group of charges in chronological order. They relate to four return flights from Geraldton to the Abrolhos Islands on 13 and 26 May, and 2 and 3 June 2007. There are four pairs of charges for each of those four days, each pair constituting alleged breaches of reg 215(9) and reg 233(1)(b). The substance of the allegations is that Mr Doherty failed to take such steps as were necessary to ensure that the aircraft was not overweight by recording the weights of the passengers, crew and baggage.

2. In the written admissions made by Mr Doherty at the trial pursuant to s 32 of the Evidence Act 1906 (WA) he admitted that he was one of the two pilots of the helicopter on return flights conducted from Geraldton to the Abrolhos Islands on 26 May and 2 June 2007 and that he recorded time as a pilot for 13 May 2007 and 3 June 2007. He also admitted that he recorded details of these flights in his pilot's log book as required by regulation and that he did not weigh passengers or their baggage on any leg of the four flights mentioned before he commenced the flights.

3. It is convenient to deal with each pair of those eight charges in turn.

Charges GN 3292/08 and GN 3296/08

1. These two charges relate to flights occurring on 13 May 2007.  The charges are:

   GN 3292/08

   On 13 May 2007 at Geraldton and elsewhere in the State of Western Australia Sean Joseph DOHERTY as a member of the operations personnel of an operator did not comply with all instructions contained in the operations manual in so far as they relate to his duties or activities contrary to Regulation 215(9) Civil Aviation Regulations 1988.

   Particulars of instructions not complied with:

   (a)Standard weights were not entered for the passengers on the Flight Passenger Manifest

   (b)Baggage was not weighed and entered on the Flight Passenger Manifest

   (c)Standard Passenger weights and baggage weights were not entered on the Weight and Balance Sheet.

   GN 3296/08:

   On 13 May 2007 at Geraldton and elsewhere in the State of Western Australia Sean Joseph DOHERTY being pilot in command of an aircraft namely S62A Sikorsky helicopter VH‑ORP commenced a flight when he had not received evidence and taken such action as was necessary to ensure that the gross weight of the aircraft did not exceed the limitations fixed by or under Regulation 235 and was such that flight performance in accordance with the standards specified by CASA for the type of operation to be undertaken was possible under the prevailing conditions contrary to Regulation 233 Civil Aviation Regulations 1988.

2. The grounds of appeal raised in relation to these, and other corresponding charges, are set out in attachment 2 to the grounds of appeal in SJA 1024/2010 and are as follows:

   1.The learned magistrate erred in fact in that he made erroneous references to evidence explaining the reasons for his decisions.

   Particulars

   1.1In relation to charges 3292/08 and 3296/08 the learned magistrate erred in finding that there was no requirement to record weights of baggage in the operations manual, when in fact there was such a requirement.

   2.The learned magistrate erred in law in that he took into account facts not in evidence and he failed to take into account facts in evidence.

   Particulars

   2.1The learned magistrate erroneously concluded that the witness John Skinner had a poor memory because he could have flown on several days specified by his Honour, when there was uncontested evidence before his Honour that the witness could not have flown on those days and that the passenger manifest and weights and balances sheet could only have referred to the date alleged by the witness.

   2.2In relation to charges 3292/08 and 3296/08 the learned magistrate erred by concluding that the pilot appeared to be aware of all persons on board when there was no such evidence before his Honour and there was evidence to the contrary before his Honour.

3. The learned magistrate dealt with these charges in his reasons (ts 4/2/2010, 21 ‑ 22) and, so far as is presently material, said:

   The particulars are that the standard weights were not entered for the passengers on the flight passenger manifest.  The baggage wasn't weighed and entered on the flight passenger manifest.  Standard passenger weights and baggage weights weren't entered on the weight and balance sheet.  In relation to the charge number 3296, it was also indicated that he had not received evidence and taken such action, as was necessary, to ensure that the gross weight of the aircraft did not exceed the limitations fixed by or under regulation 235.

   Now, according to Mr Padman ‑ one of the passengers ‑ said that there [were] two pilots but has indicated that Andrews ‑ Mr Anderson did not fly on that day and it appears that his seat was taken by Sally, the dive master.  It does appear to me that on that basis ‑ and it does ‑ Mr Padman said that there were two pilots and indicated there was one extra person.  The flight passenger manual seems fundamentally correct, he says.

   As far as I'm concerned ‑ and it says that it doesn't appear that ‑ anything else.  Standard weights were not used on all the passengers, and there was no requirement to record weights of baggage.  In any event as I understand it, looking at part A, 4.1 of the operations manual and it does appear to me that he has ‑ that is, the pilot has taken all ‑ and also ‑ sorry, I should say that the pilot does appear to be aware of all the persons on board and in relation to that particular flight, and I'm satisfied that he had taken the evidence and he was entitled to accept the evidence of the manifest that he had.

   Therefore, that in relation to charges number 3292 ‑ similar charges but not the same ‑ and 3296, that both of these charges have not been proven beyond reasonable doubt.

4. The Operations Manual (exhibit P) contains in its introduction (page 3) a direction that air crew will conduct operations in accordance with the procedures contained in this manual, however no procedure is intended to contradict the requirements the Civil Aviation Regulations or the Civil Aviation Orders.  At page 6 in items 1 and 2 of the Operations Manual all company personnel associated with piloting are obliged to sign the signature sheet of the manual as evidence of having read, understood and agreed to apply the procedures and data contained and to repeat the process at six‑monthly intervals.  By par A1.4.4, dealing with general operations in the Operations Manual, there is a requirement for the pilot in command to be responsible for the proper disposition of the helicopter at all times including, specifically, observance of the applicable requirements and procedures in the company's Operations Manual and at (4) completion of all records required to be completed in respect of that flight.  Of particular importance is par A4.3 of the general operations section of the Manual, which is entitled Standard Passenger Weights.  It provides:

   The pilot in command shall ensure that the aircraft is not overloaded by ensuring the load calculations for each aircraft are made using actual weights arrived at by weighing all occupants and baggage as per CAAP 235‑1(1).  Standard passenger weights of 86 kg will be utilised for any aircraft with a capacity greater than seven seats.

5. In the same section par A4.1 provides:

   Passenger Documentation

   All passenger names and weights will be recorded on the 'Flight Manifest' prior to boarding the aircraft.  Embarkation and Disembarkation points are to be recorded for all passengers in accordance with CAR 139(1)(g).

6. This Sikorsky helicopter had more than seven seats and, indeed, accommodated 11 persons (including crew) plus baggage.

7. The reference in the Operations Manual at par A4.3 to CAAP is a reference to a Civil Aviation Advisory Publication and in this case to the publication number 235‑1(1) published in September 1990, which was exhibit M at the trial.  This is an advisory publication only but in relation to aircraft take‑off weights it provides in par 5 that regardless of the method used to determine passenger and baggage weights the operator and pilot in command are responsible for ensuring the requirements of the regulations are satisfied at all times, ie, that the aircraft is not overloaded.  The publication goes on to advise that the use of one standard passenger weight for all aircraft can result in a high probability of overloading and that to reduce that risk a sliding scale of standard passenger weights should be used.  It also refers to standard hold baggage weights which may be allocated to each piece of baggage carried in the hold, and then appends a list of suggested standard passenger weights for aircraft of varying seating capacity (including crew) and distinguishing between adult males and females, infants, children and adolescents.

1. In the course of the trial, in the written submissions and at the hearing of this appeal these two charges were dealt with together with charges GN 3295/08 and GN 3299/08, which are the fourth and final pair of charges against the respondent Mr Doherty, arising from a flight on 3 June 2007.  It is necessary, therefore, to set out at this point those further two charges.  They were:

   GN 3295/08

   On 3 June 2007 at Geraldton and elsewhere in the State of Western Australia Sean Joseph DOHERTY as a member of the operations personnel of an operator did not comply with all instructions contained in the operations manual in so far as they related to his duties or activities contrary to Regulation 215(9) Civil Aviation Regulations 1988.

   Particulars of instructions not complied with:

   (a)Passengers and baggage were not weighed

   (b)Standard weights were not entered on the weight and balance sheet

   GN 3299/08:

   On 3 June 2007 at Geraldton and elsewhere in the State of Western Australia Sean Joseph DOHERTY being pilot in command of an aircraft namely S62A Sikorsky helicopter VH‑ORP commenced flight when he had not received evidence and taken such action as was necessary to ensure that the gross weight of the aircraft did not exceed the limitations fixed by or under Regulation 235 and was such that flight performance in accordance with the standards specified by CASA for the type of operation to be undertaken was possible under the prevailing conditions contrary to Regulation 233 Civil Aviation Regulations 1988.

2. In relation to charges GN 3298/08 and GN 3299/08, the two charges alleging breaches of reg 233(1)(b) on 2 and 3 June 2007 respectively, the appellant's ground of appeal is:

   4.The learned magistrate erred in law by failing to properly address the relevant legislation.

   Particulars

   4.1The learned magistrate failed to give proper consideration to s 9.1(2) of the Criminal Code (Cth) and whether any alleged mistake was reasonable in the circumstances in response to submissions made by the appellant.

   4.2The learned magistrate failed to give consideration to the second limb of regulation 233(1); namely whether the pilot had taken such action as was necessary to ensure compliance with subsection [subregulation] (1)(b).

3. In relation to charges GN 3294/08 and GN 3295/08 the appellant seeks to rely on a proposed ground of appeal contending that the learned magistrate erred in law by misapprehending the application of evidence to the offence provisions.  As the hearing developed the appellant's point emerged that the learned magistrate had wrongly concluded that the Operations Manual did not specify that the recording of passenger names and relevant weights was the responsibility of the pilot.

4. The learned magistrate dealt with these charges at ts 4/2/2010, pages 22 ‑ 24.   After reviewing some of the evidence, his Honour concluded that the weights and balance sheets in relation to the flight on 2 June 2007 were incorrect (ts 4/2/2010, page 23).  His Honour does not appear to have made an express finding as to whether or not the weights and balance sheets in relation to the flight of 3 June were incorrect but his reasons proceed on the assumption that they were incorrect because he dismisses the corresponding charge for 3 June 2007 for other reasons.

5. Dealing with the alleged responsibility for erroneous flight passenger manifests and weight and balance sheets in relation to those flights, his Honour said:

   Now, the requirements, as I understand it, for Mr Doherty, do not extent or haven't been extended in the past for him to check the names off the flight passenger manifest and also for him to check the weights as assessed by Mr Shortis, who does the weights, as I understand it, the weights and balance sheets.  Mr Doherty has the overall responsibility for checking to make sure that the vehicle ‑ or the helicopter is not overloaded and that the passengers ‑ and that is ‑ instructions in the operations manual are complied with.

   He would have conducted, I would have thought, a power check prior to take‑off, and I do note under part A, 4.1, states that the passenger names must be recorded but doesn't give any direction as to who does that and whether it's the pilot's responsibility or not.  In any event, therefore, in relation to that, it doesn't necessarily say that he's requires to fill in those weights and baggage weights in relation to charge number 3294.

   In relation to the charge that he has taken ‑ or not received evidence that ‑ or taken such action necessary to ensure that the gross weight of the aircraft did not exceed the limitation, he, in my view, has raised the excuse of mistake; that is, pursuant to section 9.1 of the Criminal Code …

6. His Honour then went on to address the requirements of s 9.1 of the Criminal Code and concluded that Mr Doherty would have had a reasonable expectation, and given that he would have done a power check, that he could accept or believe in the evidence which had been given to him that the weights were reliable.  His Honour then went on to conclude that the prosecution had not negated the excuse of mistake and concluded, therefore, that charges GN 3298/08 and GN 3299/08 had not been proved beyond reasonable doubt.

7. The submissions for the appellant in relation to these four charges were as follows.  Counsel for the appellant referred to the flight passenger manifests and weight and balance sheets for 2 June 2007 (exhibit Y) as being signed and checked by Mr Doherty and as showing six passengers and two crew.  The two passengers who each gave evidence, Mr Noteboom (ts 2/2/2010, page 19) and Ms Jade Lubich (ts 2/2/2010, pages 10 ‑ 11) said that there were actually 10 people on board that flight.

8. In relation to the flight on 3 June 2007, one of the witnesses was a Ms Tracy Harris, an organiser of the dive trip to and from the islands.  In her evidence she referred to nine members of the dive party and two crew (ts 2/2/2010, page 24).  The flight passenger manifest and weight and balance sheet (exhibit Z) for that flight showed a total of eight people, with the helicopter being two kilograms under its maximum take‑off weight.

9. The appellant submits, and I accept, that both charges GN 3298/08 and GN 3299/08 were dismissed on the basis that although the flight passenger manifest and weight and balance sheet for each flight were erroneous, Mr Doherty held a mistaken belief in their accuracy.

10. In this regard, the learned magistrate found, as already noted:

    •The flight passenger manifest and also the weights and balance sheets … were incorrect

    •He [Mr Doherty], in my view, has raised the excuse of mistake

    •He has been in the past, and I suggest it would be hundreds of occasions previously, that he was able to rely on the fact that information contained in the passenger manifests and the weights and balance sheets were reliable

    •Given that he would have done a power check ‑ he would have been given the reasonable expectation to accept or to believe, and a reasonable belief, that the evidence that he was given in relation to that weights was reliable

11. A further submission for the appellant is that the conclusion by the learned magistrate that the respondent had made a reasonable mistake was based on assumptions not supported by evidence, namely that Mr Doherty had conducted a 'power check' and that the flight documents had been reliable (ie, accurate) on 'hundreds' of previous occasions.  However, there was no evidence of a power check having been performed.  There was evidence of a system whereby the engineer, Mr Shortis, routinely prepared the flight passenger manifest and weight and balance calculation (see Mr Doherty, ts 3/2/2010, page 10) and that a computer programme assisted the calculation of weight, but there was no evidence of the reliability of data entry by Mr Shortis on any occasion and still less on the 'hundreds' of occasions mentioned by the learned magistrate.

12. Counsel for the appellant submitted that his Honour failed to assess the reasonableness of the alleged mistake by reference to the requirement of reg 233(1)(b) that the respondent not only receive evidence, but 'take such action as is necessary to ensure the gross weight of the aircraft was not exceeded'.  Mr Doherty did not take any steps in this regard apart from receiving the passenger manifest.  He did not weigh the passengers or their baggage, nor did he conduct a head count or any inspection of the interior of the helicopter for baggage, which would have been material in weight calculations.  Had this been done, the discrepancy between the presence of 10 persons on board the flight of 2 June 2007, as established by the witnesses, and the eight persons recorded on the manifest and load sheets would have been apparent.  Similarly, the oral evidence from the witnesses established that there were 11 persons on board the helicopter on the flight of 3 June but the manifest and load sheets showed only a total of eight including crew.

13. In relation to charges GN 3294/08 and GN 3295/08 alleging breach of reg 215(9), each of the charges was dismissed on the basis that the operations manual did not specify that the recording of passenger names and relevant weights was the responsibility of the pilot. The passage in his Honour's reasons to this effect has already been set out.

14. The relevant obligation is contained in the Operations Manual in par A4.1, which has previously been set out but, despite repetition, the relevant passage of which is:

    All passenger names and weights will be recorded on the 'Flight Manifest' prior to boarding the aircraft.

15. Also, as earlier set out, par A1.4.4 of the Operations Manual obliges the pilot in command of the helicopter to be responsible for the proper disposition of the helicopter at all times, including '(4) completion of all records required to be completed in respect of that flight'.  In his admissions the respondent said that he was the pilot of the flight on 3 June and one of two pilots on 2 June 2007.

16. The submission for the appellant is that the learned magistrate fell into error by failing to recognise that the instruction in the Operations Manual requires that the passenger names and weights be recorded in the flight passenger manifest, that is, accurately recorded, and that reg 215(9), which provides that 'each member of the operations personnel of an operator shall comply with all instructions contained in the operations manual in so far as they relate to his or her duties or activities' operates to distribute to each member of the operations personnel (where the instruction relates to that person's duties) responsibility for the proper recording of data in compliance with that instruction, irrespective of which member of the operation actually fills out the form.

17. Counsel for the respondent submitted that the oral evidence from the witnesses on these two flights as to the number of persons on board suffered from the frailties of memory over the time which had elapsed between the events and the trial and that, accordingly, his Honour was entitled to have a reasonable doubt about that evidence when faced with the discrepancy between the numbers reported by the witnesses on the flights and the contemporary documentary records.  I cannot, however, accept that submission for several reasons.  In the first place, there does not appear to have been any serious challenge to the reliability of the evidence of the passengers concerning the number of persons on the flights; secondly, as earlier observed, without verification from some source, the information in the manifests and load sheets for the two flights did not carry any prima facie weight; and thirdly, and most importantly, his Honour found in each of these cases that the documentary records were incorrect.

18. With regard to the defence of honest and reasonable but mistaken belief, counsel for the respondent submitted that Mr Doherty's case needed to be assessed on the basis that he had been faced with a very great practical difficulty in attempting to gather extrinsic evidence which might support such a defence because of a long delay before the allegations and charges had been brought to his notice.  Furthermore, in the oral submissions counsel for Mr Doherty submitted that it had not been shown, at least in relation to charges numbers GN 3294/08 and GN 3295/08, that it was part of Mr Doherty's duties to ensure that the weights of the passengers and baggage were recorded, but I cannot accept that submission having regard to his status as a pilot on each occasion and a member of the operations personnel directly involved in the flying of the helicopter. 

19. In so far as the defence of honest and reasonable mistake was relied upon because of the learned magistrate's finding that on many past occasions Mr Doherty had accepted the reliability of the flight passenger manifests and the weight and balance sheets being handed up to him as completed by Mr Shortis or other personnel, that does not take the matter very far.  There was no evidence that the practice was objectively reasonable in the sense that the performance of the task by another or others in the past had been reliable, subject to checking, or was carried out by trustworthy personnel.  The evidence really amounted to nothing more than that the respondent had put his unquestioned trust in the reliability of the information handed to him on the sheets before take‑off without taking any steps himself to verify the information recorded either on the particular occasion or by periodic checking and in circumstances where, as the appellant has submitted, physical verification of the information by the pilot could very readily have been performed.

20. In this regard, I also accept the submission by the appellant that the requirement of reg 215(9) operates to distribute to each of the operations personnel on board the responsibility of proper recording and that this is confirmed by par A1.4.4 of the Operations Manual.

21. Having concluded that the information in the passenger flight manifests and weight and balance sheets for the two flights on 2 and 3 June 2007 was inaccurate, it followed that the respondent Doherty was in breach of reg 215(9) and reg 233(1)(b) in respect of each flight unless his conduct had been excused because of an honest and reasonable mistake on his part within the meaning of s 9.1 of the Criminal Code.  The onus of excluding beyond reasonable doubt the existence of any such excuse, of course, rested at all times on the prosecution but there was nothing in the evidence as it emerged which could have constituted such an excuse and, that being the case, I am satisfied that the prosecution had proved each of these four charges.

22. In the result, therefore, the orders of dismissal of these four charges should be set aside and in lieu thereof findings should be made that each of the four charges has been proved.  As it will be necessary for there to be a further hearing to consider any evidence in mitigation, and/or to deal with the question of penalty it is necessary to remit these matters for sentencing to the Magistrates Court for final disposition.  Although this could, of course, be undertaken by the learned magistrate who conducted this trial, it is not essential that that be done and, therefore, the matter can be remitted to the Magistrates Court generally for final disposition.

Summary of results and conclusions

1. As already explained, the sequence followed in these reasons in dealing with the various charges has been a chronological one and, broadly speaking, has divided the various charges into the three groups which have been described.  Having done that, it is now necessary to revert to the order in which the various charges have been included in the two sets of applications for leave to appeal brought to this court and, further, to deal with them in the order listed in the separate applications for leave to appeal.

SJA 1023/2010 - the applications concerning the Anderson charges

1. For reasons already stated, I consider that leave to appeal should be granted in relation to each of these four matters ‑ charges GN 3304/08, GN 3306/08, GN 3308/08 and GN 3312/08.

2. In relation to the appeals against sentence in charges GN 3304/08 and GN 3308/08, I have reached the conclusion that each appeal should be dismissed.

3. In relation to the appeals from the dismissal of charges GN 3306/08 and GN 3312/08, I have concluded that the appeals should be allowed and that the orders dismissing each charge made by the learned magistrate should be set aside.  In lieu thereof, each of these two charges should be remitted to the Magistrates Court for retrial before a different magistrate.

SJA 1024/2010 - the Doherty charges

1. In this matter I consider that leave to appeal should be granted in relation to each of the orders by which the learned magistrate dismissed these 11 charges against Mr  Doherty.  These charges are GN 3292/08; GN 3293/08; GN 3294/08; GN 3295/08; GN 3296/08; GN 3297/08; GN 3298/08; GN 3299/08; GN 3300/08; GN 3301/08; and GN 3302/08.  I have divided these into two groups in chronological order of the charges. 

2. The first group relates to charges asserting that the respondent Doherty commenced flight when prescribed maintenance had not been done or could not be done before the completion of the flight.  They are:

GN 3300/08	For the reasons given, I consider that this appeal should be allowed, that the decision of the learned magistrate dismissing this charge should be set aside, and that in lieu thereof a finding be made that this charge has been proved.  The matter should be remitted for final disposition to the Magistrates Court before a different magistrate.
GN 3301/08	For the reasons given, I consider that this appeal should be allowed, that the decision of the learned magistrate dismissing this charge should be set aside, and that in lieu thereof the matter should be remitted for trial to the Magistrates Court before a different magistrate.
GN 3302/08	For the reasons given, I consider that this appeal should be allowed, that the decision of the learned magistrate dismissing this charge should be set aside, and that in lieu thereof the matter should be remitted for retrial to the Magistrates Court before a different magistrate.

1. The final group of charges relating to the Mr Doherty are the four pairs of charges alleging, respectively, breaches of regs 215(9) and 233(1)(b) of the regulations over four days, being 13 and 26 May and 2 and 3 June 2007.

2. I shall take each pair of charges in chronological order:

GN 3292/08 and GN 3296/08	In relation to each of these charges, I consider that the appeal should be allowed, that the order dismissing each charge made by the learned magistrate should be set aside, and that in lieu thereof findings be made that the two charges have been proved and each matter thereupon be remitted to the Magistrates Court at Geraldton for further hearing as to what, if any, penalty should be imposed.
GN 3293/08 and GN 3297/08	In relation to each of these matters, I consider that the appeal should be allowed, that the order dismissing  each charge made by the learned magistrate should be set aside.  In lieu thereof the charges should be remitted to the Magistrates Court for retrial before a different magistrate.
GN 3294/08 and GN 3298/08	In relation to each of these matters, I consider that the appeal should be allowed, that the order dismissing each charge made by the learned magistrate should be set aside, and that in lieu thereof findings be made that the two charges have been proved and each matter thereupon be remitted to the Magistrates Court at Geraldton for further hearing as to what, if any, penalty should be imposed.
GN 3295/08 and GN 3299/08	In relation to these matters, I consider that the appeal should be allowed, that the order dismissing each charge made by the learned magistrate should be set aside, and that in lieu thereof findings be made that the two charges have been proved and each matter thereupon be remitted to the Magistrates Court at Geraldton for further hearing as to what, if any, penalty should be imposed.