Hollis v Rogers
[2016] ACTSC 56
•8 April 2016
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Hollis v Rogers |
Citation: | [2016] ACTSC 56 |
Hearing Date: | 21 October 2015 |
DecisionDate: | 8 April 2016 |
Before: | Burns J |
Decision: | The appeal is dismissed. |
Catchwords: | AVIATION – Offences in Relation to Aviation – performing applicable safety sensitive aviation activity (SSAA) while showing positive result for a confirmatory alcohol test – appeal from Magistrates Court – appellant was performing or available to perform a SSAA – interval between initial and confirmatory test – reasonable doubt about the accuracy of the test results – discretion to record a conviction – appeal dismissed. |
Legislation Cited: | Civil Aviation Act 1988 (Cth) ss 33, 34, 36 Civil Aviation Safety Regulations 1998 (Cth) regs 99.010, 99.015, 99.115, 99.020, 99.250, 99.255, 99.280, 99.285, 99.305, 99.375 Magistrates Court Act 1930 (ACT) ss 208, 214 |
Cases Cited: | Commissioner of Taxation v Baffsky (2001) 192 ALR 92 Fox v Percy (2003) 214 CLR 118 Theodorelos v Nexus Products Pty Ltd [2009] ACTSC 149 |
Parties: | David Hollis (Appellant) Darren Rogers (Respondent) |
Representation: | Counsel Mr C McKeown (Appellant) Mr A Williams (Respondent) |
| Solicitors Canberra Chambers (Appellant) Commonwealth Director of Public Prosecutions (Respondent) | |
File Number: | SCA 43 of 2015 |
Decision under appeal: | Court/Tribunal: ACT Magistrates Court Before: Chief Magistrate Walker Date of Decision: 1 May 2015 Case Title: Rogers v Hollis Court File Number: CC14/40592 |
BURNS J:
The appellant was formerly employed by Virgin Australia Airlines as a pilot. He flew from the Gold Coast to Canberra on 10 August 2013 and spent the night in Canberra. On 11 August 2013, he was rostered to fly a commercial passenger flight between Canberra, Brisbane and Townsville with up to 96 passengers on board. After arriving at Canberra Airport on the morning of 11 August 2013, he was approached by a representative of the Civil Aviation Safety Authority (CASA) and was required to undergo an initial breath test. Regulation 99.375 of the Civil Aviation Safety Regulations 1998 (Cth) (the Regulations) prohibits a person from performing or being available to perform a Safety Sensitive Aviation Activity (SSAA) where the person, after testing as set out in the Regulations, has an alcohol level of 0.02 grams or more of alcohol per 210 litres of breath. The initial test undertaken by the appellant was positive, and a subsequent confirmatory test revealed an alcohol level of 0.059 grams of alcohol per 210 litres of breath.
The appellant was charged by way of summons with an offence contrary to reg 99.375 in the following terms:
On 11 August 2013, at Canberra airport in the Australian Capital Territory David John Hollis [redacted for legal reasons], while performing or being available to perform a safety sensitive aviation activity, namely activities undertaken by a member of the crew of an aircraft in the course of the person’s duties as a crew member, gave a body sample for an initial alcohol test under subpart 99.C of the Civil Aviation Safety Regulations 1998 (Cth) the result of which was positive and he gave a body sample for a confirmatory alcohol test in respect of the initial alcohol test, the result of which was positive, namely 0.059 grams of alcohol per 210 litres of breath, contrary to subregulation 99.375(1) of the Civil Aviation Safety Regulations 1998 (Cth).
The appellant pleaded not guilty to this charge and it proceeded to hearing before a magistrate on 28 April 2015. On 1 May 2015, the Magistrate found the offence proved and provided reasons. On the same date she recorded a conviction and fined the appellant $2,000.
The appellant appealed from the Magistrate’s finding of guilty and from the penalty imposed on the following grounds:
(a)her Honour was in error in finding the appellant was performing an SSAA at the time he was subjected to the initial test;
(b)her Honour was in error when she concluded the evidence of Mr Doherty was equivocal as to whether the appellant had signed in;
(c)her Honour was in error in finding that Mr Rogers’ explanation about the time at which he approached the appellant was entirely plausible;
(d)her Honour was in error in finding that the interval between the initial testing and the confirmatory testing was no less than 15 minutes;
(e)her Honour was in error when she found that had there not been 15 minutes between the initial testing and the confirmatory testing there none the less had been substantial compliance;
(f)her Honour was mistaken when she concluded there was no reasonable doubt about the accuracy of the test result;
(g)her Honour was in error in not rejecting the evidence of the confirmatory test in the absence of strict compliance with there being a 15 minute period between the two tests;
(h)her Honour was mistaken in deciding that the appellant’s challenge failed concerning the amount of alcohol he consumed 10 hours earlier as not being capable of resulting in a reading of 0.059;
(i)her Honour was in error in concluding the evidence was fuzzy as to the rate at which a person might expel alcohol;
(j)her Honour was in error when she concluded, in the absence of evidence, that the ramifications of a person performing an SSAA are great; and
(k)her Honour’s discretion in failing to not record a conviction was in error.
The nature of the present appeal
The appeal is brought under s 208 of the Magistrates Court Act 1930 (ACT), as an appeal from a conviction for an offence dealt with under that Act (s 208(1)(b)), and an appeal from a sentence imposed for a summary offence (s 208(1)(c)). By virtue of s 214(2) of the Magistrates Court Act, in any such appeal, this Court “must have regard to the evidence given in the proceedings out of which the appeal arose, and has the power to draw inferences of fact”. This Court may also receive further evidence by consent, or if it considers it necessary or expedient to do so in the interests of justice: s 214(3). There was no application to lead further evidence in the present appeal. There is no dispute between the parties that this appeal is an appeal by way of rehearing.
In Theodorelos v Nexus Products Pty Ltd [2009] ACTSC 149, Refshauge J described the nature of such an appeal at [78]:
Appeal by way of rehearing is also one where the appeal court must determine whether the decision of the body from which the appeal is taken is wrong, by that body falling into error of law, making a finding of fact that is clearly wrong or exercising a discretion on a wrong principle or in a way that is clearly wrong. Ordinarily, however, facts found based on the assessment of witnesses will not lightly be overturned. The appeal court usually has power to receive further evidence, though this is ordinarily subject to some restrictions. The appeal court may also draw inferences itself from primary facts found by the body from which the appeal is taken. The decision, however, is not restricted to making the decision that should have been made by the body from which the appeal is taken but in determining it the appeal court must have regard to the circumstances which exist at the time of the appeal and by making its own decision on these circumstances.
In Fox v Percy (2003) 214 CLR 118 at [25], Gleeson CJ, Gummow and Kirby JJ said of such an appeal:
Within the constraints marked out by the nature of the appellate process, the appellate court is obliged to conduct a real review of the trial and, in cases where the trial was conducted before a judge sitting alone, of that judge’s reasons. Appellate courts are not excused from the task of “weighing conflicting evidence and drawing [their] own inferences and conclusions, though [they] should always bear in mind that [they have] neither seen nor heard the witnesses, and should make due allowance in this respect””.
In the above passage, their Honours have set out what an appellate court must do in conducting an appeal by rehearing, but the passage is silent as to the circumstances in which the appellate court may intervene to substitute its own assessment of the evidence for that of the first instance court. After referring to a line of authorities emphasising the need for appellate respect for the advantage enjoyed by trial judges, their Honours continued at [27]:
The continuing application of the corrective expressed in the trilogy of cases was not questioned in this appeal. The cases mentioned remain the instruction of this Court to appellate decision-making throughout Australia. However, that instruction did not, and could not, derogate from the obligation of courts of appeal, in accordance with legislation such as the Supreme Court Act applicable in this case, to perform the appellate function as established by Parliament. Such courts must conduct the appeal by way of rehearing. If, making proper allowances for the advantages of the trial judge, they conclude that an error has been shown, they are authorised, and obliged, to discharge their appellate duties in accordance with the statute.
Over more than a century, this Court, and courts like it, have given instruction on how to resolve the dichotomy between the foregoing appellant obligations and appellate restrained. From time to time, by reference to considerations particular to each case, different emphasis appears in such reasons. However, the mere fact that a trial judge necessarily reached a conclusion favouring the witnesses of one party over those of another does not, and cannot, prevent the performance by a court of appeal of the functions imposed on it by statute. In particular cases incontrovertible facts or uncontested testimony will demonstrate that the trial judge’s conclusions are erroneous, even when they appear to be, or are stated to be, based on credibility findings.
That this is so is demonstrated in several recent decisions of this Court. In some, quite rare, cases, although the facts fall short of being “incontrovertible”, an appellate conclusion may be reached that the decision at trial is “glaringly improbable” or “contrary to compelling inferences” in the case. In such circumstances, the appellate court is not relieved of its statutory functions by the fact that the trial judge has, expressly or implicitly, reached a conclusion influenced by an opinion concerning the credibility of witnesses. In such a case, making all due allowances for the advantages available to the trial judge, the appellate court must “not shrink from giving effect to” its own conclusion. Finality in litigation is highly desirable. Litigation beyond a trail is costly and usually upsetting. But in every appeal by way of rehearing, a judgment of the appellate court is required both on the facts and the law. It is not forbidden (nor in the face of the statutory requirement could it be) by ritual incantation about witness credibility, nor by judicial reference to the desirability of finality in litigation or reminders of the general advantages of the trial over the appellate process.
[Footnotes omitted.]
An appeal by way of rehearing differs from an appeal by way of hearing de novo in that in the former error must be demonstrated in the original decision before it may be interfered with. It follows that in such an appeal the appellate court is not entitled to simply substitute its own opinion for that of the primary decision maker; it may only interfere, relevantly for present purposes, where “incontrovertible facts or uncontested testimony” demonstrate that the primary decision maker’s conclusions are erroneous, or when the appellate court reaches the conclusion that the decision of the primary decision maker is “glaringly improbable” or “contrary to compelling inferences”.
10. The last ground of appeal, ground (k), is an appeal against the sentence imposed by the Magistrate, and as such is an appeal from a discretionary judgment. The principles governing an appeal from a discretionary judgment are well known, and an appeal court may only interfere where the appellant establishes that the primary judge or magistrate made an error in exercising the discretion. These principles were set out in the following well-known passage in the decision of the High Court in House v The King (1936) 55 CLR 499 at 505:
It must appear that some error has been made in exercising the discretion. If the judge acts upon a wrong principle, if he allows extraneous or irrelevant matters to guide or affect him, if he mistakes the facts, if he does not take into account some material consideration, then his determination should be reviewed and the appellate court may exercise its own discretion in substitution for his if it has the materials for doing so. It may not appear how the primary judge has reached the result embodied in his order, but if upon the facts it is unreasonable or plainly unjust, the appellate court may infer that in some way there has been a failure properly to exercise the discretion which the law reposes in the court of first instance. In such a case, although the nature of the error may not be discoverable, the exercise of the discretion is reviewed on the ground that a substantial wrong has in fact occurred.
The relevant legislation
11. Part IV of the Civil Aviation Act 1988 (Cth) (the CAA) is entitled “Drug and Alcohol Management Plans and Testing”. Section 33 of the CAA sets out the definitions for Part IV, and defines “safety-sensitive aviation activities” (SSAA) as activities that impact directly or indirectly on the safety of civil aviation operations in Australian Territory or the operation of Australian aircraft outside Australian Territory. Section 34(2) of the CAA provides that “the regulations may make provision for and in relation to drug or alcohol tests in respect of persons who perform, safety-sensitive aviation activities”.
12. Section 36 of the CAA provides that regulations made for the purposes of s 34(2) may make provision for and in relation to the testing of persons for the presence of alcohol or drugs.
13. Regulation 99.115 of the Regulations provides that an approved tester may require a body sample for the purposes of a drug or alcohol test from a person who is performing or is available to perform “an applicable SSAA”. The term “body sample” is defined in s 33 of the CAA as including “any human breath”.
14. The applicable SSAAs are set out in reg 99.015 and relevantly include “activities undertaken by a member of the crew of an aircraft in the course of a person’s duties as a crew member”: reg 99.015(2)(g).
15. The offence with which the appellant was charged is created by reg 99.375:
99.375Performing applicable SSAA while showing positive result for a confirmatory alcohol test
(1)A person must not perform or be available to perform an applicable SSAA if:
(a) while the person is performing or available to perform an applicable SSAA, the person gives a body sample for an initial alcohol test under Subpart 99.C; and
(b) the person gives a body sample for a confirmatory alcohol test in respect of the initial alcohol test; and
(c) the result of the confirmatory alcohol test is a positive result.
Penalty: 50 penalty units
Note:Regulation 99.260 deals with how you determine the results of alcohol tests.
(2)Subregulation (1) applies to create an offence in respect only of the applicable SSAA that the person was performing or available to perform at the time that the body sample for the initial alcohol test was taken.
(3)An offence against subregulation (1) is an offence of strict liability.
16. Regulation 99.010 of the Regulations provides definitions applicable to Part 99, which contains the offence the appellant was convicted of. Regulation 99.010 defines an “initial alcohol test” as an alcohol test to determine the presence of alcohol in a body sample. A “confirmatory alcohol test” is defined as an alcohol test given in respect of an initial alcohol test to determine the presence and level of alcohol in a body sample.
17. A “positive result”, with respect to alcohol testing, is one that reveals that the permitted level of alcohol as prescribed by regulation has been exceeded: s 33 of the CAA. The permitted level of alcohol for present purposes was a level of less than 0.02 grams of alcohol in 210 litres of breath: reg 99.010.
18. Alcohol testing is governed by Division 99.C.3 of the Regulations. Regulation 99.250 provides that both an initial alcohol test and a confirmatory alcohol test must be conducted using specified, approved breathalyser devices. The process to be followed in conducting alcohol testing is found in reg 99.255:
(1)To conduct an initial alcohol test, an approved tester must take a breath sample.
(3) If the result of the initial alcohol test is a positive result, the approved tester must take a further breath sample from the donor for a confirmatory alcohol test.
(4) The further sample must be taken as soon as practicable, but no sooner than 15 minutes, after the initial alcohol test sample was taken.
(5) After the result of the confirmatory alcohol test is available, the approved tester must give the donor a notice that includes the information specified in subregulation 99.265(1).
[Subregulation (2) is omitted in the Regulations.]
19. Regulation 99.020 provides that a “test result” for an alcohol test is a result that resulted from strict or substantial compliance with the requirements of Part 99 of the Regulations. Regulation 99.020(2) provides that there is taken to be substantial compliance with the requirements of Part 99 concerning alcohol testing if there is no reasonable doubt as to the accuracy of the test result even though there has not been strict compliance with the prescribed testing requirements.
20. Evidence of prescribed matters may be given by certificate under regs 99.280 and 99.285. Evidence may be given in support, or in rebuttal, of a matter stated in such a certificate, and the evidential burden of rebutting a matter stated in such a certificate is on the balance of probabilities: reg 99.305(1).
The proceedings in the Magistrates Court
21. The prosecutor gave a short opening address in which he described the testing process and the salient events of 11 August 2013. In the course of the opening, the prosecutor said: “The accused was performing or was available to perform, an applicable safety-sensitive aviation activity, being a member of a crew of an aircraft...”. I will digress momentarily to observe that being a member of a crew of an aircraft is not an applicable SSAA set out in reg 99.015. The applicable SSAA is found in reg 99.015(2)(g), which specifies “activities undertaken by a member of the crew of an aircraft in the course of a person’s duties as a crew member”. Nothing turns upon this apparent error. What is important is that the prosecutor opened the proceedings on the basis that the appellant had committed the offence either by reason of the fact that he was performing a SSAA or was available to perform a SSAA.
Evidence of Derren Rogers
22. The first prosecution witness was Derren James Rogers, the approved alcohol and drug tester employed by the CASA who conducted the alcohol tests on the appellant at Canberra Airport on 11 August 2013. He testified that on arrival at the airport at about 5.30 am he made his way to the Virgin Airlines crew area and conducted a number of tests upon people in that area. He had two devices for conducting alcohol testing, being an initial alcohol testing device and a confirmatory alcohol testing device. He also had equipment to enable him to undertake drug testing. He conducted five or six tests on other people before conducting tests on the appellant. He testified that at approximately 7.45 am he walked into a room in the Virgin Airlines crew area called the tech room, which contain a number of computers set up for flight crew to use. He said that he saw the appellant sitting at one of the computers, and he appeared to be using the computer. Mr Rogers said that he introduced himself to the appellant, and told him that he, the appellant, had been selected to do a random drug and alcohol test. Mr Rogers testified that he asked the appellant whether he had “signed on”, and he said that the appellant replied that he had. The appellant asked him to wait a few moments whilst he completed what he was doing on the computer, and Mr Rogers agreed. A couple of minutes later, the appellant said, “Okay, I’m ready to do the test”.
23. Mr Rogers testified that the test was conducted in another room, called the briefing room, which was approximately two metres away from the tech room and across a corridor. Mr Rogers said that he used a document called an event log to conduct the alcohol testing on the appellant. The event log that was completed at the time Mr Rogers conducted the alcohol testing on the appellant was tendered as an exhibit in the Magistrates Court proceedings. The event log consists of a printed booklet containing pro forma directions concerning the process of testing, including questions to be asked of the subject. As part of the process of alcohol testing, Mr Rogers showed the appellant a number of “flip cards”. These were printed sheets providing directions to the appellant concerning his responsibilities in the testing process, and also providing information about the process and the potential outcomes. At appropriate times during the testing process the appellant was provided with a flip card which he was invited to read.
24. The event log has an initial question, “What applicable safety sensitive aviation activity are you performing or available to perform today?” Mr Rogers said that he asked the appellant this question, and the appellant replied “Pilot”. The event log has boxes which may be ticked to indicate whether the subject is performing, or is available to perform, the indicated applicable SSAA. Mr Rogers said that he ticked the box marked “performing” after asking the appellant “Are you performing or available to perform safety sensitive aviation activity?” The appellant provided Mr Rogers with proof of identity, being an Aviation Security Identification Card (ASI Card). Mr Rogers then asked the appellant “Have you consumed anything containing alcohol in the last 10 minutes, for example, cough lollies or mouthwash?” He said that the appellant replied that he had not consumed anything like that in the last 10 minutes.
25. The initial alcohol test was then performed with a device approved for that purpose. The appellant provided a sample of his breath by blowing into a tube connected to the device. The letters POS then appeared on the LED screen of the device, indicating that the result of the test was positive. Mr Rogers testified that he told the appellant that he had to provide a further breath sample for a confirmatory test, but there needed to be a gap of 15 minutes between the initial test and confirmatory test. Mr Rogers said that he waited the 15 minutes and then conducted the confirmatory test using a separate and approved breathalyser device. During that time he had a conversation with the appellant about whether he had consumed any alcohol the previous night. Mr Rogers said that the appellant had told him that he had commenced drinking at about 5.30 pm the previous evening and had finished drinking at about 10.00 pm. He said that he shared a bottle of red wine, and had a vodka, lime and soda. The confirmatory test showed a reading of 0.059 grams of alcohol per 210 litres of breath.
26. On the first page of the event log there is a box next to the words “Time approached”. In this box Mr Rogers wrote “0745”, meaning 7.45 am. A separate document, titled “Statutory Notice” which Mr Rogers said he also completed as he conducted alcohol testing on the appellant shows the time at which the initial test was completed as “0746”, meaning 7.46 am. The time recorded by Mr Rogers in the Statutory Notice for the completion of the confirmatory test was “0802”, or 8.02 am. The printout from the breathalyser device used to conduct the confirmatory test shows that the appellant provided a sample of breath for the confirmatory test at “08:02:17”, or just after 8.02 am. As I understand it the Statutory Notice is the notice referred to in reg 99.255(5).
27. Mr Rogers was cross-examined with a view to suggesting to him that he had not waited 15 minutes between conducting the initial test and the confirmatory test. Mr Rogers was adamant that he had waited the required period of 15 minutes, testifying that he used a timer that he had with him, which incorporated both a digital clock and also a countdown timer.
28. Mr Rogers agreed that he could not see what the appellant was doing on the computer when he approached him in the tech room. He disagreed with the suggestion put to him by counsel for the appellant that the appellant had not told him that he, the appellant, had signed on for work. Mr Rogers said that if the appellant had told him that he had not signed on for work, he would have asked the appellant to sign on before conducting the testing. He agreed with the proposition that, in his mind, the appellant having signed on for work was a matter crucial to whether the appellant was performing a SSAA activity.
29. In cross-examination, Mr Rogers explained that the time recorded as the “Time approached” in the event log (7.45 am) was not the time that he first spoke to the appellant while the appellant was working at the computer, but was the time at which the appellant indicated that he had finished working at the computer and they sat down to conduct the initial test. It was pointed out to Mr Rogers that in a statement made in January 2014 he had recorded that he first approached the appellant in the tech room at 7.45 am, which would suggest that if the appellant had then continued to use the computer for a few minutes the initial test may have occurred later than suggested by the event log and the Statutory Notice. Mr Rogers said that the time recorded in the statement of January 2014 was incorrect, and that the correct times were those recorded in the event log and the Statutory Notice.
30. Mr Rogers agreed that he had made no mention of the appellant having bloodshot eyes, smelling of alcohol, being unsteady on his feet or slurring his words on 11 August 2013, because he did not observe any of those indications on that day.
Evidence of Pooshan Navathe
31. The next prosecution witness was Pooshan Navathe, who was, as at 11 August 2013, the principal medical officer with the CASA. He testified that he received the event log, the Statutory Notice, and the printout of the breathalyser used in the confirmatory breath test relating to the alcohol testing conducted on the appellant on 11 August 2013. It was his role to review those documents, and to interview the appellant, to determine whether there was an alternative explanation for the result of the alcohol testing other than the consumption of alcohol by the appellant. He spoke with the appellant by telephone on 14 August 2013, but the appellant was not able to offer any explanation for the test results. Dr Navathe testified that he was unable to identify any alternative explanation for the test results other than consumption of alcohol by the appellant.
Evidence of Michael Drane
32. The prosecution also called as a witness Michael Drane, a senior aviation medical officer for CASA. He testified that the rate at which individuals can metabolise alcohol is highly variable. Racial and gender differences are important, as are factors such as, meal times and habituation to alcohol. After ingestion of alcohol has stopped, it would typically take between 30 and 90 minutes for the alcohol in the body to reach a peak, but this can be dependent upon whether the stomach is empty or full and upon the rate of the stomach emptying.
33. Dr Drane testified that after the alcohol has reached a peak, the level of alcohol in the body will gradually decrease. The rate at which the level of alcohol decreases can be variable between individuals, depending on whether they are habituated to the use of alcohol (which would speed up metabolising the alcohol), where in the gastrointestinal tract the alcohol is absorbed, and how quickly it gets into the bloodstream and therefore gets metabolised. Dr Drane said that, as a rule of thumb, the typical reduction in blood concentration of alcohol after the peak has been reached is about “10 mg per 100 every hour”. He agreed with counsel for the appellant that, using it as a rule of thumb, if one accepted that the appellant had a reading of approximately 0.06 grams of alcohol per 210 litres of breath at about 8.00 am on 11 August 2013, he would have had a concentration of 0.160 grams of alcohol per 210 litres of breath at 10.00 pm on 10 August 2013. He agreed that, as an estimate, it would be necessary to consume 16 standard drinks to achieve a reading of 0.160 grams of alcohol per 210 litres of breath. Dr Drane was also cross-examined as to how many standard drinks would be found in a bottle of red wine, but no definitive answer was provided by him.
Evidence of Glenn Bowkett
34. Evidence was then given by Glenn Bowkett, the laboratory manager with the Road Policing Drug and Alcohol Section Laboratory with the Victorian Police. It was his responsibility to calibrate breathalyser devices and he produced documentation to demonstrate that the breathalyser device used in the confirmatory test of the appellant was calibrated in October 2012. He testified that these devices were calibrated every 12 months. Dr Bowkett also gave general evidence of how the device is operated, but that evidence need not be set out here.
Evidence of Paul Doherty
35. The next prosecution witness was Paul Doherty, the General Manager, Group Flight Operations and Chief Pilot for Virgin Australia. In that role he had access to the records of Virgin Australia. He testified that on 11 August 2013 the appellant was rostered as a pilot in command of a flight from Canberra to Brisbane. He was due to sign on at 7.50 am, and complete his activities at 4.40 pm. Mr Doherty said that the appellant did not sign on within the computer system on 11 August 2013. He said that pilots were not required to sign on, on the computer system, outside of the main bases of Brisbane, Sydney, Melbourne, Perth, Christchurch and Auckland. Mr Doherty said that he considered a pilot to be available for duty as a pilot any time outside their stipulated rest periods on a trip when they are away from home base, such as was the case with the appellant. He said that:
The pilot is, once they’re in uniform and presented to actually be picked up, they are on duty as far as we are concerned. They are part of the public perception. They are there to get from – and, in fact, the captain is there to make sure all the crew, as required, get on board the bus and get out to the airport to actually complete or start the duty for that day.
36. Mr Doherty confirmed that the computer terminals available in the crew facility areas at the Canberra Airport could be used to check weather information. He said that the terminals could also be used to check for “Notices to Airmen” (NOTAM), which is a notice stipulated by CASA or by an airport authority providing information about particular airports. In addition, pilots could access flight plans and other information about flights through these computer terminals. Mr Doherty, in his evidence in chief, said that email could not be accessed through most of these terminals, and that those terminals which did have email access only allowed access to the employees work email address. Unsurprisingly, Mr Doherty was of the view that using these computer terminals to check weather reports was part of the duty of a pilot.
37. In cross-examination, Mr Doherty rejected the proposition that if the appellant was rostered on from 7.50 am on 11 August 2013, that is the time when he started getting paid. Mr Doherty said “The rostered on time is all about duty times. It’s not about any pay per se ... The duty time is more a stipulation around fatigue risk management systems and the interaction from a regulator point of view”. He agreed that the period when the appellant was travelling on the bus from the hotel to the airport on the morning of 11 August 2013 was not duty time. Mr Doherty agreed that pilots obtained the details of their flights at the gate, on the secure side of the terminal. He did not, however, necessarily agree that the material provided to the pilot at the gate was all that the pilot needed for the flight. He said that the flight plan is prepared about 55 or 60 minutes prior to departure, and gave the pilot details of flight times, and fuel use. Pilots could access meteorological material on the computer terminals in the sign on rooms, by which I understand him to refer to the room referred to by Mr Rogers as the tech room. Mr Doherty agreed that a pilot could simply go to the gate and pick up the flight plan without accessing information through the computer system, but he said that he would be concerned if a pilot was not making use of all the information which was available to him or her. He said that it was a legal requirement that pilots familiarise themselves with the weather and any relevant NOTAMs before flying, and that if the pilot failed to do so he or she had not met their obligations under the aviation regulations. He disagreed, however, with the proposition that a pilot was not available to fly unless they had accessed available NOTAMs and weather reports.
Evidence of the appellant
38. The appellant then gave evidence. After giving evidence of his training and experience as a pilot, he said that on 10 August 2013 he had flown from the Gold Coast to Canberra. He went to his hotel room at about 3.00 pm and read a book for a while before going for a walk. He met his First Officer, Matt Anderson, at a bar in the hotel at about 5.00 pm. The appellant said that he did not consume any alcohol in his room before he met Mr Anderson. At the bar he and Mr Anderson each had two glasses of red wine, and the appellant consumed some potato wedges. They then shared a bottle of red wine. The appellant then had dinner and another glass of red wine at a bar called King O’Malley’s. After dinner the appellant and other flight crew members returned to the hotel where he consumed two vodka, lime and soda drinks, one of which was purchased for him by another pilot. He then went to bed at about 10.00 pm.
The appellant testified that the following morning he woke at 6.30 am and had a coffee before catching the bus to the airport at about 7.35 am. At the airport he entered the Virgin briefing room where another pilot told him “CASA is here”. The appellant said that he sat down at a table with a computer screen in front of him and accessed his personal email. At that point a man, presumably Mr Rogers, approached him and said that he was from CASA. He said that Mr Rogers did not ask him anything, and there was no mention of whether he, the appellant, was signed on. He also denied that there was any mention of the weather. The appellant said that he immediately accompanied Mr Rogers to another room where the initial test took place. He handed Mr Rogers his ASI card as identification, and Mr Rogers gave him the flip cards which were used in the testing process. The appellant said that he blew into the device until Mr Rogers told him to stop, and then Mr Rogers informed him that the result was positive. He said that Mr Rogers told him that they would have to do another test, and that test was done “pretty much straight away” after the initial test. The appellant also testified that he normally signs on at the computer, but he had not signed on on the morning of 11 August 2013.
40.
In cross-examination the appellant agreed that 11 August 2013 was his birthday, but denied the proposition that he had been celebrating his birthday the night before with his colleagues. He agreed that individual licensed premises may supply alcohol in different sized glasses, and that not all wine bottles are the same. He denied that Mr Rogers had asked him whether he had signed on for work before conducting the initial test. He further denied telling Mr Rogers that he was accessing weather information from the computer terminal and requesting Mr Rogers wait until he had finished what he was doing. The appellant agreed that he told Mr Rogers after the initial test that he had shared a bottle of red wine and had consumed a vodka, lime and soda on the night of 10 August 2013, but he had not told Mr Rogers about the other drinks he had consumed. He denied that this was an attempt at minimising his report of his alcohol consumption on the night of the 10 August 2013. He said that he was absolutely shocked when he was told that the result of the initial test was positive. The appellant said that he did not see Mr Rogers using some form of countdown device or clock during the testing process. The appellant agreed that he was not in a position, based on records which he created at the time, to say very much positively about precisely when things happened on the morning of
11 August 2013.
The decision of the Magistrate
41. After reciting the evidence, the Magistrate said that she was “unable to draw any conclusive findings” from the evidence of Mr Doherty about whether it was possible for the appellant to “sign on” for duty on the computer at Canberra Airport. She noted that the appellant did not have a contemporaneous record of the conservation that he had with Mr Rogers. She further observed that the appellant’s own evidence that he had volunteered to be tested suggested that he did not perceive any significance in being “signed on” for duty. She then went on to say:
The evidence as a whole is such that I am satisfied that Mr Hollis was performing, an SSAA as a commercial pilot within the meaning of the regulations at the time he was subjected to the initial breath test.
42. The Magistrate then considered the evidence concerning the length of the break between the conclusion of the initial test and the confirmatory test. Her Honour accepted the evidence of Mr Rogers over that of the appellant because Mr Rogers’ evidence was supported by his contemporaneous notes and he had used a timing device. She accepted that the required 15 minutes had elapsed between the initial test and confirmatory test.
43. Her Honour then went on to say that, even if she was wrong in finding that at least 15 minutes had elapsed between the tests, she was satisfied that there had been substantial compliance with the requirements of Part 99 of the Regulations in that there was no reasonable doubt as to the accuracy of the test result: see reg 99.020. Her Honour said:
Even if a period slightly less than the 15 minutes had been allowed, given that the level applicable to Mr Hollis was 0.02, and the reading was 0.059, any variation would be so insignificant in his favour that there could be no reasonable doubt as to the accuracy of the test being a positive result.
44. The Magistrate was satisfied that the device used in the confirmatory test was properly maintained, calibrated and used so that the results were reliable. She noted that the appellant has “challenged tangentially” the result of the confirmatory test on the basis of his reported level of alcohol consumption on 10 August 2013. She rejected that challenge:
Mr Hollis gave evidence that he had drunk half a bottle of red wine, three further glasses of red wine and three mixed vodka drinks between 5.30 pm and 10.00 pm the night before the alcohol test. That description does not provide any clarity as to how many grams of alcohol were taken in. There was very fuzzy evidence as to the rate at which some person might have expelled a certain level of alcohol. Ultimately, there was simply no cogent evidence to contradict the otherwise reliable mechanical test results.
45. The Magistrate then found the offence proved. Counsel for the appellant addressed the Magistrate on sentence, reminding her that the appellant had no prior criminal history and had lost his employment with Virgin Airlines as a result of this offence. The appellant obtained work flying in New Guinea in 2014, which required him to leave his family in Australia for extended periods. He subsequently obtained employment with an international airline based in Brisbane. Counsel referred to the expense, embarrassment and humiliation the appellant had suffered as a consequence of the offence. Testimonials which presumably spoke of the appellant’s good character were provided to the Magistrate. I say presumably, because the Magistrate did not mark them as an exhibit and they were not placed before me as part of the appeal materials. Counsel for the appellant submitted that the Magistrate should proceed pursuant to s 19B of the Crime Act 1914 (Cth), and impose a recognisance without recording a conviction. The prosecutor opposed that course, referring the Magistrate to the decision of the NSW Court of Criminal Appeal in Commissioner of Taxation v Baffsky (2001) 192 ALR 92. The prosecutor submitted that the offence was a serious one, involving a pilot who was scheduled to fly a commercial aircraft with 98 passengers, and with a reading nearly three times the permissible limit; and that general deterrence was a relevant sentencing consideration.
46. The Magistrate noted the prior good character of the appellant, but thought there was little else before her supporting the application of s 19B. She referred to the serious potential ramifications of flying an aircraft while under the influence of alcohol, before saying:
There is a real issue of general deterrence though, because if other member of the aviation industry were to form a view that the courts did not consider it a serious matter ... then that would be a matter of grave concern. It has to be clear that it is considered a serious matter and the court in the ordinary course will impose a conviction in relation to such matters.
47. The Magistrate imposed a conviction, fined the appellant $2,000 and allowed him 28 days to pay.
The grounds of appeal
Ground (a) – the Magistrate erred in finding that the appellant was performing a SSAA at the time he was subjected to the initial test.
Ground (b) – The Magistrate erred when she concluded the evidence of Mr Doherty was equivocal as to whether the appellant has signed in.
48. The Magistrate found that the appellant was “performing an SSAA as a commercial pilot” at the time he was required to undergo the initial test. With respect, this finding is inadequate if the Magistrate intended to find that the appellant was performing a SSAA. The appellant’s status as a commercial pilot does not, by itself, bring him within any of the SSAAs set out in reg 99.015. The Magistrate was required to find what activity the appellant was undertaking in the course of his duties as a member of the crew of an aircraft: reg 99.015(2)(g). Mr Rogers gave evidence that the appellant told him that he was performing duties as a pilot, identified as checking the weather on the computer terminal provided for the use of aircrew in the tech room. The appellant denied telling Mr Rogers that he was performing a SSAA, or telling him that he was checking the weather. The Magistrate did not resolve this conflict, and made no finding about those alleged admissions.
49. There can be no doubt that a pilot is a member of the crew of an aircraft for the purpose of reg 99.015(2)(g). The finding, however, that the appellant was “performing an SSAA as a commercial pilot” is insufficient to satisfy the requirement of reg 99.015(2)(g); there must also be a finding of what activity was being undertaken by, in this case, the pilot in the course of his duties as a crew member. If the Magistrate had found, for example, that the appellant was checking the weather on the computer terminal preparatory to his scheduled flight, she would have been entitled to find that the appellant was performing an activity in the course of his duties as a crew member. This, however, she did not do.
I am satisfied that the failure on the part of the Magistrate is ultimately of no significance. The offence created by reg 99.375 may be proved by establishing that an accused person is either performing or is available to perform an applicable SSAA. Even if the evidence failed to establish that the appellant was performing an applicable SSAA when he was required to undergo the initial test, there can be no doubt that he was available to perform activities as a pilot in the course of his duties as a pilot. That is the very reason the appellant travelled to the airport and entered the Virgin crew area. The appellant was transported to the airport by a bus transport company arranged by Virgin Airlines with the mutual intention that he would fly a commercial flight on the morning of 11 August 2013. The evidence of Mr Doherty, which was not challenged by the appellant, was to the effect that the appellant could have been called upon at any time on the morning of 11 August 2013 to fly an aircraft for his employer, depending on the needs of his employer.
51. The appellant sought to place considerable weight on the proposition he had not “signed on” when he was requested to undergo the initial test. The Magistrate made no clear finding whether the appellant had “signed on” for duty, but that is not particularly important. The applicable regulation, reg 99.015(2)(g) makes no reference to “signing on”, or to the concept of “duty time” referred to by Mr Doherty. In some cases those concepts may be significant in determining whether a person is “a member of the crew of an aircraft” for the purposes of reg 99.015(2)(g), but much depends on the facts. In the present case, there is no doubt that the appellant was, at the time of initial testing, available to perform activities as a pilot in the course of his duties as a pilot of Virgin Airlines.
52. These grounds of appeal fail.
Ground of appeal (c) – the Magistrate erred in finding that Mr Rogers’ explanation about the time at which he approached the appellant was entirely plausible.
Ground of appeal (d) – the Magistrate erred in finding that the interval between the initial testing and the confirmatory testing was no less than 15 minutes.
53. It is convenient to consider these grounds together. These grounds are all directed towards establishing that the requisite delay of 15 minutes did not elapse between the initial and confirmatory tests. In these grounds, the appellant challenges findings of fact by the Magistrate, and as such the stringent requirements of an appeal by way of rehearing must be satisfied. The Magistrate based her finding on contemporaneous records completed by Mr Rogers while testing the appellant. The event log showed the “time approached” was 7.45 am. Mr Rogers explained that this was the time they actually commenced the initial test, rather than when he initially spoke to the appellant. The Statutory Notice shows that the initial test was completed at 7.46 am. Fifteen minutes from that time would be 8.01 am. The Statutory Notice also shows the time at which the confirmatory test was completed was 8.02 am. The Magistrate also accepted the evidence of Mr Rogers that he used a timing device to measure the 15 minute interval. The Magistrate was entitled to rely upon the contemporaneous documentary evidence rather than the witness’ memory of events some 20 months prior to the hearing. There is nothing “glaringly improbably” or “contrary to compelling inferences” in the Magistrate’s findings. Indeed, the contemporaneous record was most likely to be accurate.
54. The reference to Mr Rogers’ “explanation” requires an understanding of the Magistrate’s decision. The statement by her Honour that the explanation of Mr Rogers “was entirely plausible” related to the apparent inconsistency between the evidence of Mr Rogers concerning the timing of events surrounding the initial test and the contents of his statement prepared some months after the event. In that regard, her Honour said:
He said he made his statement in reliance on the contemporaneous records of the event log and the statutory notice, but in fact, on reflection, recorded the commencement time of the initial test referred to in the document as “time approached” being 0745 hours, and completion time as 0746 hours. His explanation was entirely plausible.
55. The explanation of her Honour was referring to was that given by Mr Rogers for the apparent discrepancy between his evidence and his statement concerning the time of the initial testing. The Magistrate clearly considered this apparent discrepancy, but accepted the explanation of Mr Rogers to the effect that the statement was wrong. No error is revealed on the part of the Magistrate in accepting the evidence of Mr Rogers on this issue. Indeed, the explanation given by Mr Rogers fits well with the objective evidence, being the print-out of the result of the confirmatory test produced by the breathalyser, which shows that test being completed at “8:02:17”. If the evidence of the appellant was accepted, to the effect that the confirmatory test followed immediately after the initial test, either the evidence of Mr Rogers as to the time he approached the appellant is wrong, or there was a relatively long and unexplained delay in commencing the initial test.
56. These grounds of appeal fail.
Ground of appeal (e) – The Magistrate was in error in finding that had there not been 15 minutes between the initial testing and the confirmatory testing there none the less has been substantial compliance.
Ground of appeal (g) – the Magistrate erred in not rejecting the evidence of the confirmatory test in the absence of strict compliance with there being a 15 minute period between the two tests.
57. The appellant submitted that the requirement of allowing 15 minutes to elapse between the initial and confirmatory test was a legislative precondition to the power to conduct the confirmatory test, and that the failure of “strict compliance” referred to in reg 99.020 was a failure to comply with requirement of the regulation governing what was to occur after the testing has taken place. By adopting this approach, the appellant sought to avoid the application of reg 99.020(2) if there was less than strict compliance with the requirement for a 15 minute delay between the initial and the confirmatory tests. In the light of the Magistrate’s undisturbed finding that the requirement for the 15 minute delay has been complied with, it is unnecessary to consider these grounds.
Ground of appeal (f) – the Magistrate erred in concluding that there was no reasonable doubt about the accuracy of the test result.
Ground of appeal (h) – the Magistrate erred in deciding that the appellant’s challenge failed concerning the amount of alcohol he consumed 10 hours earlier as not being capable of resulting in a reading of 0.059.
Ground of appeal (i) – the Magistrate erred in concluding the evidence was fuzzy as to the rate at which a person might expel alcohol.
58. It is convenient to consider these grounds together as each raises the question of the accuracy or reliability of the result of the confirmatory test. The appellant submitted that his evidence as to his alcohol consumption on 10 August 2013 was not challenged, and that the amount of alcohol he consumed could not have led to him having a reading of 0.059 grams of alcohol per 210 litres of breath at 8.00 am on 11 August 2013. In addition, he pointed to the absence of indicia of intoxication on the morning of 11 August 2013, such as bloodshot eyes, a smell of alcohol on his breath, him being unsteady on his feet or slurring his words.
59. There are a number of problems with these submissions. While the appellant gave evidence of his alcohol consumption on the night of 10 August 2013, he was unable to do so in such a way as to allow a calculation of how many standard drinks he consumed. The appellant said that he initially consumed two glasses of red wine at the Crowne Plaza Hotel. There was no evidence of the actual quantity of wine consumed, or the alcoholic content of the wine. The appellant then consumed half a bottle of red wine. There is, again, no evidence of the actual quantity of wine consumed, nor the alcoholic content of the wine. The appellant then consumed two vodka, lime and soda drinks. There was no evidence as to the size of those drinks, or their alcohol content. The appellant also consumed a further glass of red wine at King O’Malley’s, and there was no evidence of the quantity of wine in this glass or its alcohol content.
60. There was, in addition, no evidence that the appellant could not have had a reading of 0.059 grams of alcohol per 210 litres of breath at 8.00 am on 11 August 2013 based on his reported alcohol consumption. This is perhaps not surprising given the imprecise state of the evidence as to exactly how much alcohol he had consumed. There was also no evidence that a person with a reading of 0.059 grams of alcohol per 210 litres of breath, and who has slept for some hours and then consumed coffee, as the appellant had, would necessarily display indicia of intoxication.
61. Dr Drane gave evidence that the “typical reduction in blood concentration of alcohol is “about 10 milligrams per 100 every hour””. I must observe that this appears to be curious, as it suggests that the rate of removal of alcohol from the body is a percentage (10%) of the alcohol in the blood at any point in time. This would suggest that the rate of alcohol removed in grams falls as the blood alcohol content falls. Later in his evidence, Dr Drane appeared to accept that the rate of alcohol removed was 0.01 grams of alcohol per hour.
62. In any event, Dr Drane was at pains to point out this was an estimate. He was also careful to state that the rate of alcohol absorption may be estimated, but it may vary from one individual to another, and may be affected by factors such as food consumption.
63. In the sense that the evidence of Drane provided only general estimates of the rate of alcohol absorption and removal, it was fair to describe his evidence as “fuzzy”. The evidence provided no solid basis for concluding that the appellant’s reported alcohol consumption could not have resulted in a reading of 0.059 grams of alcohol per 210 litres of breath at 8.00 am on 11 August 2013.
64. No error on the part of the Magistrate has been demonstrated.
Ground of appeal (j) – the Magistrate was in error in concluding, in the absence of evidence, that the ramifications of a person performing a SSAA are great.
65. The appellant abandoned this ground of appeal.
Ground of appeal (k) – the Magistrate erred in failing to exercise her discretion not to record a conviction.
66. In sentencing the appellant the Magistrate was exercising a discretion. Discretionary judgments are not to be overturned unless an error of the sort identified by the High Court in House v The King 55 CLR 499 is demonstrated. The appellant has not demonstrated any error of fact or law by the Magistrate in the sentencing process, and there can be no possible argument that the sentence imposed was manifestly excessive.
Conclusion
67. The appeal is dismissed.
| I certify that the preceding sixty-seven [67] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Burns. Associate: D Scuteri Date: 8 April 2016 |
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