R v Edwards and Sarunic
[2008] TASSC 17
•28 April 2008
[2008] TASSC 17
CITATION: R v Edwards and Sarunic [2008] TASSC 17
PARTIES: R
v
EDWARDS, Peter Maxwell
SARUNIC, Stephen
TITLE OF COURT: SUPREME COURT OF TASMANIA
JURISDICTION: CRIMINAL
FILE NO/S: 399/2005
DELIVERED ON: 28 April 2008
DELIVERED AT: Hobart
HEARING DATES: 26 – 28 November 2007, 23 January 2008
JUDGMENT OF: Slicer J
CATCHWORDS:
Aviation – Offences in relation to aviation – Commonwealth offences – Particular offences – Reckless operation of aircraft endangering life.
Civil Aviation Act 1988 (Cth), ss20A(1), 20A(2) and 29.
Criminal Code Act 1995 (Cth) ("the Code"), ss6.1 and 9.2.
Banditt v R (2005) 224 CLR 262; Proudman v Dayman (1941) 67 CLR 536, applied.
R v Wozniak (1977) 16 SASR 67; R v Morris [2004] QCA 408; Commissioner of Police of the Metropolis v Caldwell [1982] AC 341, referred to.
Aust Dig Aviation [39]
Criminal Law – Jurisdiction, practice and procedure – Adjournment, stay of proceedings or order restraining proceedings – Stay of proceedings – Grounds for granting or refusing – Absence of primary evidence – Other matters – Generally – Fair trial – Prejudice and delay.
Walton v Gardiner (1993) 177 CLR 378; Jago v District Court of NSW (1989) 168 CLR 23, applied.
Tasmania v Farmer [2004] TASSC 104; Bellemore v Tasmania [2006] TASSC 111; Holmden v Bitar (1987) 27 A Crim R 255; Gill v Director of Public Prosecutions (1992) 64 A Crim R 82; Duncan v Crews (2001) 161 FLR 250, followed.
Boehm v Director of Public Prosecutions [1990] VR 475; Cowley and Clayton v R [1987] SASR 324, considered.
Aust Dig Criminal Law [702]
REPRESENTATION:
Counsel:
First Applicant: P Garling SC, J Morris
Second Applicant: L Morris QC, B Kelleher
Respondent: M Dean SC, I R Arendt
Solicitors:
First Applicant: Deacons
Second Applicant: Deacons
Respondent: Commonwealth Director of Public Prosecutions
Judgment Number: [2008] TASSC 17
Number of Paragraphs: 60
Serial No 17/2008
File No 399/2005
R v PETER MAXWELL EDWARDS and STEPHEN SARUNIC
REASONS FOR JUDGMENT SLICER J
28 April 2008
The applicants have each been charged with the indictable offences of the reckless operation of an aircraft, contrary to the Civil Aviation Act 1988 (Cth) ("the Act"), ss20A(1), 20A(2) and 29. The particulars stated in count 1 of the indictment are that each:
"… did on or about 23 October 2001 at Launceston in Tasmania operate an aircraft, namely a Boeing 737 400 Series aircraft registered number VH-TJF, being reckless as to whether the manner of operation could endanger the life of another person."
replicated in count 2 as "… could endanger the person or property of another person", reflecting the statutory differences between s20A(1) and (2). The Act, s29, relevantly provides:
"Offences in relation to aircraft
(1) The … pilot of an aircraft commits an offence if he or she:
(a)operates the aircraft or permits the aircraft to be operated; and
(b)the operation of the aircraft results in:
…
(ii) the aircraft being flown or operated in contravention of a provision of this Part (other than subsection 20A(1) …
Penalty: Imprisonment for 2 years.
(2) Strict liability applies to subparagraphs (1)(b)(i) and (ii).
…
(3) The owner, operator, hirer (not being the Crown) or pilot of an aircraft commits an offence if he or she:
(a)operates the aircraft or permits the aircraft to be operated; and
(b)the operation of the aircraft results in a contravention of subsection 20A(1).
Penalty: Imprisonment for 5 years.
(4) Strict liability applies to paragraph (3)(b)."
It is accepted for the purpose of these applications that the prosecution would put its case in relation to count 2 of the indictment as providing for an alternative verdict, although such might not necessarily be the case at trial, since the provisions of the Act, s29, make no specific reference to the offence created by s20A(2).
The term "strict liability" is governed by the Criminal Code Act 1995 (Cth) ("the Code"), s6.1, which provides:
"6.1 ¾ Strict liability
(1) If a law that creates an offence provides that the offence is an offence of strict liability:
(a)there are no fault elements for any of the physical elements of the offence; and
(b)the defence of mistake of fact under section 9.2 is available.
(2) If a law that creates an offence provides that strict liability applies to a particular physical element of the offence:
(a)there are no fault elements for that physical element; and
(b)the defence of mistake of fact under section 9.2 is available in relation to that physical element.
(3) The existence of strict liability does not make any other defence unavailable."
Section 9.2 states:
"9.2 ¾ Mistake of fact (strict liability)
(1) A person is not criminally responsible for an offence that has a physical element for which there is no fault element if:
(a)at or before the time of the conduct constituting the physical element, the person considered whether or not facts existed, and is under a mistaken but reasonable belief about those facts; and
(b)had those facts existed, the conduct would not have constituted an offence.
(2) A person may be regarded as having considered whether or not facts existed if:
(a)he or she had considered, on a previous occasion, whether those facts existed in the circumstances surrounding that occasion; and
(b)he or she honestly and reasonably believed that the circumstances surrounding the present occasion were the same, or substantially the same, as those surrounding the previous occasion.
Note: Section 6.2 prevents this section applying in situations of absolute liability."
The applicant Edwards was, at the relevant time, the pilot of the aircraft and Sarunic, the co-pilot. The Act, s3, does not define the word "pilot", but for the purpose of this application it is accepted that each applicant would be equally culpable in law as a pilot of the aircraft.
The indictment and particulars provided allege "reckless operation" in that each of the applicants was responsible for the taxiing and take-off of a Boeing 737 aircraft carrying passengers at night from the Launceston airport whilst the airport taxiway and runway edge lighting was not illuminated.
The Code provides for recklessness as a compound of awareness and an objective assessment of that risk which might involve disparate states of mind and differing tests governing the different offences (Banditt v R (2005) 224 CLR 262; cf Commissioner of Police of the Metropolis v Caldwell [1982] AC 341; Proudman v Dayman (1941) 67 CLR 536; R v Wozniak (1977) 16 SASR 67; R v Morris [2004] QCA 408). Consideration of questions involving mistake of fact raised by the Code, s9, and strict liability by the Act, s29, will be both complex and require differentiation between each applicant and count in the indictment. It may be that the omission of s20A(2) from the effect of the Act, s29, will become relevant to this differentiation. Those complexities and differences ought not provide a basis for the applications, but show the significance of the "primary facts" and best evidence in the determination of the applications. Consideration of recklessness, respective duties of pilot and co-pilot, awareness and the like will add to the complexity of the separate cases of each applicant.
Each applicant has sought a stay of further proceedings on the grounds that primary technological evidence is not available, and additionally that an apparent omission or "gap" in the lighting equipment cannot be shown to have occurred because of evidence not retrieved and now unobtainable. Secondary claims of prejudice through lapse of time or the investigative process are made which alone would not warrant stay but are said to strengthen the import of the lost evidence.
Circumstances of the flight incident
On 23 October 2001, the applicants were required to fly a Qantas Boeing 737-400 aircraft to Launceston as a relief flight to embark passengers stranded through mishap, and convey them to Melbourne. Qantas did not provide scheduled services to the former airport. Captain Edwards, the pilot in charge, had been flying continuously since 1971, and Captain Sarunic, the co-pilot, since 1996. The aircraft departed Melbourne at 8.49pm and touched down in Launceston at 10.32pm (with allowance for daylight saving time differential). The control tower of the Launceston airport was unmanned from 10pm and it was the responsibility of pilots, arriving or departing, to activate the runway lighting system through a PAL system transmitted signal. When the aircraft was some 35 nautical miles from the airport, the pilot, or co-pilot, transmitted a signal via VHF radio to the receiving device in the Launceston control tower, recording the aircraft's position and its estimated time of arrival, and receiving in turn a computerised acknowledgement. At the same time, the aircraft transmitted the signal to activate the PAL lighting system. The runway and taxiing lights were illuminated, providing the system's usual operation of 32 minutes' activation. The aircraft arrived outside the terminal building at 10.34pm local time. The time between the original transmission and arrival cannot be established exactly which prevents accurate measurement of the end of the 32 minute sequence. Seventy passengers embarked and, according to Edwards, the runway lights were illuminated.
The apron and terminal lights of the airport operated 24 hours each day. The aircraft commenced to taxi at 11.01pm, a time close to the original ordinary 32 minute PAL sequence. It was prepared for take-off at 11.03pm and its wheels left the runway at 11.05pm. The take-off was observed by a number of persons, including two Royal Flying Doctor Service ("RFDS") pilots and an attached paramedic awaiting the arrival of a medical team and patient, and two nearby residents. One of the pilots, Mr Griffiths, checked with the duty operations officer as to the lights' operation before his own take-off at 11.23pm and subsequently reported his observation and concern to a flying operations officer at the Civil Aviation Authority ("CASA"). An investigation was commenced.
Much of the above is uncontroversial. Issues at trial would include:
(1)whether or not the taxiing and runway lights were on at the time of take-off;
(2)whether, if not, the pilots, or either of them, ought to have been aware of the absence of lighting and/or depending on (3), were entitled to rely on the technology and were misled by the illumination provided by the apron and terminal lights;
(3)whether the pilot or co-pilot transmitted the PAL lighting system signal;
(4)whether the position of a windsock light, warning of a phase of the PAL sequence, was readily observable and operating;
(5)whether there had been a system failure or altered function of a PAL component referred to as a "straddle".
Prosecution case
The prosecution must first satisfy a jury that the taxiing and runway lights were not operating when the aircraft taxied to and/or at take-off. Its case would survive a finding by the jury that either of the pilots had activated the automatic system before departure, since system failure would not negate a finding of recklessness through failure to observe the windsock signal or the loss of approach and runway lighting. Its case would survive system failure between taxiing and actual take-off. System failure, giving rise to the combined operation of the Act, s29(3) and the Code, s9.2, might enhance the applicants' cases in relation to the recklessness, but given "strict liability", not necessarily so. Failure to activate or observe might be found to be the responsibility of only one of the applicants. On those three questions of operation of light activation of an automatic system and system function, in accordance with regulatory and manual of standard requirements, the applicants are entitled to expect rigorous adherence to the use of primary material.
The aircraft had spent some four minutes taxiing to its take-off position. It moved along taxiway A, usually reserved for smaller aircraft, instead of C. That may have altered the pilots' vision of the windsock lighting and its signal. The RFDS aircraft hangar is located across taxiway A near the southern apron of the runway. As the Boeing moved past that hangar, at some 50 – 70 metres distance, it was observed by two service pilots and a paramedic. Each has claimed that as it did so they identified the aircraft with Qantas markings and observed no lighting other than that of the aircraft. Mr Griffiths, the senior pilot, told investigators he anticipated that the vehicle would "hold" awaiting the operation of the lighting, but that the aircraft went straight to its take-off roll and accelerated without the requisite lighting. Two nearby residents, Mr Rikki Walker, an aircraft enthusiast and Mr Dergacz, a pilot for another company, also claimed to have noticed the absence of runway lighting as the aircraft took off.
The evidence of Griffiths and Dergacz might, at trial, be corroborated by statements made by each to airport staff on the evening or the following day. Griffiths, who was shortly to fly with the RFDS aircraft rang Cliff Wardrope, the duty operations officer, some five minutes after the Boeing's departure to check whether there was a problem with the lighting operation. Wardrope commenced a checking procedure and found he had no problem with activating the lights. A conversation between Wardrope and Withers, the second pilot of the RFDS aircraft, recorded during take-off, shows the exchange:
"Withers: Lights seem to (sic) working pretty well now.
Wardrope: Lights are working fine.
Withers: Didn't look (sic) they were about half an hour ago.
Wardrope: Did you try and activate them?
Withers: No, but didn't look like anyone else did either.
Wardrope: No, I think he just gave it a big miss.
Withers: I've seen everything now."
Dergacz repeated his account to Withers the following day. Griffiths recounted his observations to a CASA flying operations officer on the following day and Withers to the Air Transport Safety Bureau ("ATSB") on 29 October. The prosecution could be expected to call as witnesses other persons present on the night whose evidence might be either neutral in import or different from the above to the advantage of the applicants' cases. Mr Gomez, the duty fire officer, observed the take-off from the Watchroom of the Fire Control Service. He used binoculars on at least three occasions, paying, as required, particular attention to the aircraft's engines. When interviewed some few days later, he advised that he could not say whether the runway lights were on or off at the relevant times. A significant witness would be David Axon, an aircraft maintenance engineer, present in the cockpit during take-off, who had no memory of any unusual occurrence, and whose general training would have caused him to alert the pilots if he had noticed that "lights weren't on". The prosecution would be entitled to lead evidence that both applicants had declined, as entitled, a request by a CASA investigator to be interviewed, but that Edwards had provided a statutory declaration, stating:
"The runway lights were illuminated for the departure of QF 1758 from Launceston to Melbourne on 23.10.2001. I strenuously reject any allegation of non-illumination of the runway lights."
What the prosecution could not provide is evidence of the electronic data recorded in safety and operating equipment on both the aircraft and the ground systems. That omission is central to the case advanced in support of the applications.
The respondent's case is that both pilots were, albeit understandably, unfamiliar with both the PAL lighting system and the Launceston airport. The absence of lighting to the taxiway, runway and windsock lighting ought to have been readily noticed and would not have been masked by the other illumination of the apron or terminal. Its absence warranted the conclusion that the system had not been activated. Irrespective of activation or its attempt, the pilots nevertheless undertook a take-off "knowing that the lights were off … thereby putting their passengers and themselves at risk". Each pilot was to perform critical functions during take-off for the proper and safe operation of the aircraft and the purpose of the lighting was to ensure "that they are able to properly orientate themselves when taking off and landing", especially at an airport "where the control tower had closed and with which the pilots were unfamiliar".
Recklessness could be established in the manner encapsulated in the written submission of the respondent in the following terms:
"i The lack of lighting meant that it was unlikely that the pilots could see the left and right edges of the runway, or be able to accurately assess, or see, where the end of the runway was;
ii The failure to see the perimeters of the runway prevented the pilots from knowing exactly where the aircraft was on the runway when it was taking off;
iii The failure to see the perimeters of the runway prevented the pilots from steering the aircraft in the safest possible way when it was taking off;
iv The failure to accurately be aware of the end of the runway when travelling in a heavy aircraft at high speed prior to lift-off, must have reduced the ability to safely decide to abort the take-off or to proceed with it, if that decision had become necessary; and
v The failure to be able to see runway lighting after take-off made any necessary return to the runway more difficult to achieve during any emergency that may have arisen."
Whether the applicants give evidence at trial or put the prosecution to proof is of little import. The prosecution case is cogent and would involve for the jury issues of "word against word" or, more likely, opportunity and accuracy of observation and recall with assessment of possible conflict with competing evidence. Such a process is not unusual and shortcomings in the evidence, including primary data, would not, consistent with authority (Jago v District Court of NSW (1989) 168 CLR 23; Walton v Gardiner (1993) 177 CLR 378) constitute a sufficient basis for the grant of a stay of proceedings.
History of proceedings, delay and prejudice
The events giving rise to these proceedings occurred on 23 October 2001. CASA conducted an investigation and a decision to refer the matter to the Director of Public Prosecutions was reached in April 2002, with a brief forwarded on 22 May. Complaints were not sworn against the applicants until 30 March 2004. A brief of evidence was supplied to the defence in early July after the first return in the Court of Petty Sessions on 8 June 2004. The matters were further listed on 13 July and 10 August and pleas entered on 14 September 2004. In November, the Director of Public Prosecutions requested a committal date for May 2005 and they were listed for 28 – 30 June 2005. Those dates were vacated because of defence requests concerning the availability of counsel. The committal hearing was conducted on 2 – 4 November when the applicants were committed for trial. Transcript problems delayed its provision until 1 September 2006, although such is of little import (Barton v R (1980) 147 CLR 75) and certainly should not have delayed the signing of the indictment which occurred on 28 September 2006. Crown papers were prepared and served on 3 October 2006 and the matter listed in the Supreme Court on the following day, when it was further listed for trial in the sittings commencing on 21 November. There were further delays arising from the deficiencies in the transcript and on 13 March 2007 the matter was adjourned to enable the defence to make a "no bill" application which was made on 18 March and notice given of its refusal on 18 May 2007. The application came on for hearing on 26 November 2007 and completed on 23 January 2008.
That delay, here alone, would not warrant stay but its import is the additional delay, being the total period elapsed and the delay during the investigative and decision process between October 2001 and the laying of the complaint in March 2004. It may be that the nature and complexity of the proceedings and the desire of the defence to enhance its position in relation to further investigation and testing of the "technological" evidence made the further delay inevitable. Committal was in November 2005 and the transcript problem of little significance. (Drozd (1993) 67 A Crim R 112). By 4 November 2005, the issues and technological issues were clearly identified and the implication of the opposing positions well understood, except for nuance or detail. But given the problems associated with the "absent data", the overall delay remains prejudicial. Time elapsed could render direct recollection of events less reliable and reduce the possibility of advancing the "technological" omissions in the chain of evidence more problematic. There remains a risk that the delay, coupled with the other matters elsewhere considered, could reduce the nature of the trial to a simple, but incomplete, question of whether or not the lights were operating.
Delay might cause problems for the defence but alone ought rarely warrant stay. Fairness to an accused is not the single yardstick (Moeva v Department of Labour [1980] 1 NZLR 464), but neither is the test confined to misuse of power or use of court processes for ulterior purposes the only compelling basis (Walton (supra)). Delay, as here, in both the investigative and legal procedural phases, might render the continuation of a prosecution inconsistent with the recognised purposes of the administration of justice (Moeva (supra)). Mason CJ in Jago (supra), before citing with approval that case, stated at 30:
"In essence then, the power to prevent an abuse of process in this context is derived from the public interest, first that trials and the processes preceding them are conducted fairly and, secondly, that, so far as possible, persons charged with criminal offences are both tried and tried without unreasonable delay. In this sense, fairness to the accused is not the sole criterion when a court decides whether a criminal trial should proceed."
Here much of the delay has not been occasioned by the conduct of the applicants. As stated, the procedural requirements might have been inevitable. But the test, unless in circumstances of wilful obstruction by an accused or blatant misuse of power, is not dependent on findings of blame. Here the problem occasioned through procedural delay will be simply considered with the more substantive matters raised.
Investigation phase 1
On the evening of 23 October, the RFDS pilot sought guidance from the duty airport operations officer. No radio contact was made with the Boeing aircraft to check whether the crew had experienced any difficulty or to request an aircraft systems check. On 24 October, the concerns were reported by pilot Griffiths to Mr Kevin Smith, an experienced flying operations officer with CASA, who had been the CASA officer responsible for the approval and testing of the PAL system at the Launceston airport in 1992. Griffiths provided Smith with a statement setting out his account of the event. Smith reported the matter to Mr Ingram the appropriate flying operations officer for CASA. He, in turn, notified his team manager within CASA. No early notification was given to either the Qantas fleet manager, its internal investigators, nor the operator of the Launceston Airport (see Air Navigation Orders, Part 103.9, 20.18). An e-mail from Damien Vale of Air Services Australia to Smith of 7 November 2001 suggests that there had been no intervening steps taken to further the investigation, by which time the recorded data on the Flight Data Recorder ("FDR") of the aircraft had been erased. No request was made to Qantas for the identification of the flight crew, the preservation of on-board recording devices or the PAL records at Launceston.
Investigation phase 2
Mr Gregory Gibbens, the manager of Flight Data at Qantas Airlines, gave evidence at the hearing of these applications. He outlined the purpose and necessity of the early recovery and analysis of the data recording equipment and its capacity to enable the time and direction of transmissions via VHF which included a data link with a receiving ground station and the activation of the PAL system. He stated in an affidavit, on which he was cross-examined, that Qantas operated a Group Safety unit which was responsible for the investigation and rectification of matters which had a safety or "incident" compound which included the preservation of "all records relating to any incident notification by ATSB or CASA" and had the resources necessary to undertake detailed analysis of that retrieved data. Regrettably by the time Qantas was notified of the event of 23 October, the required data had been overwritten.
The ATSB notified Qantas of the event on 9 November but neither suggested nor requested Qantas to conduct its own investigation. On 23 November 2001, a CASA officer recommended the appointment of an investigator and the appointment of Mr Geoffrey McLaws was made on 14 November. He was required to follow the protocols published by CASA in its "Civil Aviation Safety Authority Australia – Enforcement Manual". A number of criticisms are levelled against McLaws' conduct of his investigation, primarily concerning record keeping and methods of questioning, most of which might be apposite at trial, but are of little consequence in the determination of these applications. There remain two matters of significance which concern the failure to properly record the interview of Gomez, the duty fire officer on the evening, and the failure to pursue the discrepancy between the evidence of the witnesses Withers, Griffiths and Miller as to identification, given the demonstrated absence of special illumination of a tail floodlight on the aircraft. Ancillary questions concerning requests for, or failure to amend, witness statements and discrepancies in the testimony of various witnesses at the committal hearing are linked to the applications. But they are matters which frequently arise at trial and here might be to the advantage of the applicants. Alone they would not constitute a basis for stay and they have little import in the determination.
It is accepted that there was an absence of immediacy, especially in the early phases of the investigation which might put the events, their seriousness or otherwise, in perspective, but absent two significant matters, would present a weakening of the prosecution case with lessened prejudice to the defence. But those significant matters remain. The first, which is the failure to immediately notify the pilots or the operator and retrieve the electronic records from the aircraft and the ground-based equipment will be separately considered. The second is the time elapsed between the event and the commencement of proceedings, a period of some 2½ years. Other disciplinary avenues were open to CASA and its investigators.
It is self-evident that this case involves the public interest and safety. The Enforcement Manual, section 2.1, provided for further training of personnel and pilots, the issuing of infringement notices, and the suspension or variation of licences or more limited suspension during the investigative phase. Some of those options might have provided a more effective response to the needs of public interest and safety than a prosecution some six years later. This is not to be taken as a criticism of the prosecuting authority or that these proceedings are unwarranted or unmeritorious, but to show the need and purpose of more timely investigation and decision-making in the choice of the appropriate response, here, trial by jury (see Enforcement Manual, sections 2 – 8, 8 – 3).
The applicants might not have appreciated the eventual seriousness of the claimed breach, namely, endangering the lives of over 80 people. The considerable resources of the applicants' employer and operator of the aircraft were available for the examination and testing of the prejudicial material, and the recording of conflicting accounts of witnesses potentially favourable to their cause at an earlier time and a more rigorous examination of the equipment and its potential for error would have been possible. The delay between the event and prosecution is compounded by the delay between the event and intended trial, a minimum of 6½ years.
Quality of transcripts
The applicants claim prejudice because of the poor quality of the committal transcript. In Tasmania the committal process is effectively a form of prior examination of witnesses (Justices Act 1959, s56A) and absence of, or defects in, the process ought not be seen as a prerequisite to a fair trial (Barton v R (supra)). It could readily be dealt with by a further examination of witnesses in the court of petty sessions (Justices Act, s69A) or on a "Basha" inquiry at or before trial. Here the issues were readily identified and the substance of the witness evidence known. The applicants were represented by four counsel and had been provided with statements of witnesses. Inconsistencies were identified and any defect in recording readily dealt with at trial. This basis could and ought be rejected (Drozd (supra)).
Inadequate disclosure
This argument has little substance. Compendious material has been provided by the prosecution, and CASA has provided additional material upon subpoena. Material contrary to the prosecution or supportive of the defence has been properly and readily supplied as a matter of course and any further requests of appropriate material would be accommodated.
Pilot Activated Lighting System
The Air Traffic Control Tower at the Launceston airport is ordinarily unmanned from 10pm to 6am. During that period the lighting system, other than the terminal and apron was operated by a pilot activated Airport Lighting Control System (PALS), installed in 1992. The system requires initiating operations by the pilot of an aircraft from the air or ground and, depending on time, from within the aircraft before take-off. The method of activation was a VHF transmission of a coded signal to the ground equipment. Activation required three transmissions on a designated frequency required by the manufacturer (Jeppesen 6.11.1 to 6.12.5) to be:
· each transmit must be between one and five seconds;
· three transmit pulses to be transmitted with 25 seconds ensuring that the third pulse ends before the 25th second;
· a break between transmissions to be "more or less" than one second.
The PALS remains illuminated for 30 to 60 minutes, depending on the installation setting. A wind indicator light (IWDI) ought flash continuously during the last ten minutes of illumination, warning of impending extinguishment. During that time the system requires repeated activation to ensure continuity of lighting.
The prosecution case, simply put, is that one of the pilots activated the system before landing but neglected to do so before take-off and that failure was but a consequence of human error. The setting for Launceston was for a 32 minute period of activation. The mandatory requirement was for activation before taxiing. The defence position is more complex. Two wind indicator lights had been installed at Launceston on the northern and southern ends of the runway respectively, but only the southern one had been in appropriate operation (contrary to Jeppesen 7.3.2). Problems had been experienced with easy observation of the IWDI at Launceston. Civil Aviation Order 92 required the primary IWDI to be located on the left side of the runway unless impractical. The primary IWDI at Launceston was positioned on the right hand side of runway 32L. The primary IWDI nominated by Jeppesen was not wired to enable it to flash when the last ten minutes of illumination was reached, giving truncated illumination. The northern IWDI was not capable of flashing the warning signal at any time during the PAL activation.
In February 1999 an officer of APAL, the operator of the Launceston airport, sent a copy of the relevant operating procedures to another airline operator, advising of the problem of a "truncated illumination" but to no other operator. Records of APAL detailed the history of incidents of truncated illuminations in October 2004, and in December of that year, the primary IWDI indicator on runway 14R was reconfigured to operate on the same basis as the IWDI on 32L.
Thus, in the submission of the applicants, as of October 2001, a pilot taxiing to runway 32L or at the apron, would:
"(a)only see the nearest IWDI (at 32L), if it were illuminated and any observation would be that the illumination was constant;
(b)be correct to consider that the illumination and white windsock conformed to the conventional and Jeppesen definition of a principal IWDI;
(c)in the absence of flashing the pilot could rely upon this observation as an assurance that;
(i) the PAL system had not yet been [sic] reached its final 10 minute phase of an earlier activation of the system; or
(ii) if the pilot had recently activated the system, form the belief that the mandatory minimum illumination period of 30 minutes had been achieved for the taxi way, run way and allied lights."
A secondary matter was raised concerning the undifferentiated colour of the primary and secondary IWDI, contrary to the requirements of CASA. It has some import but could be dealt with at trial. The issue of truncated illumination is directly and cogently relevant to the element of recklessness. If the transmission time of the signal from within the aircraft exceeded 25 seconds, the warning lighting signal would not activate. Thus, if, as claimed by the pilots, the system was activated before take-off, but exceeded 25 seconds, they might assume the runway system to be operating and not be aware that, in the absence of a warning signal, that as a matter of fact the transmission had, as a whole, been incorrectly transmitted. If the last pulse of the transmitting sequence actually straddled the 25th second, the IWDI lights would operate for 10 minutes only. In such a case the windsock lighting would flash to indicate that the PAL system was in a 10 minute cycle only. The Launceston system did not fully comply with the mandatory requirement that the system operate for a minimum of 30 minutes. The "straddle" transmission could cause the system to effect an illumination of 10 minutes. A consequence of the effect was that the "flashing" device signal fitted to the IWDI would operate but, in Launceston only on the secondary device located on the southern end and right hand side of runway 32L. Accepting that the aircraft spent some four minutes in taxiing and the PAL transmission sent during pre-flight procedures some six minutes previous, the differing accounts of the RFDS pilots that there was no runway lighting with the claims of activation by the pilots, could be reconciled. The lighting sequence ended during take-off and the observation of the RFDS members made during that take-off, following their hearing the aircraft's acceleration. That might be conjecture but could be a matter advanced at trial. That conjecture is relevant to the initial question of whether or not the runway lighting was on at the relevant time. Less problematic is its relevance to the issue of recklessness. The sequence, especially the "straddle" possibility, is whether the pilots were reasonably entitled to assume that the lighting was in operation.
The above matters are made more complex and significant if, at trial, the jury accepted the prosecution evidence that the aircraft had moved along runway A, whereas it ought to have exited the terminal apron along taxiway C before executing a 180 degree turn at the southern end of the main runway. This course would have impinged on the capacity of the pilots for observation of the IWDI. Thus even if the jury were to be satisfied, on the evidence, that the runway lights were "off" at the time of take-off, the issues of timing, straddle, activation by transmission, and the like, remain cogent matters on "recklessness". The jury would be well able to consider whether the differing views of the pilots and the RFDS pilots, the position of the windsocks, the use of runways A or C for taxiing, the effects of other illumination from the terminal or apron lighting, and various inconsistencies between the evidence of observers, both inside and outside of the aircraft in their general consideration of a verdict. But the PAL related matters require a journey into conjecture and/or complex evaluation exposing the applicants to the risk of an unfair conviction.
That the applicants' concerns are not fanciful or constructs is demonstrated by the opinion of Captain Steve Rivett the "check captain" of Qantas during an interview with the CASA investigator on 14 March 2002. He provided his opinion as to a possible cause of the "event" as set out in the investigator's notes as: "Lights activated inbound but did not activate – required Captain to activate lights again when in circuit. Landed with lights on. On the ground for 27 minutes. Cycle is 32 minutes. Captain reactivated lights prior to taxi. Believe that witnesses saw aircraft depart and then lights went off just as a/c left the ground. Did not actually notice were not on until a/c departed. Surmised that lights were therefore off during taxi and take-off." That the opinion was not fanciful is shown by the investigator's comment "interesting viewpoint". The investigator further noted: "(FS arrival recorded @ LN 2228 hrs + 32 minutes 2300 hrs. A/C departed 23.05 hrs)."
Captain Rivett had contacted Edwards to provide his log book relevant to the October flight. It had been left on an aircraft in the previous December and it had become necessary for Edwards to attempt to "recreate" its events from memory and other documentation, but such endeavours were unlikely to provide necessary detail for the purpose of the investigation. This matter shows the necessity for there to be early notification of an event likely to warrant a more detailed response. Delay in the investigative phase inhibited full investigation of possible technical consequences of the "straddle" effect on the sequence. Thus risk of conviction by a simple evaluation of "word against word" is neither fanciful nor, given complexity, apposite for a case of this nature.
There is a further possibility which might become relevant at trial, namely the precise timing of the activation or deactivation of the PAL lighting operation. The aircraft landed at 10.34pm. Passengers embarked and the aircraft commenced to taxi for take-off at 11.01pm.
On 3 September 2004, a test was conducted using the equipment at the Launceston airport by an electrical technician in the presence of Qantas staff and retained lawyers. The purpose was to show that it was possible to recreate the straddle effect. In the words of the technician: "On their request and after initial attempts Bruce was able to key in ten minute flashing cycle. This cycle commenced at 22:27 as observed and shut off at 22:37 as observed. The times recorded indicate correct PAALC operation."
Mr Murray added:
"We did three seconds on three seconds off, then waited til it – to do twenty four seconds, then did the last three seconds on it – did not work. So we did it again and it still did not work. I then waited for about fifteen seconds, then started doing the PAAL C test. I was into the second three seconds on; that is when the runway running lights came on and went into the ten minute flash."
The effect of the "straddle operation" could have been that activation occurred during preparation for take-off, 4 - 5 minutes before taxiing and the ten minutes' duration ceased as the aircraft commenced its take-off manoeuvre.
The above is but inferred speculation, but is necessary because of the absence of the primary data. The absence of that data affects both the primary issue of whether the runway lights were on, and the recording inferential process of recording the differing versions as perceived by persons on the ground and the aircraft. There is equal significance to the question of separate responsibility on the part of each applicant. Failure to notice the extinguishment of runway lights whilst in the take-off procedure significantly differs from failure to activate, or at least its attempt, during the take-off procedures.
A third level of difficulty is the differing attempts to recreate in theory the various possibilities. The opinion of Captain Rivett as set out above was considered by the investigator, with an opposing conclusion, as shown in an internal e-mail dated 15 March 2002 stating: "The aircraft arrived at LN at 2228 according to ML Flight Arrivals. (NB that Rivett stated crew reactivated lights while in the circuit after noticing them not on) +32 minutes (PAL cycle) from recorded landing time is 2300 hours. MBZ tape records conversation from crew at 2303.5 hours 'lining up R32L' This would mean that the cycle would need to be 35+ minutes if the scenario above was true." That there were differences between investigators and persons well able to provide professional opinions is shown in exchanges of e-mails of 15 March, 2 and 3 April 2002.
The conduct alleged is that of recklessness, requiring both subjective and objective assessment. That exercise depends on acceptance of primary factual material not speculation. Questions of reckless conduct are more complex than a single determination of whether the lights were on or off at a specific time, or whether the differing observations of witnesses were accurate or capable of reconstruction. Recklessness can involve differing states of mind and awareness of surrounding events, more so in the case of the take-off of a jet aircraft (Banditt v R (supra)). The Code, s5.4, uses the term "substantial" to avoid the distinction between possibility or probability of risk, but the test remains in the choice to continue with a course of conduct, here take-off, while being aware of the consequences. Consideration of this component might require distinction between each applicant pilot, adding to the difficulty for either to make effective answer to the prosecution (Holmden v Bitar (1987) 27 A Crim R 255). To that complexity must be added the provisions of the Act, ss29, 6.1 and its imposition of strict liability, mistake of fact, the Code, s9.2 and their differing applications to counts 1 and 2 of the indictment. The complexity can be well understood if the test suggested by Bray CJ in R v Wozniak (supra) (cf R v Baltensperger (2004) 90 SASR 129), namely that neither applicant believed that there was no risk at the time of take-off, or at least either failed to notice an obvious risk, or acted on an unreasonable belief (see generally Intention, Agency and Criminal Liability, Philosophy of Action and the Criminal Law, Duff (Blackwell 1990), Commissioner of Police of the Metropolis v Caldwell (supra)).
Loss or absence of primary evidence
The aircraft was equipped with a Cockpit Voice Recorder ("CVR") and an FDR. The former records voice spools from the cockpit and re-spools every 30 minutes. Its understandable absence is unlikely to advantage either party or be significant to the case at large. The latter provides digital data, the absence of which forms a central part of these applications. The ground equipment of the PAL system includes a monitor list which records the last 13 activations of the lighting. The FDR data was overwritten sometime between 5 and 7 November and the monitor within 24 hours of the event of 23 October.
According to airport records, there was nothing to indicate any malfunction with the airport system on 23 October and there had been regular weekly checks to ensure that the lighting system was operational.
At 11.11pm, Griffiths had checked with Wardrope, the airport operations officer, to see if the runway lighting system was operating. Wardrope commenced a landside and airside check and had no problem in activating the PAL. However, he took no steps to retrieve or download the Master List data. On 25 October 2001, the last 13 activations were printed out but showed only activations on 24 and 25 October. Given the report by Griffiths of the "take-off" and the nature of the aircraft and flight, it would have been prudent to do so. The data would have confirmed or refuted activation or its attempt. Whether it would have identified a "straddle" is problematic, but there is no evidence before this Court that it could not do so. The possibility of a "straddle" event was not investigated until some considerable time after the event. CASA had unsuccessfully attempted to obtain a record of the events of the evening. The incident was reported to CASA on 24 October and referred to senior officers. The information included the fact that Qantas was the operator of the aircraft. No steps were taken to identify the aircrew or preserve any on-board recording devices in the aircraft until after 7 November, by which time the FDR data had been "overwritten".
Gregory Gibbens, the manager of Flight Data of Qantas, gave evidence at the hearing of these applications. He has held that position since 1990. The protocols of Qantas require the company to co-operate with any external agency involved in the operational safety of aircraft. Practice and implementation permit provision of information, which would include FDR data before any formal documentation.
The FDR equipment permits analysis of a variety of data from the time when the engines are started until shutdown which include speed, altitude, control settings, and the physical fact of the activation of the radio from the flight deck and the occurrence of each of three VHF radio transmitter units. The unit for aircraft VH-TJF recorded any keying of the VHF radio system, the time of transmission and its duration. It was able to distinguish between the three transmitting units.
In his affidavit received on the hearing, Mr Gibbens stated:
"33 My usual practice, on receiving such a request, is to attend to the following:
(a) Ascertain the time and place of the incident and identify the aircraft;
(b) Assess the nature of the incident;
(c) If there is a specific request for flight data, I would:
(i)Ascertain whether there is likely to be any relevant corroborative technical information on any aircraft recording device (including either CVR or FDR). Whether or not there is the capacity to down load the FDR information all depends on:
A the current whereabouts of the aircraft;
B whether the recording capacity in the relevant unit has been filled, or whether it has been overwritten through use.
(ii)Contact the qantas Maintenance Watch Control Centre which oversees all aircraft. They are in a position to identify the exact aircraft involved in the incident (even if I have not been able to identify it), and its current status or whereabouts. That organisation is able to identify this information within a matter of minutes if the incident has occurred within a month or so. It may take longer if the incident is an older incident.
(d) Take steps to ensure that any relevant FDR information is not overwritten;
(e) Instruct Maintenance to remove the FDR from the aircraft and be delivered to or collected by a Group Safety Officer.
…
35Had I been notified of this incident, I would have considered it as a potentially serious incident at the time. I would assume that a report of it would have come to me via a Flight Safety Investigator, ATSB officer, pilot or other technical person. Had I been notified of this incident shortly after it occurred, I would have taken steps set out in paragraph 33 above to determine the technical and safety implications of its occurrence.
…
38If there was a defect in the PAL airport lighting system, it would be a critical structural failure of an air safety system which could have catastrophic implications in certain circumstances (for instance an aircraft attempting to land in an emergency situation). In this regard, in a practical sense, the airport lighting system is more important for landing than taking off.
39Such transmission and any prior transmissions directed at activating the PAL system would have been recorded at the time of those transmissions on the FDR, provided those transmissions were made when the engines were running and therefore the FDR was in operation, and this information would have remained preserved on the system and been retrievable for the duration of the . recording.
40If a further PAL transmission was made at any time during the arrival or departure procedure, this would likewise have been preserved for the duration of the recording.
41The FDR would not identify the specific frequency or purpose of transmission. If, having been able to identify the fact of the activation of the VHF system, I could not say for certain whether the VHF was activated for the purpose of data transmission or voice contact.
42However, given:
(a) The time of night at which this incident occurred;
(b) A report that there was no person in the tower between the time of landing and take-off at Launceston, and so no apparent purpose for a voice communication;
(c) The fact that there does not appear to have been any other aircraft within the vicinity with whom voice communication has been sustained; noting the rate and duration of the VHF transmission recorded on the FDR
then I believe it should be possible to infer from FDR data that the VHF radio was activated for the purpose of activating the runway lighting."
He told the Court he had examined the flight records of VH-TJF and estimated, from the number of hours flown following 23 October, that the time elapsed before the overwriting of data was between 13 – 15 days from 23 October. Gibbons was cross-examined at the hearing. He told the Court that there had been no record of download from the flight data recorder between 23 October and 30 November 2001, and that practical experience had shown that it was possible to recover 160 hours of data. No attempt had been made to download the data before 9 November, the date of first notification to Qantas of the event: "Because we weren't aware at that time that there was a requirement to investigate the incident and I believe it was sometime after that, and I can't recall the exact date, of when I became aware of the incident. So I don't – Qantas did not receive an air safety incident report within a reasonable timeframe during the retention period or shortly after, within several days after. Had that happened then we would've carried out a download."
He believed that it would have been possible that the flight recorded data could be matched with the Launceston PAL ground system to provide the times of activation and operation.
The Civil Aviation Order 20.18 required the aircraft to be fitted with a CVR and FDR (cl 16(1)(a)) with a mandatory minimum retention of data for the latter at 25 hours of operations. Electronic recording and detection is mandated for the event of accident, and in a case such as here, as an acknowledgement of the need for certainty in the light of the subjective nature of human operation and recollection (Brisbane South Regional Health Authority v Taylor (1996) 186 CLR 541). The Enforcement Manual, section 8-3, refers to the importance of "evidence collected during the early stages of an investigation".
Retrieval of the electronic data from either the FDR and/or the Monitor List would have resolved the issue of whether the runway lights were active at the relevant time. Each might have provided certainty as to whether there had been activation or its attempt. Comparison of times recorded might have shown equipment failure or the likelihood of a "straddle" effect, resulting in truncated operation. Given the limited time the aircraft was on the ground (33 minutes), the length of the lighting operation (32 minutes), and the time spent in taxiing (4 minutes), the impact of timing sequences and the need for the "warning" lighting, the matters relied on by the applicants are neither farfetched nor artificial forensic constructs. If a "straddle" was sent while the pilots were preparing for take-off whilst the passengers were embarking, the lights might have ended the 10 minute sequence later in the taxiing manoeuvre or as the aircraft accelerated. The observations of the RFDS pilots could be reconciled with the pilot having activated the system.
The Court accepts the respondent's contention that the FDR data might not be conclusive in providing an actual activation of the lighting, but it might have shown its attempt, a matter directly relevant to the issue of recklessness. The Court accepts that the unavailability of the highly probative Monitor List does not arise through fault of CASA. But "fault" is not the only determinative factor, especially given the cogency of that list evidence and the complexities of a "straddled" truncation.
Stay of proceedings
This Court has an inherent power to stay proceedings (Tasmania v Farmer [2004] TASSC 104 and Bellemore v Tasmania [2006] TASSC 111), which ought only be exercised in the most extreme circumstances and only where no other remedy can be found to rectify the prejudice. (Jago (supra); R v Glennon (1992) 173 CLR 592). Here the problem is the difficulty in ensuring a fair trial (Dietrichv R (1992) 177 CLR 292) for two persons who might be found to be responsible for the conduct or omission of the other. Whilst "unfairness occasioned by circumstances outside of the court's control does not make the trial a source of fairness" (Jago (supra), per Brennan J at 47), here severance, rulings on evidence or apposite directions provide no vehicles for redress. Delay, of itself, is not decisive, but here, coupled with the evidentiary problems, is a compounding factor.
The test to be applied is whether the combination of loss of primary data or evidence and delay constitute, not abuse of power or inappropriate prosecution or abuse of process, but whether on the material before this Court continuation of the indictment to trial by jury could constitute an unacceptable injustice or unfairness (Walton v Gardiner (supra)). There is no suggestion that following committal, the state of the Court's list inhibited or prevented an earlier trial (Boehm v Director of Public Prosecutions [1990] VR 475). This is not a case that the event occurring long ago giving rise to prosecution was one but later discovered or in which complainants or witnesses have only recently come forward (Tasmania v Farmer (supra); Cowley and Clayton v R [1987] SASR 324) or advances in forensic science such as DNA have only recently led to detection. While loss of significant evidence is not necessarily an appropriate basis for stay (Duncan v Crews (2001) 161 FLR 250; cf Commonwealth Service Delivery Agency v Bourke (1999) 75 SASR 299) that loss can constitute a fundamental defect which cannot be rectified by directions given at trial (R v Rose [No 1] [2001] NSWSC 818). The combination of delay and loss or destruction of primary records provides a more cogent basis for the grant of a stay remedy (Gill v Director of Public Prosecutions (1992) 64 A Crim R 82; R v Davis (1995) 57 FCR 512; Holmden v Bitar (supra); R v Reeves (1998) 122 ACTR 1; Salmat Document Management Solutions Pty Ltd v R (2006) 199 FLR 46.
Conclusion
The stay of proceedings ought be granted. Two accused who, on the allegation, are jointly liable, had differing tasks in the operation of the aircraft at the relevant times of taxiing and take-off. Severance provides no purpose. The nature of crime with its doctrine of strict liability and the statutory provisions governing "mistake of fact", make any trial more complex. The time elapsed from the event until trial is some seven years, increasing the understandable, but greater, need for witnesses to rely on their first statements, and the effects of the passage of time on memory, might, absent primary evidence, reduce the case to "word on word". The complexity of the IWDI and "straddle" matters is real and resolution requires more than assumption or conjecture for a fair and just determination. The peripheral matters raised by the applicants might have some prejudicial effect going to discretion, but it is the factors of overall delay and loss of significant primary evidence which persuades me to grant the applications.
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