Jones v Civil Aviation Authority
[2009] NZCA 240
•11 June 2009
IN THE COURT OF APPEAL OF NEW ZEALAND
CA717/2008
[2009] NZCA 240
BETWEENPAUL MAXWELL JONES
Appellant
ANDCIVIL AVIATION AUTHORITY
Respondent
Hearing:4 May 2009
Court:Glazebrook, Potter and Venning JJ
Counsel:P Mabey QC for Appellant
M A Woolford for Respondent
Judgment:11 June 2009 at 3.00 pm
| JUDGMENT OF THE COURT |
The appeal is dismissed.
_______________________________________________________________________________
REASONS OF THE COURT
(Given by Potter J)
Table of Contents
Para No
Introduction [1]
Leave to appeal [3]
Background [6]
Section 5 Costs in Criminal Cases Act 1967 [10]
Appeal against a discretion [15]
The District Court decision [18]
Issues on appeal [26]
Was the prosecution reasonably brought and pursued? [29]
Unfair and inaccurate assessments of expert witnesses
called by the appellant
[63]
Erroneously assessing the jury’s verdict as “Jury Nullification” [86]
Failing to balance the relevant statutory criteria in s 5(2) [87]
The “political debate” [90]
Defence counsel’s failure to communicate [91]
Failure to pursue the possibility of a lesser charge [93]
Reference to acceptance of responsibility for the crash [95]
Conclusion [98]
Result [99]
Costs [100]
Introduction
The appellant, Paul Maxwell Jones, faced two charges under s 44(1)(a) of the Civil Aviation Act 1990, one of operating an aircraft in a manner which caused unnecessary danger to persons, and the other of operating an aircraft in a manner which caused unnecessary danger to property. Following trial by jury in the District Court at Hamilton from 12 ‑ 28 May 2008 the jury returned verdicts of not guilty on both charges.
The appellant then applied for costs pursuant to the Costs in Criminal Cases Act 1967 (“the Act”). The trial Judge, Judge Wolff, heard and declined that application in an oral judgment on 2 October 2008 (“the decision”). The appellant appeals against Judge Wolff’s decision. He says he incurred costs in relation to the District Court proceedings of $132,710.25. He does not seek full indemnity costs but seeks an award of costs above scale.
Leave to appeal
On 17 November 2008, the appellant filed a notice of application for leave to appeal dated 10 November 2008. His counsel, Mr Mabey QC, filed a memorandum dated 14 November 2008 seeking extension of time to file the application for leave to appeal. By minute dated 1 December 2008, O’Regan J directed that the question of whether leave is required, and if so, the question of whether leave should be given, should be dealt with at a hearing on the basis of oral submissions.
The Crown submitted that leave to appeal is not required under s 379CA of the Crimes Act 1961: R v Connolly (2009) 24 NZTC 23,305 at [51]. In that case the Solicitor-General sought leave to appeal under s 379CA. This Court said that whether such leave is needed is something of an enigma, but adopted the position taken in R v Connolly (2006) 22 NZTC 19,844 (HC) that, despite some indications to the contrary in s 379CA, it confers a right of appeal to this Court and leave is not required. We adopt that position.
We treat the application for leave to appeal as a notice of appeal and grant an extension of time to appeal until 17 November 2008, pursuant to s 379CA(4) Crimes Act.
Background
The appellant is a pilot. On 3 February 2006, he attempted to fly some friends from Hamilton to Wellington. He was the “pilot-in-command” for that flight under the Civil Aviation Act 1990. He was forced by bad weather to change direction and land the plane at Ohakea Airport, where it crashed.
The Crown case was that the appellant kept an inadequate watch on the weather during the flight, and exposed his passengers and the aircraft to unnecessary danger by continuing to fly south in poor weather to the point where the only option available to him was to perform an emergency landing at Ohakea Airport.
The defence case was that the appellant had acted appropriately in the circumstances and the crash was caused by mechanical failure. The appellant gave evidence himself and called four expert witnesses. Two of these, Mr McGregor, an engineer with experience in investigating air accidents, and Mr Waterhouse, an aircraft engineer, gave evidence to the effect that the crash was the result of a mechanical failure. Mr Pavitt and Mr Funnell commented on the appellant’s performance as a pilot.
The evidence of the appellant’s experts conflicted with the evidence of Mr Stanton, a Civil Aviation Authority airworthiness engineer called by the respondent, that the crash was not caused by mechanical failure. Another Crown witness, Mr Falconer, the manager of a unit in the Civil Aviation Authority and an experienced commercial pilot, was generally critical of several of the decisions taken by the appellant in-flight.
Section 5 Costs in Criminal Cases Act 1967
Section 5(1) provides that where any defendant is acquitted of an offence the Court may order that he be paid such sum as it thinks just and reasonable towards the costs of his defence.
Subsection (2) provides that without limiting or affecting the Court’s discretion, in deciding whether to grant costs and the amount of any costs granted, the Court shall have regard to all relevant circumstances and in particular (where appropriate) to -
(a)Whether the prosecution acted in good faith in bringing and continuing the proceedings;
(b)Whether at the commencement of the proceedings the prosecution had sufficient evidence to support the conviction of the defendant in the absence of contrary evidence;
(c)Whether the prosecution took proper steps to investigate any matter coming into its hands which suggested that the defendant might not be guilty;
(d)Whether generally the investigation into the offence was conducted in a reasonable and proper manner;
(e)Whether the evidence as a whole would support a finding of guilt but the information was dismissed on a technical point;
(f)Whether the information was dismissed because the defendant established (either by the evidence of witnesses called by him or by the cross-examination of witnesses for the prosecution or otherwise) that he was not guilty;
(g)Whether the behaviour of the defendant in relation to the acts or omissions on which the charge was based and to the investigation and proceedings was such that a sum should be paid towards the costs of his defence.
Subsection (3) provides there shall be no presumption for or against the granting of costs in any case.
Subsection (4) provides that no defendant shall be granted costs by reason only of the fact that he has been acquitted.
Subsection (5) provides that no defendant shall be refused costs by reason only of the fact that the proceedings were properly brought and continued.
Appeal against a discretion
It is clearly established that s 5 of the Act confers a discretion. In R v Connolly (2007) 23 NZTC 21,172 this Court said at [11]:
Costs, whether originating in the criminal or civil jurisdiction of the Court, are discretionary in nature. Consistent with general principles involving discretionary decisions, an appellate court should not interfere unless satisfied that the Judge who made the order acted on a wrong principle, or failed to take into account some relevant matter, or took into some irrelevant matter, or was plainly wrong: Shirley v Wairapara District Health Board [2006] 3 NZLR 523 (SC) at [15].
The s 5 discretion was recently addressed by this Court in R v Delamere [2009] NZCA 142 at [27]:
The authorities recognise that s 5 of the Act confers a broad discretion. The Supreme Court discussed the approach to be taken to appeals of this nature in Reid v R [2008] 1 NZLR 575 emphasising, first, that the weight given to any of the statutory criteria “does not engage matters of principle affecting the validity of [the] statutory discretion”: at [21]. Secondly, the Court observed at [23] that:
[A]n appellate court cannot hope to capture the ephemeral but significant impressions which inform the assessments and discretions of the trial judge. That is why, of course, a challenge to the exercise of discretion must demonstrate what would be termed, generally, an error of principle.
The following observations by Tompkins J in R v Gillespie (1993) 10 CRNZ 668 at 672 and 673 are also relevant in this case:
… If costs are not to be awarded only because the defendant has been acquitted, the defendant must be able to point to some relevant circumstances, either within the criteria or otherwise, that justify an award. More particularly, an examination of the criteria suggests that the relevant circumstances would normally relate to the conduct of the prosecution or the defendant. In the case of the prosecution, the conduct relates to the manner in which the prosecution has been investigated and brought to trial. In the case of the defendant, it relates to his conduct in relation to the trial generally, and the nature of his evidence in particular. However, in considering the general discretion the Court can have regard to any circumstances that it considers to be relevant to whether it is just and reasonable that a sum to be paid towards the costs of the defence. Those circumstances may include such matters as, for example, the fact of the acquittal, the nature of the evidence given or called by the defendant and the nature, length and complexity of the trial.
The District Court decision
Judge Wolff identified as central to the Crown case two issues: whether the pilot, on the weather information that was known to be available, ought to have turned and found a safer haven to land at an earlier point, and whether the failure to do so had ultimately resulted in his landing in conditions, which in the end resulted in the crash.
He noted that at the trial the focus became the proposition advanced by the defence that the plane had crashed as a result of a mechanical fault and the arrival at Ohakea had been attributed to that fault and not by any suggestion of pilot error. A further plank of the defence was that Mr Jones was an experienced and capable pilot and that other pilots would have taken the same course as he did.
The Judge was critical of the expert witnesses called by the defence. He considered the principal defence expert (who was Mr McGregor), gave evidence “in a particularly partisan way …”: at [5]. He described some of the pilot experts called by the defence as “… so partisan that their essential view was that if Mr Jones did it, it was right, and if he did not do it, it would have been the wrong thing to do”: at [6]. However, he considered Mr Funnell to be a genuinely independent defence witness.
The Judge concluded he was satisfied there was sufficient basis for the charges to have been brought “… indeed there was a sufficient basis on which the jury could have convicted”: at [6].
He said that this was an exercise of “Jury Nullification”, namely that a jury will acquit where it simply feels it is not right to convict. He said that was understandable given the impeccable character and incredible flying history of Mr Jones who “… had made an error on this occasion”: at [7].
The Judge referred to Mr Jones being caught up in a “political debate” about whether information provided to civil aviation as part of their inquiries as to safety issues can be used in a prosecution. (We understand that Civil Aviation’s concern about releasing such information is that pilots may elect not to provide information about their actions if that information could subsequently be used in a prosecution against them).
He said that unfortunately Mr Jones had been through a very long and expensive trial and has had to bear the expense of it. He concluded, however, that there was no basis which justified an award of costs: the case was properly brought, was supported by the relevant evidence and simply resulted in a verdict where the jury took the view that Mr Jones ought not to have been convicted. He said the verdict was “not an inevitable verdict, and indeed the opposite verdict certainly was highly probable, or highly possible”: at [10].
The Judge made some criticisms of defence counsel about lack of communication with the prosecution, and expressed the view that early co-operation might have enabled an early plea to a lesser charge. He felt that Mr Jones had “been put through a very difficult ordeal” and was in general a good pilot, but that did not provide a basis for an award of costs: at [9].
Issues on appeal
The issues that emerged from the detailed written and oral submissions for the appellant are:
(a)Whether the Judge erred in:
(i)Making unfair and inaccurate assessments as to the evidence of the expert witnesses the appellant called at trial;
(ii)Assessing the jury’s verdict as “Jury Nullification”;
(iii)Failing to balance the relevant statutory criteria in s 5(2).
(b)Whether the Judge erred in taking into account irrelevant considerations:
(i)The “political debate”;
(ii)Defence counsel’s failure to communicate;
(iii)Failure to pursue the possibility of a lesser charge.
The appellant also submitted that the prosecution case was never strong, the investigation was “sloppy”, and the case was not reasonably conducted. On the other hand, it was submitted that the defence case was strong and established the appellant’s innocence.
It is appropriate to first consider these submissions, because as Hardie Boys J said in R v Margaritis HC CHCH T66/88 14 July 1989 at 8:
The various criteria in s 5 really come down to two questions: was the prosecution reasonably and properly brought and pursued; did the accused bring the charges on his own head.
Was the prosecution reasonably brought and pursued?
It is clear the trial Judge, Judge Wolff, was firmly of the view that the prosecution was not only reasonably brought and pursued but that the verdict could have gone either way: refer [21] and [24] above. At [8] of the decision Judge Wolff stated there was no basis that justified his awarding any costs:
… in a case that was properly brought, was supported by the relevant evidence, and which resulted simply in a verdict where the jury took the view that Mr Jones ought not to have been convicted.
It is highly relevant to this issue, as Mr Mabey accepted, that a prima facie case was conceded at depositions which proceeded by way of hand-up statements, and at no time during the trial did counsel for the appellant apply to have the appellant discharged under s 347 of the Crimes Act.
A particular event in the course of the trial caused the question of a s 347 discharge to be raised by the Judge. When the second to last witness for the Crown, Mr Falconer, was giving evidence on Tuesday 20 May 2008 and was being cross-examined by Mr Cooper for the appellant, an audio tape of a conversation between the Devon 21 aircraft Mr Jones piloted on 3 February 2006 and Ohakea control was produced and played to the Court. The tape had been located by Mr Stephen Pawson, an enforcement investigating officer with the Civil Aviation Authority, who subsequently gave evidence that he became aware the tape was available during the afternoon of 19 May 2008 and had promptly arranged for it to be sent by courier to Hamilton. The following morning he played the recording and completed the handwritten transcript of the conversations on the audio tape. The tape became Exhibit 26 and the transcript of the conversation became Exhibit 27 in the case.
Just before the luncheon adjournment on 20 May 2008, the Judge raised with Mr Falconer the late production of the audio tape. He asked:
How on earth is it possible to form an opinion in this case without first having got that transcript that we all see for the first time today? How is it possible that the prosecution could proceed with that vacuum?
The Judge pursued the issue with Mr Falconer and the exchange concluded with a question from the Judge:
Q.Do you still maintain the view that you had yesterday as to this pilot not having taken adequate precautions?
AAh, my answer would have to be yes he, he had taken more precautions than we were aware of.
It appears that before the luncheon adjournment the Judge asked counsel for the Crown to give some consideration to the issue of whether or not it was appropriate to proceed having regard to the evidence available from the tape of the radio communication between the appellant and Ohakea control.
Having reviewed the pool of evidence over the luncheon adjournment, counsel for the Crown advised the Judge at the start of the afternoon session that the Crown intended to proceed with the case and then embarked upon submissions outlining the evidence which the Crown maintained, proved the case against the appellant. These included:
(a)This was not a case of mechanical fault but rather that the appellant’s decision was deficient because he did not make a decision to U-turn or deviate early enough;
(b)The lack of a timely decision resulted in his placing himself in a situation in which he had no options left and the result was a crash landing;
(c)The forecasts pre-flight put the appellant on notice that the weather was marginal in Wellington, therefore the alternates were important, as the appellant acknowledged in discussion with Mr Pawson;
(d)Evidence from some of the passengers about cloud and deteriorating weather were relevant.
Apparently at this point the Judge indicated that counsel need not continue with submissions, effectively accepting there was sufficient evidence on which the case could proceed. The submissions of counsel for the Crown filed in the costs application before Judge Wolff, referred to a number of further matters that would have been raised as supporting the sufficiency of the evidence in the Crown case to go to the jury, had the Judge not indicated he did not require to hear further submissions.
Thus, the impact on the Crown case of the audio tape produced only at trial, was expressly questioned by the Judge but did not evoke opposition or any application under s 347 from counsel for the appellant.
In a subsequent ruling, Ruling 5 of 22 May 2008, the Judge referred to the tape of a conversation with Ohakea control being ultimately introduced by consent, and said that on one view of the matter it was:
… of considerable assistance to the defence.
The fact that a prima facie case was conceded at a preliminary hearing, and that no discharge was sought by counsel for the appellant pursuant to s 347 at any time during the trial, supports the conclusion there was sufficient evidence to support the Crown case at the commencement of the proceeding and throughout the trial: R v Sotheran HC PN T31/00 2 May 2002.
Acknowledging that difficulty, Mr Mabey nevertheless submitted the investigation was “sloppy”, the prosecution case was never strong and the prosecution was not reasonably conducted. He referred to the late production of the audio tape and the transcript. He submitted that the evidence of Mr Falconer meant the Crown case was in difficulty even on its own evidence. He said the radar plotting was “faulty” as became clear only when Mr Funnell gave evidence for the defence.
He was also critical of the ability of the passengers in the aircraft to assess weather conditions and suggested that, in any event, their evidence was not clearly to the effect that the aircraft was at any stage being flown through cloud. He referred to the evidence of Mr Usmar, a flight operations inspector with the Civil Aviation Authority who gave evidence for the Crown, who accepted it was difficult for untrained people to assess weather conditions through an aircraft window.
The passengers, of course, were not called upon to assess the weather conditions. That was the appellant’s responsibility, an assessment he was required to make in-flight on the basis of all relevant evidence and information that he could reasonably access.
The passengers who gave evidence (five of the seven on board) gave various descriptions of what they observed of the weather conditions through the aircraft windows. Mr Ian Barnsdall, who was sitting next to the appellant at the front of the plane, said the weather was fine when they departed from Hamilton but about halfway it slowly changed; basically a few clouds here and there, but around where they reached the Wanganui River (but he later thought it was the Rangitikei River), it started to get worse and there were more and more clouds. He said they kept veering away from the clouds and were getting lower. As they started following the Wanganui River a bit of rain started. He said there were clouds in front of them but he could not say where they were relative to the plane in terms of height. He said they flew through one cloud and did not have a lot of choice with that. He described how when they started to follow the river the weather got worse, that it was quite dark, the rain came down a lot heavier and they were flying lower and lower. In answer to cross-examination, he said they went through cloud “very briefly”.
Mr Donald Knight said the weather deteriorated as they went over National Park, south of Te Kuiti or Taumaranui, and they could see cloud all around them above and out the side. He said it was thick white cloud and he got the feeling they were “sort of staying under it most of the time”. He said there would be thick cloud around them, then good visibility for a while, then more thick cloud again and that very heavy rain set in as they were descending, he thought in order to stay under the cloud.
Mr Edward McGrath described squally sort of weather halfway through the trip, that they seemed to be in and out of bad weather for a start but it got steadily worse, and that through the window he could see just rain and clouds. This was from about halfway through the flight. He said:
… when we were hitting the squalls it (the aircraft) was flying through the cloud.
He said that later they moved clear of the cloud and were following a river.
Mr Cooper put to Mr McGrath in cross-examination that the appellant would give evidence that the aircraft never flew in cloud. Mr McGrath replied that he thought the plane flew through the patchy cloud and once the cloud intensified the plane went underneath it because they could see the river then. He said it was “sort of intermittent – through a patch of cloud and into clear again, earlier on”. He said they would go through a small bank of cloud and out the other side.
Of the two other passengers who gave evidence, Mr David McGall said he did not see any cloud or change in the weather and Mr Brent Sanders said there was just a bit of cloud.
The appellant denied in evidence and in an interview with Mr Pawson that he flew through cloud. He said the aircraft was always clear of cloud and they never went above 3,000 feet. He acknowledged it was getting dark and the weather conditions were deteriorating but he said he did not fly in cloud.
Clearly there was a conflict of evidence between the passengers who gave evidence of flying in or through cloud, and the appellant. As the Crown pointed out, on the evidence of some of the passengers, if it was accepted, there was a point when the aircraft would have been flying in breach of the Visual Flight Rules (“VFR”) meteorological minima, which requires in G class airspace that a VFR flight, as this was, must be clear of cloud and in sight of the surface.
The Crown also noted that the appellant acknowledged in his interview that he checked for weather for Palmerston North 40 kilometres north of Wanganui, and by the time he contacted Ohakea he was 14 nautical miles north east of Wanganui. Thus, submitted the Crown, he was on notice for a significant part of the journey that the weather was in fact causing problems, not merely forecasted, as was the case when they left Hamilton. Further, the communication with Ohakea revealed the plane was flying at an altitude of 1200 feet, that the appellant had been advised that cloud was scattered at 500 feet and broken at 700 feet and broken at 1,000 feet. He was advised the Ohakea Tower said the weather appeared to be deteriorating from the west. Nevertheless, he said they were following the Rangitikei and headed to the west coast.
No special VFR clearance (which would have allowed flight below VFR requirements) was requested or granted. Two witnesses, Mr Eyley and Mr Usmus, confirmed that the weather at Ohakea was unsuitable for VFR.
After the crash landing the appellant claimed to Mr McGall that the cloud had got so bad behind him he could not go back. The Crown submitted this supported the conclusion that the appellant had travelled so far into the bad weather he had removed the option of turning back and thus was faced with landing at Ohakea as a last ditch alternative.
Although Mr Falconer accepted a number of propositions put to him in cross-examination, including that he had no issue with the appellant’s decisions up to 14 miles out of Wanganui and that the appellant had taken more precautions than they were aware of before the tape of the audio communications with Ohakea became available, he gave evidence that was generally critical of several of the appellant’s in-flight decisions. He said it was his opinion that the flight continued into deteriorating weather conditions that forced the aircraft to descend to lower heights as it progressed further south. It descended to a point where the visibility and the cloud height was starting to place the pilot and the aircraft in the position where the pilot was having to react to the current conditions without any ability to plan ahead and make good decisions. Finally he found himself in a situation where landing at Ohakea was really the only option left to him. Turning back was not an option because the decision was left late when the aircraft was in close proximity to Ohakea airdrome. Mr Falconer said the landing at Ohakea was:
… a reactive action to try and land as quickly as he could because of the weather forcing him into that situation.
Criticism was also levelled by the appellant about the inaccuracy of the radar plots produced in evidence by the Crown. Mr Funnell, an experienced pilot who gave evidence for the defence, explained that the radar plots are likely to have a 700 metre error in any direction because the radar system in New Zealand is for the purpose of separation of aircraft at altitude and was not designed for low level positioning of aircraft. He therefore considered that care was needed in the use of the information because it was only an indication of an aircraft’s position.
Mr Mabey was critical about the use made by the Crown of the radar plots in cross-examination of Mr Jones about heights. However, as the Crown submitted, the radar plots were of little significance in the context of the entire pool of available evidence, and given their apparent inaccuracy, they were of limited assistance whether in relation to heights, the stalling of the aircraft or otherwise.
In relation to the defence case that the crash was caused by mechanical failure and was not the result of inappropriate decision-making by the appellant, the appellant was critical of the fact that Mr Stanton, the engineer called as an expert by the Crown, spent only three hours inspecting the aircraft, whereas Mr McGregor, the defence expert, spent thirty two hours on site looking inside the wings and flaps.
Mr Stanton inspected the aircraft two weeks after the crash. He said he undertook very limited disassembly because that would have hindered the recovery of the wreckage. He was familiar with the Devon 21 aircraft. He said he did not observe any damage to the aircraft, mechanical or otherwise, which was not explainable by the crash sequence at Ohakea airfield. There was no defect with the aircraft. Mr Stanton took a number of photographs, some of which were produced in evidence.
Mr Stanton was subsequently presented with the video and a 62 page booklet of photographs and diagrams prepared by Mr McGregor, but these were produced only partway through the trial when he was being cross-examined by Mr Cooper and an adjournment was necessary for Mr Stanton to consider them overnight. He then answered questions from defence counsel about those items and the opinion of the defence experts that mechanical failure was the result of the crash, an opinion which Mr Stanton adamantly did not accept.
There can be no basis for a claim the prosecution was “sloppy” because the inspection of the damaged aircraft undertaken by Mr Stanton occupied a considerably less period of time than that undertaken by Mr McGregor. Mr McGregor’s inspection was obviously focused on a defence based on mechanical failure about which Mr Stanton was not even aware at the time of his inspection, or indeed before he gave evidence at the trial. Nor can it be a valid criticism of the Crown that the defence elected to bring to the courtroom physical exhibits, to enable Mr McGregor to demonstrate his evidence to the jury in support of his opinion about mechanical failure of the aircraft. Mechanical failure was the essence of the defence case, not the Crown case, but Mr Stanton answered all questions put to him in cross-examination concerning the alleged mechanical failure and adamantly rejected that as the cause of the crash.
We consider there was ample prosecution evidence to support the clear view the Judge reached, that there was sufficient evidence upon which a properly directed jury could reasonably convict the appellant of the charges he faced. The conflicts in evidence between the passengers and the appellant about whether the aircraft was flown through cloud were essentially matters of credibility and weight for determination by the jury. This was also in relation to the conflicts in evidence between Mr Falconer on the one hand and the pilots, Mr Pavitt and Mr Funnell, who gave evidence for the defence about the in-flight decisions taken by the appellant (they expressed opinions that he had acted appropriately in all the circumstances).
We are also satisfied that the prosecution was reasonably and properly brought and pursued and that none of the factors in s 5(2)(a) to (g) of the Act in the circumstances of this case would support an order for costs in favour of the defence. The appellant may have some justifiable criticisms in respect of the prosecution’s conduct, such as the late production of the audio tape. However, viewed overall in a trial that occupied nearly three weeks, generated well over 1,000 pages of evidence and eleven rulings and minutes by the presiding Judge in the course of the evidence, there is no basis upon which it can be contended that the prosecution was not properly and reasonably brought, investigated and pursued.
Nor is there any foundation for the submission by the appellant that the not guilty verdict of the jury amounted to a finding of innocence in relation to the accused. Such a conclusion is merely speculation. The trial Judge correctly directed the jury in his summing up that even if they entirely dismissed the defence case (that Mr Jones’ conduct in the flight was entirely appropriate and the crash was due to mechanical failure of the aircraft), they had still to be sure beyond reasonable doubt that the Crown had proved its case. The jury’s verdict of not guilty may be equally explained on the basis they were not satisfied to the required standard that the Crown had proved its case.
Unfair and inaccurate assessments of expert witnesses called by the appellant
The Crown case centred around the appellant’s decisions taken during the flight, specifically his failure to make a timely decision to turn around or divert. The defence argued that the crash resulted from mechanical failure and that the appellant’s conduct was appropriate. The defence called expert witnesses to address the matter of mechanical failure. The Judge was critical of the defence experts.
The appellant’s counsel categorised the Judge’s views as “subjective” and not supported by an analysis of the evidence. The Crown contended that Judge Wolff’s remarks about the appellant’s expert witnesses were generally accurate and that though the Judge expressed a generalised view, the tenor of his opinion was open to him.
It is important to take into account that Judge Wolff presided over this lengthy trial and had the opportunity first hand to listen to the evidence of the numerous expert witnesses, to ask questions of them, and to assess their credibility and reliability as witnesses. He reached unfavourable conclusions about the defence witnesses Mr McGregor and Mr Pavitt and their evidence, and since it was on their evidence that the defence case of mechanical fault largely depended, this obviously contributed to his conclusion that an “opposite verdict certainly was highly probable, or highly possible”.
Mr McGregor, in support of his conclusion that the crash was the result of mechanical failure, identified damage to the left flap actuator which he said resulted in the flap on one wing opening to a lesser degree than the flap on the other wing, causing the plane to roll. He contended that the flap on the left wing opened to a lesser degree than the flap on the right wing which caused the plane on approach to Ohakea to roll to the right and strike the runway.
Mr Stanton, called by the Crown to address Mr McGregor’s contentions, said that if the left flap had failed to reach 60 degrees due to mechanical restriction, then the asymmetry should have caused a roll to the left, which was not reported by witnesses. Accordingly, he concluded that this was not a case of asymmetric flaps. He said that there was nothing about the aircraft that led him to believe the crash resulted from mechanical failure and the damage to the aircraft was most likely sustained during the crash itself.
He was challenged extensively in cross-examination about his evidence and conclusions. He explained how the flaps work and said that if one flap was up because it had not fully opened and the other was down, the plane would roll away from the flap that was down: “You would roll into the flap that’s not working”.
Mr Cooper then asked him:
Well would it surprise you to know that science says that the aircraft – if the flaps were uneven would go to the right and that your theory’s completely flawed in science?
Mr Stanton answered:
I’m not sure that surprise would cover it. I’d be amazed because I have read several accident reports where flap asymmetry was the cause and the pilot was talking on the radio, “I’ve got a flap problem, I’ve got a flap problem”, and he eventually rolled … away from the down flap…
Mr Stanton was referred to Mr McGregor’s report and there was the following exchange:
Q.Mr McGregor will say when he gives evidence that that graph proves that the aircraft because of the amount of drag with only the right-hand flap down the aircraft will yaw and then roll around to the right. Do you accept that that’s correct science?
A.No, I don’t believe that is correct.
Mr Cooper referred Mr Stanton to the Chippendale report relating to an air accident caused by asymmetric flaps in Fiji in 1986. Mr Stanton was asked to read the report and then asked to confirm that the crash, which was the subject of the report, resulted from an asymmetric flaps problem. He was not cross-examined on the report’s specific findings. The Judge was concerned about that. He issued Ruling 7, dated 23 May 2008, in which he recorded that Mr Chippendale’s report was not inconsistent with Mr Stanton’s evidence and consistent with Mr McGregor’s, but in fact the reverse. He ruled that the Crown was entitled to clarify the position and to find out the effect of the Chippendale report and put it in its proper context.
In re-examination, counsel for the Crown referred Mr Stanton to the Chippendale report. Mr Stanton said in relation to that report:
… Mr Chippendale discusses some of the basic background to … aerodynamics and he says in chapter – in paragraphs 2.25 … “If the wing flaps did extend unevenly, a condition referred to as asymmetric flaps, the unequal span wise lift distribution would have resulted in the aircraft rolling in the direction of the lesser flap setting”. So Mr Chippendale asserts the aircraft will roll towards the flap setting that is smaller, away from the larger flap setting.
… that’s a direct contradiction of … the conclusion on page 60 [of Mr McGregor’s report]. It is in accordance with my conclusion that – in contradiction to the one on page 60.
Mr Stanton subsequently confirmed in answer to further questions from the Crown prosecutor, that if on page 60 of Mr McGregor’s report the word “right” was substituted with the word “left”, then the conclusion reached would be “entirely true”.
At the beginning of cross-examination of Mr McGregor by the Crown, Judge Wolff had referred him to the High Court Practice Note relating to expert witnesses which Mr McGregor had apparently not been shown. The Judge informed him about the role of an expert witness and that it was to assist the Court impartially on relevant matters within his expertise.
Mr McGregor stated:
… so we’re talking about a right wing drop stall, not because of anything that the pilot did, but because of a mechanical problem with the flap asymmetry, and once that right wing stalled it would be impossible to recover in 50 and 100 feet, and so therefore I conclude that with the right flap at 60 degrees and the left flap at either 20 or nought degrees the aircraft would tend to roll to the right.
The Crown prosecutor referred him to various literature which supported the conclusion drawn by Mr Stanton that this was not a case of asymmetric flaps, including the Chippendale report, the Federal Aviation Association Aeroplane Flying Handbook and an article from Flight Safety Australia. She put it to Mr McGregor that had this been a case of asymmetric flaps, as he claimed, it would have caused a roll in the opposite direction, i.e. to the left, from that observed by passengers and bystanders when the aircraft crashed at Ohakea. Mr McGregor’s explanation in response was:
Regardless of what the calculation and the theory says, my hard evidence says that the aircraft, um, left actuator failed in flight and the pilot couldn’t have done anything to prevent that. Regardless of any calculations or theories that’s the hard evidence and as an experienced crash investigator I’d go on hard evidence.
It was thus perhaps quite explicable that the Judge doubted the objectivity and credibility of Mr McGregor and, having heard and watched both Mr McGregor and Mr Stanton giving evidence, was critical of Mr McGregor’s evidence and conclusions.
Mr Pavitt was called by the defence to give evidence about the appellant’s performance as a pilot during the flight in issue. His evidence was essentially that Mr Jones conducted himself appropriately in the circumstances.
He was criticised by Judge Wolff in the decision at [6] as being partisan to the extent that:
… if Mr Jones did it, it was right, and if he did not do it, it would have been the wrong thing to do.
In summary, Mr Pavitt said that the flight operation was well planned; looking at the weather for the flight at Hamilton the appellant was perfectly justified in departing from Hamilton; the forecast indicated there would be some deterioration and cloudiness and an increase in cloudiness as he went south and there was a front forecast through Wellington which was his destination, but the flight was to be conducted in VFR so all options were open to him. Applying those options in a sensible and logical manner the appellant ended the flight at Ohakea. He said:
… had not the aeroplane broken on him, um, it would have been a very tidy and neat arrival, but it wasn’t to be.
Mr Pavitt had known the appellant for a number of years and obviously held him in high regard. He frequently answered questions in cross-examination by endorsing what the appellant had done. Often he was evasive and did not answer questions. The following is an example:
QOkay, now it’s important as a pilot to do your pre-flight planning appropriately isn’t it?
A Depends.
Q Well are you aware of a rule that requires it?
AYou as a pilot, if you’re doing the job properly and you’re diligent, as Mr Jones was, he always carried out the most meticulous planning, flight planning and, ah, preparation with load sheets etc, etc on the aeroplane.
QSo tell me Mr Pavitt, why is it that you couldn’t simply agree with me, that it’s important to do your pre-flight planning appropriately?
…
QAlright. So on this particular day then what do you say would have been appropriate pre-flight planning for Mr Jones? A look out the window?
APrecisely what Mr Jones did.
QSo walk me through it. Tell me what you say would have been appropriate pre-flight planning on that morning?
ADo you want me to tell you exactly everything he did. That’s not possible because I wasn’t standing next to him when he was on the phone obtaining weathers, I wasn’t there when he did the flight planning, I wasn’t there when he departed from Hamilton airport, so how can I possibly answer that?
QExactly and so that’s why I’m not asking you what he did, I’m asking you for your opinion as to what would have been appropriate pre-flight planning that morning?
AI would suggest that probably exactly what he [did] …
QJust pause and listen to the question. I don’t want you speaking for Mr Jones, we’ve heard from him. What I’m asking you is your opinion as to what would’ve been the appropriate pre-flight planning that morning. I don’t want you to say exactly what he did, I want you to list for us in bullet points what would’ve been the appropriate things …
…
AWell, ah, to simplify matters, ah, just substitute my name for his and that would be what I consider to be appropriate for him to have done that morning.
Later in cross-examination, the Crown prosecutor read to Mr Pavitt the relevant evidence of Mr McGall, including the comment the appellant made to him about the cloud behind them being so bad they could not go back. In reply, Mr Pavitt took issue with the competency of passengers in the aeroplane to assess what the weather was outside the aeroplane, saying “they have absolutely no idea”. When he was reminded that he was being asked about Mr Jones’ assessment of the weather as told to Mr McGall, he said:
Well I can’t give an opinion on that, I wasn’t there, I didn’t see the weather, I can only go by what is transpired …
Judge Wolff then intervened and reminded Mr Pavitt about the rules for expert witnesses and that his primary obligation was to the Court. He said to Mr Pavitt that he appeared to be taking a position that if Mr Jones did it, that was correct, and if anything contradicts that, then you reject it. He said that Mr Pavitt was an eminently qualified pilot to tell the jury about pilot-related issues but said the witness was beginning to look as if he was not being objective and, “I am sure that is not your intention”. Mr Pavitt agreed it was not his intention at all and apologised.
After the Judge’s intervention, Mr Pavitt accepted that forging on until the cloud had reached the point where the pilot could not turn back, was forging on too far in a VFR flight:
QMr Pavitt, forging on until the cloud has got so bad that there’s no way that they could go back, is forging on too far in VFR flight isn’t it?
A It could be read in that context, yes.
Q In fact that’s the only way to interpret it isn’t it?
A Ah, well, guess so.
We agree with the Crown’s submission that it was open to Judge Wolff to question the objectivity of these two expert witnesses and the credibility of Mr McGregor in particular.
Erroneously assessing the jury’s verdict as “Jury Nullification”
The statement by the Judge about “Jury Nullification” at [7] of the decision, was made in the context of his assessment that the case had not been brought for any reason that suggested any fault in the prosecutorial process. It reflects the Judge’s conclusion that there was sufficient evidence to support the conviction of the appellant and that the prosecution was reasonably and properly brought and pursued. It also reflects the Judge’s view of the strength of the case against the appellant and that this was not a case where the appellant had established his innocence. Those factors are relevant considerations under s 5(2) of the Act when considering eligibility for costs, and therefore were relevant findings by the Judge.
Failing to balance the relevant statutory criteria in s 5(2)
Mr Mabey submitted that the Judge went off track in the exercise of his discretion in failing to apply s 5 and being influenced by irrelevant matters. He submitted that therefore this Court should reconsider the appellant’s application for costs afresh. It is true that the Judge did not relate his judgment to each of the relevant circumstances in s 5(2). Of course, they are not to be taken as limiting or affecting the Court’s discretion, as is made clear by subsection (1) and the introductory words to subsection (2).
In Solicitor-General v Moore [2000] 1 NZLR 533 this Court concluded that there is a strong “technical” argument that subsections (2)(e) and (f) do not extend to trials on indictment, but that the same considerations apply to trials on indictment under the general discretion given by s 5(1) and the opening words of s 5(2). The Judge clearly reached the conclusion that the appellant had not established his innocence and that the evidence as a whole would support a finding of guilt (although no technical point arose in this case).
The Judge took an overall approach in considering the circumstances he assessed as relevant in this case, but he dealt with the particular circumstances referred to in subsection (2), albeit in a global way.
The “political debate”
The Judge makes several references to the “political debate” that he suggested the appellant had become “swept up in”: at [8]. The Judge appears to have been sympathetic to the appellant on this issue but at the same time recognised that this is not a factor that can constrain his discretion in deciding whether to grant costs. He thus expressly recognised it as an irrelevant factor.
Defence counsel’s failure to communicate
By way of postscript to the decision, after declining the application for costs at [10], the Judge referred to the necessity he found to remind defence counsel and explain to him the proper role of expert witnesses. He also referred to the information he received during the trial that defence counsel would not communicate with the Crown prosecutor or anyone connected with the Civil Aviation Authority. The Judge’s Ruling 8, issued on 23 May 2008, refers to the indication he apparently received from defence counsel that he was not prepared to talk with the prosecutor, which was in the context of the provision of credentials in relation to the expert witness next to be called by the defence, presumably Mr McGregor. The issue was resolved and the Judge received an assurance from both counsel that they might well be able to discuss things sensibly for the remainder of the trial.
The Judge clearly had concerns about what he characterised as “a very odd attitude” which had resulted in the need for Ruling 8. However, he was careful to state at [12] of the decision that this was not a ground he could take into account in considering an award of costs. In other words, the Judge was confirming that he was required to, and did, address the appellant’s application for costs on its merits.
Failure to pursue the possibility of a lesser charge
The appellant was critical of the Judge’s reference at [9] of the decision to the possibility of an early plea to a charge of careless flying being considered and of the statement: “But that was not the course that Mr Jones or his legal advisors decided to take”. Mr Mabey submitted there was no basis for the Judge to conclude (as he appeared to have done), that Mr Jones would enter a plea to such a lesser charge, thereby admitting liability for offences under the Civil Aviation Act. He pointed out that Mr Jones’ position at all times was he was not guilty, and that he successfully raised a defence to the allegations he faced.
In the context of the application for costs which the Judge was called upon to decide, the Judge’s observations in [9] were again sympathetic to Mr Jones, who he considered had got himself into an “unfortunate situation”. But he reminded himself this was not a basis for awarding costs. In this he was quite correct. This was not a matter the Judge took into account. He raised it and dismissed it as irrelevant.
Reference to acceptance of responsibility for the crash
A further point requires mention. At [3] of the decision, the Judge referred to the appellant when first interviewed as having indicated, in essence, acceptance that he was responsible for the crash. He made a further reference to this at [8]. This observation appears to be based on an exchange in cross-examination when the appellant was giving evidence. Mr Carelli, who was the initial Civil Aviation investigator, took some notes on the day of the crash, 3 February 2006. Mr Jones was referred to a note Mr Carelli made:
Pilot thinks that pilot error – stuffed up
Mr Jones acknowledged that was what Mr Carelli had written, but he denied he had said that, and said the notes were inaccurate. He denied there had been pilot error.
The Crown confirmed that this alleged admission was not part of the Crown case. Mr Carelli was not called to give evidence and the admission was never admitted by Mr Jones. The Crown accepted therefore that the Judge should not have placed any reliance on this so-called admission in his decision on costs. The Crown submitted that nevertheless there was clearly sufficient evidence available to support the conviction of the appellant in this case and that this concession makes no difference to the outcome. We agree with that submission.
Conclusion
While the Judge did not give systematic and separate consideration to each of the relevant circumstances in s 5(2) of the Act, he did take them into account when reaching his decision. He had the advantage, which this Court does not, of hearing the evidence and seeing all the witnesses during the course of a lengthy trial, as was recognised in R v Delamere. There were aspects of the evidence, and the witnesses who gave it, that made significant impression on the Judge and informed the assessments and discretions he exercised in reaching his decision that this was not a case in which costs should be awarded to the appellant. He considered the relevant circumstances and covered them in his judgment. He did not take into account irrelevant matters and indeed particularly reminded himself that certain matters, which were obviously of concern to him, were nevertheless not relevant in the exercise of his discretion. There was no error of principle in the Judge’s decision that would justify the intervention of this Court on appeal.
Result
The appeal is dismissed.
Costs
No application for costs was made by the Crown. If the Crown seeks costs on appeal it should file a memorandum within 14 days and the appellant should respond within a further 14 days. Costs will be determined on the papers.
Solicitors:
Jackson Reeves, Tauranga for Appellant
Crown Law Office, Wellington
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