The result of the hearing by District Court Judge Cunningham has been published. Her decision has gone against the case presented by counsel for the pilot involved.
The issue for the Court in the application for a pre-trial hearing was about the status of the evidence presented. The prosecution, with the assistance of the police, had compiled a DVD which included footage from the camera and the recorded audio showing passages of the flight in question.
The defence submitted that the protections afforded to pilots in the Transport Accident Investigation Commission Act are of more general application and are not limited to Commission investigations under the TAIC Act.
The prosecution submitted that s14D and s14D of the TAIC Act have no application in this case because they only relate to air accident investigations where black boxes are concerned. It said a temporary mounted camera is not a “flight recorder” and therefore what was captured on film and voice record in this case is admissible.
The defence argued that advances in technology, such as the use of GoPro cameras and similar devices, could not have been anticipated by Parliament. This was recognised by MP Harry Duynhoven, who said at the second reading of the Bill:
“As technology advances, improvements in the data recording will be made. If pilots lose confidence in the way that recorded data will be used, there are many ways in which they could ensure the information is not available for safety enhancement purposes.”
The Judge accepted that it is now commonplace to have cameras and voice recording devices in an aircraft for all the reasons referred to in the evidence filed on behalf of the defendant and in submissions made by counsel. The Judge also considered the fact that the TAIC Amendment Act included ‘cockpit video recordings’.
The Judge said that although it is not readily apparent why that phrase was included, it does not necessarily mean that it covered any video recordings in a cockpit of an aircraft but was more likely to be the consequence of evolving technology as referred to by Mr Duynhoven.
The prosecution submitted that the issue in this case is not flight recorder data, but a witness’s recording, which happened to be taken from the cockpit. It would assist the Court by providing a source of direct and cogent evidence of the events in question.
The Judge stated in her decision that, while the TAIC Act does not define cockpit voice recording or cockpit video recording, the absence of a statutory definition does not permit the defendant to ignore the wider scheme of the Act. Part 3 of the Act is headed “Disclosure and Admissibility of Transport Accident and Incident Investigation”. The Judge considered that, in this case, the recordings were not part of an accident or incident investigation and not gathered with any such investigation in mind.
The Judge has determined that:
(1) Statutory interpretation of the TAICA supports that s14D does not afford protection to the evidence in issue in this case.
(2) The background to the Amendment Act 1999 also supports the position in (1).
(3) The policy reasons behind the legislation support that CVRs are those devices mandatorily installed in certain aircraft. CVRs in the context of s14C and s14D do not include the two GoPro cameras and audio recording at issue in this case.
Where to from here?
Counsel for the defence considered that there were fertile grounds for an appeal, in that the Judge made an error in law which was evident from the decision. The real question was what the law means. The law is generally interpreted and refined by Appellate Court Judges, with the result ultimately becoming case law.
There are no other similar cases which have formed case law, so the question is of general principle and what Parliament intended by the provisions that are at issue.
The first consideration is that, without previous cases to guide us, it is difficult to predict how provisions like this would be viewed. In effect, if an appeal was made to the High Court, this would be an issue that could go either way and the outcome is not certain.
The second consideration is that of expense. The cost of conducting an appeal on the issues arising from Judge Cunningham’s decision, at a discounted and capped rate, would be $10,000 including GST.
Despite there being considerable interest in this case amongst the general aviation sector, there was only a relatively small number who recognised the importance of it and were motivated to provide very generous donations to partially fund the hearing of legal arguments before Judge Cunningham.
Ultimately, it came down to the defendant pilot to decide whether to appeal Judge Cunningham’s decision. After due consideration and primarily due to the financial impact on him and the emotional strain he has endured, the pilot has decided not to appeal.
There is still scope for the general aviation community to appeal to the High Court on a question of law only, irrespective of the outcome of the criminal case. The general aviation community also has remedies to seek declaratory judgment, which can be brought entirely independently of this case.
The flow-on effect of this decision
The Judge has determined that, apart from the evidence recorded by dedicated CVRs and used for the investigation of an accident or an incident as prescribed under the TAICA, all other video and audio recordings taken on board an aircraft may be used as evidence for furthering a prosecution.
With this in mind, and using one of the guiding premises of SMS of identifying hazards, it may be worth considering how best to mitigate the hazard of passengers recording video and audio and then posting on social media, where it may come to the CAA’s attention.
In direct contrast to the CAA, we could look towards the FAA and its enlightened approach to correcting unintentional violations.
Ali Bahrami, FAA associate administrator for aviation safety, opened NATA’s 2018 Annual Meeting and Business Aviation Conference by praising the industry’s collaborative efforts to increase safety.
Under the Compliance Philosophy, the FAA focuses on compliance through non-enforcement methods for correcting unintentional violations. According to Bahrami, the FAA’s enforcement actions have decreased by 70 percent while voluntary reporting has increased. The agency has also seen a 46 percent increase in actions to correct deficiencies. “These numbers don’t lie and I think that given where we are today, we have an amazing record for commercial and general aviation in terms of safety,” Bahrami said. “I believe this is the right thing to do and we are going to continue to stay on course.”
The pilot at the centre of this case has asked the GAA to pass on his heartfelt thanks for the generous support that he received from our GA community. Without this support, this case would not have proceeded to a pre-trial hearing and the decision by Judge Cunningham.
We at the GAA would also like to add our sincere thanks to those pilots and operators who gave financial support. Legal battles against a State entity, which has unlimited financial resources, are never easy to win.
As the pilot at the centre of this case has observed: “New Zealand justice is only available to those who have deep enough pockets. What is right or wrong doesn’t matter, if you can’t afford to contest it.”