The case has finally closed on an episode that brought two years of misery to a pilot and piled more shame on a misguided Civil Aviation Authority.
The pilot was charged with, and subsequently pleaded guilty to, careless operation of an aircraft. (Among the prosecution evidence in what we’ll call the Go-Pro Case was video footage taken in the cockpit. GAA supporters raised more than $10,000 to challenge the admissibility of this evidence, but we failed at the hearing. That, however, may not be the end of the matter.)
Curiously, the pilots of two other aircraft flying with the defendant on this cross-country flight were never charged by the CAA, even though they were exposed to identical weather conditions.
The alleged careless operation resulted from the pilot, with a student on board, encountering bad weather which forced him below VFR minima. The aircraft was safely navigated through that patch of weather and the flight was completed without incident. The pilot admitted that he should have turned back earlier and that he fell below the reasonable standard of care in not doing so.
When the matter came up for sentencing recently, the pilot was granted a discharge without conviction and ordered to pay $2000 in costs. This was a good outcome because in our country’s coastal and highly changeable environment, the situation this pilot found himself in was not unique (a fact that was admitted in court by a CAA expert witness).
The discharge without conviction showed the careful consideration given by the District Court Judge to the pilot’s sense of accountability, shown by his guilty plea; the lack of previous convictions; service to others; and the indications that the pilot was unlikely to re-offend. He had also satisfactorily completed a mentoring and retraining programme prescribed by the Director.
In making his assessment, the Judge took into account general consequences such as the loss of a clean record, difficulty in applying for insurance or loans, potential for publicity and the defendant’s feeling of shame. In this instance, the Judge also considered consequences in relation to the pilot’s future in the aviation industry.
The Judge found that the gravity of the offending (assessed as a “moderate level of seriousness”) was wholly outweighed by the actual and potential consequences for the pilot.
But after the District Court judgment, the CAA Director sought leave to appeal the discharge without conviction in the Auckland High Court.
In June 2019, the GAA wrote to the Director in an effort to persuade him to call off the dogs because, by further pursuing this appeal, such action could only be construed as vindictive.
We made the following observations:
- The CAA had already inflicted enough suffering on the pilot and for the court to damage him further would be manifestly unjust.
- The justice system in this country has been in crisis for years, trying to deal with far more important matters than a pilot allegedly erring when surprised by unforecast bad weather, the result of which was a safe return to earth for those concerned.
- No lives were lost. No one was hurt. Nothing was damaged.
- While the CAA was occupying the court’s attention with this relatively unimportant matter, justice was being delayed and denied in other much more serious cases.
- Once again, the CAA had inflicted a great deal of harm on itself – as well as the pilot.
- Rather than appealing the discharge without conviction, it might be more pertinent for the Director, Graeme Harris, and the CAA Chief Legal Counsel, John Sneyd, to consider the case as a cause for internal concern and question whether the Just Culture principles so often stated as being practised by the CAA were in fact being observed.
Although it was within his powers to withdraw the appeal, the Director allowed it to proceed and refused further (private) comment on the dubious grounds of it being sub judice.
The appeal was heard in the High Court in Auckland. The particulars of the case reflected breaches of various Civil Aviation Regulations: flying below weather minima and low flying. Under s100 of the Civil Aviation Act, and the Civil Aviation (Offences) Regulations 2006, these breaches were capable of being prosecuted as breaches of the regulation for which fines could be imposed. However, because they are also infringement offences, no conviction can be entered.
But in this case, the prosecution exercised its discretion to lay a charge under the Civil Aviation Act (seeking a conviction) for conduct amounting to breaches of the regulations.
The Director and his Chief Legal Counsel had advised the Crown Prosecutor to seek not only a conviction, but submitted that a mid- to high-level fine for careless operation should be imposed. The Director suggested that the fine should start from a point between $3500 and $5000.
The High Court Judge found:
Firstly, taking into account all the factors, the gravity of the offending was moderate.
Secondly, the circumstances before the District Court Judge were sufficient to raise a real or appreciable risk that a conviction would have a direct and adverse consequence upon the pilot’s prospects of obtaining employment in the aviation field.
Thirdly, the likely consequences of a conviction would be out of all proportion to the gravity of the pilot’s offending. In reaching that conclusion, the Judge took into account the evidence that had been presented in the District Court, as well as personal mitigating circumstances.
In summing up, the Judge could see no reasons why the pilot, having satisfied the s107 jurisdictional threshold, should not be discharged.
The CAA appeal was dismissed, as we had predicted to the Director.
From the start of this case, the Director and his Chief Legal Counsel were determined to obtain a conviction. The pilot’s lawyer sought a s106 discharge after the pilot had successfully completed a mentoring programme and retraining, before the case had even reached the District Court. The prosecution rejected that application.
In pursuing the pilot for more than two years, the actions of the Director resulted in considerable legal costs and they were entirely unproductive.
We go further and state that they were hugely damaging to the pilot personally (that is to say, egregiously excessive in relation to the alleged offending), vindictive and counter-productive to what the CAA professes to stand for.
The Director’s repeated claims of promoting a “Just Culture” within the authority are not reflected in practice by his management. Fortunately, the clear need to provide guidance to the Director as to when he or she should or should not take prosecution or administrative action is captured in the draft exposure of the Civil Aviation Bill.
The CAA Director’s capricious resort to legal action, and his apparently senseless and relentless pursuit of it to the bitter end, has brought the CAA into even greater disrepute.
The GAA believes that this case – along with the raft of other failures we have witnessed, including claims of bullying and harassment under the Director’s watch, exposed by whistleblowers in the organisation – shows that there is no realistic prospect of improvement or meaningful reform of the CAA without a major external investigation of the authority, followed by swift remedial action by the Minister of Transport.
We’re reminded of the opening words of Portia’s soliloquy from Shakespeare’s “The Merchant of Venice”.
The quality of mercy is not strained;
It droppeth as the gentle rain from heaven
Upon the place beneath. It is twice blest;
A District Court Judge and a High Court Judge twice showed mercy.
Absolutely no mercy was shown by the Director and his Legal Section.