The Law is an Ass
The above catchphrase is uttered with monotonous regularity to such an extent that the public may think it is a given. I would advance the argument that the law is fair and even handed: it is only eager beaver practitioners, that abuse the power of law, that are asses.
On the 21st May 2009, the High Court handed down a decision on an appeal from a Tasmanian Supreme Court decision in an aviation related criminal matter. The case is the Queen v Peter Maxwell Edwards and Anor (2009) HCA 20. There are two defendants in this criminal action; Captain Peter Edwards and First officer Sarunic. These two Qantas pilots are charged with jointly operating an aircraft, reckless as to whether the manner of operation could endanger the life of another person. There is an alternate charge of operating an aircraft being reckless as to whether the manner of operation could endanger the person or property of another person contrary. The prosecution must prove one or both these charges to the criminal standard of proof, i.e. beyond a reasonable doubt.
The defendants were the pilot of a QANTAS Boeing 737-400 and his first officer on a flight to and from Launceston during the night hours of 23rd October 2001. Please note the date. The court report states the Crown alleges that the aircraft took off in on darkness, “without the necessary lighting being on”. There are witnesses, two pilots from the RFDS base, a paramedic and two nearby residents, one an aviation enthusiast and another a pilot. Their evidence is that the runway edge lighting, taxiway lighting and the illuminated wind direction indicator lights were not operating when the aircraft took off. Two other witnesses, a duty fire officer and a LAME in the cockpit, made statements that they could not be sure about the state of the relevant airport lighting on the night in question. There was no question about the runway lighting, taxiway lighting etc being on when the Boeing 737 landed. That aspect was not in issue. The question related to the lighting on takeoff.
A relevant aspect of the matter in the view of the Tasmanian Supreme Court was the delay in the prosecution of the defendants. The time line disclosed the following - the events in question occurred on 23rd October 2001. CASA conducted an investigation and referred the prosecution to the Commonwealth DPP in April 2002. Complaints against the defendants were not preferred until 30th March 2004. The matter was delayed by the defence until the committal hearing on 2nd November 2005. The defendants were committed for trial four years after the events of 23rd October 2001. That was not the limit of delay because there was a delay in the provision of a transcript of all of the committal. The matter was set for trial on 13th May 2007. The counsel for the defendants applied to have the matter stayed for two reasons: ‘the loss of primary technological evidence’ and inordinate delay in prosecution of the offences. The Supreme Court judge considered that application agreed and stayed the prosecution permanently.
CASA and the DPP are nothing if not persistent. They applied for special leave to the High Court and their application was upheld. Five judges of the High Court delved into the facts of the lost evidence and the operation of Pilot Activated Lighting (PAL). The High Court felt the Supreme Court had applied the wrong test ‘whether on the material before this (Supreme) Court continuation of the indictment to trial by jury COULD (rather than WOULD) constitute an unacceptable injustice or unfairness’. The High Court said, “there is no feature of the delay that justifies taking the extreme step of permanently staying proceedings on the indictment”. That was the end of the application. The matter is now back with the Supreme Court of Tasmania for hearing some time in 2010, fully eight and a half years after the event.
Where does the ass-like quality arise in any of the above you may well ask? I ask you to consider the charges. The technical elements are recklessness; operation of the aircraft; endangering the life of another person or property of another person. I would opine that none of these elements of either charge can be made on the evidence that has been presented.
This quality of a statutory offence has been considered by courts many times. The overwhelming preponderance of opinion is that ‘recklessness involves DELIBERATELY doing something which you know involves risk’. Not just a risk, in this case, of running onto the verge and back again, but a risk, because you were driving too fast of getting out of control. In Australia the concept of recklessness was held as follows – “it is relevant to consider whether the accused REALISED the risk and went on regardless and whether that was the cause of the accident” R v Burnside (1962) VR 96.
From the above for recklessness to be an element, it must be shown that
- The two pilots DELIBERATELY did something;
- The two pilots knew that what they did involved RISK;
- The pilots REALISED the risk and went on regardless.
There also seems to be an inference that damage or an accident resulted from these three personal qualities in the two pilots.
Assuming the worst, that a jury finds as a fact that the runway lighting, the taxiway light and illuminated wind direction indicator were not illuminated at the relevant time on take off, can recklessness be proved? I suggest it cannot because verifying whether all or any runway lights, taxiway lights or wind socks are illuminated is not a part of take off checklists. Whether or not runway lighting etc is on does not affect a takeoff, manipulatively, performance related or runway limiting. On an airliner, the pilots usually use the aircraft taxi light to illuminate their path to the runway not the edge lights or centre lights of the taxiway. On the actual take off, airline pilots use the aircraft landing lights to illuminate the runway centre line and keep straight by use of the nose wheel steering to about 50 knots and then the rudder to decision speed, V1 and V2. Whether the runway lights are on or off has no bearing on the take off illumination.
As an aside, after about 10,000 hours airline operation as both a first officer and a captain, I cannot recall ever considering whether all or any of the runway lights were on or off during a takeoff. There are more serious matters to consider. The jury on a trial of these two pilots would be instructed by the presiding judge to consider whether the pilots deliberately did anything, whether the pilots took any risk and whether they realised that the runway taxiway lights were on or off. On any rational analysis of the functions undertaken by the pilots on the night of 23rd October 2001, no recklessness can be made by the prosecution.
OPERATION OF THE AIRCRAFT
The statutory offence relates to the operation of the aircraft, not the operation of the aircraft’s radio to follow a pilot-activated lighting sequence. It follows that the runway lights can be activated by a deliberate action of the pilots. If the pilots do not do anything to activate the runway lighting, how can that be an operation of the aircraft, let alone a reckless operation of an aircraft? Conversely, if runway lighting is seen as an absolute safe necessity for takeoff, where is the requirement of such a procedure in operations manuals of airlines? I doubt that the regulators have seen fit to require an amendment to Qantas’ operations manuals in respect of taxiing or pre-take off checklists to alert pilots to this demanding need since the events of 23rd October 2001. On the question of runway lighting, it is a fundamental feature of night operations in a turbo jet airliner that, after rotation, a pilot consciously disregards lights on the ground lest he lower the nose of the aircraft and impact the ground outside the confines of the airfield.
ENDANGER A PERSON’S LIFE OR PROPERTY
There is no evidence that the takeoff was anything other than normal in every way. Whether the aircraft taxi light or the aircraft landing lights were on or off was not averted to in evidence or in the High court report. No evidence of RISK to anyone or any property has been canvassed by anyone on board that flight to the availability or lack of availability of runway edge lighting. No one has come forward in the past eight years and said that he or she was in fear for the safety of themselves or their property as a result of runway lighting issues in respect of that flight or, for that matter, any other flight. The alleged risk is some ill-defined concept of a regulator’s fertile mind. Can it be said that, objectively, there is a reasonable person with a newly-minted and acute dread of death arising from a failed runway lighting system at Launceston? From the vantage point of eight years after the event, the answer must be no.
Looking at the legal issues arising from the facts of this matter it is difficult to accept that this is other than a tempest is a tea cup fomented by idle persons with nothing better to do but subject honest working pilots to the pains and privileges of a criminal trial and perhaps a jail sentence for something that has no substance.
You may ask again in the Law an ass or is it the ill advised denizens of the darkest corners in Canberra that are the asses?
Watch this space…