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Who Needs Enemies when you have Friends Like These?

Who Needs Enemies when you have Friends Like These?

Recently, I was engaged to give advice to a corporate aviation client and the corporate officers who were involved in a committal hearing conducted by the police against an employee who, it is alleged, committed some offences against the company.

Usually, garden variety crime would not be of interest to an aviation readership. However, the client was an aviation operator and the accused was a LAME. Additionally, a number of the witnesses were either engineers or pilots. As the locus in quo was in the bush, it goes without saying that each of the aviation witnesses may not have been as careful about obeying, in detail, the criminal rules policed by CASA.

I was engaged to protect the corporation’s good name and to ensure the corporate officers did not self-incriminate themselves when they were being questioned in the witness box and giving testimony under oath.

Another unusual feature of the committal hearing is that I did not have a right of audience in my endeavours to protect my clients. That I could not protect other witnesses for the same risk during questioning was obvious.

A third unusual feature of the committal was that the major participants in the hearing had little or no grasp of aviation matters. The Police Prosecutor, Arresting Police Officer and his Sergeant confessed that they could not understand just what had happened, in the engineering sense. The Defence Counsel was a run of the mill barrister with criminal experience and the Magistrate was a highly experienced criminal lawyer of some standing, but not conversant with aviation.

I was permitted to sit in on the hearing, but was not allowed to speak to the court or to object to questions from any party or to assist the Court with any submissions or explanations. I did manage to persuade the Magistrate that each of the aviation witnesses were subject to the parallel criminal breaches under the Civil Aviation Act, Regulations and Orders of which there are many. I was reduced to the status of a fly on the wall in an aviation hearing.

I ask you dear reader to accept that the possible offences related to aviation engineering activities as I am legally bound not to divulge the particulars. The scene was set. My client was in the witness box and had been sworn to tell the truth, the whole truth and nothing but he truth. The police prosecutor tendered my client’s witness statement and let the defence counsel have the floor. The opening question was, “Are you the certificate of Registration holder; does the buck stop with you for this company?” My client thought for a while and then tentatively said “Yeesss”. In fact, as I well knew, the certificate of Registration holder of the aircraft was the company as it owned the aircraft. The witness was not the Certificate of Registration holder, but was named in the Certificate of Incorporation of the Company. The question was irrelevant as the matter did not turn on who owned the company aircraft. I commented to my client after his evidence was complete that he was not the Certificate of Registration holder of any aircraft. He replied that, as a director, he signed the necessary company paperwork and therefore the buck stopped with him. So much for double- barrelled questions.

The hearing degenerated from this point on. The witnesses were asked questions about “the CofA” by the defence counsel. The defence counsel may have been alluding to the Certificate of Approval to conduct maintenance work or the Certificate of Airworthiness or perhaps the Certificate of Incorporation of the company. This was not made clear to the witnesses in turn and some of the answers given related to airworthiness certificates and some to the maintenance approval and some related to other certificates. However, as none of the police, defence counsel or magistrate knew the difference, in detail, the answers went through to the keeper. Eventually, a question was asked by the defence barrister which indicated that the witness may have been self-incriminating himself if he gave an answer. My client looked at me when this happened and the Magistrate picked up the cue and proceeded to tell the witness, “You are not bound to answer any questions that would have the tendency to expose you to the imposition of a criminal conviction or penalty: you may claim privilege. You have to say the words I claim privilege if you think you will be exposed to criminal penalties”. Whereupon the witness said, “I claim privilege”.

As an observer and a legal practitioner, it was obvious that the court had little or no idea of the plethora of certificates, approvals, authorizations, permits. Log books, maintenance releases, permits to fly and the like that are grist to the aviation mill as far as CASA.

Late in the day, the police prosecutor called an investigator from CASA to give evidence. This was revealing testimony. The investigator had spoken to someone about the switching of parts, placement of parts, falsification of records, failure to record details in log books etc. This worthy had had conversations with other investigators and compiled a hearsay record of these various conversations held in the absence of the accused. The mish-mash of Chinese whispers was tendered as the investigator’s statement without challenge from the defence. The next passage of evidence was the most revealing. The investigator was asked if he had investigated any criminal activity arising in this matter. Yes he had. The investigator then proceeded to list potential breaches of Civil Aviation Criminal law perpetrated by the aviation police witnesses and then some. As they applied to my clients, there was no foundation whatsoever for the allegations. When this passage of evidence was being given, the police prosecutor’s face was a study. The blood drained from his face and he was clearly annoyed at this turn of events. The CASA investigator had almost single-handedly demolished the standing of some police witnesses. The accused was committed. What a Crown Prosecutor will make of the investigator’s testimony will be something to watch particularly as the investigator did not uphold the principal that allegations against persons are not to be bandied about publicly in such a cavalier fashion.

Generally speaking, most criminal trials depend on and turn on the credibility of each witness. If the Crown witnesses are, in some way, shown to be criminals, their credibility is reduced. To a jury, of 12 ordinary persons, it may appear that the accused is just one of a bunch of rogues and the jury may be of the opinion that he is no worse than some of the Crown witnesses. It is an easy step then to find the accused guilty because the jury is not convinced beyond a reasonable doubt of the guilt of the accused.

This case was a prime example of how an unguarded explanation of events can expose one to potential criminal charges and I now advise clients that they should never speak or write to an aviation authority without legal advice beforehand.

Watch this space…

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