DISTRICT COURT OF QUEENSLAND

1. [1]
   On 7 November 2003 at about 9.30 am, the appellant landed his Cessna aircraft (VH-HTI) at the Cairns Airport. The appellant’s aircraft was cleared to land by air traffic controller David Jack. Upon landing the appellant was instructed to vacate the runway at the next taxiway on the left. The appellant did not turn his aircraft to the left and ultimately left the runway to the right at taxiway A3.

2. [2]
   The appellant was charged with the offence under the Civil Aviation Regulations 1988 that he, being the pilot in command of the aircraft, did fail to comply with air traffic control instructions. After a trial in the Cairns Magistrates Court on 4 February 2010, the appellant was convicted of the offence on 21 September 2010 and fined $1,500.

3. [3]
   The appellant appeals both his conviction and the sentence. His grounds of appeal are:

1. The Acting Magistrate erred in his approach to the matter.

2. The Acting Magistrate erred in his ruling concerning duplicity.

3. The Acting Magistrate failed to adequately deal with the question of mistake of fact.

4. The Acting Magistrate erred in his ruling concerning the tape recording.

5. The Acting Magistrate failed to deal with the defence submission concerning Jones v Dunkel.

6. The Acting Magistrate failed to give proper reasons.

7. The Acting Magistrate failed to deal with the question of sudden or extraordinary emergency.

4. [4]
   With respect to the penalty, the appellant argues that he should have been sentenced pursuant to s 19B of the Crimes Act 1914 and released upon entering into a bond without being convicted.

Issues

5. [5]
   The major factual issues at trial were where on the runway, relative to the respective taxiways, the appellant landed and whether it was possible for him to safely vacate the runway at “the next taxiway on the left”.

6. [6]
   The following legal issues also arose at the trial:

1. Whether the charge was bad for duplicity.

2. Whether the appellant was reasonably mistaken about the fact that he was not in a position to comply with the air traffic control instruction given to him.

3. Whether the recording of the exchange between the appellant and the air traffic controller should have been admitted into evidence as continuity had not been proven.

4. As Mr Jack’s supervisor was not called to give evidence, whether the Acting Magistrate should have concluded that his evidence could not have assisted the prosecution.

5. Whether the prosecution had excluded a defence of sudden or extraordinary emergency.

Evidence

7. [7]
   David William Jack gave evidence that he had been employed as an air traffic controller for approximately 17 years and commenced working at the Cairns airport in June 2003. As at 7 November 2003 he held endorsements for the positions of Surface Movement Control and Coordinator. At the time he was under training for a third position of Aerodrome Control. He was therefore being supervised by a training officer.

8. [8]
   Significantly, Mr Jack said that his recollection of the incident of 7 November 2003 (when giving evidence before the Acting Magistrate on 4 February 2010) was based on the transcript of the taped conversations between himself and the pilots of the aircraft in the vicinity, including the appellant, and an incident report he completed within two hours of the incident^[1]. This report was not produced at the hearing although its contents had apparently been transferred by the Civil Aviation Services Authority (“CASA”) to a document called a Pilot’s Questionnaire which was tendered during the hearing (but not through Mr Jack). It seems clear he had very little, if any, independent recollection of the details of the incident.

9. [9]
   The appellant’s aircraft was identified in radio communications between the appellant and Mr Jack as “Hotel Tango India”. Hotel Tango India called air traffic control when he was “on final”, i.e. approximately four or five miles from the aerodrome and set up to land on the runway. A Dash-8 aircraft, Sunstate 502, was coming in to land behind Hotel Tango India and several aircraft were at holding points wishing to enter the runway to depart.

10. [10]
    Mr Jack cleared Hotel Tango India to land and it did so. Mr Jack instructed the aircraft to vacate the next taxiway on the left because the taxiway on the right was blocked by an aircraft identified as Charlie Romeo Sierra. Mr Jack said that he wanted Hotel Tango India to vacate the first taxiway on the left so that Charlie Romeo Sierra could line up and depart prior to Sunstate 502 landing.

11. [11]
    Mr Jack confirmed to Hotel Tango India to take the taxiway on the left. Mr Jack noticed that Hotel Tango India had in fact turned to the right towards the taxiway where Charlie Romeo Sierra was at the holding point. Mr Jack again instructed Hotel Tango India to make a left turn to vacate at the taxiway which he named as “Bravo 3”. Mr Jack told Charlie Romeo Sierra to hold position, and, as it appeared that Hotel Tango India was continuing down the runway, he instructed Sunstate 502 to go around again rather than land. This was because Hotel Tango India would still be on the runway when Sunstate 502 landed. This version of events is consistent with the incident description in the Pilot’s Questionnaire.

12. [12]
    The relevant conversations between the appellant and other pilots and Air Traffic Control were recorded and a copy of the recording was tendered (in the face of objection from the appellant) at the hearing. Relevantly, the tape discloses the following exchange between Mr Jack (ATC) and the appellant (Pilot):

ATC: Hotel TangoIndia clear to land

Pilot: Hotel TangoIndia, Hotel TangoIndia

…

ATC: (Hotel) Tango India take next taxiway on the left and contact ground one two one decimal seven

Pilot: Hotel TangoIndia next taxiway

…

ATC: Hotel TangoIndia just confirming next taxiway on the left thanks

Pilot: Hotel TangoIndia

…

ATC: Charlie Romeo Sierra hold position, I say again hold position, break break, Hotel TangoIndia if ah make a left turn to vacate at Bravo three

Pilot: Left turn Bravo three Hotel TangoIndia

…

Hotel TangoIndia ah dis(regard), take the next on the right, I say again take the next on the right

Pilot: Hotel TangoIndia next on the right

13. [13]
    If aircraft are landing in a southerly direction then on the left-hand side of the runway (where the taxiways are marked with the letter “B”) are situated the international and domestic terminals, and on the right side (where the taxiways are marked with the letter “A”), the general aviation section. Usually light aircraft, such as the appellant’s, would be directed to the right side of the runway.

14. [14]
    It was Mr Jack’s evidence that generally on using the runway a pilot will vacate at Alpha 3 (to the right) and depart (onto the runway) from Alpha 2. Light aircraft would therefore expect to vacate at Alpha 3, although for reasons of expeditiousness a pilot will occasionally be instructed to vacate to the left on taxiway Bravo 3. It was Mr Jack’s evidence that he could not recall where the appellant’s aircraft was when he first issued the instruction that it should turn left at the next taxiway^[2]. He made the assumption, however, given his usual practice, that B3 would have been the next taxiway on the appellant’s left at the time the first instruction was issued and that the appellant’s aircraft was travelling at a speed that Mr Jack considered safe enough to enable such a turn to be made.

15. [15]
    Mr Jack could not say exactly where the appellant’s aircraft was when he gave the final instruction to turn right, but he guessed that it would be 50 - 100 metres south (in other words, past) Alpha 2 taxiway^[3]. The taxiways Bravo 3 and Alpha 2 are more or less opposite each other across the runway.

16. [16]
    Mr Jack said that it was not usual to give a direction to take a particular taxiway twice although it was not unusual. He was “fairly confident” that his training officer at the time suggested the second transmission to ensure Hotel Tango India left the runway at Bravo 3 because the sequence they were running (the sequence of aircraft landing and departing) “while it was safe, was always going to be reasonably close, and we wanted to make sure that Hotel Tango India vacated as quickly as possible”^[4]. Mr Jack conceded that only in about 30 landings in 1,000 would he instruct light aircraft to turn left off the runway instead of right into the general aviation section.

17. [17]
    The defendant gave evidence that he has been a pilot and has owned an aircraft since 1986. He has over 1,000 hours of flying time. On his final approach into Cairns on 7 November 2003 he was aware of the Sunstate aircraft landing behind him. He thought that the Sunstate aircraft was sequenced too closely to his plane having regard to the fact that the approach speed of the Sunstate aircraft would be twice that of his. Because the appellant’s plane needed only a relatively short distance on the runway to slow down he landed his plane close to the centre of the airport near where A2 and B3 taxiways intersect with the runway. He could not safely turn into B3 given the speed at which his aircraft was travelling at that point (about 50 knots). He said that he saw the aircraft (Charlie Romeo Sierra) waiting on his right at A2.

18. [18]
    The appellant said that he did not know which taxiway was meant by “the next on the left” and when he was told to vacate at Bravo 3 he thought the air traffic controller “had lost it” but that the air traffic controller “almost immediately changed it”^[5]and instructed him to take the next exit on the right.

19. [19]
    The appellant said that he had never before been directed to turn left and had never seen or heard of it despite flying in and out of Cairns 50 times. He said that the instruction to turn left was given “either just before my wheels touched the ground or upon my wheels touching the ground”^[6].

20. [20]
    The appellant made a conscious decision not to give Mr Jack a full read back of the instruction because he thought he (Mr Jack) may have made a mistake and he didn’t want to embarrass him. From the point at which the appellant landed on the runway it was his evidence that the only taxiway on the left that he could have safely taken was the one following B3, namely B4. The evidence was that since 2003 it has become mandatory for a pilot to give a “full directional read back” to Air Traffic Control so that it is quite clear that an instruction has been understood. Clearly the way the instructions were given and read back on this occasion meant that confusion as to what was meant and understood was a real possibility.

Findings of Fact

21. [21]
    This appeal is by way of a rehearing on the evidence given in the proceeding before the Acting Magistrate. I am required to review the record of the proceedings below and make my own determination on the evidence but give due regard to the view of the Acting Magistrate given his opportunity to observe the witnesses and particularly consider their credibility and demeanour.

22. [22]
    I acknowledge the Acting Magistrate had the advantage of observing and assessing the witnesses, but in finding that Mr Jack gave credible evidence whereas the evidence of the appellant was “fanciful”, he apparently failed to consider certain crucial aspects of Mr Jack’s evidence. These included Mr Jack’s lack of any independent recollection of the details of the incident and his reliance upon the transcript of the recording of his radio conversation with the appellant and his incident report to apparently reconstruct the events. His inability to say where on the runway the appellant landed his plane is also of significance. If the Pilot’s Questionnaire is essentially the report made by Mr Jack of the incident then, as his own document, it cannot corroborate his evidence.

23. [23]
    The appellant on the other hand was clear in his evidence that he landed his plane at or just beyond the B3 taxiway and saw the plane Charlie Romeo Sierra waiting to enter the runway from taxiway A2.

24. [24]
    The Acting Magistrate placed significant weight on the timing of the instructions given by Mr Jack to the appellant as illustrated by the tape recording. However, there was little evidence before him as to the speed at which the appellant’s plane was travelling at relevant points down the runway. Nor was there exact evidence as to the distance between the relevant taxiways on the runway. Any estimate as to the distance travelled and speed at which the distance was covered could therefore only be speculation. I have listened to the tape, and although there is a period of over two minutes between when Mr Jack gave the appellant clearance to land and when he gave the first instruction to take the next taxiway on the left, the gaps between the first instruction and those following are only a matter of seconds.

25. [25]
    No matter how credible a witness Mr Jack may have appeared, the reliability of his evidence, given his lack of independent recollection of the incident and his reliance upon the transcript of the tape, had to be suspect. There is nothing on the tape to indicate that the appellant turned his plane right towards the A2 taxiway. The Pilot’s Questionnaire reads:

“HTI turned right at A2 which was blocked by CRS awaiting departure. HTI was instructed to make a 180 degree turn to vacate at B3. HTI turned and continued down RWY 15 to vacate at A3”.

26. [26]
    It is unclear how the Pilot’s Questionnaire came into existence. It was not Mr Jack’s document. It was admitted at the appellant’s instigation during his cross-examination of the CASA investigator regarding the admissibility of the tape, and that witness also could not say how it had been created. It could therefore have no probative value.

27. [27]
    There is nothing on the tape to indicate that the appellant was instructed to make a 180 degree turn. Given the very short time frame in which these events occurred and in light of Mr Jack’s lack of independent recollection of the incident and the appellant’s rejection of the suggestion that he did turn right, a finding that he did turn his aircraft to the right could not be open on the evidence.

28. [28]
    The appellant’s evidence that he was aware that the Sunstate aircraft was sequenced to land behind him adds credibility to his claim that he deliberately landed his plane close to the centre of the airport so that he could vacate the runway as quickly as possible. In these circumstances a reasonable doubt must exist as to the appellant’s practical ability to comply with a direction to exit by taxiway B3 on the left.

29. [29]
    The fact that the first two instructions given by Mr Jack to the appellant refer to the “next taxiway on the left” but do not name the taxiway supports the appellant’s contention that taxiway B3 was not a taxiway he could in fact take given the point at which he landed and the speed at which he was travelling. At the very least the failure of Mr Jack to name the taxiway he was referring to could reasonably give rise to confusion.

Whether Charge Bad for Duplicity

30. [30]
    Section 43 of the Justices Act 1886 provides that every complaint shall (subject to certain exceptions which are not applicable here) be for one matter only.

31. [31]
    The appellant argues that four different directions were given by Mr Jack to the appellant namely “take the next taxiway on the left and contact ground one two one decimal seven”, “next taxi-way on left”, “make a left turn to vacate at Bravo 3” and “take the next on the right”. The respondent submits that the initial instruction namely, to take the next taxiway on the left was repeated twice.

32. [32]
    Regulation 100 of the Civil Aviation Regulations 1988 relevantly provides that “the pilot in command of an aircraft must comply with air traffic control instructions”. The first two instructions relied upon by the prosecution direct the appellant to take the next taxiway on the left and it is only on the third instruction that the taxiway is named as Bravo 3. It was the prosecution case that on the facts, at all relevant times, the next taxiway to the left of the appellant’s plane was Bravo 3. It was the appellant’s failure to turn his plane left and enter taxiway Bravo 3 which constituted the failure to comply with the air traffic control instructions. The appellant’s defence with respect to each of the instructions was essentially, that it was impossible for him to comply and turn his plane left into taxiway B3.

33. [33]
    In these circumstances even if the charge could be said to be duplicitous the appellant has suffered no prejudice and there has been no substantial miscarriage of justice.^[7]

Admissibility of Tape Recording

34. [34]
    The recording of the conversations between air traffic control and pilots of aircraft at Cairns Airport that morning was created by, and held in the custody of, Air Services Australia. Air Services Australia was responsible for quarantining the tape and ultimately, sometime in 2004, the CASA investigator assigned to the incident, Noel Saffery, took possession of the tape and secured it in a safe within his office in Brisbane. At some later point Mr Saffery forwarded the tape to the office of the Commonwealth Director of Public Prosecutions. There was no evidence in the trial as to what happened to the tape between the time of its creation and it being in Mr Saffrey’s possession. The issue was also raised at the trial that there had not been compliance with s 18.4.1.4 of the CASA enforcement manual which deals with the preservation of evidence in connection with an investigation. The appellant at the trial objected to the admissibility of the tape on these grounds.

35. [35]
    These issues do enliven the court’s discretion to reject the evidence of the tape on the basis that it cannot be relied upon and it would be unfair to the appellant to admit it into evidence.

36. [36]
    Although there was some dispute at the trial of the accuracy of the various transcripts of the conversation heard on the tape, both Mr Jack and the appellant were able to identify their voices and were essentially in agreement as to the words used during the conversations between them. There was no evidence whatsoever that the tape had been tampered with in any way, or that it was not accurate. In those circumstances the tape was correctly admitted as evidence^[8].

Failure to Call Mr Jack’s Supervisor

37. [37]
    As outlined above, it was Mr Jack’s evidence that he was being closely supervised at the time of the incident. His supervisor was not called to give evidence on behalf of the prosecution.

38. [38]
    It is submitted on behalf of the appellant that as a result of the failure to call the supervisor or give any explanation for his absence, an inference could be drawn by the trier of fact that the supervisor’s evidence would not have assisted the prosecution case.

39. [39]
    It is true that the magistrate did not refer to this aspect of the case in his decision however the evidence of Mr Jack was that he was not in a position to see precisely where the appellant landed his plane and it seems clear that his supervisor would not have had any better view. Mr Jacks’ evidence as to the instructions he gave the appellant and when such instructions were given is supported by the tape and evidence from the supervisor would add nothing in this regard. In these circumstances any inference that could be drawn from the absence of the supervisor at the trial in favour of the appellant would have little bearing on the outcome of the case.

Mistake of Fact

40. [40]
    Section 224(3) of the Civil Aviation Regulations 1988 provides that the pilot in command shall have final authority as to the disposition of the aircraft while he is in command. The appellant’s evidence was that he believed he was unable to comply with the instruction to turn left at B3 and further that he was confused as to which taxiway he was being instructed to take. This issue was fairly raised on the evidence and the Acting Magistrate was wrong to find: “The defendant has failed to identify a fact about which he was mistaken, and which, if it had existed, would be such that his conduct would not have constituted the offence”^[9].

41. [41]
    This issue however does not now need to be considered in light of the finding above that the appellant’s contention that it was impossible for him to safely obey the instruction to turn left at B3 could not be excluded by the prosecution.

Emergency

42. [42]
    Section 10.3 of the Commonwealth Criminal Code provides that a person is not criminally responsible for an offence if he carries out the conduct constituting the offence in response to circumstances of sudden or extraordinary emergency. There was evidence from the appellant that he could not safely comply with the direction to turn left into B3 and accordingly the prosecution bore the burden of disproving the defence of emergency.^[10]

43. [43]
    This was not something that was adequately addressed by the Acting Magistrate in his reasons; however, again in light of my findings on the evidence above, there is no need to take this issue further.

Failure to Give Reasons

44. [44]
    The complaint of the appellant in this regard relates to certain aspects of Mr Jack’s evidence which the Acting Magistrate did not deal with in his reasons for decision. As I have found above, certain crucial aspects of Mr Jack’s evidence was not reliable and it is therefore not necessary to take this matter any further.

Conclusion

45. [45]
    The appeal is allowed and the appellant’s conviction is set aside. It is not necessary to consider whether or not the sentence was excessive in the circumstances.