The Queen v Edwards

• Jurisdiction: Australia Federal only
• Court: High Court
• Judge: Hayne,Heydon,Crennan,Kiefel,Bell JJ
• Judgment Date: 21 May 2009
• Neutral Citation: [2009] HCA 20,2009-0521 HCA A
• Docket Number: H4/2008
• Date: 21 May 2009

The Queen

Appellant

and

Peter Maxwell Edwards And Anor

Respondents

[2009] HCA 20

Hayne, Heydon, Crennan, Kiefel and Bell JJ

H4/2008

HIGH COURT OF AUSTRALIA

The Queen v Edwards

Criminal law — Practice and procedure — Permanent stay of proceedings on indictment — Threshold for grant of permanent stay — Respondents charged with reckless operation of aircraft — Electronic records of event giving rise to charge overwritten — Delay in prosecuting offences — Whether combination of delay and lost evidence justified grant of permanent stay.

Representation

W J Abraham QC with I M Arendt for the appellant (instructed by Director of Public Prosecutions (Cth))

B W Walker SC with J M Morris and B A P Kelleher for the respondents (instructed by Deacons Lawyers)

ORDER

Appeal allowed.

Set aside paragraph 1 of the orders of the Supreme Court of Tasmania entered on 16 May 2008 and, in its place, order that the application for a permanent stay of proceedings on the indictment be dismissed.

Hayne, Heydon, Crennan, Kiefel and Bell JJ. The Supreme Court of Tasmania (Slicer J) ordered that proceedings on an indictment which charged the respondents with the reckless operation of an aircraft be stayed. The Court's reasons were delivered on 28 April 2008, the primary judge holding that a ‘stay of proceedings ought to be granted’. 1 The order which was entered on 16 May 2008 is recorded as ‘grants stay of proceedings’. It is not in issue that the order had the effect of permanently staying proceedings on the indictment.

2 The indictment charges the respondents jointly with operating an aircraft being reckless as to whether the manner of operation could endanger the life of another person, contrary to ss 20A(1) and 29 of the Civil Aviation Act 1988 (Cth) 2.

3 No appeal lies to the Court of Criminal Appeal of Tasmania from the decision of a trial judge ordering a stay of proceedings on indictment 3.

4 The Crown appeals by special leave to this Court against the order on the ground that the primary judge's discretion miscarried in that he acted upon a wrong principle and that he took into account irrelevant considerations relating to the suggested complexity of the trial. These submissions should be accepted. For the reasons that follow the order staying the proceeding should be set aside.

The Crown case

5 The respondents are airline pilots who were the pilot and first officer of a Qantas Boeing 737–400 aircraft on a flight to and from Launceston, which took place during night hours on 23 October 2001. Each of the respondents was responsible for the operation of the aircraft. The Crown alleges that the aircraft took off from Launceston Airport (‘the airport’) in darkness, without the necessary lighting being turned on. Qantas did not provide scheduled services to Launceston. This was a relief flight that was arranged in order to collect 70 passengers who had been stranded as the result of a mishap.

6 The control tower at the airport was unmanned between the hours of 10.00pm and 6.00am. The apron and terminal lights at the airport operated 24 hours a day. The taxiway, runway edge lights and the illuminated wind direction indicator (‘IWDI’), or windsock lighting, (collectively, ‘the runway

lighting’) were not illuminated when the control tower was unmanned. During these hours it was the responsibility of pilots arriving at, or departing from, the airport to turn on the runway lighting. This was done with the Pilot Activated Lighting system (‘the PAL’). The PAL was activated by a signal that was transmitted from the aircraft's radio to a receiving device at the control tower. Once activated, the runway lighting remained illuminated for a period of 32 minutes.

7 The aircraft touched down at the airport at 10.32pm. Before this a signal had been transmitted from the aircraft to the control tower, which had activated the PAL. Thus the runway lighting was on. The aircraft arrived outside the terminal building at 10.34pm. The interval between activation of the PAL and the aircraft's arrival is not known. Accordingly, the end of the cycle of runway lighting commenced by the initial activation of the PAL cannot be determined with precision.

8 The aircraft moved from the terminal building at 11.01pm. It travelled along taxiway A, instead of taxiway C. Taxiway A was usually reserved for smaller aircraft. It taxied past the Royal Flying Doctor Service (‘RFDS’) hangar and prepared for take-off at 11.03pm. Its wheels left the runway at 11.05pm. The take-off was observed by Mr Griffiths and Mr Withers, two RFDS pilots, a paramedic and two nearby residents, Mr Walker, an aircraft enthusiast, and Mr Dergacz, a pilot.

9 Mr Griffiths telephoned the duty operations officer at the airport shortly after the aircraft's departure to enquire whether there was a problem with the operation of the runway lights. The following day he reported the matter to the Civil Aviation Safety Authority (‘CASA’). Mr Withers reported the matter to the Air Transport Safety Bureau (‘ATSB’) on 29 October 2001.

The investigation

10 Qantas was first notified of the incident on 9 November 2001.

11 On 14 December 2001 CASA appointed an investigator to enquire into the incident. Mr Griffiths, Mr Withers and the paramedic made statements in the course of the investigation in which they said that the runway lighting was not illuminated when they observed the aircraft moving along the taxiway and when it took-off. Mr Walker made a statement saying that he had watched the aircraft as it moved along the taxiway and he had noted that the runway lighting was not on at that time nor during the aircraft's take-off. Mr Dergacz made a statement saying that he had heard the sound of a jet aircraft rotating from the runway and he had looked out of his window and observed that the runway lights were not illuminated.

12 Statements were taken in the course of the investigation from Mr Gomez, the duty fire officer at the airport, and from Mr Axon, the maintenance engineer on board the aircraft. Mr Gomez watched the take-off with the use of binoculars. He paid attention to the aircraft's engines. When he was interviewed a few days after the incident he was unable to say whether the runway lighting was on or off at the relevant time. Mr Axon was present in the cockpit at the time of the take-off and had no memory of any unusual occurrence.

13 Each of the respondents was contacted in connection with the investigation and each declined to be interviewed. On 2 January 2002, Qantas wrote to CASA advising that each of the respondents had reported that the runway lights were activated and operating during the take-off. On 15 January 2002, the first respondent made a statutory declaration stating that the runway lights were illuminated for the departure of the aircraft.

The delays in prosecuting the offences

14 In April 2002 CASA referred the matter to the Commonwealth Director of Public Prosecutions. For reasons that are not explained, complaints were not sworn against the respondents until 30 March 2004. The proceedings came before the Court of Petty Sessions on 8 June 2004. The respondents entered pleas of not guilty on 14 September 2004. The proceedings were listed for a committal hearing between 28 and 30 June 2005. These dates were vacated on the application of the defence. The committal hearing was held between 2 and 4 November 2005. The respondents were committed for trial. Delays associated with the provision of the transcript followed thereafter. The proceedings were listed for trial at the sittings of the Supreme Court commencing 21 November 2006. The trial did not proceed at this time apparently as the result of further difficulties associated with the provision of a complete transcript. On 13 March 2007 the proceedings were adjourned on the application of the defence to allow for the submission of a ‘no bill’ application.

15 The application for a stay came before Slicer J on 26 November 2007. The application was based on the loss of ‘primary technological evidence’ (‘the lost evidence’) and on the delay which, it was said, strengthened the ‘prejudice’ flowing from the lost evidence 4.

The lost evidence and the operation of the PAL

16 The lost evidence comprises the electronic record of the activation of the PAL made by a Monitor at the airport (‘the Monitor List’) and the information recorded on the aircraft's flight data recorder (‘FDR’).

17 The Monitor List contained a record of the last 13 activations of the PAL. A print-out of the Monitor List was obtained two days after the incident. This only contained records of activations on 24 and 25 October 2001.

18 The FDR recorded the keying of the VHF radio system, the time of transmission and its duration. It did not identify the specific frequency or the purpose of the transmission. Given the time of night at which the incident occurred and the absence of staff in the control tower, an inference could be drawn from the FDR data that a radio transmission was made in order to activate the PAL. Data recorded on the FDR was overwritten after a time. The evidence established that the information recorded on the FDR during the aircraft's flight on 23 October 2001 could have been retrieved within 13 to 15 days of that day.

19 The PAL was activated by the transmission of three pulses on a frequency specified by the manufacturer. Each pulse was required to be between one and five seconds in duration and it was necessary for all three to be transmitted within a 25 second span. Once activated, the PAL operated for an interval of between 30 and 60 minutes depending on the timer setting. The timer setting at the airport provided for a period of 32 minutes illumination. The system was designed to warn of the impending extinguishment of the lights; during the final 10 minutes of the cycle the IWDI...