Tasman Australia Airlines Pty Ltd v Ogil [2009] PGNC 182; N3808 (11 December 2009)

N3808

PAPUA NEW GUINEA
[IN THE NATIONAL COURT OF JUSTICE]

CIA No. 466 OF 2004

BETWEEN:

TASMAN AUSTRALIA AIRLINES PTY LTD (CAN 074835760), ANDREW REID & PETER McGEE
Appellants

AND:

ANDREW OGIL, DIRECTOR OF CIVIL AVIATION AUTHORITY
Respondent

Waigani: Paliau, AJ
2009: 4th November & 11th December

APPEAL – Appeal from District Court pursuant to s.219 of the District Courts Act.

APPEAL – On the ground of Mixed fact and law in that the District Court Magistrate erred in finding that the Appellants did cause an aircraft to be operated in a careless manner which caused unnecessary danger to other persons and/or property under ss.277 and 278 of the Civil Aviation Act. Also on the ground that the Court erred in fact and law by imposing harsh sentence on the Appellants.

APPEAL – First ground of appeal dismissed in its entirety – Magistrate did not err in mixed fact and law.

APPEAL – Second ground of appeal upheld in relation to Appellants being punished twice for the offences. And partially dismissed in relation to whether the sentences were harsh.

APPEAL – Appeal dismissed with costs to be bourn by the Appellants.

Cases cited:

SCR No. 1 of 1980: Re Section 22A(b)
of the Police Offences Act (Papua) [1981] PNGLR 28
Tasman Australia Airlines Pty Ltd v. Andrew Ogil (2004) N2711.
Karo Gamogo v. The State [1981] PNGLR 443
Tapopwa Thomas v. The State [1979] PNGLR 140

Counsels:

G. J. Sheppard, with D. Salika, for the Appellants
T. Manjin, for the Respondent

DECISION

11th December, 2009

1. PALIAU, AJ: This is an appeal from a decision of the Grade 5 District Court which convicted the Appellants severally and jointly for six (6) counts. The six (6) counts were laid pursuant to ss.277 and 278 of the Civil Aviation Act 2000 (“the Act”). These counts were in relation to the operating of a Cessna C550 Jet, Australian Aircraft registration number, VH-WNZ (“the aircraft”). This aircraft belongs to Tasman Australia Airline. The Appellants were charged for the operation of the aircraft in a careless and dangerous manner.

2. The appeal is made pursuant to s.219 of the District Courts Act and the Appellants Amended Notice of Appeal filed on 17th June 2009.

3. The decision appealed against is the District Court decision of 10th December 2004, whereby the Court found the Appellants guilty as charged and imposed the following sentences severally and jointly against the Appellants:

(a) For charges under s.277 of the Act, the Defendants:

(i) Peter Alfred McGee and Andrew James Reid were convicted, cautioned and discharged; and

(ii) Tasman Australian Airlines was convicted and fined K50, 000.00.

(b) For charges under s.278 of the Act, the Defendants:

(i) Andrew James Reid was convicted and fined K 50, 000.00, in default twelve (12) months in hard labour; and

(ii) Peter Alfred McGee was convicted and fined K 30, 000.00, in default twelve (12) months in hard labour; and

(iii) Tasman Australian Airlines was convicted and fined K200, 000.00.

(c) All the above fines totaling K 330, 000.00 were to be paid by 4:00 pm today (Friday, 10th December 2004) if in default the Defendants be imprisoned at the Bomana CIS, for twelve (12) months with hard labour.

(d) The aircraft be released to the Defendants only when all fines and costs are paid.

(e) It was further ordered that the Defendants will pay all costs and expenses in prosecuting this case, if not agreed, than this Court will have these costs taxed.

(f) That Peter Alfred McGee’s flying license be suspended for a period of twelve (12) months from today (Friday, 10th December 2004) from flying any form of aircraft in the territorial boundaries of Papua New Guinea.

4. The grounds of appeal as contained in the Amended Notice of Appeal are:

(a) The District Court Magistrate erred in mixed fact and law in finding that the Defendants did cause an aircraft a Cessna Citation Jet, Australian registration number, VH-WNZ, to be operated in a careless manner which caused unnecessary danger to other persons and/or property, when the evidence before the Court was such that the Court could not be satisfied to the required standard that the Defendants did cause the aircraft to operated in an unnecessarily dangerous manner to other persons or property.

(b) The District Court Magistrate erred in fact and in law by imposing a harsh sentence on the Appellants when there was no existence of circumstances of aggravation going toward the imposition of a harsh sentence.

5. The order which the Appellants seek in lieu of the decisions appealed from is that:

(a) the Defendants be acquitted and found not guilty of the charges and all bail and recognizance moneys paid by the Defendants be refunded forthwith;

Or alternatively;

(b) a lesser non-custodial sentence be imposed against the Defendants.

THE FACTS

6. The facts for which the charges arose from were these. On 27th September 2004 the aircraft was issued a flight clearance to operate into Papua New Guinea.

7. On 29th September 2004 a flight plan was lodged in Brisbane. In the flight plan the route to be taken by the aircraft was Cairns, Port Moresby, Buka, Tokua, Buka, Port Moresby and Cairns.

8. On 30th September 2004 at 9:45am the aircraft departed Cairns for Port Moresby with the Appellants on board.

9. On 30th September 2004 at 2:01pm the aircraft departed Port Moresby for Buka. The Appellants with ten (10) other passengers were on board the aircraft. The aircraft landed in Buka at 3:45pm.

10. On 30th September 2004 at 4:25pm the aircraft departed Buka with the Appellants and passengers on board.

11. On 30th September 2004 at 4:45pm the aircraft landed at Aropa airport with the Appellants and their passengers on board.

12. On 10th December 2004, the Appellants were convicted on the charges that, on 30th September 2004 they:

(a) Did cause an aircraft a Cessna Citation Jet, Australian registration number VM-WNZ to be operated in a careless manner; and

(b) Did cause an aircraft a Cessna Citation Jet, Australian registration number VM-WNZ to be operated in a manner which caused unnecessary danger to other persons and/or property.

thereby purportedly contravening sections 277 and 278 of the Act.

ISSUES

13. The issues that I consider for determination by the Court from the facts and the grounds of appeal are:

A. Whether the Appellants caused the aircraft to be operated in a careless manner and in a manner which caused unnecessary danger to other persons and or property.

B. Whether the imposition of the sentences on the Appellants were harsh and whether there was in existence circumstances of aggravation that justified the imposition of those harsh sentences.

Issue A

14. The issue will be dealt with following the charges that were laid against the Appellants as per ss.277 and 278 of the Act.

“s. 277. OPERATING AN AIRCRAFT IN A CARELESS MANNER

(1) A person, who operates an aircraft in a careless manner, is guilty of an offence.

Penalty: Where a person convicted on an offence is:

(a) a corporation – a fine not exceeding K 50, 000.00; and

(b) other than a corporation – a fine not exceeding K 10, 000.00 or imprisonment for a term not exceeding three months, or both.

(2) The provisions of Subsection (1) are in addition to and not in derogation of any regulations or rules made under this Act.”

15. “s. 278. DANGEROUS ACTIVITY INVOLVING AIRCRAFT, AERONAUTICAL PRODUCT, OBJECTS AFFECTING NAVIGABLE AIRSPACE OR AVIATION RELATED SERVICE

(1) A person, who:

(a) operates, maintains, or services; or

(b) does nay other act in respect of an aircraft, aeronautical product or service, or

(c) causes or permits and aircraft, aeronautical product or aviation related service to be operated, maintained, or serviced; or

(d) causes or permits any other act to be done in respect of an aircraft, aeronautical product or aviation related service.

in a manner which causes unnecessary danger to any other person or to any property, is guilty of an offence.

Penalty: Where a person convicted on an offence is:

(a) a corporation – a fine not exceeding K 200, 000.00; and

(b) other than a corporation – a fine not exceeding K 50, 000.00 or imprisonment for a term not exceeding 2 years, or both.

(2) The provisions of Subsection (1) shall be in addition to and not in derogation of any regulation or rules made under this Act.”

16. The elements of the offences under ss.277 and 278 that the prosecution or the respondent was required to prove in the lower Court were:

(a) Corporation;

(b) Operation of an aircraft;

(c) Operation of an aircraft in a careless manner;

(d) Operation of an aircraft in a dangerous manner; and

(e) Operation of an aircraft to and from a de-commissioned aerodrome.

Element of operation of an aircraft

17. From the evidence adduced in the lower Court, it was not in contention or not in dispute that the Appellants operated an aircraft. And that aircraft was a Cessna Citation (C550), Australian aircraft registration number VH-WNZ.

18. This element of operation of aircraft under ss.277 and 278 of the Act on the 30th September 2004 was therefore established and proven beyond reasonable doubt.

19. I will now deal with the other elements which I consider to be the basis of disagreements thus this appeal.

20. But before I do that I wish to point out that the offences stipulated under ss.277 and 278 of the Act are by their nature criminal offences and as such the burden of proving them lies with the Prosecution and the standard of proof is beyond reasonable doubt. Every element of the offence must be proven beyond reasonable doubt: SCR No. 1 of 1980: Re Section 22A(b) of the Police Offences Act (Papua) [1981] PNGLR 28.

Element of Corporation

21. The Appellants contended at the District Court that the Respondents failed to adduce evidence to prove that Tasman Australia Airlines Pty Ltd is an incorporated company.

22. Section 58 of the Evidence Act required the Respondents to produce the certificate of incorporation or an authenticated copy of the certificate of incorporation of the Appellant, Tasman Australia Airlines Pty Ltd. This they failed to do.

23. The District Court’s failure to recognize the absence of such a mandatory requirement could not have satisfied itself that the element of corporation under ss.277 and 278 of the Act had been established and proven beyond reasonable doubt. The District Court therefore erred in law in not finding that the Respondents had not established that the Appellant, Tasman Australia Airlines Pty Ltd is an incorporated company.

24. The Respondents countered the Appellant’s above submission in the following manner. That the Appellants in effect are now coming to this Court to say that Tasman Australia Airlines Pty Ltd was not an incorporated company. But on 19th October 2004, they took out an action against the Respondent as the Defendant and Tasman Australia Airlines Pty Ltd is named as the Plaintiff in OS No. 564 of 2004 – Tasman Australia Airlines Pty Ltd v. Andrew Ogil (2004) N2711.

25. This action arose from the same set of facts but the Plaintiff applied to the National Court seeking orders amongst others for the release of the aircraft pending the determination of the charges now the subject of this appeal. The National Court refused the application citing that there appear to be a prima facie case of breaches of the Civil Aviation Act and rules and regulations giving the Defendant/Respondent reasonable grounds to detain the aircraft.

26. The Respondent urged the Court to take judicial notice of the fact that Tasman Australia Airlines Pty Ltd is an incorporated company as evident in the above action.

27. It is evidently clear that the Respondent did not produce the certificate of incorporation or an authenticated copy of it to prove that Tasman Australia Airlines Pty Ltd was an incorporated company. This was a mandatory requirement under Section 58 of the Evidence Act.

28. The failure of the District Court to recognize or take into account this lack of production had definitely made it to err in law in not finding that the Respondent had not established that Tasman Australia Airlines Pty Ltd was a corporation.

29. But be that as it is, I am able to take judicial notice of the fact that whilst the proceedings the subject of this appeal was still pending for determination by the District Court, one of the Appellant, Tasman Australia Airlines Pty Ltd, took legal proceedings against the Respondent as the Plaintiff. The fact that its name was used as the Plaintiff seems to me to convey the fact that it was an incorporated company before and after the commission of the offences on the 30th September 2004. The proceedings taken out by Tasman Australia Airways Pty Ltd arose out of the same set of facts which resulted from the laying of charges against the Appellants. If it was not an incorporated company why did it sue in its own name?

30. I will therefore take judicial notice of the fact that the Appellant, Tasman Australia Airways Pty Ltd was and is an incorporated company before and after the commission of the offences.

Elements of Careless and Dangerous manner

31. The Appellants submitted that the District Court failed to consider their submission that the Respondents failed to give direct evidence of the manner in which the aircraft was flown. That the Respondent’s four (4) witnesses were not aboard the aircraft on the 30th September 2004.

32. The evidence adduced by the Respondent’s did not establish that the aircraft was flown by the Appellants in a manner that was “careless” and “dangerous” in accordance with ss.277 and 278 of the Act.

33. They argued and urged the District Court to consider by way of analogy the flying of an aircraft in relating to the driving of a vehicle in a careless and dangerous manner. And they referred to the case of Karo Gamogo v. The State [1981] PNGLR 443 which states that:

“....the driving constituted danger must include a finding of fault on the part of the driver causing the situation: Such fault to involve a failure or falling below the care and skill of a competent and experienced driver in relation to the manner of driving and the relevant circumstances of the case.”

34. In order for the aircraft to be flown in a careless and dangerous manner, there must be prove that the Appellants was operating the aircraft in such a way that it was careless and posed danger to the passengers and or persons or properties on the ground. That the operation of the aircraft fell below the skill of a competent and experienced flyer.

35. There was no evidence of any persons or individuals on the ground at the relevant time when the aircraft landed that would have given rise or posed threats of danger to those persons and individuals.

36. The Respondents at the District Court advanced their arguments on the premise that the Appellants operated the aircraft in a careless and dangerous manner because they were aware that the Aropa Aerodrome was not licensed, not permitted or decommissioned aerodrome but still landed the aircraft.

37. There were certain factors which formed the basis or the reasons for the District Court to have found the Appellants guilty of operating an aircraft in a careless and dangerous manner which caused unnecessary danger to persons and property, namely, the passengers in the aircraft and the aircraft. Those factors were:

(1) Landing the aircraft without authority;

(2) Deviation from the approved flight plan;

(3) Failure to get clearance from Air Traffic Controller (ATC) or Air Traffic Service (ATS);

(4) Landing the aircraft on a decommissioned aerodrome;

(5) The existence of the Bougainville crises.

38. The District Court found the Appellants to have breached the original registered and approved flight plan when they landed the aircraft at Aropa decommissioned airport. This was what His Worship, the late Ivo Cappo said at page 1 of his ruling:

“The route planned for and approved was Cairns, Port Moresby, Buka Tokua, Port Moresby, Cairns. On Thursday 30th September, 2004 the Aircraft departed Cairns at 0914HRS for Port Moresby. At 1401HRS the aircraft departed Port Moresby for Buka with ten (10) people on board and arrived in Buka at 1545HRS. The aircraft departed at 1625HRS. At 1625HRS the aircraft landed at Aropa decommissioned airport with passengers on board the flight. The landing of the aircraft at Aropa was in breach of the original registered and approved flight plan. There appears to have been gross endangerment of passengers on board the aircraft and that contravened Civil Aviation Rules and ss.277 and 278 of the Act.”

39. At page 3 of His Worship, the late Ivo Cappo said these:

“It follows therefore that the purported Authority obtained by the Defendants from a Royal Kingdom/Government of MEKAMUI means nothing and no authority for the flight and landing in question. Therefore, the evidence also shows that the pilot Mr. Peter McGee was under extreme pressure exerted on him by the co-pilot Mr. Andrew James Reid to do exactly what he did i-e. landing at Kieta/Aropa the decommissioned aerodrome. Those very actions by the pilot in landing etc were no doubt in breach of the Civil Aviation Authority rules, putting the lives of the passengers on board at a greater risk. That very act of taking the greater risk in landing at a decommissioned aerodrome is in itself amounts to operating the aircraft in a careless manner. There is no evidence of Mr. McGee reporting to Air Traffic Service of the deviation of the flight in landing at Kieta/Aropa which again is in Breach of the Civil Aviation rules and laws in question. That is, these conducts of deviation again in itself by putting the aircraft at an height unknown to the Air Traffic Controllers or Air Traffic Service knowledge no doubt goes to show beyond any doubt that they breached Civil Aviation Rules 91.409, 91.127, Section 81, 86, 277 and 278. This court therefore finds each of the three defendants guilty as charged on both counts i.e. ss.277 and 278 respectively.

40. The District Court therefore found the Appellants to have breached ss.277 and 278 of the Act and the Civil Aviation Rules 91.127 and 91.409.

41. The Appellants in their grounds of appeal are saying that they did not breach ss.277 and 278 of the Act and did not breach Civil Aviation Rules 91.127 and 91.409.

42. As for the arguments for and against the breach of ss.277 and 278 I have already discussed these in paragraphs 31 to 36 above.

43. In so far as the Civil Aviation Rules are concerned, the Appellants argued that the Civil Aviation Rules were not applicable at the time of the incident as they came into force on 1st January 2005 and not 1 January 2004. They based their argument on a resolution of the CAA Board (Resolution 164) which defer effective date of the rules to 1st January 2005.

44. The Respondent on the converse argued that the effective date of the Rules was 1st January 2004 and not 1st January 2005. The CAA Board by virtue of s.69(4) of the Act has no power to suspend the effective date of the Rules. It is only the Minister that has this power. And the Minister cannot delegate this power to any other person. There is no evidence of a Gazette Notice by the Minister deferring or suspending the operation date of the Rules from 1st January 2004 to 1st January 2005.

45. Rule 91.129 Restricted danger and prohibited area of the Civil Aviation Rules are in these terms:

“(a) No pilot shall operate an aircraft within a restricted area designated under Part 73 unless that pilot has the approval of the controlling authority specified for the area under Part 73 to operate within that area; and

(b) No person shall operate an aircraft within a danger area designated under Part 73 unless that person has established, after consideration of the type of activity for which that area is designated as a danger area, that that activity will not affect the safety of the aircraft; and

(c) No person shall operate an aircraft within a prohibited area designated under Part73.”

46. Rule 91.409 adherence to flight plan of the Civil Aviation Rules provides that:

“(a) Each pilot-in-command of an aircraft shall, when an IFR flight plan has been submitted adhere to the current flight plan submitted, or the applicable portion of a current flight plan submitted, unless-

(1) For flights in controlled airspace, a request for change has been made and clearance obtained from an appropriate ATS unit; or

(2) For all flights, as emergency situation arises which necessitates immediate action to deviate from the flight plan; and

(b) If a deviation from a flight plan is made under paragraph (1)(2), the pilot-in-command shall notify an appropriate ATS unit as soon as practical.”

47. Section 69(1) of the Act vests the power to make the Civil Aviation Rules on the Minister. And the Minister may suspend a rule from coming to operation by notice in the National Gazette (Section 69(4)). The Minister cannot delegate his power to make and suspend rules to any other person (Section 69(8)). And a breach of any rule shall not constitute an offence against this Act unless the offence is prescribed in the regulations made under this Act (Section 69(6)).

48. I will now deal with the arguments for and against the breach of ss.277 and 278 of the Act and Rules 91.129 and 91.409 of the Civil Aviation Rules.

49. The two elements of the charges under ss.277 and 278 of the Act that must be proven by the Respondent beyond reasonable doubt are that the aircraft was operated: (1) in a careless manner and (2) in a manner which caused unnecessary danger to other persons and/or property.

50. I have considered the submissions by both the Appellants and the Respondent and I reject the Appellants contention that the District Court erred in fact and law by finding that the Appellants did cause an aircraft to be operated in a careless manner and in a manner which caused unnecessary danger to other persons and/or property.

51. In my view, the Appellants did not care or showed a careless attitude when they disregard the lawful authority by deviating from the flight plan. This was in breach of Rule 91.409 of the Civil Aviation Rules. And operated the aircraft within the restricted danger and prohibited area thus contravening Rule 91.129 of the Civil Aviation Rules.

52. By virtue of s. 69(1) of the Act, the Minister is the only authority that may make rules and by s.69 (4) he may suspend the operation of any rule. These powers to make and suspend the operation of rules is only vested in the Minister and no one else. The suspension of operation of a rule is effective only by notice in the National Gazette.

53. And so the resolution of the CAA Board (Resolution 164) which purportedly deferred the effective date of the rules from 1st January 2004 to 1st January 2005 is ulter vires its powers and therefore is of no effect.

54. Even if the operative dates of the rules were suspended by the Minister, the Appellants did not produce a National Gazette Notice which effectively suspended the operation of the rules from 1st January 2004 to 1st January 2005.

55. It follows therefore that Rules 91.129 and 91.409 of the Civil Aviation Rules were effectively in operation on 1st January 2004 and at the time the Appellants committed the offences on 30th September 2004.

56. The effective date of the Rules is fortified by Sub-part D of Part II of the Civil Aviation Rules when it expressly provides in no uncertain terms that ‘pursuant to s. 325(3) of the Civil Aviation Act 2000, the following Regulations are revoked with effect from 1st January 2004 when the ordinary rules made by the Minister under s.69 come into effect.’

57. As per Rule 91.409 of the Civil Aviation Rules, a pilot-in-command of an aircraft is obliged to comply with or adhere to a flight plan that has been submitted. The only exceptions to this rule are that (a) a request for change has been made and clearance obtained from an appropriate Air Traffic Services (ATS) Unit or (b) a deviation is warranted due to an emergency. Even if a pilot-in-command has deviated from the flight plan because of emergency, he must notify an appropriate ATS Unit as soon as possible of this fact.

58. There is no doubt in my mind that the Appellants deviated from the flight plan by operating the aircraft and landed at Kieta/Aropa aerodrome without authority or permission. In the flight plan, the route to be taken by the aircraft was Cairns, Port Moresby, Buka Tokua, Buka, Port Moresby and Cairns. Obviously, Kieta/Aropa aerodrome was not part of the route in the flight plan.

59. The Appellants, the pilot-in-command, Mr. Peter McGee and the owner of the aircraft and co-pilot, Mr. Andrew Reid knew of this flight plan. And they knew that Kieta/Aropa aerodrome was not included in the route when the flight plan was submitted and approved.

60. There is no evidence adduced at the District Court which suggested or contended that a request for change to the flight plan was made and clearance was obtained from an appropriate ATS unit.

61. The deviation from the flight plan to include Kieta/Aropa aerodrome and to land there did not only receive clearance but the pilot-in-command did not notify an appropriate ATS unit that he was going to land there.

62. The pilot-in-command, Mr. McGee claimed to have attempted communicating with ATS Lae before landing and after landing but was unsuccessful due to High Frequency (HF) communications was of extremely poor quality. But there is evidence that he was able to communicate with ATS Lae when departing Buka aerodrome. And there is also evidence and as admitted by him that he was able to make contact with ATS Lae at 5:10pm after departing Kieta/Aropa at 4:55pm. This was 15 minutes after departure. Yet he did not advice the ATS unit of the deviation from the flight plan when he had the opportunity as required. For reasons known only to himself, he chose not to notify the ATS unit.

63. I find the above behaviour by Mr. McGee to be unacceptable for a pilot who claimed to have 8000 hours and 14 years experience behind him. This is standard procedure and he had the earliest opportunity to make amends and report the mishap. His failure to notify the ATS unit in my view was a deliberate act rather than an oversight, because he was able to communicate with ATS Lae 15 minutes after departure from Kieta/Aropa airport. In his statement of facts dated 3rd October 2004, he stated that:

“......At 4:55pm I commenced taxi for departure from Kieta/Aropa departing from Runway 32. Unable to contact fight service, I departed and eventually made contact passing 20000 feet at about 5:10pm I advised “operations normal and climbing flight level 240 estimating Tokua at 0955 UTC” (5:55pm). The flight was made directly to Rabaul and landing at 5:47pm local time.”

64. Failure by the pilot-in-command to notify the ATS unit to deviate from the flight plan and land the Appellants aircraft at Kieta/Aropa airport breached Rule 91.409 of the Civil Aviation Rules. The fact that he included this in his flight log does not in my view exonerate him from this breach. The deviation must be notified of as soon as practicable, and not after the event.

65. There was no evidence of an emergency in existence like weather or otherwise that necessitated the deviation from the flight plan for the Appellants to land at Kieta/Aropa airport. The pilot-in-command admitted in his Statement of Facts of 3rd October 2004 to have contravened the flight plan:

“I acknowledge that my operation into Kieta/Aropa airstrip was in contravention of the attached flight clearance.......”

66. Existence of the Bougainville crises was also a factor that the District Court considered when considering the issue of the Appellants’ operating the aircraft in a careless and dangerous manner thus contravening s.277 and 278 of the Act. Although there was no evidence adduced in the District Court, the Court may have taken judicial notice of the crises as it was well covered both locally and intentionally and it was a fact that everyone at that point of time accepted and not to venture into that area, let alone landing an aircraft for fear of danger to lives and property that was imminent to have occurred.

67. The District Court in my view rightly took judicial notice of this fact. And I too believe that the Court in Tasman Australian Airlines Pty Ltd v. Andrew Ogil (supra) also took judicial notice of this fact when it stated at page 8:

“.....This is critical in this case because, on the facts before me it is clear that the pilots therefore the plaintiff’s actions, have shown contempt and disrespect for the laws and authorities of PNG. This is apparent from their deliberately choosing to fly into an aerodrome, in an area well known both locally and internationally that has been the subject of hostilities between the PNG Government and the people of Bougainville until very recently where peace and normalcy is slowly returning on the island....” (emphasis added)

68. One other factor which necessitated the District Court to decide the way it did in finding the Appellants guilty of the charges is the issue of whether the Kieta/Aropa aerodrome was a decommissioned aerodrome. In my view there is ample evidence to sustain the view that Kieta/Aropa aerodrome was a decommissioned aerodrome.

69. The evidence by Andrew Ogil, Walter Bednar and Toule Aisoli who were called to give evidence for the Respondents at the District Court all points to the fact that Kieta/Aropa aerodrome was a decommissioned aerodrome. This is confirmed by the AIP-AGA AMENDMENT ADVICE showing the word DECOMMISSION crossed out and the word DELICENSE replacing it as the classification for the Kieta/Aropa aerodrome.

70. Furthermore, it is clear that there was no license issued by the Civil Aviation Authority for the operation and maintenance of the aerodrome. No person or company held a certificate to carry out maintenance program in accordance with PART 139.103 of the Rules.

71. The last Aerodrome Inspection Report for Kieta/Aropa aerodrome was on 23rd May 2001. The report was done by K. Kilala and it shows the bad state of the aerodrome when the aircraft landed on 30th September 2004. And the classification that was shown in the report was that the aerodrome was delicensed. The reason for inspection was Preliminary Licensing Inspection. The report confirms the absence of the requisite conditions of a licensed aerodrome.

72. The admission by the Appellants namely Mr. McGee and Mr. Reid that the Keita/Aropa aerodrome was decommissioned or unlicensed is enough to establish without doubt that it was in fact decommissioned. Any other argument or documents presented by the Appellants to establish Kieta/Aropa aerodrome was not a decommissioned aerodrome become insignificant by their admissions. There is no doubt that they had prior knowledge of the Kieta/Aropa aerodrome being a decommissioned aerodrome before they even landed there.

73. Even the Court in Tasman Australian Airlines Pty Ltd v. Andrew Ogil (supra) forfeited this fact by saying at page 11 that:

“....Nevertheless, on the evidence before the Court, which includes an admission that, the plaintiff and the pilots made a flight into and landed at a decommissioned aerodrome in Bougainville without prior approval of the Respondent. This was prima facie in breach of Civil Aviation Act and the rules and regulations under it......”

74. And so it is evidently clear that the Appellants operated an aircraft into a decommissioned aerodrome without the prior approval of the Respondent. This was a deliberate breach of the Civil Aviation act and the rules and regulations under it.

75. It follows therefore that the Appellants had no official authority from the Civil Aviation Authority to land at Kieta/Aropa aerodrome. The purported authority or approval from a representative of a Royal Government of MEKAMUI means nothing and no authority for the Appellants to land on a decommissioned aerodrome. The government of PNG is the only legitimate government which Bougainville is part of. As such, all matters relating to the operations of aircrafts within PNG including Bougainville falls within the exclusive jurisdiction of the Civil Aviation Authority under the directorship of the Respondent.

76. The Appellants tried to justify their landing at Kieta/Aropa aerodrome on the basis that there were other previous flights which operated into the aerodrome. Those flights in my view would have obtained approval before land, otherwise they would also have been prosecuted. The Appellants did not adduce evidence that those flights were not approved.

77. The Appellants as earlier alluded to submitted that there was no prove that they operated the aircraft in a careless and dangerous manner, in such a way that posed a danger to the passengers on the aircraft or people or property on the ground when they landed the aircraft. The case of Karo Gomoga v. The State (supra) was relied on for the principle that the driving constituted danger must include a finding of fault on the part of the driver causing the situation.

78. In Karo Gamoga case, it involved the appellant driving across a busy intersection. He had three lanes of traffic to negotiate and he had eight passengers and had to proceed uphill. He saw an ambulance coming on his left and he failed to pay any further attention. He failed to observe the speed of the oncoming vehicle. This manner of driving was found to be potentially dangerous to the public.

79. I am of the view that in the present case, we have a situation where the Appellants’ had no authority whatsoever to operate their aircraft into a decommissioned aerodrome. They have deliberately contravened the Civil Aviation Regulations and the Rules. They are now trying to justify their actions by submitting that, yes, we were wrong in the first place to be there, but when we landed the aircraft we did not commit any offence. That the pilot-in-command landed safely and the passengers were not in danger.

80. The present case can be distinguished from Karo Gamoga (supra) in that in Karo Gamoga, the accused/appellant was authorized to be on the public road and had the authority to be there. There was no evidence that he was unlicensed and the vehicle was unregistered. Whereas in the present case, the Appellants had no authority whatsoever to land on the decommissioned aerodrome, let alone to be in that area at all.

81. They therefore cannot now come to this Court and claim that they are innocent of any wrong doing and to justify their wrong doing by relying on what I believe on the principle of law which is irrelevant and not supportive of their claim.

82. In my view they have initially committed a criminal offence by operating an aircraft into a decommissioned aerodrome without authority. They have contravened the Civil Aviation Act, the regulations and the rules pertaining to operations of aircrafts within PNG. It is therefore absurd for the Appellants to do a complete turn around and claim innocence. And for the Court to act in favour of the Appellant’s submission will not be in accordance with the law. This is in compliance with the notion that the law does not and cannot allow a person to gain from his criminal conduct.

83. In the light of the foregoing discussions, I find that the District Court did not err in mixed fact and law in finding that the Appellant caused the aircraft to be operated in a careless manner which caused unnecessary danger to other persons and/or property.

84. Ground 1 of the Appeal is therefore dismissed in its entirety.

Issue B

Whether the imposition of the sentences on the Appellants were harsh and whether there was in existence circumstances of aggravation that justified the imposition of those harsh sentences.

85. In its submissions, the Appellants contended that it is wrong for two convictions to appear in respect of the same set of facts. The charges should have been dealt with as alternative charges.

86. It was further submitted by the Appellants that s.16 of the Criminal Code is applicable in the present case and thus if the District Court convict on one charge, then it should not convict on the other charge under the Act. It follows therefore that should the Appellants be found guilty under s.278, then they should not be found guilty under s.277 of the Act.

87. The following mitigating factors were submitted in favour of the Appellants:

(1) Mr. Reid and Mr. McGee are both businessmen and have a high standing in society;

(2) They have no prior convictions;

(3) Mr. Reid and Mr. McGee co-operated with investigations;

(4) Mr. Reid and Mr. McGee were remorseful;

(5) Mr. McGee was in Bougainville to provide much needed medical assistance to medical clinics in Kieta, Buka and Tinputz.

88. Against the Appellants, the Respondent submitted the following aggravating factors:

(1) The Appellants knew that the Kieta/Aropa aerodrome was decommissioned and yet deliberately landed there in defiance of the existing laws;

(2) Mr. Reid, the owner of the aircraft and co-pilot deliberately lied about landing at Kieta/Aropa aerodrome when he was interviewed by Mr. Michael Ward. He later changed his mind and admitted to landing there;

(3) Had the PNG authorities not found out about the landing, the Appellants would have not been charged.

89. It is trite law that sentencing is a discretionary matter. It is also trite law that the maximum penalty is usually reserved for the worst category of offences. And a person cannot be punished twice for the same offence, see s.16 of the Criminal Code. Section 16(1) provides that subject to Subsection (2):

“a person cannot be punished twice under the provisions of this Code or under the provisions of any other law for the same act or omission. “

90. Has the Appellants been punished twice for the same offence? The offences for which the Appellants were charged for was laid by virtue of s.277 and s.278 of the Act. It is clear that the Appellants were punished for both the offences under s.277 and s.278 of the Act. The offences in my view arose out of the same set of facts.

In the Supreme Court case of Tapopwa Thomas v. The State [1979] PNGLR 140 it was held (per Andrew, J) that:

“Two charges arising out of the “same act or omission” are to be treated as alternative charges and s.16 of the Criminal Code is therefore to be read as providing for a defence to the second charge entitling an accused to an acquittal.”

91. I am therefore of the considered opinion that the Applicants have been punished twice for the same offence, as the act of operating an aircraft into a decommissioned aerodrome without authority and endangered the lives of passengers and property arose out of the same act or set of facts or set of omissions.

92. I will therefore acquit the Appellants on the charges under s.277 of the Act but confirm the conviction by the District Court on the charges against s.278 of the Act.

93. I will however uphold the fine imposed by the District Court on all the Appellants that –

(i) the Defendant Andrew Reid K 50, 000.00 default 12 months in hard labour;

(ii) the Defendant Peter Alfred McGee K 30, 00.00 default 12 months in hard labour; and

(iii) the Defendant Tasman Australian Airlines Pty Ltd fine K200, 000.00.

94. In arriving at the above decision, I took into account the mitigating and aggravating factors and I am of the view that a deterrent sentence is appropriate in all the circumstances of the case.

95. The single most aggravating factor that has reduced any mitigating factors in favour of the Appellants into insignificant is the fact that the Appellants did operate an aircraft knowingly into a decommissioned aerodrome without authority and in direct and deliberate contravention of the Civil Aviation Act, the Regulations and the Rules of the Civil Aviation Authority and the authority of the PNG Government. Mr. Reid, the owner of the aircraft and co-pilot deliberately tried to hide the fact that they did in fact land at the aerodrome. He was in a position of authority and exerted pressure on the pilot-in-command, Mr. McGree to operate the aircraft illegally by landing in a decommissioned aerodrome. Mr. McGree could have opted out in the first instance when Mr. Reid consulted him if Kieta/Aropa airport was licensed, before they even left for Port Moresby.

96. Ground 2 of the grounds of appeal is therefore upheld only in so far as the Appellants being punished twice for the offences is concerned. It is however partially dismissed in so far as to whether or not the sentences were harsh is concerned.

THE COURT ORDERS that:

(a) The Appeal therefore is dismissed;

(b) The convictions and the sentences imposed on the charge under s.277 of the Act are quashed;

(c) The convictions and the sentences imposed on the charge under s.278 are upheld;

(d) Costs of this Appeal is to be met by the Appellants and to be taxed if not agreed.

Ordered accordingly.

_____________________

Young & Williams Lawyers: Lawyers for the Appellants
Manjin Lawyers: Lawyers for the Respondent