Director of Civil Aviation v Kirby [2018] NZDC 9072

Published 13 June 2019

Admissibility of evidence — video footage and audio recordings — operating an aircraft in a careless manner — operating a vehicle in a manner that caused unnecessary danger — Transport Accident Investigation Commission Act 1990, ss 14C, 14D — Evidence Act 2006, ss 7, 8, 69 — Interpretation Act 1999, s 5 — New Zealand Airline Pilots Association v AG [1997] 3 NZLR 269 — R v Sotheran (2001) 19 CRNZ 132. The defendant, a flight instructor, faced one charge of operating an aircraft in a careless manner and one charge of operating a vehicle in a manner that caused unnecessary danger. The charges arose after a training flight from Auckland to Ashburton, where it was alleged the defendant flew unsafely through deteriorating weather conditions. A student in the aircraft with the defendant had, with the defendant's permission, placed two GoPro cameras and an audio recording device in the aircraft prior to the flight. The main issue for the Court was whether the recordings were admissible as evidence. Section 14D of the Transport Accident Investigation Commission Act (the Act) prevents any information from flight recorders (commonly known as "black boxes") being used in any prosecution. This is to ensure pilots do not turn them off to protect themselves from prosecution. Policy deemed that safety was more important than proving culpability in flight accidents. The defence submitted that this section also prevented video footage and audio recordings from being used in prosecutions. It was submitted the plain language of s 14D, policy objectives and international authority supported the exclusion of the evidence. It was submitted that to say that cockpit voice recordings and cockpit video recordings were only recordings that came from flight recorders was unduly narrow and placed a strain on the statutory language. The prosecution submitted that ss 14C and 14D did not apply, as they relate to air accident investigations where black boxes are concerned. A temporary mounted camera is not a “flight recorder” and therefore what was captured on film and voice record was admissible in prosecution. The scheme of the Act requires that the phrases “cockpit voice recordings” and “cockpit video recordings” (CVRs) cover only recordings from flight recorders ie devices installed to record information for accident and incident investigations. The footage in this case was not flight recorder data but a witness' recording, which just so happened to be taken from the cockpit. The judge noted the Act did not define cockpit voice recording or cockpit video recording. The judge considered the wider scheme of the Act. Part 3 of the Act was headed “Disclosure and Admissibility of Transport Accident and Incident Investigation Information”. The preamble and Part 3 made it clear that the information to be protected was accident and incident investigation information. The recordings made by the student were not part of an accident or incident investigation. Furthermore, flight recorders are mandatory equipment on most commercial airlines as provided for in the New Zealand Civil Aviation Rules. Approximately 68 pages of the rules are required to set up a technical minima that apply to what can be a flight recorder. The International Civil Aviation Organisation’s Convention on International Civil Aviation includes an annex with 8 pages of specific requirements for flight recorders. The recording equipment used by the student did not meet these technical requirements. It was determined that statutory interpretation of the Act did not give protection to the evidence in issue in this case. The policy reasons behind ss 14C and 14D of the Act did not extend to the GoPro cameras or audio device in this case. The defendant also had no expectation of the recordings being confidential. The evidence was therefore relevant to the investigation and admissible. Judgment Date: 11 May 2018.