CVRs or not quite

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1st Dan
1st Dan
Posts: 255
Joined: Nov 2010

CVRs or not quite

Postby muppet » Tue Oct 17 2017, 05:32

Received the email below from a NZ based GA Advocacy group. Interesting topic and an angle I know CASA has also used to prosecute pilots. I think this email is well-intentioned, yet misguided. CVRs are installed (normally required by law) for safety reasons and should not be used against pilots unless deliberate breaches or ill intentions are discovered. Some tourist or student filming someone breaking the law, without good reason, is quite a different thing. The Palmerston North crash was a CRM failure when dealing with a mechanical issue, not some instructor pushing bad weather for whatever reason. of course one needs to know the full details to judge this case, but every pilot should realise, if you go around breaking the rules, you better have a good excuse for it. I am hoping CAA or CASA won't come after someone who technically infringes some minima, but anyone flying dangerously is a hazard to aviation. Cowboy days are long gone. Again though, this guy could be innocent of anything significant, or he could be some young twerp showing off to his student.

And yet this is balanced by a deep mistrust most of us have in the integrity of our regulators. mmm.... Having been on the wrong side of the regulator many, many moons ago for a ridiculously tiny and technical breach (not a safety issue at all...), they aren't always just trying to keep us safe. I got a warning on my file, but was told by the Investigator "Heck, we all do it, just keep it quiet next time."

And certainly, if someone is filming, keep your nose especially clean!


Fellow aviators

We’ve been made aware of a pending prosecution against a pilot that we believe has serious implications for general aviators as well as professional pilots.

It involves a pilot who is being prosecuted for events that occurred on a cross-country flight during which he encountered unforecast bad weather.

The evidence that the CAA is principally relying on stems from audio and video material recorded by a young student pilot, during a training flight. The student used a GoPro camera fitted inside the cockpit, and a separate audio recording device.

The lawyer acting for the pilot believes that cockpit audio and video recordings are inadmissible in any criminal proceedings in New Zealand, against any pilot. There is Court of Appeal support for this, following the 1990s Dash 8 crash on approach to Palmerston North, with no other court decision to the contrary.

The CAA view

The CAA takes the view that this exclusion of audio and video recordings applies only if TAIC is investigating and that it is free to use such audio and visual evidence in prosecuting a pilot, where the CAA or the police have investigated and not TAIC. The pilot’s lawyer is of the view this opinion was not supported by the Court of Appeal decision. Also, when the TAIC Amendment Bill was passed through Parliament to prohibit CVRs being used in criminal proceedings against pilots, the Hansard records of the third reading of the Bill when enacted did not support the CAA’s opinion either. We understand the CAA has used this type of evidence in other prosecutions and, if not challenged, will continue to do so.

The entire issue needs to be considered and ruled upon.

The implications for GA pilots and operators

If the CAA is successful in securing the admissibility of cockpit audio and video recordings in cases other than a TAIC investigation, the implications for GA pilots are obvious.

Since the 1990s, when the TAIC Amendment Bill was introduced in respect to dedicated aircraft CVRs, rapid and probably unforeseen advances in technology have resulted in a proliferation of pseudo-CVRs in the form of GoPro camera, iPads, smartphones and the like.

A recording taken by a co-pilot or student pilot, or even a passenger within close proximity to the cockpit on a smart device or camera can now be taken out of context, and used to bring prosecution action against a pilot. These devices, with their monocular depth perception and limited field of vision, will often portray an inaccurate view of what a pilot is actually encountering and weather conditions in particular may look worse than what was actually experienced.

The CAA could use such recordings in a prosecution against a GA pilot, unless a ruling is made that they are totally inadmissible against all pilots, regardless of who investigates.

The CAA has applied to the District Court to have the video and audio evidence admitted against the pilot. The pilot is therefore in the position of either having to accept that the CAA can use that evidence, or defend it. If the CAA loses in the District Court, it is likely to appeal, as any ruling prohibiting the Authority from using such information obviously has ongoing implications in future CAA investigations.

That has serious cost implications for the accused pilot, who cannot afford to fight this alone. A ballpark forecast of costs to argue the matter in the District Court alone is about $15,000.

The matter is due to be heard in the District Court on 14 November. At this time, the pilot does not have sufficient funds to meet the estimated costs of fighting this legal challenge, and if unable to do so, it may be left to the Judge to decide and rule on the admissibility point with the CAA lawyers appearing and making submissions, and potentially no one appearing to argue against them.

We need to recognise, as a community of aviators, that what the accused is confronting has wider implications for the rest of us. This is why we are looking for support from fellow pilots and operators prepared to assist in the funding to obtain a definitive judicial ruling on the admissibility of these recordings as evidence in criminal proceedings against all pilots.

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