Pilot Prosecution in New Zealand

29 Mar 13 2 Comments

I only just became aware of this court case which ended last week. Pacific Blue were a regional airline based in New Zealand. The airline is now Virgin Australia Airlines (NZ). The flight in question was departing from Queenstown, New Zealand for Sydney, Australia.

The incident happened on the 22nd of June in 2010.

Pacific Blue admits takeoff after deadline – National News | TVNZ

Pacific Blue admits one of its flights out of Queenstown took off four minutes after the shut-off point for departures in the evening.

The Civil Aviation Authority (CAA) is investigating the incident in which flight DJ 89 from Queenstown to Sydney on Tuesday, June 22, departed Queenstown Airport in darkness, potentially endangering the 140 passengers and crew aboard.

Pacific Blue said its internal procedure states aircraft at Queenstown should take off no later than 30 minutes before evening twilight.

It said on this occasion the plane took off about 26 minutes before twilight.

We have real video footage from the flight. The passengers on the plane included competitors and flight crew from The Amazing Race, a television reality show. The flight was filmed as a part of episode 7 and you can see them on the aircraft at around the 02:20 mark and the film shows some views at take-off between 02:52 and 03:12.

As far as I understand it, the curfew is in place to allow for a visual return to the airfield in case of an engine failure on take-off. The other issue is whether the pilot disregarded his airline’s 16-knot crosswind limit. The pilot stated that he disagreed with the control tower readings at the time and stated that the crosswind was well under 16 knots based on the windsock.

The pilot was charged in April 2011:

Pilot charged after ‘unsafe’ takeoff – travel | Stuff.co.nz

The Civil Aviation Authority has charged the pilot of a Pacific Blue passenger jet for allegedly compromising safety by taking off from Queenstown Airport last year after the deadline for departures.

It was reported at the time Flight DJ89 departed Queenstown for Sydney on June 22 in darkness, potentially endangering the 140 passengers and crew aboard.

CAA said today that two charges had been laid under the Civil Aviation Act following an extensive investigation into the departure of the B737-800 aircraft from Queenstown, in conditions of poor light and visibility.

“The investigation concluded that the airline’s procedures and operating conditions were breached in this take off…and that safety was compromised as a result.”

Director of Civil Aviation Steve Douglas said that the airline had not been charged.

The media frenzy was immediate. A Pilots Professional Rumour Network located in New Zealand posted to the message board to clarify key details:

Some Facts

Pacific Blue has a company requirement to depart Queenstown 30 prior to ECT. It is not an aerodrome requirement. Business jets and local operators often operate until ECT.

The aircraft was airborne at approximately 0525z. 20min before ECT. The pilot was actually ready for departure earlier but waited for a lull in the wind.

Previously a significant front of weather had passed through the field. This was the reason the flight was delayed. By the time of the departure there was only light rain. As is very common at Queenstown a low band of cloud had built up around the Frankton Arm/Township area, around 1000ft agl.

The controllers reported that this layer was more extensive, however the tower’s view of the departure area is obscured by Deer Park. The pilot stated that cloud in the area had dissipated and was suitable for departure. He was only now concerned with the crosswind. The pilot’s assessment of the cloud proved more accurate.

When the aircraft departed it levelled out under the layer of cloud in the Frankton Arm. (It did not descend as reported). Reaching Kelvin Heights golf course the aircraft resumed climbing and followed the published visual segment to Tollgate where it was still visual.

The reports made to the CAA were made by the general public. Neither the control tower nor Pacific Blue filed an incident report.

The case continued. In March 2012, the defence counsel told the Judge that his client was “probably the absolute top of the tree in terms of aircraft qualifications”. He had over 16,000 flying hours at the time of the incident.

Accused Pacific Blue pilot ‘is highly qualified, not careless’ – National – NZ Herald News

Yesterday defence counsel Matthew Muir, of Auckland, said there was a “significant danger” in elevating an alleged breach of Pacific Blue’s exposition to “criminality”. The flight was scheduled to depart at 4.30pm, but took off at 5.25pm, meeting the “basic daylight requirements” by taking off 20 minutes before the advised Evening Civil Twilight (ECT) time.

However, it was a potential breach of the company’s exposition, so it had to be proven “there was such a failure and the pilot decided in a manner that was not reasonable and prudent” to take off. Pacific Blue’s exposition required take-offs to occur “at least 30 minutes prior to Evening Civil Twilight to allow for visual manoeuvring”.

“The defendant will say given the range of exposition requirements, a breach of Pacific Blue’s exposition at the time … can’t in itself be equated with carelessness.”

He said the captain and first officer formed a departure plan “which did not involve a return to Queenstown” and the only visual manoeuvre required was between the airport and a reference point, which took about two minutes’ flight time to reach.

“It had completed, we say, all the visual manoeuvres it was going to do that day … still with 18 minutes running before Evening Civil Twilight.”

Further, a “return to land scenario” would not only represent “very poor professional judgement” but it was prohibited in Pacific Blue’s exposition, given there was an “alternate airport” available and suitable in terms of weather conditions.

“We are saying that the pilot was faced with conflicting messages in the Pacific Blue exposition,” Mr Muir said. The hearing continues.

A Captain brought in as expert witness defended the pilot:

Pilot competent: witness testimony | Otago Daily Times Online News : Otago, South Island, New Zealand & International News

Captain Stuart Julian, who has more than 13,000 hours’ flying experience, told the Queenstown District Court yesterday that despite confusion among the crew, weather conditions and cockpit warnings, the pilot passed a test used by air-pilot examiners – “Would I put my daughter on that flight? ” – a measure he said was used to assess whether a pilot was competent.

Prosecution lawyer Fletcher Pilditch, at the end of his cross-examination of Capt Julian, asked whether he would “still put your daughter on that flight”.

“Yes, I would,” Capt Julian replied.

Capt Julian spent the day in the witness stand, addressing issues about the crosswind, cockpit warnings and the figure-of-eight contingency plan chosen by the pilot, who faces charges dating back to June 22, 2010.

He told the court and Judge Kevin Phillips the crosswind limits set by an airline can be broken, contrary to evidence previously given during the case by the Pacific Blue pilot, who has name suppression.

Capt Julian was of the view the 16-knot wet-runway crosswind limit set by Pacific Blue was an expectation of pilots; it was a guide and had little to do with the safety of the flight in question.

The New Zealand press reported that Pacific Blue supported the pilot throughout the courtcase, apparently funding his legal fees. Certainly, Pacific Blue did not deal with the pilot at the time and they did not report the incident. Eye-witnesses on the ground reported the incident to the CAA.

‘Feared for passengers’ – flight witness – Queenstown News

Alan Kirker, giving evidence in Queenstown District Court today (Thursday) during the fourth day of a Pacific Blue pilot’s defended hearing, recalled watching it from his Larch Hill Place home: “My first thought was I was afraid a wing was going to clip a tree, that’s how low I thought it was.”

The Sydney-bound plane left Queenstown Airport towards Frankton Arm before it disappeared behind Deer Park Heights.

Kirker told the court: “It was flying level. I saw it flying at what appeared to be a constant height all the way through till it got to Kelvin Peninsula, then I saw it bank very heavily, probably at a 45-degree angle.

The same article shows the problem with reports from the ground, however:

Earlier today Skyline Gondola operator and eyewitness Malcolm Officer was grilled under cross-examination by defence lawyer Matthew Muir.

Officer, a prosecution witness, says he saw low-lying cloud that covered Deer Park Heights and maintained his certainty despite being shown CCTV footage from Queenstown Airport that indicated the hill was in full view at the time of take-off.

Officer says he saw the aircraft disappearing into cloud as it turned above Deer Park Heights.

Muir suggested Officer’s observations could be wrong after he was presented with official data that conflicted with his accounts.

The courtcase has been going on for over two years but the judge finally handed down his decision a few weeks ago:

Pacific Blue pilot found guilty – Yahoo! New Zealand

A pilot has been found guilty of careless operation of a passenger jet, following a takeoff incident in Queenstown in 2010.

Fairfax Media reports the decision was handed down in a written judgement on the charge that the 54-year-old pilot, who still has name suppression, operated a Pacific Blue Boeing 737 in a careless manner.

During a trial, the defence said the pilot’s actions were correct and any breach of requirements was “below the level of carelessness”.

However, Judge Kevin Phillips’ ruling today said safety margins at that time were “seriously impacted”.

“I am satisfied that no reasonable and prudent pilot … would have commenced the takeoff roll,” the judge said.

“I am satisfied the defendant was careless in his manner of operating the aircraft. The defendant ignored the mandatory requirements and, in their place, used his planning and self designed contingency.”

The pilot was sentenced this week:

Captain Roderick Gunn: Pilot Keeps Licence | Stuff.co.nz

The pilot sentenced yesterday for careless operation of a passenger jet with 64 passengers aboard was allowed to keep his airline licence but ordered to undergo extensive rehabilitative training.

Judge Phillips, who said the pilot’s actions had all the ingredients of an “absolute disaster”, did not disqualify Gunn but imposed conditions including undertaking ground-based training, a safety management course in the United States and not to act as pilot-in-command on any Queenstown flights for 12 months.

He was also fined $5100.

Prosecutor Fletcher Pilditch said in his closing submission the court was obliged to disqualify the pilot to denounce and deter the offending.

The court was presented with a case where the pilot elected to exercise his own policies and his actions lay somewhere between arrogant and cavalier.

“What the court is presented with is offending conduct which is not just mistakes but a product of deliberate decision-making and a wilful departure from the rules.”

Disqualification sent the correct message and it was difficult to assess any degree of remorse as there seemed to be an absence of contrition or accepted wrongdoing.

Defence lawyer Matthew Muir said the conviction itself was an exceptionally high deterrent and a lifelong commitment to aviation was imperiled if the court elected to disqualify his pilot’s licence.

His client’s mistakes were subject to the full glare of public scrutiny, he had lost face and was humiliated.

“He has made a 30-year investment in excellence in all facets of his career. He asks that he be left some foothold with which he can try to rebuild some future for himself and his family.”

The judge said the pilot’s references were excellent but on the day it was all thrown to the wind.


This really seems like a storm in a teacup, were it not that the Captain of that flight has had his entire career turned upside down over it.

I’m not a fan of litigation in these kinds of cases in the first place (it does little to promote safety) so maybe I’m biased.

NZ TV made a incredible sensationalist video. Warning: may cause head-desk moments!

Relive the infamous Pacific Blue flight out of Queenstown – Campbell Live – Video – 3 News

The more we learn about Pacific Blue flight DJ89 out of Queenstown, the more relieved we are we weren’t on it.

Well, I would have put my son or daughter on it. What do you think?

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