[1980-1994] Van LR 175
IN THE SUPREME COURT OF
THE REPUBLIC OF VANUATU
CRIMINAL JURISDICTION
Criminal Case No. 24 of 1985
 
BETWEEN:
PUBLIC PROSECUTOR
AND:
PETER STRUIK/ GARY ELSASS
Coram: Chief Justice Cooke
Counsel: Mr Dickinson, public prosecutor
Mr D Hudson for defendants
 
JUDGMENT
[CRIMINAL LAW - CIVIL AVIATION - interpretation of regulations]
The two defendants appeared before me on the 24th June 1985 charged as follows:
Peter Struik, Aeroplane Pilot of 2 Azalea Gardens, Wahroonga, New South Wales and Gary Elsass, Aeroplane Pilot of 2 O'Sullivan Road, Rose Bay, New South Wales, both of Australia, on the 20th June 1985 operated an aircraft owned by A.B.E. Jet Charter Pty Ltd of New South Wales (type and registration C-550 Citation VH-SWL) into Vanuatu without the authority of Vanuatu's Minister of Transport, Communications and Public Works, an offence contrary to section 23(2) of the Civil Aviation (Regulations) Order No. 22 of 1984.
The facts as outlined by the Public Prosecutor and substantiated by the evidence of Mr Cargill, Department of Civil Aviation, hereinafter called D.C.A., Mr Pinhorne, an Air Traffic Controller, hereinafter called A.T.C.O., and Mr Barton, another A.T.C.O. (whose statement was admitted in evidence - Exhibit 3 - with the consent of Mr Hudson, Counsel for the defence, as Mr Barton was on duty at the airport).
Mr Barton in his statement stated that on Wednesday the 19th June, he was on duty as the A.T.C.O at the Control Tower, Bauerfield airfield, when he received a call from Sydney from a person who stated he was the pilot of a Cessna Citation VH SWL, owned by ABE JC and Charter and that he wished to fly to Vila on the afternoon of the 20th June to arrive at about 15.30 hours, local time. Mr Barton stated the pilot realised that he could not offer the required 72 hours notice for a flight of this nature but that he had sent a telex request and hoped to expedite the processing of his request with a telephone advice. He (Barton) passed the details of the flight to the D.C.A to facilitate the action required for flight approval and advised that a telex was on its way. That at about 17.00 hours local time, the pilot rang to advise that he had attempted to telephone the D.C.A to check on the progress of his request but was unsuccessful. That he (Barton) advised the pilot that his request had been forwarded for action. That at approximately 11.10 A.M. on 20th June he (Barton) received a teleprinter advice that the flight had left Sydney and in the absence of flight approval, he (Barton) advised the D.C.A and then sent a message to the aircraft advising that the flight was not yet approved. At approximately 12.20 P.M. he (Barton) received a phone call from the pilot in flight expressing his concern at the lack of approval, but advising that he had just spoken to the D.C.A by phone and that he was expecting approval for the flight at 13.30 - 11.30 P.M. Vanuatu time, and that he had sufficient fuel to hold and if necessary divert. He (Barton) stated that he felt the pilot honestly expected approval and indeed had made every effort to secure the same. He also stated that he expected approval for the flight and did nothing to discourage his confidence.
Mr Cargill of the D.C.A gave evidence that he took a call from the pilot. He advised the pilot that there was no decision, that he should make contingency plans. The pilot stated he had made plans for Brisbane and Noumea. He stated he did not indicate to the pilot that he could continue to Vila. He agreed that it often happened there were late requests for permission to enter. That permission had never been refused to his knowledge. That 72 hours limit was brought into force to afford sufficient time to obtain authorisation of the Minister. In answer to Mr Hudson for the defence whether he told the pilot that there would be no problem in obtaining authority, he stated that he advised the pilot that he should make contingency plans should the Minister refuse entry but that based on past experience, there was no reason to believe it would be refused. Under re-examination he stated that clearance to land is that the runway is clear - it would not indicate to the pilot that under the regulations he had permission to land.
Mr Pinhorne, another A.T.C.O., then gave evidence that the statement marked Exhibit 4 was his statement. (Mr Hudson for the defence made no objection to the admission of such statement). He stated the pilot was duly advised there was no approval to land. He stated the pilot advised that he would continue. I told him I would not restrict approval to land. He said he had no authority to permit the plane to land except in an emergency. He further said that he did not say anything to the pilot to indicate to him that he had permission to enter the country or that he would get authority. That the pilot was aware that permission had not been granted. In cross-examination by Mr Hudson for the defence, he stated that the pilot did say that he could divert if the Minister's approval was not given. It was the pilot who said he would continue towards Vila. The pilot did not hold when approval was not given. He said he did not suggest to the pilot that approval would be given after arrival.
The Prosecution also tendered statements made by the two defendants Exhibit 5, a statement of Gary Elsass and Exhibit 6, a statement of Peter Struik. There was no objection to the admission of these statements and I admitted them as evidence. This was the Prosecution case.
At the end of the Prosecution case, Mr Hudson submitted that the defence had no case to answer, referred to the Aeronautical Information Publication, (hereinafter referred to as A.I.P.) FAL 6-1-1-3 which states:
	6-1-1-3 "Overseas aircraft shall not enter or operate in Vanuatu except with the permission of the Minister for Transport and Communications and under the conditions specified by him.
	(a) This authorisation may be obtained via the Civil Aviation Department minimum 72 hours prior to the estimated time of departure from the last aerodrome before entering the Vanuatu Territory."
which he said was pure information and not regulations. He said that if the A.I.P. were valid then it was complied with as authorisation had been applied for. He said the A.T.C.O. gave authorisation acting in good faith. He said the defendants could have gone to Noumea but they acted on the information of the A.T.C.O.
 
Mr Dickinson, in reply, stated that so far as FAL 6-1-1-3 was concerned there was no suggestion that the same had the status of regulations a breach of which attracted a criminal penalty of itself. That is why he said the charges were under section 23(2) of the regulations. In other words you can only come to Vanuatu on conditions as set out by the Minister and that 6-1-1-3 sets out such conditions. To suggest that such conditions need not be complied with would be clear nonsense.
Mr Dickinson further contended that authority of the Minister had not been granted and that the only source to decide that was the certificate of the Minister - Exhibit 1. He further submitted that the pilots knew well the distinction between the duties of the A.T.C.O. and authorisation of the Minister and when they landed they had no authority and they knew it.
After the submissions, I held there was a prima facie case established to warrant calling the defence. The defence evidence was that of the chief pilot Peter Struik and co-pilot Gary Andrew Elsass.
Witness Struik agreed that statements by the Prosecution were basically correct. He said he spoke to the A.T.C.O. on duty and that the gist of the conversation was that there would be no trouble about clearance to land. That he was aware of the 72 hours notice as hearsay. That he had never seen the A.I.P at Sydney Airport, he did ask about the same but was informed that Vanuatu never sent one. That he usually referred to American world wide facilities (Jefferson information). That for the Pacific he relied on exhibit 5 which states:
	"All flights landing or overflying Vanuatu must obtain approval from the Civil Aviation, Ministry of Communications and Public Works, P.O. Box 381, Vila, Vanuatu (Telegraphic Address: AVIACIVIL Port-Vila, Telex: 1040 VANGOV (Attn: Civil Aviation)/AFTN NHHH YA/Telephone: 2416 prior to departure."
 
He said "we were proceeding to Tontouta (Noumea) when Vila advised we would be able to land." This was alleged to come from the second A.T.C.O i.e. Pinhorne who said "I gave the pilot approach instructions, and eventually cleared him to land after reiterating that there was still no approval."
Strulk did agree that Cargill (D.C.A.) stressed that he should make alternative arrangements. He also said he did know he had to have permission to land in Vanuatu. The final question by the Public Prosecutor was - "Do you now accept that when you landed you did not have clearance to enter the country?" The defendant Strulk did not answer this question. In answer to further questions by the Public Prosecutor, Strulk did say two pilots were a requirement of the flight. That the co-pilot was there to correct faults.
The second defendant also gave evidence and stated that his duty was to obtain pre-flight information and assist the pilot on the flight. In cross-examination he stated that they were told there was no clearance and that authority to enter was not granted. He agreed that the A.T.C.O has no authority.
Both the Public Prosecutor and defence Counsel, Mr Hudson, made submissions. The Public Prosecutor presented his submissions on two levels. One, the requirement to obtain clearance from the Minister which without such, an offence had been committed and secondly, how such offence was committed. He submitted there was concern even before the plane left Sydney and arrived in Vila. The pilot was constantly pestering the authorities. The pilot did in fact concede that he knew authority had not been given. The pilot says he was mislead by Cargill who said he did not anticipate any problem with clearance but Cargill intimated that he could not remember telling the pilot that he saw no problem and in fact stressed to the pilot that it was the Minister's decision and told the pilot to make alternative arrangements.
Mr Hudson for the defence submitted that the plane landed because of clearance given.
When Counsel had made their submissions, I explained the ingredients of the charge and the law applicable to the Assessors. I also explained the evidence as presented. I made it clear to the Assessors that if the plane entered Vanuatu without authority of the Minister and the certificate exhibited 1 clearly stated that the Minister did not grant authority, then the charge as laid is proved. I further stated that the evidence given by the defendants that they were led to believe that the Minister's authority would be forthcoming, was merely mitigating evidence.
The Assessors retired and returned with a verdict of guilty against both defendants. I agreed with the opinion of the Assessors, found the defendants guilty and convicted them.
After I found the accused guilty and convicted them and was in the act of sentencing the defendants, Mr Hudson interjected and asked to be allowed to address the Court on sentence. This I allowed but the substance of Mr Hudson's submission on sentence in no way altered my opinion as to the sentences I considered appropriate for the chief pilot who flouted the law and his co-pilot who assisted him.
Even if some indication was given to the pilot by the A.T.C.O. that the approval of the Minister was a mere formality, the law is quite clear that such approval has to be obtained prior to entry. The pilot knew perfectly well that he required authority. In my opinion, he may have been slightly led astray by the comments of the A.T.C.O. but the final decision was his. As this was a clear case of flouting the law I could not possibly accede to the request of Mr Hudson to deal with this matter under section 43 of the Penal Code, i.e. discharge the defendants without convicting them. I did, however, bear in mind that the defendants could have been somewhat mislead as to the granting of authority by the Minister and fined the first defendant 50,000VT or three months imprisonment and the second defendant, because of his minor role, to a fine of 20,000VT or one month's imprisonment, the fines to be paid within one month.
15 July 1985
FREDERICK G. COOKE
CHIEF JUSTICE