DISMISSAL OF ONE CHARGE

Southland Times, Issue 23308, 18 September 1937, Page 21

DISMISSAL OF ONE CHARGE

PILOT IN BIG BAY ACCIDENT REHEARING OF CASE Two charges against Arthur John Bradshaw, the pilot of the aeroplane that was involved in a fatal crash at Big Bay on December 30 last year, on both of which defendant was convicted and ordered to pay costs when the case was heard on September 10, were reheard in the Magistrate’s Court yesterday before Mr W. H. Freeman, S Jvl, on the application of the Crown. The charge that defendant used an ynlicensed landing place at Big Bay while plying for hire was dismissed yesterday. On a charge of failing to satisfy himself before beginning a flight that the aeroplane was satisfactorily loaded for safety in flight, defendant convicted and ordered to pay costs £3 Mr B. W. Hewat appeared for defendant, who pleaded not guilty and elected to be dealt with summarily. Mr H. J. Macalister, who conducted the prosecution, said that by agreement the evidence taken in the previous hearing was admitted and deemed to have been taken in the present proceedings. Counsel for the defence agreed, but asked that the objections previously made by Mr R. B. Bannerman stand in the present hearing. The position was an unusual one, he said. The court’s pronouncement was made at an earlier hearing and defendant was in the position of an appellant from that pronouncement. Mr Hewat submitted that, on the merits of the case, defendant should not be convicted of either offence.

Dealing with the charge of using an unlicensed ground while plying for hire, counsel said that Regulation 10, under which defendant had been convicted, applied to the proprietors or licensees of landing grounds and not to pilots. A pilot was entitled to make a casual landing on any ground and committed an offence only if he made it a regular place of landing. He submitted that defendant should not have been convicted under Regulation 10. If his actions were contrary to the regulations he should have been charged under Regulation 7. It was the first time he had landed at Big Bay when carrying fare-paying passengers. The Magistrate remarked that Mr Bannerman’s submission was that a pilot could land anywhere in New Zealand.

Mr Hewat: I support that. I submit there should be no conviction on the landing charge. On the other charge, Mr Hewat submitted that defendant committed no offence if he satisfied himself that the machine was safely loaded and there was no evidence to show that defendant was not satisfied that the machine was safely loaded. The Magistrate: There is his own evidence that he took the weight of a passenger for granted. Unless the evidence brought defendant within the charge he should be acquitted, said Mr Hewat. Nothing that was a definite omission on the part of defendant could be pointed out. It was for the prosecution to prove that he could not have been satisfied.

The Magistrate remarked that in his evidence defendant said the aeroplane did not behave very well on a previous trip. What measure had been taken to correct that fault? Counsel for the defence said that that was in defendant’s evidence before the Commission of fnquiry. Defendant had been landing at Myross Bush and the machine did not behave as it should. Defendant thought, however, that it might have been explained by a passenger moving. After the accident, defendant concluded it had been a defect in the machine.

The Magistrate: The Crown does not suggest that overweight had anything to do with the accident.

Mr Hewat: It has never been disputed that the weight at Big Bay was well under the maximum allowance. Defendant made inquiries which, while not conforming to the practice of regular air lines, satisfied him. The Magistrate: Defendant weighed everything except the passengers. Mr Macalister: No. He did not weigh the luggage. The pilot inquired about the weights of the passengers and calculated the load, said Mr Hewat. It was not open to the prosecution to say that because defendant did not weigh one passenger he had failed to satisfy himself that the machine was safely loaded. The pronouncement should be reversed. Mr Macalister said that defendant had failed to satisfy himself that the aeroplane was loaded satisfactorily. He did not weigh or take adequate steps to discover the exact weight of the passengers. He had also estimated the weight of the luggage. Defendant realized that the load was near the maximum, for he took out a can of petrol. There was no room for argument that the proper step to take was to weigh every item. Referring to the other charge, counsel said that it Mr Hewat’s submissions were correct it would be a most extraordinary state of affairs, for it would mean that a pilot could land his machine anywhere in New Zealand and that was opposed to the whole intention of the regulations. Counsel for the defence explained that the removal by defendant of the can of petrol showed that he did exercise judgment and opposed any suggestion of recklessness. There was evidence before the commission that defendant had been told by the manufacturers of the aeroplane that it could be licensed to carry a further 2001 b and he was quite justified in the opinion he had formed. The magistrate referring to the charge of failing to see that the aeroplane was satisfactorily loaded said he saw no reason for altering his previous decision. Sufficient care was not taken by the pilot to satisfy himself. The greatest care must be exercised by a pilot to see that his plane was not overloaded. “In commercial flying pilots should have facilities at hand to enable them to weigh passengers and luggage accurately,” continued the magistrate. “There should be no guess-work. Defendant will be convicted and ordered to pay costs £3 16/-. “On the second charge,” the magistrate continued, “the defendant is charged with using a place in New Zealand namely Big Bay, as a place of landing or departure by aircraft carrying passengers, for hire or reward, such place not being licensed by the Minister. Regulation 10, in my opinion, applies solely to aerodromes and their licensing. Sub-section 4 provides that for a contravention of this regulation the proprietor shall be deemed to be guilty of an offence. In regulation 10 (1) a comma appears after the word passengers which comma, in my

opinion, places the matter beyond doubt. In short, the regulation thus reads, leaving out the surplusage, as follows: ‘No place in New Zealand shall be used for hire or reward unless it has been licensed for the purpose by the Minister.’ This appears perfectly clear and supports Mr Hewat’s contention that the regulation applies solely C aerodromes. Regulation 7 (1) is aimed at the pilot, but before a pilot can be convicted under that section, it must be shown that aircraft carrying passengers for hire or reward must use a regular place of departure or landing. The Crown admits that it cannot show this. The charge is therefore dismissed.”