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In brief - Alcohol conviction for pilot upheld by ACT Supreme Court

A Virgin Australia pilot, who tested with an alcohol level of 0.059 grams of alcohol per 210 litres of breath on arrival at the airport, appealed his conviction in the Magistrates' Court on the grounds that the magistrate had erred in various findings. However, in Hollis v Rogers [2016] ACTSC 56, the Supreme Court of the Australian Capital Territory upheld the conviction.

Safety-sensitive aviation activity regulations, and drug and alcohol testing requirements considered by courts

Regulation 99.375 of the Civil Aviation Safety Regulations 1998 (Cth) prohibits a person from performing or being available to perform a safety-sensitive aviation activity (SSAA) where the person, after testing as set out in the regulations, has an alcohol level of 0.02 grams or more of alcohol per 210 litres of breath.

Section 33 of the Civil Aviation Act 1988 defines SSAAs as activities that impact directly or indirectly on the safety of civil aviation operations in Australian territory or the operation of Australian aircraft outside Australian territory. Part IV of the Civil Aviation Act is entitled "Drug and Alcohol Management Plans and Testing" and sets out the testing requirements.

Random alcohol test carried out on pilot in crew area following evening of drinking

David Hollis was a pilot employed by Virgin Australia.

At the hearing at first instance he gave evidence that on 10 August 2013 he had flown from the Gold Coast to Canberra. After arriving at his hotel room, he met his First Officer at a bar in the hotel at about 5 pm where they shared a bottle of red wine and consumed some potato wedges. They then had dinner and another glass of red wine at a bar. After dinner, Hollis returned to the hotel where he consumed two vodka, lime and soda drinks before going to bed at about 10 pm.

He awoke the following morning at 6.30 am and had a coffee before catching the bus to the airport where he arrived at around 7.35 am.

The alcohol test was conducted in the Virgin crew area as a random test by Rogers, an approved alcohol and drug tester employed by the Civil Aviation Safety Authority (CASA) soon after Hollis' arrival at the airport.

Must there be a finding of the relevant safety sensitive aviation activity?

The magistrate was satisfied that the alcohol test was properly conducted and that the offence was proved.

Although Hollis had lost his employment with Virgin Australia as a result of the offence, and had suffered embarrassment and humiliation, the magistrate noted the serious potential ramifications of flying an aircraft while under the influence of alcohol, imposed a conviction and fined Hollis $2,000.

The appeal against the sentence was based on assertions that the magistrate had erred in various findings in reaching her conclusions.

Burns J accepted that there must be a finding of what activity was being undertaken by the pilot in the course of his duties as a crew member to satisfy the requirement that he was "performing an SSAA". However, he was satisfied that the magistrate's failure to state the activity that Hollis was undertaking in the course of his duties as a crew member was ultimately of no significance as the offence may be proved by establishing that an accused person is either performing or is available to perform an applicable SSAA.

Compliance with alcohol testing requirements

The judge considered that there could be no doubt that Hollis was available to perform activities as a pilot and that was the reason he had travelled to the airport and entered the Virgin crew area.

The judge also found that the testing requirements were satisfactorily complied with.

Finally, Burns J noted that Hollis had not demonstrated any error of fact or law by the magistrate in the sentencing process and there could be no possible argument that the sentence imposed was manifestly excessive.
Accordingly, the appeal was dismissed.

Courts' decisions in keeping with aviation safety regulations

While no doubt the effect on Hollis' career and reputation as an airline pilot has been significant, the relevant regulations are clearly aimed at ensuring the safety of the aviation industry in Australia and, in all the circumstances, notwithstanding that there was some dispute regarding the evidence, the findings both at first instance and on appeal seem unremarkable.

This is commentary published by Colin Biggers & Paisley for general information purposes only. This should not be relied on as specific advice. You should seek your own legal and other advice for any question, or for any specific situation or proposal, before making any final decision. The content also is subject to change. A person listed may not be admitted as a lawyer in all States and Territories. © Colin Biggers & Paisley, Australia 2024.

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