Family of Gerardus Miltenburg angry as manslaughter case dropped in fatal plane crash case
Heartbroken Queensland sisters have broken their silence, disappointed by the DPP’s abrupt decision not to prosecute a pilot over the Christmas Day plane crash in paradise which killed their beloved dad. VIDEO, SPECIAL REPORT.
Mackay
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A Mackay region family is furious and wants answers, after the office of Director of Public Prosecutions suddenly discontinued a manslaughter case arising from the tragic plane crash that killed a beloved father and grandfather of 40.
The abrupt decision left the daughters of Kuttabul man Gerardus Miltenburg, 83, feeling brushed off during a phone call with the DPP that came after months of silence, and as though their father’s death meant nothing.
Now, his daughters Josephina Giles, Suzanne Beardsell and Annette Ellen, who are speaking out for the first time, say they also felt upset after the man who was originally charged left a post on social media just days after the case had been mentioned in court.
The DPP says the decision to discontinue charges “is never, ever undertaken lightly” – it did not believe it had any reasonable prospects of conviction in the matter.
The sisters say they will continue their hunt for the truth.
‘There’s been an accident …’: The Christmas Day call that changed family forever
It was early on Christmas Eve 2021, sometime between 7.30-8am, when Josie got the phone call that ripped her family apart.
“There’s been an accident, your dad’s dead”, the words still echo in her mind almost three years later.
She said she didn’t believe it at first, and then went into shock as she walked up to tell her mum Helena.
“She knew … I couldn’t breathe, I couldn’t talk,” she said.
She told her mum to sit down and broke the news.
“She just dropped everything and went, I knew this was going to happen,” Josie said.
Several family members including Josie and her mum went straight to the beach at Ball Bay, north of Mackay, which had become an active scene for an ongoing investigation as police worked fast and against the timeline of an incoming tide.
“Mum just wanted to go and hold dad’s hand,” Josie said, but they were not allowed near the wrecked two-seater Jodel D11 plane.
“We just waited”, until Gerry was taken away to the hospital’s morgue, where they encountered further difficulties because of ongoing restrictions during the Covid hangover.
“When we got that phone call … you can imagine, our Christmas was ruined,” Sue said, recalling how her father had been happily anticipating spending Christmas lunch at her son’s home.
“When I spoke to dad I said, dad I’ll see you soon.
“I didn’t even know my father was going in (the plane). If I knew …”
It’s a thought that has stayed with her, but there was some comfort in the consoling words of her mother.
“Mum’s always said, you wouldn’t have stopped him Sue, he was so excited to go,” Sue said.
She had not been able to return to the beach since the incident, saying “The thought of going there, makes me feel sick.”
Why Facebook post was upsetting
As the family grieved, even returning to that beach the following day to pay tribute to their beloved patriarch, police embarked on a complex 14-month investigation that culminated in March 2023 with a manslaughter charge against amateur pilot Peter Thomas McDougall over the fatal crash.
Civil Aviation Safety Authority officers have also laid a raft of aviation-related charges that are ongoing in Mackay Magistrates Court including multiple counts of not authorised to perform duty; carry out maintenance when not permitted; not authorised, commence flight; purported issue of authorisation.
As yet Mr McDougall has not entered any pleas and the charges and will next be mentioned in court in December.
Family members attended two court mentions – at the start and at the end on May 1, 2024 when a large cohort gathered in the gallery to watch as the case was committed to Mackay Supreme Court, believing it was another step in their path to justice.
Nine days after the committal a photo was uploaded on Mr McDougall’s social media page as the cover image of him dressed as a pilot with one of Gerry’s granddaughters – Josie’s daughter – and her new husband on their wedding day with him describing them as “all family”.
Josie, Sue and Annette sisters said the post upset them.
A message had been sent by an in-law family member to remove the image. The main cover image was replaced but as of November 13 still appeared as part of a screenshot used in the profile picture.
They said the morning of the flight was the first time their dad had met Mr McDougall, who had been acquainted with one family member but not a close contact with the broader troop.
‘We actually feel numb’
After months of waiting Sue said they were contacted by the DPP for an update on the case and a conference call was organised for 1pm October 31 with the principal prosecutor, who then told them manslaughter charge would not be proceeding.
Sue, Josie and Annette, and their brother Ben Miltenburg, said hearing those words was “gut-wrenching”.
“It took us right back to that day,” Sue said, with Josie adding they had all felt helpless and in shock.
“We actually feel numb, and I know when dad passed … we were numb for months (and now) we feel numb again … how am I meant to process this, how am I meant to feel about this.”
The devastation spread like a ripple effect across his immediate and extended family that included five children and 35 grand and great grandchildren.
“Everybody is just bewildered how this came about,” Josie said.
“How can this happen.”
Sue said six month of waiting and it felt like they were “kicked to the kerb”, like they were being told “you mean nothing Gerry Miltenburg”.
An ODPP spokesman said all cases involving a death were reviewed by the Director of Public Prosecutions, assisted by a deputy director, when there was a question over whether the prosecution test was satisfied.
“This matter involved issues of criminal negligence and a requirement to prove an act or omission by the defendant which contributed to the fatal crash, and that the nature of that act or omission was such that it was criminally negligent,” the ODPP spokesman said.
He further said there had been “consideration of the difficult evidential, factual, and legal issues that arise in cases of this nature and after consultation with the investigators” resulting in the discontinuance.
“A decision to discontinue a charge is not a reflection on the lives and memories of those impacted by the case,” the ODPP spokesman said.
“We are very conscious of not discussing this case in too much detail because the matter is still before the court in various forms.”
‘We’re not finished’
The sisters said they had felt very dismissed during the phone call with the DPP when they questioned the process.
“That was it,” Sue said.
“We asked him questions and he couldn’t answer some of those questions … and he just brushed a lot of stuff off,” Josie added.
A spokesman for the ODPP, when contacted by this publication, said it acknowledged and understood the need for victims of crime, and their relatives, to be informed of the reasons why a prosecution was discontinued, particularly where there had been a death.
“The Principal Crown Prosecutor assigned to this case met with the family on two occasions, wrote to them summarising the issue in the case, and provided some additional information the family had requested. Further information is available if required,” the spokesman said.
Under DPP guidelines it states a prosecution process should be continued only where there is sufficient evidence to prove the charge or charges and that it is in the public interest. A prima facie case is not sufficient and a prosecution should not go ahead if there is no reasonable prospect of conviction before a reasonable jury.
The guidelines suggest prosecutors use their qualifications, training and experience, as well as collaborating with other senior lawyers, in reviewing the evidence before making the call to drop a case.
When this publication contacted the ODPP a spokesman stated “after a consideration of the admissible evidence, the Crown does not consider it has reasonable prospects of success in this matter”.
The sisters said they were far from satisfied with the treatment and communication they received.
“I felt like it was about, well we can’t win this, not enough evidence,” Sue said, adding she planned to send a complaint.
“We’re not finished,” Josie said, with Sue adding, “Far from it.”
‘Why life will never be the same without our listener, builder and rock’
His children including daughters Sue, Josie and Annette Ellen and son Ben Miltenburg cherish their memories of their father, recalling endless moments filled with love, advice, companionship and laughter.
Gerry was a builder by trade and had crafted a beautiful property at Kuttabul where he and Helena, who were both Dutch-born, lived surrounded by their family, with some also having their own home on the large plot of land.
“He was always positive and happy,” Josie said.
“And loved. By each and every one of his grandchildren and great grandchildren. He lived for them, that’s what he lived for,” Sue added.
He was known for creating beautiful things such as hand crafted presents for his family.
“He made all the kids a special bookshelf,” Josie said.
He also made rocking cots, high chairs, loved creating Dutch windmills and could fix cars.
“He was known as the book of knowledge, the tree of knowledge … anybody wanted to know anything, Opa knew, dad knew,” Josie recalled.
Gerry was also their confidant, the one his children could open up to about any of their troubles.
“Dad was the one giving advice,” Sue said.
“He was a good listener.”
And come 5pm everyday was happy hour. “The front gate was locked, the doors were locked … and it’s scotch time,” Josie said.
Neither sister really drank the spirit before his death, now they said they enjoyed a scotch and water in his memory.
Even Helena only drank a scotch occasionally but afterwards would also have a daily toast in his memory.
“And when she was in hospital and she was dying we took the scotch in and he had a scotch … it took her all day to drink it,” Sue recalled.
The couple had loved to travel. Before his death Gerry and Helena had been planning a trip to Broken Hill they were never able to take – so Josie took her mum in May 2023, she later passed in August.
“It was something that she wanted to do for dad,” Josie said.
The girls agreed it was kinder for their mum to have already passed saying this news would have “destroyed her”.
“I can hear her saying, how could this be,” Josie said.
‘We’re not accepting this’: Sisters plan next step
“Three years ago our lives were very different,” Sue said.
The sisters agreed there had been a disconnect within the family since their father’s death – Gerry was the one keeping everyone together, they said.
“He was the glue to our whole network … because as soon as there was an issue with the family dad was always there to say, right this is what we’ve got to do … don’t stick a wedge in this family,” Josie said.
“Sort it out, the longer you leave it the harder it’s going to become to deal with.”
“That’s what he used to say,” Sue recalled
Now they were all struggling to come to terms with their new norm.
“We don’t have any closure,” Sue said.
Taking life one day at a time, they were still planning how they would take their fight further for closure, and whether that involved a parliamentary review or requesting a coronial inquest.
Because of the nature of the death, it will automatically be subject to a coronial inquiry
“We’re not accepting this,” Josie said.
“We’re going to fight for him … because he did not deserve to die like that,” Sue said.
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