Virgin captain David Cunningham avoids conviction after positive alcohol test ahead of flight

David Cunningham had downed nearly a dozen drinks the night before he was scheduled to pilot a commercial flight from Melbourne to Sydney, a court has been told.

A Virgin Australia captain caught over the legal alcohol limit just hours before he was due to fly Australia’s busiest air route has been cleared to get back in the skies by the aviation watchdog.

Documents tendered to the Downing Centre Local Court on Tuesday said Willoughby resident David Scott Cunningham downed up to 11 alcoholic drinks on a boozy night out with friends in Melbourne on May 4 last year, the night before he was scheduled to pilot a commercial flight to Sydney.

The 46-year-old father-of-two was among a host of aircraft crew subjected to random breath testing at Melbourne Airport the following morning, which the court heard was standard procedure under Australian aviation law.

Cunningham returned a positive reading of 0.049 — more than double the 0.02 legal alcohol limit for pilots.

In comparison, the legal limit for driving a vehicle under NSW law is 0.05.

Cunningham, who the court heard at the time was an undiagnosed alcoholic, was immediately grounded by Virgin Australia and served a nine month suspension, during which he received treatment for alcohol addiction.

Cunningham ran from the media after exiting court on Tuesday. Picture: NCA NewsWire / Nikki Short

He was charged by the Civil Aviation Safety Authority (CASA) in January with one count of performing a safety sensitive aviation activity while showing a positive result for a confirmatory alcohol test, to which he subsequently pleaded guilty.

The charge carries a maximum fine of $13,750, but no jail time.

Magistrate Susan Horan on Tuesday fined Cunningham $2000 but spared him a criminal conviction on the condition he be of good behaviour for two years.

The court heard CASA cleared Cunningham to return to the skies in February and he had since resumed his 17-year career with Virgin, flying international routes throughout the Pacific and Asia.

Cunningham’s lawyer David Quayle said his client had “demonstrated an unwavering commitment” to address his alcohol abuse disorder, including attending a 12-week outpatient program and undergoing psychological treatment, and presented a low risk of reoffending.

Cunningham (left, with his lawyer David Quayle, has already returned to the skies as a Virgin pilot, the court was told. Picture: NCA NewsWire / Nikki Short

He accepted the offence was “objectively serious” but told the court Cunningham had not come to the attention of the CASA official because of any untoward behaviour that day, rather he’d been picked at random.

The court heard Cunninghan had paid $15,000 out of his own pocket for medical treatment and had now been sober since June.

The prosecutor urged the magistrate to record a criminal conviction against Cunningham, saying he had been in a “trusted position of authority” and his actions had potentially put others at risk of serious harm.

In sparing Cunningham a conviction, Ms Horan noted he had a limited criminal record, was well-respected by colleagues and had been cooperative with CASA.

“Mr Cunningham, I really hope the court will not see you again,” she said.

Cunningham fled when approached by the media outside court for comment.

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