VOCA

An aviation researcher, writer, aviation participant, pilot & agricultural researcher. Author of over 35 scientific publications world wide.

Categories

Good reads

Oil Prices

#ozaviation

Is this a further case of #casa going the small fish (Flyers)??

A discussion on #pprune is worth repeating here, as it surrounds the recent matter in Tasmania, where #casa has put a case forward in the Tasmanian Magistrates Court of reckless flying, flying after drinking alcohol, unlicenced flying. The latest report has the pilot’s case being referred to the Tasmanian Supreme Court for a jury hearing.

The details are in an earlier post:

Shayd Hector of Tingira Heights in New South Wales is charged with the reckless operation of an aircraft, flying an aircraft without a licence, and consuming alcohol within eight hours of flying an aircraft.

The Commonwealth prosecutor alleges the offences took place at or near Bridport on October 28, 2013, endangering the life of Hector’s passenger, Joel Nelson.

The pair were rescued from the sea near Waterhouse Island that afternoon after their ultra-light plane crashed into the sea.


 

20th Dec 2015, 20:58   #82 (permalink)
Join Date: Oct 2014
Location: In my Swag
Posts: 164
Leadsled, the incident? occurred in 2013, so like you am wondering why charges are being laid now.
Reckless flying may be difficult to gain a conviction – now that I understand what actus reus non facit reum nisi mens sit rea meansHave finally (well I think so ) deciphered the difference between absolute and strict liability
In Victoria: Offences under s 49(1)(f) of the Road Safety Act 1986 are absolute liability offences. The assertion of a claim of honest and reasonable mistake has no effect against such a charge

Where as:In NSW, drink-driving is an offence of strict liability. Defences of honest and reasonable mistake are available, and sometimes successful. In DPP v Bone [2005] NSWSC 1239, the accused was found not guilty of drink-driving charges after convincing a magistrate that his beer had been spiked with vodka without his knowledge.The strict liability offences we are hammered with, have the same defences of an honest and reasonable mistake,I have been told we have one other called external force, although that would have a legal term.

Go here if interested quis custodiet ipsos custodes: Drinking & driving – no honest and reasonable mistake
In English: Who Guards the Guards

Edit: A random thought: I thought it was the DPP that decided if an offence had been committed, and whether it would succeed at trial ?


Last edited by Eddie Dean; 20th Dec 2015 at 21:38. Reason: more

Eddie Dean is offline Report Post Reply
Unread 21st Dec 2015, 22:33   #83 (permalink)
Join Date: Jan 2002
Location: australia
Posts: 698
Aah,,,but…

the CDPP may well be given a brief from CASA and asked to peruse and take to court, which they will do if they believe CAsA.s spiel stacks up.

In the Quadrio case the CDPP declined..not happy with the CAsA “evidence”/crap.

But in other cases the CDPP does not know if what CAsA presents to them is true or not…they dont do investigations to find out one way or the other.

Guess they take what CAsA presents in good faith…and if it goes t*ts up, no worries, the intended victim maybe broke by now , having had to defend him/herself for no good reason, so CAsA will be well pleased anyway.

And if CAsA is interested to know why the case failed they’ll have a ‘Shitewash’ to prove that they have done no wrong.

Next ! New debacle upcoming.

aroa is offline Report Post Reply
Unread 22nd Dec 2015, 19:43   #84 (permalink)
Join Date: Jul 2001
Location: Australia
Posts: 3,039
Eddie,
To my mind, the best explanation of Strict Liability and Absolute Liability can be found in Australian Law Reform Commission sources.However, that is not an issue here.Speaking of Absolute Liability, last time I looked most of the offenses under the various state “damages by aircraft” legislation is absolute liability, a sobering thought if you have a bingle, and don’t have adequate insurance.

Despite now five pages on this thread, I am none the wiser as to what this poor sod did (if anything) that warrants a charge of recklessness.

Tootle pip!!

LeadSled is offline Report Post Reply
Unread 22nd Dec 2015, 20:44   #85 (permalink)
Join Date: Apr 2011
Location: Victoria
Posts: 330
It seems that even the Courts sometimes blur the distinction between strict and absolute liability. See the discussion by Vincent J in Skase where HH held that s49(1)(f) of the Road Safety Act is one of strict liability but then held that a defence of mistake is not available.
http://www.magistratescases.com.au/L…0Liability.pdf At (m).However, a Senate Scrutiny of Bills Committee did a pretty fair job and correctly differentiated strict and absolute by acknowledging that mistake is a defence in strict liability but not absolute. It even made some recommendations which probably account for the boringly repetitious statement at the end of each CASR telling us the offence is one of strict liability.Chapter 7 – Application of absolute and strict liability offences in Commonwealth legislation ? Parliament of Australia

CASA must have read that bit but not got as far as the bits about breaching fundamental rights such as the presumption of innocence.

Kaz


Last edited by kaz3g; 22nd Dec 2015 at 20:59.

kaz3g is offline Report Post Reply
Unread 22nd Dec 2015, 20:48   #86 (permalink)
Join Date: Apr 2002
Location: Oz
Posts: 162
Quote:
Despite now five pages on this thread, I am none the wiser as to what this poor sod did (if anything) that warrants a charge of recklessness.

Certain states of Australia have an offence of Careless driving…essentially driving without due care, …without the care and attention that a reasonable person would…wording does differ throughout the various states.

It tends to be a catchall when there is no specific offence that covers the situation, like eating your chips with one hand, the burger with the other and steering the car with your knees.

Well, that is a bit of an extreme example but hopefully you get my drift.

Perhaps this offence of Reckless Flying is similar?

However, this thread is a thread, if you thought you would find the nuts and bolts of what occurred, you are probably looking in the wrong place. The Prosecution (CASA) are not about to outline their case here, nor would the Defence outline their stance.

To state the obvious…this is just a rumour network…

I guess you may have to be a touch patient and wait for the ACTUAL court case.

From then, all can discuss the rights and wrongs of both the case, and whatever the court decision is, but with at least with information from a factual source.

Square Bear is offline Report Post Reply
Unread 22nd Dec 2015, 21:45   #87 (permalink)
Join Date: Apr 2011
Location: Victoria
Posts: 330

The problem for RAA pilots flying under the CAO 95.55 is that any breach of a condition of the CAO, including a failure to comply with the Operations or Technical Manuals, means the exemption under the CARs granted to them no longer apply. This opens them to a plethora of charges that have nothing to do with the substantive offence.

https://www.comlaw.gov.au/Details/F2015L00228

3 Exemptions under regulation 11.160

3.1 If the conditions set out in this Order are complied with, in relation to an aeroplane to which this Order applies, the aeroplane is exempt from compliance with the following provisions of CAR 1988…..

This seems quite brutal to me as the law becomes a scattergun blasting away at everything rather than neatly drilling the target.

Kaz

kaz3g is offline Report Post Reply
Unread 24th Dec 2015, 12:49   #88 (permalink)
Join Date: Jul 2001
Location: Australia
Posts: 3,039

Square Bear,

Recklessness has a fairly well defined meaning in law, and is far more serious than such as “carelessness” in motor traffic act/regulations.

Kaz3G,

Quite a long time ago now, Paul Phelan did an extensive piece of research on the application (and the limitations of imposing) strict liability, including all the then current legislative guidelines, and the various bodies creating the guidelines. He had substantial legal assistance.

One particular nono is “—- for administrative convenience”.

“Honest and reasonable mistake” is a very high test, effectively the reason must be beyond your control.

Unsurprising, CASA completely ignores (and it is a CASA decision, not legislative drafters) all the guidelines, including unmaking offenses where there is an element of decision making discretion by the pilot in command, ie: was he/she/it legally visual at minima.

Tootle pip!!