Light plane crash at Ball Bay, north of Mackay Qld 24/12/2021

[facthunter]

My comment relates to the term you used "dissident". IF/when casa does something good I'll be amongst the first to give them credit for it. The Cause of accidents has no direct link to  whether the plane is registered or not or whether the pilot has a current licence. Both of which break the law if not complied with and would incur some punishment in any case with justification.. I don't know how the case will go but I've outlined in detail the reality of just flying with "anybody" and in any old plane.. in the very variable Private sphere.  I'm being REAL here rather that  just stating what should be in perfect world. Anyone who  does some research and decides on a particular Flying school is doing the same. or you  source a car that is more safe. they are not all the same even as far as safety rating goes.  Nev

[spenaroo]

How many young teens/adults who wrap a car around a tree/telephone pole have been done for manslaughter over killed passengers? 

hell it even has its own term Vehicular manslaughter

I don't see the difference just because its an aircraft.

Edited March 2, 2023 by spenaroo

[turboplanner]

On 01/03/2023 at 2:58 PM, FlyBoy1960 said:

let's say in the UBER turns up to take you somewhere. You don't get in and ask to see their licensse or their maintenance records for the vehicle.

 

There are risks you must take in everyday life, your bus driver today could have chest pain but he won't tell you this when you get on the bus, he thinks it is heartburn.

 

At some point you have to take responsibilitty  for living.

No, you don't get in and ask to see their licence or maintenance records, and the law doesn't require you to do that, but it does required them to operate legally and they face the consequences when they don't.

[turboplanner]

1 hour ago, spenaroo said:

How many young teens/adults who wrap a car around a tree/telephone pole have been done for manslaughter over killed passengers? 

hell it even has its own term Vehicular manslaughter

I don't see the difference just because its an aircraft.

Last week on the evening news in Melbourne there were two or three - some 5-8 years, one IIRC 14 years imprisonment.

[turboplanner]

2 hours ago, facthunter said:

My comment relates to the term you used "dissident". IF/when casa does something good I'll be amongst the first to give them credit for it. The Cause of accidents has no direct link to  whether the plane is registered or not or whether the pilot has a current licence. Both of which break the law if not complied with and would incur some punishment in any case with justification.. I don't know how the case will go but I've outlined in detail the reality of just flying with "anybody" and in any old plane.. in the very variable Private sphere.  I'm being REAL here rather that  just stating what should be in perfect world. Anyone who  does some research and decides on a particular Flying school is doing the same. or you  source a car that is more safe. they are not all the same even as far as safety rating goes.  Nev

A dissident is a person who opposes official policy, espceially of an authoritarian State.

This news report is not about the cause of the accident, it's about Police charging the pilot with manslaughter.

Best to watch the case as it proceeds.

[RFguy]

Then.... by the book, the pilot would be charged with manslaughter whether  he was licensed & current, and the aircraft was maintained per rules  ..or not. 

----Since it meets the definition , purely and simply of manslaughter.

Now, what actually happens in a court -  the reckless attitude will not help him defend this charge.

[Markdun]

Old Man Emu, your quote is consistent with the common law and Cth Criminal Code on criminal negligence with the exception that some of your previous comments on the the onus of proof is at odds that in a criminal trial the onus is always on the prosecution (well nearly always).

 

 ‘Criminal negligence’ is a common law crime in itself, and the elements of the offence are the same as the civil tort of negligence except that a jury has to conclude that the negligence was so bad it warrants a criminal conviction.

 

 Manslaughter by criminal negligence, as the judge pointed out, is slightly different in that the negligent act replaces the fault or intent element for manslaughter.  Normally that requires an intention to cause the other person harm or recklessness.  Again, some negligence is ok; it has to be so bad that a jury considers it warrants being a crime, & in sense of it ever got to a jury in my view the ‘pub test’ would sink the defendant.  I would think in this case the defendant would have reasonable prospects to argue, with evidence, that failure to have licence or comply with the registration/maintenace rules were not, beyond reasonable doubt’, causative elements for the death.  For example it would seem he had 10 years of safe operation and lots of other ‘compliant’ operators have crashed/rolled over on beaches.

 

 The strict liability issue will depend on the specifics of the legislation. But even there, the onus is on the prosecution to prove, & it would not be the first time that that charge of flying unlicensed was dismissed because CASA made a mistake. He may have had a PPL in the dark past and just not kept his logbook current or done a BFR and CASA lost the record of his PPL. I know I had to show the Communications Authority an old weathered paper marine radio operators certificate for HF because they lost the records.  My dad won a court case against the ATO because he kept records of his corro with them, & they didn’t have records.  A person I know successfully defended a ‘flying without a licence’ charge (pre-AUF days) because the charge sheet was signed by the wrong person. Duck-ups occur frequently and they nearly always benefit the defendant (better for 10 guilty to go free than gaol 1 innocent principle).

 

 Two further points. A dead person (or their estate) can’t sue for negligence. A wife, or friend might be able to sue, but only if they personally suffered a loss, such as a mental condition (nervous shock); loss of financial support (for say a defendant spouse or child); and for men when their wife is killed, the loss of housekeeping & consortium (sexual services) previously performed by his wife (I think this has changed recently).  The other point is that amendments to negligence laws around 10 years ago as part of reforms to make insurance more affordable (it didn’t work) substantially reduced ppl’s ability to sue negligent doctors and operators providing recreational or inherently risky activities. Flying in light planes is well established as an inherently risky activity and the law makes it very difficult to make a case even if there is no warning placard or signed waiver (except in the ACT).

[turboplanner]

10 hours ago, Markdun said:

A dead person (or their estate) can’t sue for negligence. A wife, or friend might be able to sue, but only if they personally suffered a loss, such as a mental condition (nervous shock); loss of financial support (for say a defendant spouse or child); and for men when their wife is killed, the loss of housekeeping & consortium (sexual services) previously performed by his wife (I think this has changed recently).  

Thanks, I didn't put that very well at all.

[Markdun]

Just refreshed my memory on NSW law on negligence (Civil Liability Act).  I used the word ‘inherent’, it’s ‘obvious’ risk. Relevant provisions set out below.  I think Qld is much the same.

Oh, and when I said the tort reforms didn’t work, that was in respect of lowering insurance premiums; they definitely worked in limiting ppl’s rights to sue and insurance payouts and increasing insurance company profits.  FWIW my view is we should have copied the NZ no fault accident compo scheme; it’s by no means without problems, but saves the country heaps in insurance and legal costs.  Of-course, this doesn’t help the guy on criminal charges, nor the guy killed.

 Also think about the RA-aus insurance.... it really is limited to personal injury of ppl not engaged in flying or 3rd party property damage (power lines, fire started etc).

DIVISION 4 - ASSUMPTION OF RISK

• 5F Meaning of "obvious risk"
• 5G Injured persons presumed to be aware of obvious risks
• 5H No proactive duty to warn of obvious risk
• 5I No liability for materialisation of inherent risk

DIVISION 5 - RECREATIONAL ACTIVITIES

• 5J Application of Division
• 5K Definitions
• 5L No liability for harm suffered from obvious risks of dangerous recreational activities
• 5M No duty of care for recreational activity where risk warning
• 5N Waiver of contractual duty of care for recreational activities

CIVIL LIABILITY ACT 2002 - SECT 5L

No liability for harm suffered from obvious risks of dangerous recreational activities

5L NO LIABILITY FOR HARM SUFFERED FROM OBVIOUS RISKS OF DANGEROUS RECREATIONAL ACTIVITIES 

(1) A person ( 
"the defendant" ) is not liable in negligence for harm suffered by another person ( 
"the plaintiff" ) as a result of the materialisation of an obvious risk of a dangerous recreational activity engaged in by the plaintiff. 

(2) This section applies whether or not the plaintiff was aware of the risk.

5F MEANING OF "OBVIOUS RISK" 

(1) For the purposes of this Division, an 
"obvious risk" to a person who suffers harm is a risk that, in the circumstances, would have been obvious to a reasonable person in the position of that person. 

(2) Obvious risks include risks that are patent or a matter of common knowledge. 

(3) A risk of something occurring can be an obvious risk even though it has a low probability of occurring. 

(4) A risk can be an obvious risk even if the risk (or a condition or circumstance that gives rise to the risk) is not prominent, conspicuous or physically observable.

[old man emu]

Fortunately, in Australia, we don't have that American abomination "Vehicular". In NSW the title of the offence of causing death from a motor vehicle collision is called "Culpable Driving", 'culpable' meaning worthy of blame. On the scale of assault offences, from threatening actions to premeditated murder, Culpable Driving (and Culpable Navigation) are No. 3 after Murder (No. 1) and Manslaughter (No. 2). Interestingly there is no Culpable Pilotage. 

 

The offence of Culpable Driving was created due to juries deciding that, although the actions of a driver were worthy of blame, they were not so serious as to meet the criteria for Manslaughter. Culpable Driving is the offence of momentary mistake - an offence of normally law-abiding people. Manslaughter is the offence of self-centred ratbags.

 

As for participating in non-commercial flights, does that introduce "obvious risk"? Look at the definition posted above. That covers just about everything that happens after one gets out of bed. If I am approved to fly say a C-182, and yesterday I chartered one with pilot for a business trip conducte under DVMC rules, is the risk any different if I private hired the same aircraft today to fly away for the weekend with family?

 

The media from 1904 has promoted the concept that flying is tremendously dangerous, and that concept has been ingrained in the minds of the general public so that we end up with definitions like the one posted above applied to an activity that is more controlled and carried out on vehicles maintained to a much higher standard than the activity involved in getting oneself to the airport.

[MattP]

59 minutes ago, old man emu said:

Manslaughter is the offence of self-centred ratbags.

Looking at the situation I’d be hard pressed to find a better summary of this guys behaviour.

 

As for risk, it’s not just the media. Insurance companies, the regulator etc. 

 

The truth is that statistically there is an increased risk and whilst the mitigations each person takes vary, it’s still there. Your example of the same aircraft under different rules (assuming you’re asking charter vs pvt ops) does illustrate this to some point as there is a requirement / expectation of different levels of licensing and maintenance if it’s a commercial charter op vs private flight.

[facthunter]

To hire your services as a pilot you must have a commercial licence or above.   (with all the additional  restrictions that implies.) Like  operating under an AOC.. Nev

[Markdun]

 

Best to look up the actual law, and it looks like QLD is quite a bit different to NSW. Below is QLD.  
So arguably, if you are flying unlawfully (without a BFR, no log book, with an expired ERSA, or in an unregistered aircraft, unlicensed) you could be done for manslaughter, and depending what ‘unlawful purpose’ means legally, murder.  That’s not an easy question to answer. In 1775 a Miss Johnson contracted with a carriage maker (Holmans) to construct an elaborate carriage for her to tour the streets of London to drum up business for her very successful brothel. She took delivery of the carriage and refused to pay Holman (perhaps the gold leaf wasn’t thick enough or velvet soft enough?). Anyway the court rejected Holman’s case saying they would not give support to an unlawful and immoral contract. This precedent was watered down substantially by Australia’s High Court over whether a NT pastoralist had to pay a water bore driller’s invoice for bores drilled illegally which didn’t find any water. They said the pastoralist had to pay.  But that’s  civil, not criminal. However, in NSW some druggies invaded a Sydney house for robbery (unlawful purpose), were caught by the occupants who tied the two of them up, called the police, and while the police were on their way, gave them a bit of a whacking with a cane.  Result was that the occupants were convicted of GBH, despite a statutory provision which purported to give them immunity (the reason was that once the robbers were tied up, they were no longer engaged in an unlawful purpose, they were prisoners). I think there is a lesson there re sequencing of actions.  Anyway, a long winded way of saying flying unlicensed may not be an ‘unlawful purpose’ in itself as opposed to, for example, if you were stealing the plane.
 

CRIMINAL CODE 1899 - SECT 302

murder

302 MURDER

(1) Except as hereinafter set forth, a person who unlawfully kills another under any of the following circumstances, that is to say— 

......

(aa) if death is caused by an act done, or omission made, with reckless indifference to human life; 

(b) if death is caused by means of an act done in the prosecution of an unlawful purpose, which act is of such a nature as to be likely to endanger human life;

 

manslaughter

303 MANSLAUGHTER

(1) A person who unlawfully kills another under such circumstances as not to constitute murder is guilty of 
"manslaughter" .

CRIMINAL CODE 1899 - SECT 293

killing

293 KILLING 

Except as hereinafter set forth, any person who causes the death of another, directly or indirectly, by any means whatever, is deemed to have killed that other person.

[old man emu]

1 hour ago, Markdun said:

depending what ‘unlawful purpose’ means legally

I'm right beside you with that. Proving that element of the offence description would certainly indicate a finding of guilt.

 

What must be put into the mind of the jury is that it is not up to them to do the sentencing. Its job is to come to a decision, based on the evidence produced, if every element of the offence has been proved in a way that rules out the creation of a sensible doubt. After the finding of guilt, it is up to the judge, acting on depositions by the Crown and Defence, as well as advice from experts relevant to the sentencing process, to set a punishment. 

 

Obviously, Society would not be calling for the maximum penalty in this case as the lead up to the death did not involve reckless indifference to life, nor of its nature likely to endanger human life.  Sounds like the result of the death was precipitated on a landing mishap of a sort not unknown to aviation. How poor maintenance lead to the need for a landing at that place is another matter altogether.  

 

Flying without a licence can incur imprisonment for 2 years, so it is a felony. However many felonies can be punished by fine or imposition on a person's free time (community service). Also if he goes down for manslaughter with a prison sentence, the penalties for any other offence would be served concurrently.

[FlyingVizsla]

Further from the ABC News

Mackay pilot Peter McDougall faces court for alleged manslaughter of Gerardus Miltenberg - ABC News

 

Police arrested Mr McDougall at a Halliday Bay home on February 28.

It's alleged Mr McDougall continued to pilot flights unlicensed up until February this year and failed to properly maintain his aircraft for nearly a decade.

Prosecutor Ruth Whisker told Mackay Magistrates Court yesterday Mr McDougall was an "unacceptable risk" of not meeting bail conditions and committing further offences.

'Sovereign citizen'

Ms Whisker said Mr McDougall did not acknowledge that Queensland legislation applied to him.

"He doesn't accept the Queensland Police Service," she said.

"If he signs bail, if his views are that deep that he says that his bail is not a legal document in Queensland, then don't sign it … you can stay there for the year as far as I care," Mr Dwyer said.  'We'll see how deep your beliefs are."

Mr McDougall accepted and signed the bail conditions.

He will next face court on May 10.

[onetrack]

Ha ha! What a prize idiot! One of these "sovereign citizen" dropkicks! I bet he believes no Australian aviation laws apply to him, either! Makes you wonder where he left the working part of his brain?

 

I've seen plenty of these clowns argue this American-based "sovereign citizen" rubbish over the years, and none of them ever got past first base in the courts.

[kgwilson]

Yep guaranteed to be a Trump disciple as well.

Edited March 9, 2023 by kgwilson

[spenaroo]

been a trend on tik-tok for a while,
that they film themselves when stopped by police, as if its some injustice.
They soon find the registration plates and their license when they realize just how much trouble they can be in.

[Blueadventures]

I hear (3rd hand) claim that he was not flying.  Just up in the sky.

[kgwilson]

Away with the fairies then.

[Jabiru7252]

If a 'sovereign citizen' is not subject to the law of the land, then they are not protected by the law of the land. Give him a good hiding I say.

[old man emu]

18 hours ago, Jabiru7252 said:

sovereign citizen

This is an example of an oxymoron.

 

One of the meanings of "sovereign" is  acting independently and without outside interference. This meaning is usually applied to a Nation. Australia, we hope, is a sovereign nation. But since it interacts with other sovereign nations, those interactions affect is absolute independence. That a fish on a completely different bicycle.

 

The commonly used meaning of "citizen" is a person who, by place of birth, nationality of one or both parents, or naturalization is granted full rights and responsibilities as a member of a nation or political community. So citizenship both implies and demands positive interaction with some governing body, even to the extent that the governing body might be a criminal gang.

 

Citizen also has the meaning "an inhabitant of a particular town or city" which could be extended to include a geopolitical area - a citizen of New South Wales.

 

So a person cannot act without independently and be a citizen at the same time. 

[Markdun]

Just saying, all the comments about this new form of anarchists might not apply to this defendant as it was only the prosecution’s assertion. We have the debacle in Sydney that the police invented a ‘fact’ that an ambulance was blocked crossing the Sydney Hbr Bridge by a protester and this resulted in her being remanded despite it having no foundation.  Is that possible in QLD? Also laws theoretically apply to all ppl, citizen or not. I say ‘theoretically’ because whether someone is prosecuted often depends on their gender, skin colour, social standing etc etc etc.  So I’m not so big on responsibility to the state. however, my whinge is big corporations paying zero or very little tax still demanding the protection of our laws and courts to enforce commercial contracts & protect their interests and their owners liability is ‘limited’.  That said, I agree with all the comments about the dip shit ‘sovereign citizens’ & the RWNJ ‘freedumbers’.