Fatal accident Loss of all four engines due fuel exhaustion

[404 Titan]

Leadsled,

In Australia it is common for “Strict Liability” to be applied to public health, safety and welfare laws, as well as motor traffic rules. Infact virtually every New Zealand Civil Aviation Rule is a “Strict Liability” law.

Under Strict Liability laws in the CAR (1988) AND CASR (1998), just like any other “Strict Liability” laws, the need for prosecutors to prove a “Fault” element, i.e. intent, knowledge, recklessness or negligence when prosecuting is removed. They only need to prove the person committed the offence i.e. “Physical” element.

Defence against “Strict Liability”

Mistake of Fact.

A person will not be criminally liable for a “Strict Liability” offence if:

1. At or before the alleged offence they were under the mistaken but reasonable belief that certain facts existed.
2. Had these facts existed an offence wouldn’t have occurred.

To give an example relating to the fuel regulations, a pilot departed airport “A” for airport “B” with sufficient fuel to conduct the flight under the regulations. Once committed to airport “B” the pilot was informed by ATC an aircraft was disabled on the runway and that 20 minutes holding was now required. The pilot calculated he could only hold for 15 minutes and still have his FFR intact on landing. With no other options he declared a fuel emergency by declaring “Mayday” fuel. Under the “Strict Liability” regulations the pilot has committed an offence because they landed with less than the legal FFR but would not be criminally liable because of a “Mistake of Fact”, i.e. had they known before the flight, sufficient fuel would have been put on that an offence wouldn’t have occurred. An honest mistake of fact is, and has always been, a complete defence to a strict liability offence.

“External Factors” Division 10 of the Criminal Code Act.

In relation to aviation activities, no criminal liability will result from the following common circumstances:

1. The offence occurred as a result of an external event or person over which the pilot charged with the offence had no control and couldn’t be expected to guard against.
2. The offence occurred as a result of a sudden emergency and there wasn’t any reasonable alternative at the time.

Applying this to our pilot flying from airport “A” to airport “B”. If for example a fuel leak occurred late in the flight after the pilot was committed to airport “B” which resulted in the aircraft landing with less than FFR, the pilot has committed an offence here as well but due to events outside his control wouldn’t be criminally liable.

So why “Strict Liability”

For most criminal offences in Australia the prosecution must prove both “Fault” and “Physical” elements. For certain offences involving public health and safety though, only the “Physical” element needs to be proven, i.e. “Strict Liability”. There are two reasons why governments do this. The first is as a deterrent. The second is, from a legal point of view, a lot of offences would be extraordinarily difficult to prove if the “Fault” element also had to be proven that successful prosecutions would be very unlikely, effectively making the laws meaningless.