Pace...
Of course, in the circumstances you posit, highly unlikely though they may be, then a successful prosecution could well follow.
But that isn't my point..... What I was trying to show was that it is impossible for the model's pilot to know his altitude...so the "proper" pilot who does, by looking at their altimeter, cannot depend on models always being below 400 feet...no matter what the rules may say. Much better then to be a fair bit higher and avoid the possibility of collision, than to be in the right with a faceful of mad whirling model engine and propeller.
Considering the relative numbers of birds to models, and the rarity of birdstrike, I don't think the risk can be all that much in any case.