Airline passenger charged for phone use

[wessex19]

source; AAP

"A 54-year-old man who allegedly refused to turn his mobile phone off during a flight out of Sydney has been charged with endangering an aircraft.

Police say the man boarded a Jetstar flight from Sydney to Queensland's Hervey Bay early on Wednesday, and then argued with the cabin crew when he refused to switch off his mobile.

"He allegedly refused to stop using his mobile phone," a Queensland Police spokesman said in a statement.

"It's alleged that around 8.30am (AEST) the man became abusive towards a flight attendant after his mobile phone was confiscated."

At Hervey Bay airport police were waiting for the man. He was arrested after he disembarked from the plane and taken into custody.

The man has been charged with an offence against Section 22 of the Crimes Aviation Act, for endangering the safety of an aircraft.

He is expected to appear in the Hervey Bay Magistrates Court on September 25."

[Skystar320]

throw the book at him!

[WynSock]

Not the sharpest tool in the shed.

[james michael]

Not arguing the result but interested in the proposed proceeding for endangering the safety of an aircraft

I have not been following the matter of mobile phone use on RPT - last I saw there was a legion of myths and mights. Does anyone have a link to legally sustainable proof that supports the contention?

[lowerlobe]

Surely the point here is that a person wilfully disobeyed a directive given by a crew member.

Whether or not the phone is a direct threat, the issue here is non compliance from a pax to a company directive which was carried out by a crew member.If someone get's away with this then what will some other pax do if they feel so inclined to thumb their nose at authority and a safety directive.

How many pax really understand the environment that aircraft operate in and possible dangers involved.....not many.If you can't live with out a mobile phone for an hour or two then that is your problem not the crew and other pax.

If they do not want to comply with safety or other directives then they can drive to their destination.

[VH-UFO]

lowerlobe i agree with you.

However i would like to know as James Michael would, has there been a study, or has there been proof of mobile phone interference with navigational equipment in aircraft?

[By George]

I work for an Asian Airline and on landing you can hear the phones ringing away. The only effect seems to be an increase in my blood pressure. The Cabin crew seem unable to stop them.

[compressor stall]

The issue is not "has there been a study that shows mobile phone interfere with an aircraft...?"

Your question should be, "Has there been a study that shows mobile phones do NOT interfere with an aircraft's ... equipment?"

There is ample evidence that there has been some interference at various times. A cursory search of these fora will reveal that.

I believe that there have been trials overseas with mobiles in flight - using retransmitting equipment on the aircraft. Trying to explain this concept to the average JQ passenger would not be easy.

And yes, the other issue is willful disregard for the authority of the crew.

[boardpig]

I think the merits of a study on the effect of phone use on systems, is the topic of another discussion.
In this case, the pax is a complete tosser. The very fact that we don't "know" there are no effects from mobile use, should be enough of a reason to leave the thing off. I'm always amazed at how these "city slicker know it all" type pax seem to have a healthy disregard for just about anything that makes common sense.

I agree, here is the book, throw at will...:}

[Dog Tucker]

Failing to comply with a cabin crew directive = a chat with the police.

[james michael]

Gents

I have no argument, as indicated earlier, with the assessment of the pax.

My issue is that AAP reported this as The man has been charged with an offence against Section 22 of the Crimes Aviation Act, for endangering the safety of an aircraft

If the charge is to proceed on that basis, it is incumbent surely on the prosecution to provide evidence NOT that he refused a directive from cabin crew BUT that use of the mobile DID actually endanger the aircraft.

I know AAP may have this wrong but my mind is working like so - let's say he did stop using the mobile on request, thus obeying a crew directive, (we know he didn't but let's think of a future case) he cannot be charged with refusing a directive but has still used the mobile phone.

Therefore, somewhere in future, the onus may exist to PROVE that such use actually endangers the safety of that specific aircraft at that time. UFO summed up my thinking.

Am I making sense? Stallie, I don't believe in law your argument is sustainable as the onus surely rests with the prosecution not the defendant (We may need Creamie and Clapton to provide an opinion).

[WannaBeBiggles]

Hope this idiot gets made an example of!

Here (http://spreadsheets.google.com/pub?key=p60h0dN2Vl8X-jcsFsCd_GA) is a spreadsheet flog provided in another thread about mobile phones.

[Brian Abraham]

BUT that use of the mobile DID actually endanger the aircraft
Want to play Russian Roulette? Your life is not endangered unless the chamber with the bullet is under the hammer. Throw the book at the b*gger. One of our aircraft had a baggage fire warning (no fire fighting capability) triggered by a phone, fortunately on the ground.

[Ixixly]

I remember that some time ago there was a link that basically showed different airlines in-flight problems and the causes that were related to these problems. A lot of them were directly contributed to mobile phone use and laptop use. Once said Mobile Phone or Laptop was turned off or removed the glitches and/or problems disappeared with them.

So there is good cause to be concerned about it. I'll try and dig up the old post with the link for everyone!!

[notmyC150v2]

The question this half wit will have to answer in the Court is whether or not he breached the law. My limited understanding leads me to believe that the law is that failing to comply with a direction of cabin crew deems you to have endangered the safety of an aircraft.

If the evidence says that he refused to comply with the directions of Cabin Crew then I guess he's off to porridge. Good on 'em too.

Here's a song for him to consider in the meantime:

When you're in prison, don't turn the other way
Keep your back against the wall
When you're in prison, don't turn the other way
Do not bend at all

Oh don't pick up the soap, pick up the soap
It's bad for you

Oh don't pick up the soap, pick up the soap
Someone will be waiting there for you

When you're in prison be sure to stay awake
Always lie upon your back

When you're in prison be sure to stay awake
Keep you from attack

Oh don't be no one's bitch, be no one's bitch
It's bad for you

Oh don't be no one's bitch, be no one's bitch
They won't help you make it through.

When you're in prison, don't turn the other way
Follow what I say to do.

When you're in prison, don't turn the other way
You can make it through
You can make it through
You can make it through


Gotta love The Offspring :}:}

[Ixixly]

Well, did a quick search around, couldn't find quite the post i wanted BUT i did find this study on the use of Mobile Phones which certainly does show that mobile phones can affect the eletrical equipment on an aircraft.

http://www.caa.co.uk/docs/33/CAPAP2003_03.PDF

Oh and some good discussion found on Airliners.net as well inregards with plenty of links, testimonials etc...

Cell Phones On The Plane, Are They A Danger? — Aviation Polls Forum | Airliners.net (http://www.airliners.net/aviation-forums/aviation_polls/read.main/93818/)

[Capt Kremin]

Not to be too picky but cabin crew aren't actually legally empowered to issue any directives to passengers. If they are passing on a directive from the PIC, fine.

[Going Boeing]

In the air, mobile phones will automatically go to their highest transmission power setting in order to find a ground station to log on to. This level of power is sufficient to affect aircraft systems especially if any shielding of wires has deteriated during the years of aircraft service. The system to allow mobile phone use onboard, that has been trialled on a QF B767, commands all the mobile phones onboard to their lowest power setting which has been determined to be low enough as to not affect any aircraft systems.

[speedbirdhouse]

Capt Kremin,

conditions of carriage state clearly that it is an offense under law to ignore the directives of a cabin crew member.

[FRQ Charlie Bravo]

Technology isn't always the answer but I used to imagine a system which when activated, such as in a cinema before the movie starts or on an aeroplane, would cause a phone to respond with a beep if it was turned on and not made silent. It possibly wouldn't stop someone who wanted to fly around in silent mode but it'd make the honest ones aware that they'd forgotten to turn off their phones.

It'd take some collaboration on the part of phone manufacturers but surely bluetooth phones would just need a software upgrade.

Just a half-baked idea,

~FRQ CB

[Sunstar320]

I witnessed a bad situation in July on a JQ flight to Sydney from the Gold Coast. The passenger was sitting there, yelling away in his language to the other person and he was told countless times to shut it off, but he just shook her off. He wasn't listening to her, till she bought about 3 other FA and they had a go at him....

Some people obvously dont care about OTP and the other 179 pax around him...there are other people around you also mate:rolleyes:!!!!!!!!!!!!!!

[YPJT]

Kapt Kremin,
I think you would be on very shaky ground indeed if you wanted to base your arguement for non-compliance with the direction of a crew member because it wasn't delivered to you, in person, by the PIC with a pretty please and sugar on top. I would hazard a guess that any and all directions given to pax are with the full authority of the CAPT.

[MTOW]

What a shame this has been proven to be a fake (viral marketing).

YouTube - Pop corn with cell phones : made by Cardo Systems (http://www.youtube.com/watch?v=V94shlqPlSI)

[Capt Wally]

Most would agree that Mob Phones do zip in the way of effecting a plane other than perhaps some interference with R/T's. I know I have mine on all the time as well as the crews who have to have them on for work porposes & never in all the years I have been flying have they done a damn thing, what wank it is ! Still back to the core reason for turning
them off, if in doubt (as the useless authorities believe) turn them off !
Damn puter, I hate it when it jumps pages all on it's own ! must be the bloody Mob Ph:E


CW

[Eastwest Loco]

It may be a little simplistic, but couldn't one create a Faraday Cage within the fuselage of an aeroplane by creating a web of wire running at low voltage to block the phone's connectivity?

Seems a fairly simple deterrent to me, as if it will not work, why bother turning it on? All major systems would have shielding to a degree on the aeroplane itself, so all you are doing is excluding signals.

Antenae for other functions are outside the "cage" and securely cabled in so no effect.

Just my 2 bobs worth, and probably flawed but I felt worth amention.

Best all

EWL

[Capt Kremin]

I once witnessed a P class FA telling a P class passenger that if he didn't come down from the flight deck immediately then he wouldn't get fed. That directive certainly wasn't delivered with the full authority of the PIC.

Conditions of carriage mean nothing. The law is what counts. The only person who can direct such actions is the PIC. Make sure you have the PIC fully involved if you are going to try to do something like this or the lawyers will have a field day.

[airbusthreetwenty]

There is a little more to the story than just the mobile phone issue RE: this particular flight.

Something very worthy of the book (and then some) being thrown at the passenger.

It'll come out in court.

[speedbirdhouse]

Quote-

"Conditions of carriage mean nothing. The law is what counts."

_________________

Capt Kremin,

yes, which is both the point I'm making AND what I posted.

Here, let me post it for you again-

"conditions of carriage state clearly that it is an offense under law to ignore the directives of a cabin crew member."

[obira]

The relevant section under which this person was charged is:

Endangering safety of aircraft (1) A person who, while on board a Division 3 aircraft, does an act, reckless as to whether the act will endanger the safety of the aircraft, is guilty of an offence.
I would argue that it is not necessary to show that the use of a mobile phone WILL endanger the aircraft, only that it MAY endanger the safety of the aircraft and that the person did the act with reckless disregard for that possibility.

obira

[Capt Kremin]

SBH... what law is that?

[Teal]

Captain Kremin
Conditions of carriage mean nothing. The law is what counts.speedbirdhouse
"conditions of carriage state clearly that it is an offense under law to ignore the directives of a cabin crew member."I agree with Captain Kremin. The conditions are carriage are merely contractual and breaching them does necessarily mean that (statutory) law has been broken. Just because the conditions state that ignoring a directive is an offense, does not, per se, make it so. A directive could conceivably be unreasonable, unfair, impossible, or even itself illegal, etc.

Not defending the muppet who was arrested however - appears to have got what he deserved.

[Taildragger67]

Kremin,

I once witnessed a P class FA telling a P class passenger that if he didn't come down from the flight deck immediately then he wouldn't get fed. That directive certainly wasn't delivered with the full authority of the PIC.

Happened to me more than once. I always replied 'Fine, I'll stay here thanks' and they tended to slink away. Never had a problem getting some victuals when I decided to leave the office, just not served with the full tablecloth w@nk.

Wally,

Most would agree that Mob Phones do zip in the way of effecting a plane other than perhaps some interference with R/T's.

I suspect that can indeed be a problem. I recall landing once during peak hour at LHR, 27R for T4 (so had to cross 27L). Held short 27L, then the boss floored it to expedite across ahead of a 27L arrival on finals. Once across, he was straight onto the PA telling everyone to switch their mobiles off and not to turn them on until he had turned the engines off on-stand as interference in his headset was making it hard to hear ATC instructions and no phone call was worth risking the aircraft. He didn't sound happy.

Some very sheepish looking punters ater that...

[compressor stall]

Kingairs don't have FADEC either if I recall.... :ouch:

[Cap'n Arrr]

Someone was telling me the other day that if a phone is put in just the right spot in a DA20 diesel, it mucks up the FADEC and the engine does all sorts of things. CASA have also acknowleged with the DA42 that mobiles can and do interfere with its FADEC system. It's more than just R/T, what if you're short finals on an ILS and in the fog, and the needle starts going haywire (something I've seen caused by a mobile)?

This topics been done many times before, at the end of the day, regardless of your view, this tosser should get hit with the book, maybe even the library. See it all the time, plane landing, phones come on. Braking over, and first thing you hear is seatbelts unclicking.:ugh: Would love for the Cpt one day to stop, and say the aircraft will not go any further until every pax has their belt done up:ok:

Even if he gets away with it, hope QF/JQ/QL bar him from flying with them again ever.:=

[james michael]

Gents

I still feel we may be confusing our beliefs with due process.

Obira, the section you quoted does use the words "will endanger" not "may endanger" and there is a substantial difference.

On that basis I assume the onus rests with the CDPP to prove "will endanger".

I am researching a case at the moment (aviation) where 11 charges were plea bargained to 3 only going to court and the magistrate made the following finding in each matter:

COURT ORDER – “Dismissed”
SPECIAL CONDITIONS
Pursuant to S19B, having regard to the character and antecedents of the defendant, and the circumstances of each of the offences, I propose to dismiss the charges before the court as I have formed the view that it is inexpediate to impose any punishment.

Nothing worse than a case going to court and the charge failing - should that occur in this matter it actually opens the door for a mobile phone use avalanche.

Not supporting the mobile phone goose, merely researching how the case will be won (and I'm neither silk nor stuff so no expert on the legal issues) :)

[lowerlobe]

Conditions of carriage mean nothing. The law is what counts. The only person who can direct such actions is the PIC. Make sure you have the PIC fully involved if you are going to try to do something like this or the lawyers will have a field day.
Capt Kremin....With all respect that is rubbish.It does not matter who (in terms of company representative) informs the passenger that it is a company regulation and requirement that an electronic device not be used at that time...

The enforcement of that directive is a different matter.Obviously if the passenger refuses to comply with that request ,it then becomes a directive as you are a representative of the company and which has to be stated to the passenger.

If the passenger still refuses to submit to the company directive and requirement then the most senior representative of the company must be informed and it is up to them as to which course will be followed.

If for example this matter ( the use of an electronic device or smoking for example ) takes place during a transit and there are no tech crew on board does this mean that the passenger can do whatever they want simply because there is no PIC on board to authorize a course of action?

Let's get back to the basic tenet of this thread and not of the old 'I'm a pilot and your only cabin crew' ego scenario once again...

If a passenger knowingly refuses to comply with a company requirement then they will have a case to answer in a court of law regardless of whom it was that informed them of that requirement.

[james michael]

LL

Re your last sentence, the proceeding seems based not on directive refusal but recklessly endangering.

The first issue is proving the pax reckless. The second is will endanger.

Readers may find this Boeing information of interest - I doubt, however, it assists the prosecution
Aero 10 - Interference from Electronic Devices (http://www.boeing.com/commercial/aeromagazine/aero_10/interfere_textonly.html)

From memory, Mythbusters attempted to interfere with navigation instruments in an
aircraft on the ground - they claimed they couldn't get permission to do it in the air.
They had no success even after connecting an antenna to the mobile phone.

[captaintunedog777]

Ok Children

1 He disobeyed crew instructions. He needs to be made an example of.

2 Pax and crew forget to turn off mobiles all the time. The only effect is on certain radios and nav equip. No it doesn't directly bring down a/c but could be part of a problem which could lead to an accident.

Nothing worse than a mobile ringing at V1 or on short finals.

[Capt Kremin]

LL, I am not trying to drive a wedge between CC and Tech Crew. But CC should realise that the only person on the crew who has the full weight of the law behind them is the PIC.

All I am saying is that if you intend to issue a directive to a pax, or confiscate their phones or anything like that, ensure that you have contacted the PIC and got their permission to do so. Otherwise you will set yourself up for a potential legal problem.

The PIC is the ONLY person on board with powers of arrest or the power to confiscate property. He or she can delegate those powers on a case by case basis but protect yourselves by simply calling the PIC first.

As far as the conditions of carriage are concerned, the clause about obeying a cabin crew directive would legally be implicit on first getting the PIC's permission. I didn't write the laws, but it behoves every member of an aircraft crew to understand what their legal situation is.

Some people will probably point out the situation of an attack on the flight deck. The situation there is clear, it's a case of life or death and no reasonable person would expect that the PIC first be consulted. Otherwise, just pick up the phone and protect yourselves.

[lowerlobe]

Capt Kremin...You may have misinterpreted my post and we are starting to get into semantics here but there are two issues at stake here...

Firtly,there is the issue of a directive and requirement from the airline.This could be regarding the use of an electronic device,smoking,attempting to or entering the flight deck either in flight or on the ground during a transit/boarding or whatever...

When the passenger has been informed of the company requirement and directive the most senior crew member on board at that time should be informed whether the passenger has complied with the directive or not.If the passenger has refused to comply with that directive then the most senior representative of the company will have to decide what action to take.

That person may be the CSM if no tech crew are on board or if there is a tech crew member on board then they will be the most senior rep to be notified and required to take action.

My point is that if there are no tech crew on board then the action taken by the CSM is no less binding than if the Capt/FO/SO is on board.

...There is no less a legal obligation to be followed if there is no PIC on board.

If there are no tech crew on board and if the CSM believes there is a potential threat to the safety of the aircraft and crew/passengers then there is no legal problem with them arresting or confiscating the device.That may be a phone or cigarettes or whatever...

Secondly,If we are getting into the legal morass of the technical aspect of the charge of 'reckless endangerment' or of 'endangering the aircraft and persons' then the legal teams can argue that to the cows come home.

[obira]

james michael,

No confusion of beliefs and due process here.

There is a difference in meaning between the two sentences:

1. A person who, while on board a Division 3 aircraft, does an act that will endanger the safety of the aircraft, is guilty of an offence.

and

2. A person who, while on board a Division 3 aircraft, does an act, reckless as to whether the act will endanger the safety of the aircraft, is guilty of an offence.

By saying that you must prove that the act will endanger the safety of the aircraft you seem to be arguing that the second means the same as the first. The words 'reckless as to whether' must do some work in the statute. What do you understand those words to mean?

obira

[Sunfish]

I don't think the Crimes (Aviation) Act applies at all. You would have to prove that the chappie did something that is demonstrably proven to endanger the aircraft, and did it recklessly or with intent to endanger the aircraft.

You would nail him for disobeying a lawful order from the Captain.

[james michael]

Obira

Under our legal system the responsibility sits with the Crown to prove the charge.

They may prove 'reckless' if they argue 'thoughtless' but that identifies only the nature of the act.

The issue is whether they can prove it had a probability of endangering the aircraft.

"Reckless as to whether" certainly shifts the burden more to the alleged offender - but it does not absolve the prosecution of proving a risk exists to the understanding of the reasonable man. Our man may argue that he has used his mobile 20 times on various flights with no effect therefore being pinged does not prove endangering as in his mind the 20 successes indicated no risk to the flight.

If you don't read it that way, it would be a criminal offence to carry out any 'reckless' act whatsoever on the aircraft (e.g. a handstand), where the person was not thinking whether it endangered the aircraft or not. That would be unworkable, so you have to prove a possible endangerment.

There is also the timing of the act - if the prosecution alleges that a mobile interferes with say ILS, and the aircraft was in cruise ..........

I have posted the Boeing information and one should also consider that the manufacturer would be a hostile witness. I doubt Airbus would differ.

The courts seem to delight in issuing amazing decisions to feed media publicity these days. I still feel disobeying a lawful order would seem a more appropriate procedure.

Sunny has succinctly summed it up.

[Brian Abraham]

Its all very well arguing the subtle meaning of words in a legal sense. The fact is that phones can cause problems and its impossible to predict both when and what effect the device may have on aircraft systems. Hence the blanket no no. As the CAA document referred to earlier says "The difficulties experienced in
trying to reproduce the events have led many (including pilots) to question whether a genuine problem exists. However, the potential adverse impact on flight safety and the need to keep that risk to tolerable levels have led to restrictions on the use of cellphones in aircraft." Bolding mine.

If I were to put a revolver to your head with only one round loaded and play Russian Roulette, at what point do you consider your life threatened, you have a one in six chance. Has it been threatened if the hammer falls on an empty chamber? Is it reckless? I don't think that needs an answer as its obvious - at least to me. And thats why the ban on phones. No one is able to predict when the phone hammer falls upon the live round, nor can the nature of the wound be predicted. Fatal head shot or slight flesh wound?

[obira]

Reckless under the law does not equal thoughtless.

There is nothing within the elements of this offence which requires a probability of the act endangering the safety of an aircraft. The prosecution does not need to prove probability. I notice you use the word possibility yourself james michael in your last post in relation to handstands. Possibility is what I have argued right from the beginning; in your posts you began by saying the prosecution must prove it will endanger the aircraft and then you say that the prosecution must prove probability and then you change to possibility.

As to your statement that using a mobile phone 20 times without incident would indicate to a reasonable person no risk to the flight this is as absurd as saying, 'I have been smoking for forty years without cancer therefore there is no risk.' A reasonable person knows this not to be true.

Consider the following situation:

There is a big red button on an aircraft door together with a large red warning sign saying 'Warning - do not touch this button. Doing so may endanger the safety of the aircraft.' Our punter reads the sign, thinks to himself 'I bet it won't' and goes ahead and presses the button anyway.

Unbeknownst to our punter the button is not attached to anything and has no effect on anything whatsoever. Under the first of the two sentences I gave in my previous post he would not be guilty of an offence but under the second he would:
The punter has been informed that there is a possibility that pressing the button will endanger the safety of the aircraft and went ahead despite being informed of that possibility. He has pressed the button (ie done an act) reckless as to whether pressing the button will endanger the safety of the aircraft.

So it is with the mobile phone. He has been informed via PA, Safety Information Card and directly from the crew member(s) that use of mobile phones may interfere with the aircraft's instruments but has continued with its use despite that possibility.

Judicial decisions as reported by the media may seem amazing and sensational but when you read the decision itself it is based on sound reasoning. Journalists with no knowledge of the law reporting on the law is a bit like journalists with no knowledge of aviation reporting on aviation, lots of sensation but not a lot of understanding.

obira

[Ixixly]

Look, you can all argue semantics as much as you like, go right ahead till the cows come home. BUT there are several points that are irrefutable and make this entire case black and white

1. He used his mobile phone on a flight and refused to turn it off when directed to by FAs

2. There are studies that have proven CONCLUSIVELY that mobile phones can cause a number of issues with aircraft electrical equipment

3. There are laws stating that if anyone on a flight does anything to endanger said flight they are breaking the law.
Endanger - to expose to danger;
If you read point 2 then it is clearly obvious that the use of the mobile exposed this flight to DANGER. Not necessarily going to make it crash but exposing it to danger.

4. Whether the PIC was the one to instruct the FAs or not is irrelevant in this case, the FAs obviously spotted something illegal being done on their flight and acted immediately to fix the problem. The other options are the PIC noticed problems on the flight deck and isntructed the FAs to investigate or the FAs saw this happening and asked the PIC for permission to confiscate said mobile. In any of these three situations the crew was acting in a manner as to provide a safe journey for all involved and as such i highly doubt any judge would allow him to get away with it on pure PIC power semantics involving who exactly gave the order for it to be confiscated.

In light of the 4 points above it is clear and obvious that the crew acted in the best interest of all involved, the man is clearly in violation of the law and as such will be dealth with accordingly.

Black and white folks.

[Carrier]

Quote: "...many of these punters on their $89 tickets think they are......"

The next word should be CUSTOMERS! They are quite right in thinking that the crew are there to serve them and that they pay the crew's salary. Airline crew (and security goons) who think that their employment gives them the right to go on a bullying power trip are destroying the industry and their jobs!
I agree that some customers are obnoxious but how often is it a response to the abuse they have already suffered? Most of the passenger airline industry and its support such as security needs to adjust its attitude and remember who pays the bills - or chooses not to fly. This is particularly so in these times of soaring energy costs, which impact most goods and services. Already this year several airlines have gone out of business, some in the past few days. I suspect it is not much comfort to some of their now unemployed crews who last month or so might have had the satisfaction of abusing some semi-captive passenger. Is that now helping them to pay the bills?

[james michael]

Obira

Sorry, I'm still not convinced the proof exists of endangerment. The reckless is acceptable as I noted.

Ixixly

For every supposedly 'conclusive' study there will be one disproving. I still feel manufacturer studies would top the list of credibility and the manufacturers have a commercial interest in disproving. The Boeing study seems a weighty argument.

[obira]

You don't need to prove endangerment. You only need to prove that there is a possibility of endangerment and that to ignore that possibility is reckless.

In red letters at the start of the Boeing study cited it says:

Boeing has recommended that devices suspected of causing these anomalies be turned off during critical stages of flight (takeoff and landing). The company also recommends prohibiting the use of devices that intentionally transmit electromagnetic signals, such as cell phones, during all phases of flight. The U.S. Federal Communications Commission already prohibits the use of cell phones during flightFurthermore the Boeing study states:

The laboratory results indicated that the phones not only produce emissions at the operating frequency, but also produce other emissions that fall within airplane communication/navigation frequency bands (automatic direction finder, high frequency, very high frequency [VHF] omni range/locator, and VHF communications and instrument landing system [ILS]). Emissions at the operating frequency were as high as 60 dB over the airplane equipment emission limitsThe Boeing study shows just such a possibility

obira

[Ixixly]

Actually i wasn't referring to the Boeing study, wasn't entirely aware there even was one!! I was referring mostly to the study conducted by the CAA in the UK.

http://www.caa.co.uk/docs/33/CAPAP2003_03.PDF

A governing body such as that with this study adds an air of credibility, backed by boeing, its kind of hard to disprove when two such groups are in agreement that mobile phones do cause problems.

[james michael]

Ix

See earlier post by me for link to Boeing.

Obira

It depends what you look for in the Boeing report. A close look indicates other PED seem involved in interference, rather than mobiles.

Some quotes from that same report you quoted:

Boeing also performed an airplane test on the ground with the same 16 phones. The airplane was placed in a flight mode and the flight deck instruments, control surfaces, and communication/navigation systems were monitored. No susceptibility was observed. For the use of cell phones, the AC states that the FCC currently prohibits the use and operation of cell phones while airborne. The reason for this relates primarily to cellular ground base system susceptibility because a cell phone in the air will have greater coverage (transmitting to several cell bases simultaneously on the same frequency) than a cell phone on the ground (transmitting to one cell base). The FAA supports this airborne restriction because of the potential for interference to critical airplane systems. "Potential" is different to "proven risk".

I still think the case is better made by proceeding on failure to obey a lawful direction as that allows easier proof, documentation exists to prove passnegers are told to not operate mobiles airborne, and it implies no requirement to argue whether or no risk exists. Perhaps it has a lesser penalty.

We are starting to argue in circles on this; I will await the case with interest.

[Brian Abraham]

james, you seem to miss an important portion of the Boeing reference
In addition to its active participation on the last two RTCA committees, Boeing released an all-model service letter in 1993 to provide guidance to operators regarding the use of PEDs. The letter included the following statements:

* Use of intentional transmitters should be prohibited at all times.
FAA issued AC 91.21-1 (from the Boeing reference)
Currently, the FAA does not prohibit use of cell phones in airplanes while on the ground if the operator has determined that they will not cause interference with the navigation or communication system of the airplane on which they are to be used. An example might be use at the gate or during an extended wait on the ground, when specifically authorized by the captain. A cell phone must not be authorized for use while the airplane is taxiing for departure after leaving the gate. The unit must be turned off and properly stowed; otherwise, a signal from a ground cell could activate it. All bolding mine. The airline concerned will have procedures proscribed in their Ops Manual.

The most recent Boeing Service Letter I could find on the subject is here http://gpsinformation.net/airgps/boeingsvcltr.pdf and don't find much there that anyone putting up a defense could use in front of a beak.

[james michael]

Brian

Good points and I'll have a read.

Let's say you are the prosecution star witness in this case - the PIC of the aircraft on which the event occurred. My first question to you would be "and exactly what systems did you note affected by the use of the phone by the passenger and did you file appropriate report/s".

Alternatively, were it disobeying a lawful command, I suspect your answer would be much easier and sustainable :)

[obira]

As my learned colleague counsel for the defence james michael has himself stated:

That would be unworkable, so you have to prove a possible endangerment. (emphasis added)

The manufacturer, Boeing, and aviation authorities worldwide such as the FAA consider there to be such a possibility of mobile phone use endangering an aircraft that they have recommended and instituted a complete ban on mobile phone use inflight. It would be reckless to ignore the weight of this authority.

I too await the outcome of this trial :)

cheers
obira

[Brian Abraham]

james, right or wrong I see it as a "Stop" sign on a blind corner. If I drive through with out stopping have I been reckless or endangered any one? You could come up with the proposition that it depends. If peak hour obviously yes on both counts. At 2AM I may be able to shoot straight through at 100 MPH and be as certain as its possible to be that no damage will be done. If I do so and got away with it what stance would a reasonable person take? The prohibition is there for a reason, the fact that nothing untoward happened on that particular occasion of driving through the stop sign, I certainly have endangered others, because I have no absolute certainty that another may be driving down the road. I'm taking a punt on the risk that there probably won't be other traffic. When you use the phone you have no certainty that it won't cause problems, nor the nature of problem it may cause, and indeed if the crew may notice the problem. Crossing the runway mentioned earlier is a good example, if the controller issued a "hold short" instruction that the crew didn't hear due phone interference on the comms and another Tenerife unfolded ....... well you get the drift.

[james michael]

Brian

I'd take going through the Stop sign as - disobeying a lawful instruction. (As distinct from Volvo drivers waiting for the Stop sign to turn green) :)

Otherwise I agree.

[obira]

Just one more thing:

In Australia, the courts have developed two levels of foresight for recklessness. For murder, the High Court held that recklessness means foresight of probability, not foresight of possibility. This point was authoritatively decided in the High Court in Crabbe. For crimes other than murder, it would appear that foresight of possibility suffices. This view is supported by the NSW decision of Coleman, (1990) 19 NSWLR 467, BFW 795, see Sexual Offences belo (http://law.anu.edu.au/criminet/rape.html)w. The case dealt with the offence of assault with intent to have sexual intercourse. The Court of Criminal Appeal held that for crimes other than murder, the jury should be directed that a lower level of foresight suffices: foresight of possibility. (emphasis added) Source: http://law.anu.edu.au/criminet/tassault.html#mens
(http://law.anu.edu.au/criminet/tassault.html#mens)

[apache]

considering that it would have been the PIC who would have radioed ahead for the police to meet the aircraft, then I would say that the PIC WAS informed, and has obviously backed the F/A's.
All pilots should back the judgement of the cabin crew, in my opinion. This clown needs to be made an example of.

[james michael]

Obira

That's excellent - you are winning me over - you may take over the "learned" hat for this turn of the wheel :)

[obira]

Thanks james michael :),

The thing with recklessness though is that it is a subjective matter. The question is not whether a reasonable person would foresee the possibility but whether the accused foresaw the possibility. I would imagine that before proceeding with such a prosecution there would be some evidence available as to the accused's state of mind such as admissions in a record of interview or witness reports of statements at the time of the incident. Even a statement such as 'there's bugger all chance of that happening' indicates an awareness of the possibility no matter how small.

Cheers
obira

[ZEEBEE]

There is an ATSB site that lists various pireps of mobile phone intererence and one of the most chilling is the demonstrated ability of a mobile phone to shut down the port engine of an A320.
Admittedly, it was found that there was a wiring fault associated with the FADEC on that engine, but then who's to say that others are not similarly affected ?
I've had an AutoPilot engage when the mobile phone belonging to one of my pax signed onto a new cell. We could reproduce that EVERY time.
At that point I was fairly pleased that the old steam driven PT-6 didn't have any serious electronics driving it.
All of this in my opinion constitutes the POTENTIAL to put the aircraft in grave danger under the right circumstances.
Who needs a few more swiss cheese holes to line up just because some ****** feels he's too important not to be out of contact ? :mad:

[5miles]

I've got no idea as to the likely effects of a mobile phone signal on essential airborne systems, but from sitting on the other end of the R/T as an approach controller, we definately DO receive interference from mobile signals.

It's most frequent from single pilot and GA ops where I'm guessing it's most likely the pilots own phone left on and being relied upon as a tertiary comms option. I've even had pilots call up our land line moments after they select 7600. Very useful in such circumstances.

But that interference can cause discomfort, and does affect readability.

[Bullethead]

Odd then isn't it that part of the Lost Comms procedure for YBBN is to ring them up, presumably before you land.

Regards,
BH.

[Just a Grunt]

Not certain that failing to comply with a direction from a PIC is actually an offence. Part 2 of the Crimes (Aviation) Act does not provide for it, and there is nothing in the Civil Aviation Act or the regs that I could find on a quick scan on Australasian Legal Information Institute (AustLII) (http://www.austlii.edu.au). Fortunately, the behaviours that are likely to attract a direction from the PIC to stop immediately are offences. Those offences appear to be:

Crimes (Aviation) Act
S13 - Hijacking - life imprisonment
S14 - Act of Violence towards crew or passengers - 14 years imprisonment
S19 - Prejudice of safe operation of aircraft - 14 years imprisonment
S21 - Assault crew - 14 years imprisonment
S22 - Endanger safety of aircraft - 7 years imprisonment
S23 - Carry dangerous goods (includes any weapon) onto aircraft - 7 years imprisonment
S24 - Threats or false statements endangering safety of aircraft - 2 years imprisonment

Civil Aviation Regs
Reg256 - Boarding an aircraft while intoxicated
Reg256AA - Offensive and disorderly behaviour on an aircraft

PIC's can also derive some comfort from section 281 of the Criminal Code (Qld) (which is to the same effect as the law elsewhere in Oz) which provides that the person in charge of a "vehicle" is entitled to use such force as is reasonable to maintain good order and discipline. Crew acting with the PIC's authority are similarly protected.

This is something that those of us with children already know...

I ran section 22 through lexisnexis, and have not found any case where the issue of recklessness has been considered in the context of this legislation. Presumably, however, even if what is required is a subjective appreciation of the risk, the fact that this idiot was told that he had to turn his phone off might have given him a clue that its continued use was...ummm.. sub-optimal.

[scrufflefish]

Can't say its ever been a problem in the DH82......but I wonder whether phoning the pax might be more effective than yelling in the Gosport tube. :}

[james michael]

JaG

Iy become3s more interesting when you search the CASA website.
CIVIL AVIATION REGULATIONS 1988 - REG 309A

Instructions about activities on board aircraft (1) Subject to subregulation (2), the operator, or pilot in command, of an Australian aircraft may give an instruction, either orally or in writing, prohibiting or limiting the doing of an act on board the aircraft during flight time in the aircraft.
(2) The operator, or pilot in command, must not give an instruction unless he or she is satisfied on reasonable grounds that the instruction is necessary in the interests of the safety of air navigation.
(3) An instruction does not bind a person unless it is communicated to the person.
(4) A person who is bound by an instruction must comply with the instruction.
Penalty: 25 penalty units.
(5) An offence against subregulation (4) is an offence of strict liability.
Note For strict liability , see section 6.1 of the Criminal Code .
(6) It is a defence to a prosecution under subregulation (4) if the person had a reasonable excuse.
Note A defendant bears an evidential burden in relation to the matter in subregulation (6) (see subsection 13.3 (3) of the Criminal Code ).

It is interesting, if you search on the CASA web site for "CAR 1988 Reg 309A" the second appearance is - note the ref to mobile phones:
"Civil Aviation Act 1988 CAR. mobile phones CAR 309A"

and when you enter and look under M for mobiles you arrive at:
"mobile phones CAR 309A.+ Operator requirement"

I still slightly favour the concept that the failure to abide by lawful instruction is possibly easier to prove.