AIRCRAFT OFFENCES (CTH)

Offences committed on an aircraft, towards passengers or crew members, or directed towards an aircraft are treated very seriously. The Crimes (Aviation) Act 1991 (“the Act”) contains the offences which relate to aircraft and aviation including hijacking, offences onboard aircraft, offences affecting safe operation of aircraft and offences endangering the safety of aerodromes. This article will focus on and explain some of the common aviation and aircraft offences in Australia including assaulting crew, hijacking, possessing dangerous goods and endangering safety of aircraft.

Hijacking – Section 13(1) Crimes (Aviation) Act 1991

The offences related to hijacking and other acts of violence on board aircraft are contained under Division 1 of Part 2 of the Act. Section 13 of the Act creates two offences for hijacking depending on whether the act occurred within or outside Australia. Both hijacking offences carry a maximum penalty of life imprisonment. 

The following acts constitute Hijacking:

• An individual uses a firearm or improvised weapon to threaten the flight crew, forcing them to change the flight path to a different country, 
• A group of passengers physically overpower the aircrew and take control of the cockpit controls, or hold the captain at knifepoint and dictate the aircraft’s movements, 
• A passenger claims to have an explosive device in their luggage and demands the plane land immediately or the bomb will detonate,
• A passenger holds another passenger hostage and demands access to the cockpit and controls or else will kill the other passenger.

What Must Be Proven?

For a person to be found guilty of hijacking, the Prosecution must prove each of the following matters beyond a reasonable doubt:  

• You, 
• “Hijacked” an “aircraft”,
• With any of the following circumstances applying:
  • The aircraft is “in flight”, 
  • The aircraft is engaged in a “prescribed flight”, 
  • The aircraft is a “Commonwealth aircraft”, 
  • The aircraft is a “visiting government aircraft”. 

If the prosecution does not prove every single one of the above elements, you will be found not guilty. 

Definitions:

Section 9 of the Act defines “hijacking” for the purpose of Division 1 of Part 2 to mean that a person hijacks an aircraft if, while onboard the aircraft, the person seizes, or exercises control of, the aircraft by force or threat of force, or by any other form of intimidation. 

The Criminal Code Act 1995 in Section 5.6(1) provides that where the law creating the offence does not specify a fault element for a physical element that consists only of conduct, that intention is the fault element for that physical element. Accordingly, the defendant must have an “intention” to hijack the aircraft. Intention in this context means that a person has intention with respect to conduct if he or she means to engage in that conduct. 

The Montreal Convention provides the definitions for when an aircraft is “in flight” pursuant to Section 3 of the Act being from the moment all external doors close after embarkation until any door opens for disembarkation. 

A “prescribed flight” is defined in Section 3 to mean a flight of an aircraft that is in the course of trade and commerce within other countries or among the States, or within a territory between 2 territories or between a State and Territory or within a State.

A “Commonwealth aircraft” means an aircraft, other than a defence aircraft, that is owned by, or in the possession or control of, the Commonwealth or a Commonwealth authority.

A “visiting government aircraft” means an aircraft that is owned or operated by the government of a foreign country or part of such a country and is in Australia, or is engaged in a flight that starts outside Australia and ends or is intended to end in Australia. 

Section 13(2A) of the Act prescribes that “absolute liability” applies in respect of the four relevant circumstances that may apply. Absolute liability as defined at Section 6.2 of the Criminal Code Act 1995 to mean that there is no fault / mental element attached to the related physical element of the offence and that the defendant is unable to raise the defence of honest and reasonable mistake of fact. Practically this means that the defendant does not need to intend nor have knowledge that nor be reckless to whether the aircraft is inflight, is engaged in a prescribed flight, is a Commonwealth Aircraft or a visiting government aircraft, only that the aircraft is in fact of that kind. 

Which Court will Hear the Matter:

This offence is Strictly Indictable, which means that it must be finalised (either by way of a trial or sentence) in the District Court. The matter will still start in the Local Court and it will be subject to the Early Appropriate Pleas of Guilty (EAGP) Scheme.

Possible Defences to Hijacking:

• Self-defence, 
• Duress, 
• Necessity.

Assaulting Crew – Section 20A and 21 Crimes (Aviation) Act 1991

The general offence prohibiting against assaulting, attacking or threatening violence towards an aircraft crew member is contained at Section 20A of the Act. The maximum penalty for the offence is 10 years imprisonment. 

The separate offence of assaulting crew that results in an interference with or lessening of the crew member’s performance of functions or duties of the aircraft is contained at Section 21 of the Act. The maximum penalty for this offence is 20 years imprisonment. 

The following acts constitute assaulting crew:

• A passenger refuses to fasten their seatbelt during turbulence. When the flight attendant insists the passenger must be restrained by the seatbelt, the passenger pushes or shoves the flight attendant,
• A passenger is frustrated with the quality of the food on flight and throws their meal or tray at a crew member in disgust, 
• A group of passengers who consumed alcohol prior to the flight and are acting belligerent and aggressive while on board by refusing to get out of the aisle or sit down and put on their seatbelts as the flight is preparing to take off which prevents the crew from conducting safety checks prior to take off. 

What Must be Proven?

For a person to be found guilty of assault crew pursuant to the Section 20A offence, the Prosecution must prove each of the following matters beyond a reasonable doubt:  

• You are on board an aircraft, and
• The aircraft is a “Division 3 Aircraft”, and 
• Assaults, “threatens” with violence or intimidates another person, and
• The other person is a “member of the crew” of the aircraft. 

For a person to be found guilty of assault crew in a manner that results in an interference with or lessening of the member’s ability to perform their functions or duties under the Section 21 offence, the Prosecution must prove each of the following matters beyond a reasonable doubt:  

• You, 
• Are on board a “Division 3 aircraft”, and 
• Assault, threaten with violence, or otherwise intimidate,
• A “member of crew” of the aircraft
• In a manner that results in:
  • An interference with the member’s ability to perform those functions or duties, or 
  • A lessening of the member’s ability to perform those functions.

If the prosecution does not prove every single one of the above elements, you will be found not guilty. 

Definitions:

Section 3 of the Act defines a “Division 3 Aircraft” to mean:

1. an Australian aircraft (other than a Commonwealth aircraft or a defence aircraft) that is mainly used for the purpose of any of the following flights, or is engaged, or is intended or likely to be engaged, in such a flight:
   1. A prescribed flight;
   2. A flight between a part of Australia and a place outside Australia;
   3. A flight wholly outside Australia; or
2. a Commonwealth aircraft; or
3. a defence aircraft; or
4. a foreign aircraft that is in Australia; or
5. a foreign aircraft that is outside Australia while engaged in a flight that started in Australia or that was, when the flight started, intended to end in Australia.

A person is taken to be a “member of crew” of an aircraft pursuant to Section 3 of the Act where a person has duties of functions on board the aircraft. 

Section 4 of the Act defines where a person is taken to “threaten” to do an act where the person makes any statement or does anything else indicating, or from which it could reasonably be inferred, that it is his or her intention to do that act. 

The Criminal Code Act 1995 in Section 5.6(1) provides that where the law creating the offence does not specify a fault element for a physical element that consists only of conduct, that intention is the fault element for that physical element. Accordingly, the defendant must have an “intention” to assault, threaten with violence or intimidate another person. Intention in this context means that a person has intention with respect to conduct if he or she means to engage in that conduct. 

The Criminal Code Act 1995 in Section 5.6(2) provides that where the law creating the offence does not specify a fault element for a physical element that consists of a circumstance or result, recklessness is the fault element for that physical element. Accordingly, the defendant must have been “reckless” as to whether the other person is a “member of the crew”. Recklessness in this context means if he or she is aware of a substantial risk that the circumstance will exist or will exist and having regard to the circumstances known to him or her it is unjustifiable to take the risk. 

Section 20A(2) and Section 21(2) prescribe that “absolute liability” applies to whether the aircraft is a Division 3 aircraft. Absolute liability as defined at Section 6.2 of the Criminal Code Act 1995 to mean that there is no fault / mental element attached to the related physical element of the offence and that the defendant is unable to raise the defence of honest and reasonable mistake of fact. Practically this means that the defendant does not need to intend the aircraft as a Division 3 aircraft, does not need to have knowledge and does not need to be reckless to whether the aircraft is a Division 3 aircraft, only that the aircraft is in fact Division 3. 

Which Court will Hear the Matter:

The Section 20A offence is an indictable offence which under the Criminal Procedure Act 1986 prescribes that the matter is to be dealt with on indictment in the District Court unless the parties agree to summary jurisdiction in the Local Court. 

The Section 21 aggravated offence of assaulting crew and interfering with duties is Strictly Indictable, which means that it must be finalised (either by way of a trial or sentence) in the District Court. The matter will still start in the Local Court and it will be subject to the Early Appropriate Pleas of Guilty (EAGP) Scheme.

Possible Defences to Assaulting Crew:

• Self-defence, 
• Duress, 
• Necessity.

Possessing Dangerous Goods – Section 23 and 23A Crimes (Aviation) Act 1991

It is an offence to carry, place, deliver or have dangerous goods in a person’s possession while on board an aircraft. This offence is contained at Section 23 of the Act and the offence carries a maximum penalty of 10 years imprisonment.

The aggravated offence for carrying, placing, delivering or having dangerous goods in a person’s possession with the act being likely to endanger a person’s life or cause serious harm to a person is contained at Section 23A of the Act. This offence carries a maximum penalty of imprisonment for 14 years. 

The following acts constitute possessing dangerous goods:

•  Attempting to or carrying a handgun or boxes of ammunition in check-in luggage without authorisation or permission, 
• Bringing fireworks, flares or blasting caps onto the plane in carry-on luggage, 
• Asking someone to come to the airport to deliver your handgun to you so that you can take the handgun with you on your flight. 

What Must Be Proven?

For a person to be found guilty of carrying, placing, delivering or having possession of dangerous goods Section 23 offence, the Prosecution must prove each of the following matters beyond a reasonable doubt:  

• You, 
• Either:
  • Carry or place “dangerous goods” on board a “Division 3 aircraft”, or 
  • Deliver dangerous goods to anyone else with the intention of placing the goods on board such an aircraft, or 
  • Have dangerous goods in his or her possession on board such an aircraft. 

For a person to be found guilty of the aggravated Section 23A offence of dangerous goods acts likely to endanger life or cause serious harm, the Prosecution must prove each of the following matters beyond a reasonable doubt:  

• You, 
• Committed an offence against subsection 23(1) (being the above offence of carrying, placing, delivering or having possession of dangerous goods), and 
• The act constituting the offence is likely to endanger a person’s life or cause serious harm to a person. 

If the prosecution does not prove every single one of the above elements, you will be found not guilty. 

Definitions:

“Dangerous goods” are defined at Section 3 of the Act to mean firearms, ammunition, weapons and explosive substances or any substance or thing that, because of its nature or condition, may endanger the safety of an aircraft or of people on board an aircraft. 

For the aggravated Section 23A offence, an act is taken to be “likely to cause harm” if it is likely to substantially contribute to serious harm to a person. 

The Criminal Code Act 1995 in Section 5.6(1) provides that where the law creating the offence does not specify a fault element for a physical element that consists only of conduct, that intention is the fault element for that physical element. Accordingly, the defendant must have an “intention” to carry or place the dangerous goods on the aircraft, or have the dangerous goods in his or her possession when on board the aircraft. Intention in this context means that a person has intention with respect to conduct if he or she means to engage in that conduct. 

Section 3 of the Act defines a “Division 3 Aircraft” to mean:

1. an Australian aircraft (other than a Commonwealth aircraft or a defence aircraft) that is mainly used for the purpose of any of the following flights, or is engaged, or is intended or likely to be engaged, in such a flight:
   1. A prescribed flight;
   2. A flight between a part of Australia and a place outside Australia;
   3. A flight wholly outside Australia; or
2. a Commonwealth aircraft; or
3. a defence aircraft; or
4. a foreign aircraft that is in Australia; or
5. a foreign aircraft that is outside Australia while engaged in a flight that started in Australia or that was, when the flight started, intended to end in Australia.

Section 23(3) and 23A(2) prescribe that “absolute liability” applies to whether the aircraft is a Division 3 aircraft. Absolute liability as defined at Section 6.2 of the Criminal Code Act 1995 to mean that there is no fault / mental element attached to the related physical element of the offence and that the defendant is unable to raise the defence of honest and reasonable mistake of fact. Practically this means that the defendant does not need to intend the aircraft as a Division 3 aircraft, does not need to have knowledge and does not need to be reckless to whether the aircraft is a Division 3 aircraft, only that the aircraft is in fact Division 3. 

Which Court will Hear the Matter:

The Section 23 offence is an indictable offence which under the Criminal Procedure Act 1986 prescribes that the matter is to be dealt with on indictment in the District Court unless the parties agree to summary jurisdiction in the Local Court. 

The Section 23A aggravated offence of dangerous goods acts likely to endanger life or cause serious harm is Strictly Indictable, which means that it must be finalised (either by way of a trial or sentence) in the District Court. The matter will still start in the Local Court and it will be subject to the Early Appropriate Pleas of Guilty (EAGP) Scheme.

Possible Defences to Dangerous Goods:

Section 23(2) of the Act provides that the offence does not apply to:

• Anything done with the consent of the owner or operator of the aircraft given with knowledge of the nature of the goods concerned; or
• The carrying or placing of dangerous goods, on board an aircraft with permission granted under the Air Navigation Act 1920 or regulations made under that Act, the Aviation Transport Security Act 2004 or regulations made under that Act, or the Civil Aviation Act 1988 or regulations made under that Act; or
• In the case of a Commonwealth aircraft (other than one being used for commercial transport operations)—the carrying or placing of dangerous goods on board the aircraft by:
  • A person appointed or engaged under the Public Service Act 1999, in the performance of his or her duties; or
  • An officer of, or a person employed by, an authority of the Commonwealth in the performance of his or her duties; or
  • A person acting in accordance with the instructions of such an officer or person given in the performance of his or her duties; or
•  In the case of a defence aircraft—the carrying or placing of dangerous goods on board the aircraft by:
  • A member of the Defence Force in the performance of his or her duties; or
  • A person acting in accordance with the instructions of such a member given in the performance of the member’s duties.

The further defences that can be raised for the offence of dangerous goods are:

• Self-defence, 
• Duress, 
• Necessity.

Endangering Safety of Aircraft – Section 25 Crimes (Aviation) Act

Section 25 of the Act contains the offence which criminalises behaviour that endangers the safety of an aircraft or the passengers on an aircraft. The maximum penalty for this offence is 20 years imprisonment. 

What Must Be Proven?

For a person to be found guilty of the Section 23(1) offence of endangering the safety of the aircraft in flight, the Prosecution must prove each of the following matters beyond a reasonable doubt:  

• You, 
• Committed an “unlawful act” mentioned in subsection 10(1), and
• Any of the following apply:
  • The Montreal Convention requires Australia to make the act punishable;
  • The aircraft concerned is:
    • An aircraft in service in the course of, or in connection with, a prescribed flight; or
    • A Commonwealth aircraft; or
    • A defence aircraft; or
    • A visiting government aircraft;
  • The person is an Australian citizen who commits the act outside Australia.

For a person to be found guilty of the Section 23(2) offence of endangering the safety of the aircraft in flight, the Prosecution must prove each of the following matters beyond a reasonable doubt:  

• You committed an “unlawful act” mentioned in subsection 10(2), and
• Any of the following apply:
  • The Montreal Convention requires Australia to make the act punishable;
  • Except where paragraph (c) applies, the aircraft concerned is:
    • An aircraft in service in the course of, or in connection with, a prescribed flight; or
    • A Commonwealth aircraft; or
    • A defence aircraft; or
    • A visiting government aircraft;
  • In the case of an act relating to air navigation facilities—the facilities are used in connection with:
    • An aircraft in service in the course of, or in connection with, a prescribed flight; or
    • A Commonwealth aircraft; or
    • A defence aircraft; or
    • A visiting government aircraft;
  • The person is an Australian citizen who commits the act outside Australia.

Definitions:

An “unlawful act” is defined at Section 10(1) of the Act to exist if the person commits an act of violence against anyone on board an aircraft in flight, being an act likely to endanger the safety of the aircraft; or destroys an aircraft in service, or causes damage to such an aircraft which renders it incapable of flight or which is likely to endanger its safety in flight. An “unlawful act” also includes if a person does any of the following as per Section 10(2) 

• Places, or causes to be placed, on an aircraft in service a substance or thing that is likely to destroy the aircraft;
• Places, or causes to be placed, on an aircraft in service a substance or thing that is likely to cause damage to the aircraft which renders it incapable of flight or which is likely to endanger its safety in flight;
• Destroys or damages any navigation facilities or interferes with their operation, being destruction, damage or interference that is likely to endanger the safety of an aircraft in flight;
• Communicates information which he or she knows to be false, thereby endangering the safety of an aircraft in flight.

The Criminal Code Act 1995 in Section 5.6(1) provides that where the law creating the offence does not specify a fault element for a physical element that consists only of conduct, that intention is the fault element for that physical element. Accordingly, the defendant must have an “intention” to commit the “unlawful act”. Intention in this context means that a person has intention with respect to conduct if he or she means to engage in that conduct.

Section 25(2A) prescribes that “absolute liability” applies to whether any of the prescribed circumstances exist. Absolute liability as defined at Section 6.2 of the Criminal Code Act 1995 to mean that there is no fault / mental element attached to the related physical element of the offence and that the defendant is unable to raise the defence of honest and reasonable mistake of fact. Practically this means that the defendant does not need to intend nor have knowledge that nor be reckless to whether the aircraft is in service, the aircraft is a commonwealth, defence or visiting government aircraft, or whether the person is an Australian citizen, only that these circumstances in fact exist. 

Which Court will Hear the Matter:

This offence is Strictly Indictable, which means that it must be finalised (either by way of a trial or sentence) in the District Court. The matter will still start in the Local Court and it will be subject to the Early Appropriate Pleas of Guilty (EAGP) Scheme.

Possible Defences to Endangering Safety of Aircraft:

• Self-defence, 
• Duress, 
• Necessity.

Common Questions about Aircraft and Aviation Offences:

Will I receive a criminal conviction?

A conviction and criminal record for these offences is very likely. 

In NSW, a court can impose any of the following penalties for aircraft related offences.

• Gaol Sentence
• Section 20(1)(a) Recognizance Order
• Intensive Corrections Order (ICO)
• Section 20(1)(b) Conditional Release Order
• Community Corrections Orders (CCO)
• Fine
• Section 19B(1)(d) Recognizance Order
• Conditional Release Order with Conviction 
• Section 19B(1)(c) Dismissal
• Conditional Release Order without Conviction
• Section 10(1)(a) Dismissal

The consequences of a conviction can be serious depending upon what you do for a living. Some jobs require you to have no criminal convictions and a conviction for aircraft offences might jeopardise your job or make it difficult to obtain visas for overseas travel. Moreover a conviction for an offence of violence can completely rule out certain career paths such as teaching and a range of government employment options. Violent offences may also result in sentences that include imprisonment even where an individual has no previous convictions.

Will I go to Gaol for Aircraft Offences?

Whether a person is sentenced to gaol for committing an aircraft related offence will depend on the seriousness and circumstances of their matter. As most of the above charges are Strictly Indictable and will finalise in the District Court combined with how seriously Courts treat these types of offences, it is likely that a person will receive a full-time custodial sentence for committing any of the above aircraft offences. 

If you require legal advice or representation in any legal matter, please contact Armstrong Legal.