Unlawfully Taking Control of an Aircraft

– section 80 of the Crimes Act 1958
Passengers Inside Aircraft
The offence of unlawful taking control of an aircraft is a very rarely charged section of the Crimes Act. It remains a very serious offence.
Examples of Unlawfully Taking Control of an Aircraft
  • A person on board a commercial aircraft full of other passengers takes control of an aircraft by threatening violence. The person evicts the crew from the cockpit and flies the aircraft themselves.
  • A person on board an aircraft with other passengers on board threatens violence and forces the crew in the cockpit to change course.
  • A person on board an aircraft takes control of the aircraft without any use of violence or trickery. There are other people on board the aircraft who are not associated with the accused.
Questions in cases like this
  • Has the accused taken control of an aircraft without lawful excuse?
  • Was there another person on board the aircraft, who was not an accomplice of the accused, when the accused took control of it?
  • Did the accused take control of the aircraft by force or violence or threat of force or violence or by any trick of false pretence?
What are some of the possible defences to Unlawfully Taking Control of an Aircraft?

Defences to this charge ordinarily turn on some element of the offence not being made out. These include:

  • The accused did not take control of an aircraft;
  • There was no other personal board the aircraft who was not an accomplice of the accused; or
  • The accused had a lawful excuse for taking control of the aircraft.

Other defences to this charge include duress1 or sudden and extraordinary emergency2.

You should ring us and discuss your case if you have been charged. Deciding on whether to plead guilty or not has important implications for you and should be made after proper discussions with a criminal lawyer.

Maximum penalty and court that deals with this charge

The maximum penalty for this offence depends on the accused’s conduct.

In circumstances where the accused takes control of an aircraft by force or violence or threat of force or violence or by any trick or false pretence, the maximum penalty for this offence is 20 years imprisonment.

In circumstances where the accused takes control of an aircraft without any force or violence or any threat of such conduct, and without any trick or false pretence, the maximum penalty for this offence is 15 years imprisonment.

This offence is heard in the County Court.

What is the legal definition of Unlawfully Taking Control of an Aircraft?

Imprisonment

  1. A person who without lawful excuse takes or exercises control, whether direct or through another person, of an aircraft while another person not being an accomplice to the first-mentioned person is on board the aircraft shall be guilty of an indictable offence and shall be liable to level 4 imprisonment (15 years maximum).
  2. A person who without lawful excuse, by force or violence or threat of force or violence or by any trick of false pretence, takes or exercises control, whether direct or through another person, of an aircraft while another person not being an accomplice of the first-mentioned person is on board the aircraft shall be guilty of an indictable offence and shall be liable to level 3 imprisonment (20 years maximum).
Legislation

The relevant legislative provision for this offence is section 80 of Crimes Act 1958 (Vic) (the Act).

Elements of the offence

To prove that the accused is guilty of this offence, the prosecution must establish the following elements beyond reasonable doubt:

  1. The accused took or exercised control, whether direct or through another person, of an aircraft;
  2. The accused had no lawful excuse to take or exercise control of the aircraft; and
  3. There was another person who was not an accomplice to the accused on board the aircraft.

An additional element that will result in a higher maximum sentence is:

  1. The accused, by force or violence or threat of force or violence or by any trick of false pretence, took or exercised control, whether direct or through another person, of an aircraft.

Element 1: The accused took or exercised control, whether direct or through another person, of an aircraft
The first element of this offence is that the accused took or exercised control of an aircraft, whether directly or indirectly.

An ‘aircraft’ is defined in the act as ‘every type of machine or structure used or intended to be used for navigation of the air’.3

‘Taking control of’ an aircraft is not defined in the Act and carries its ordinary meaning of the power to direct or influence the operation of an aircraft.4

Control may be exercised directly or indirectly to make out this element of the offence. For example, if an accused does not have direct control over an aircraft but is able to control the pilot’s operation of the aircraft through threats or deception, then this element of the offence will be made out.

“Can they prove that you took or exercised control of an aircraft?”

Element 2: The accused had no lawful excuse to take or exercise control of the aircraft
The accused must not have had a lawful excuse to take or exercise control of the aircraft.

If the accused does have a lawful excuse, such as being a licensed pilot with authority to fly the aircraft, then this element of the offence will not be made out.

Element 3: There was another person who was not an accomplice to the accused on board the aircraft
Another person who was not an accomplice of the accused must be on board the aircraft when the accused takes or exercises control of the aircraft.

‘On board’ is not defined in the act and carries its ordinary meaning on or in the aircraft.5
 
Call Doogue + George
 
Element 4: The accused, by force or violence or threat of force or violence or by any trick of false pretence, took or exercised control, whether direct or through another person, of an aircraft
The offence will be proven when the Prosecution proves Elements 1-3 beyond reasonable doubt. However, a higher maximum penalty will apply if the prosecution can also make out the fourth element.

The fourth element of this offence is that the accused, by force or violence or threat of force or violence or by any trick of false pretence, took or exercised control, whether direct or through another person, of an aircraft.

An example of violence or force could be an accused using knives smuggled on board to coerce the crew to relinquish control over the aircraft and flying the aircraft themselves; or forcing the pilot to fly the aircraft for them as they direct.

An example of trick or false pretence could be an accused posing as a licensed pilot and flying an aircraft without any authority to do so.



[1] Crimes Act 1958 (Vic) s 322O
[2] Crimes Act 1958 (Vic) s 322R
[3] Crimes Act 1958 (Vic) s 2A
[4] https://en.oxforddictionaries.com/definition/control
[5] https://en.oxforddictionaries.com/definition/on_board