There are some basic principles which could be overlooked in the discussion. First, there are a number of different charges that have been brought with varying severity. The strongest charge is 'deliberate destruction of an aircraft', and other charges include the more conventional criminal negligence charges.
I think the International Federation of Air Pilots has objected to the most severe of the charges but has accepted that the more conventional charges are within the scope of what might be fair to try the guy on.
Then we have the issue of what evidence can be used. The ATSB does not set out to find who is to blame - as has been noted, they look for a cause and for any lessons that can be learned. They do this based on all available evidence in whatever form that evidence takes, some of which might only be inferential based on the laws of physics and some of the observable facts.
I don't think it is possible for a prosecution to use the ATSB or its Indonesian counterpart's report as evidence. But what is legitimate is for the evidence that was available for the civil investigation to be used in the criminal trial. It is for the jury to decide in respect of what fact any piece of evidence is probative, and for the counsel and judge to explain to the jury their role, which is to decide if the factual elements of the charge have been made out beyond reasonable doubt. It's a very different process and I don't think any pilot should be concerned about CVR or FDR evidence incriminating them except in the most flagrant kind of case where there was some kind of act which the CVR and perhaps the FDR could demonstrate was wilful rather than negligent or lacking in sufficient experience, competence or skill.
I don't have all the facts of the Garuda crash and haven't read the report, but based solely on the newspaper and other media reports of what happened, the pilot does seem to me objectively to at least have a case to answer for criminal negligence causing death. To the extent that the other crew members might have to testify about what happened in the cockpit, and humans have poor recollection after most trauma, the objectivity of the CVR and FDR evidence is hard to beat. It might just as easily contain the defence as it does the prosecution's ace card.
__________________
Philip
|