McBride v The King
[2023] ACTCA 42
•16 November 2023
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | McBride v R |
Citation: | [2023] ACTCA 42 |
Hearing Date: | 16 November 2023 |
Decision Date: | 16 November 2023 |
Before: | McCallum CJ |
Decision: | (1) Leave to appeal from the orders of Mossop J made on 16 November 2023 for the reasons his Honour published on 15 November 2023 is refused. (2) The application for a stay of the trial is refused. |
Catchwords: | APPEAL – APPLICATION FOR LEAVE TO APPEAL – Proposed appeal from interlocutory ruling concerning directions to be given to the jury in a criminal trial – where ruling sought from trial judge at the outset of the trial and prior to empanelment of the jury – where trial judge ruled that the jury would not be directed that the accused’s “duty” for the purposes of s 73A of the Defence Act 1903 (Cth) and s 70 of the Crimes Act 1914 (Cth) extended to acting in the “public interest” or “Australian public interest” even where that was in contravention of a lawful order that had been given to the accused – where trial judge ruled that the directions to the jury would be framed in a manner that recognises that a lawful order may define the scope of the accused’s duty – where ruling not obviously wrong – whether correctness of ruling attended by sufficient doubt to warrant interrupting criminal trial – undesirability of fragmenting criminal trials |
Legislation Cited: | Crimes Act 1914 (Cth) ss 70, 71 Court Procedures Act 2004 (ACT) s 76 Defence Act 1903 (Cth) ss 45, 73A Defence Force Discipline Act 1982 (Cth) Supreme Court Act1933 (ACT) ss 37E, 37J Supreme Court Act 1970 (NSW) s 5F Defence (Personnel) Regulation 2002 (Cth) |
Cases Cited: | BP v State of New South Wales [2019] NSWCA 223 Driclad Pty Ltd v Federal Commissioner of Taxation (1968) 121 CLR 45 Kramer v Stone [2023] NSWCA 270 Quach v Butt [2017] ACTCA 4 R v DL [2018] ACTCA 9 R v McBride (No 2) [2023] ACTSC 330 R v McBride [2023] ACTSC 328 Sidaros v The Queen [2020] ACTCA 11; 15 ACTLR 64 |
Parties: | David William McBride ( Applicant) The King ( Respondent) |
Representation: | Counsel S Odgers SC with E Kerkyasharian ( Applicant) P McDonald SC with C Tran ( Respondent) |
| Solicitors Xenophon Davis ( Applicant) Commonwealth Director of Public Prosecutions ( Respondent) | |
File Number: | ACTCA 41 of 2023 |
Decision Under Appeal: | Court: ACT Supreme Court Before: Mossop J Date of Decision: 16 November 2023 Case Title: R v McBride (No 2) Citation: [2023] ACTSC 330 Court File Number: SCC 127 of 2019 |
McCALLUM CJ:
1․David McBride has been arraigned on an indictment containing five counts of federal offences alleged to have been committed over periods ranging from 6 to 10 years ago. His trial by jury was due to commence last Monday.
2․Mr McBride was formerly a major in the regular army. He is also a trained lawyer and, for most of the period relevant to the charges against him, held a practising certificate issued by the ACT Law Society. Four of the five counts on the indictment allege offences which include, as part of an element required to be proved by the Crown, the notion of “duty”.
3․The context in which the notion of duty arises in the trial is that the charges allege, in broad terms, communication or publication of military information contrary to various duties owed by Mr McBride. The information is alleged to have been communicated or published to three journalists. Counts 2, 3 and 5 on the indictment allege communication that was not in the course of Mr McBride’s official duty within the meaning of s 73A(1) of the Defence Act 1903 (Cth). Count 4 includes an allegation as to the communication or publication in the following terms, “which it was his duty not to disclose”, echoing the language of s 71 of the Crimes Act 1914 (Cth).
4․At the commencement of the trial and before the empanelment of a jury, the accused sought an indication from the trial judge as to what directions his Honour would ultimately give to the jury in relation to the reference to “duty” in those provisions. The Crown did not oppose that course and indeed, as I understand the position, embraced it. It was common ground that the trial judge had jurisdiction to give a ruling on that issue arising from s 76 of the Court Procedures Act 2004 (ACT). The trial judge gave his decision on that issue yesterday.
5․The accused now seeks leave to appeal. Leave is required because the decision was interlocutory: see s 37E(4) of the Supreme Court Act1933 (ACT). This judgment determines the application for leave to appeal, which also includes an application for a stay of the trial pending determination of the appeal.
6․A threshold issue arises as to the subject matter of the appeal. Yesterday the trial judge gave reasons in respect of his conclusions on the submissions put by the parties and the matters argued. However, his Honour did not pronounce any formal order or ruling at the conclusion of those reasons.
7․Mr Odgers SC, who appears for the accused, indicated after the conclusion of the ruling that he was instructed to appeal. The trial judge said, “you'll probably need an order”. A debate followed as to whether an order was sought or indeed was necessary, Mr Odgers taking the view that this Court’s jurisdiction to entertain an appeal was enlivened by the publication of the decision consisting in the reasons notwithstanding the fact that no ruling or order was made.
8․The trial judge, evidently taking a different view, reconvened the Court this morning, over the opposition of counsel for the accused, and made the following orders:
1. Subject to any further order of the court made during the trial:
a) The directions to the jury will not include a direction that, by reason of the oath taken by the accused under the Defence (Personnel) Regulation 2002 (Cth) and s 45 of the Defence Act 1903 (Cth), the duty of the accused for the purposes of s 73A of the Defence Act1903 and s 70 of the Crimes Act 1914 (Cth) extended to acting in the “public interest” or “Australian public interest”, as determined by the jury, even where that was in contravention of a lawful order that had been given to the accused.
b) The directions to the jury will be framed in a manner that recognises that a lawful order contained in a “general order” within the meaning of the Defence Force Discipline Act 1982 (Cth) may define the scope of the duty of the accused under s 73A of the Defence Act 1903 and s 70 of the Crimes Act 1914.
9․His Honour indicated at [11] of his short reasons handed down this morning at the time of making those orders that the formulation of the order reflecting one of the accused’s propositions would be in the negative or in negative terms reflecting a rejection of the submissions put: see R v McBride (No 2) [2023] ACTSC 330. Separately, his Honour noted that the orders were expressly subject to any further order of the Court, saying at [10]:
While, having regard to their interlocutory nature, they would be subject to any further order in any event, having regard to the fact that they anticipate what might be done at the end of the trial, the position should be express so as to make clear the contingencies to which they are subject.
10․At the outset of the hearing of the application for leave to appeal this morning, Mr Odgers maintained his submission that this Court has jurisdiction to entertain the application even in the absence of the articulation of any order or ruling giving effect to the reasons of the trial judge published yesterday. The basis for that submission was the fact that s 37E of the Supreme Court Act confers jurisdiction on this Court to entertain an appeal against an “order” and that term is defined in the dictionary to the Act to include “a judgment, decree, direction or decision”.
11․As I understand the position, Mr Odgers’ submission is that this Court would have jurisdiction to entertain an appeal from the publication of a decision in the form of reasons indicating, for example, the judge’s construction of a statutory provision in a manner that might inform the directions to be given to the jury, even in the absence of any order or ruling articulating or giving effect to the reasons.
12․The submission contradicts the principle, which I take to be axiomatic, that appeals lie from orders, not reasons: see BP v State of New South Wales [2019] NSWCA 223 at [11]-[12], cited in Kramer v Stone [2023] NSWCA 270. In Kramer, Leeming JA (with whom Kirk JA agreed) said at [259]:
No differently from “judgments, decrees, orders, and sentences” in s 73 of the Commonwealth Constitution from which an appeal lies to the High Court, the “judgment or order” in respect of which section 101(1) of the Supreme Court Act 1970 (NSW) confers a right of appeal does not include “reasons for judgment”, although as Barwick CJ and Kitto J observed in Driclad Pty Ltd v Federal Commissioner of Taxation (1968) 121 CLR 45 at [64]; [1968] HCA 91 in many contexts, “judgment” is a convenient abbreviation for reasons for judgment.
13․The passage from Driclad cited by Leeming JA in Kramer includes the following statement in addition to the observation noted by his Honour:
The word “judgments” in this connexion refers only to operative judicial acts, and is not used, as it often is in other contexts, as a convenient abbreviation for reasons for judgment.
14․Uninformed by authority, I would have understood the term “decision” in s 37E of the Supreme Court Act in the same way, that is, to refer not to reasons published in relation to an issue raised in broad terms by the parties for the purpose of conducting a criminal trial but to an operative judicial act.
15․Mr Odgers submitted, however, that his position finds support in the decision of this Court (noting that I am today sitting as a judge of appeal in the Court of Appeal, as allowed under s 37E of the Supreme Court Act) in Sidaros v The Queen [2020] ACTCA 11. That was a case in which the Court considered the principles applicable to interlocutory appeals in New South Wales under s 5F of the Supreme Court Act 1970 (NSW) and their application or otherwise in the Territory. However, in that case, there was at least a ruling which formed the subject matter of the appeal, namely, a ruling as to the admissibility of evidence. I would not take the decision in Sidaros to be authority for the broader contention made by Mr Odgers this morning.
16․In any event, Mossop J having made orders this morning, the application for leave can properly be entertained by the Court by reference to those orders as the subject matter of the proposed appeal. That was the fallback position adopted by Mr Odgers. In my respectful opinion, that is the appropriate basis on which to proceed.
17․It was common ground between the parties that I was this morning hearing the application for leave to appeal, sitting as I have indicated as a single judge of appeal, as allowed under s 37J.
18․The principles applicable to applications for leave to appeal were not in dispute. It is axiomatic that leave to appeal from an interlocutory order made during the course of a criminal trial will be granted sparingly. The purpose of the requirement for leave in such a case is to avoid delay and unnecessary fragmentation of criminal trials and to avoid unnecessary expenditure of court resources. The relevant principles are summarised in the decision of Burns J in R v DL [2018] ACTCA 9 at [13]-[14], citing the decision of Refshauge J in Quach v Butt [2017] ACTCA 4.
19․The argument this morning focussed principally on the issue whether there is sufficient doubt as to the correctness of the decision of Mossop J to warrant truncating the trial of the criminal charges against Mr McBride. Mr Odgers accepted that, as the applicant for leave, he bore a persuasive onus of establishing that matter. The application is made in circumstances where neither party has identified any authority as to the meaning of the term “duty” in the provisions to which I have referred and indeed I was informed that there is no authority on that issue.
20․As there is likely to be an appeal in the event that the accused is convicted of the offences, it is appropriate for me to be circumspect in stating my reasons on this issue.
21․In his reasons given yesterday, Mossop J identified two points as being the subject of the ruling: R v McBride [2023] ACTSC 328. They reflected the following submissions put by the accused:
(1)First, duties created by offences in the Discipline Act are not duties for the purposes of the criminal law offences created by ss 73A and 70, which are justiciable in civilian courts such as this Court.
(2)Second, the only duty of the accused for the purposes of the criminal offences is to be found in the oath of allegiance that he swore when he became a member of the Australian Defence Force to “well and truly serve the sovereign” and this duty may require action in disobedience of a lawful order. Whether or not action taken in breach of lawful order was in the “public interest” was not a matter of subjective belief on the part of the accused, but instead was a matter for a jury to determine.
22․In the orders made this morning (set out above), by Mossop J dealt with the second issue (the relevance of the oath) in the first order made this morning, order 1(a).
23․His Honour’s ruling on that issue is not obviously wrong. In submissions this morning, the Crown referred to authorities which provide strong legal support for the principle that, in the military, discipline is of central importance. The notion that a soldier's “duty” could nonetheless permit acts, as the argument was openly put, in breach of a lawful order where the source of the authority to act in that way is said to come only from the terms of the oath is, in my respectful opinion, an ambitious one and certainly not one as to which it appears Mossop J's ruling is likely to be found to entail error.
24․As to the second issue, the question of the distinction between disciplinary offences and offences justiciable in civil courts, the order made by Mossop J this morning was in more confined terms than the ruling contended for on behalf of the accused. His Honour confined his order to indicating that directions to the jury would be framed in a manner recognising that a lawful order contained in a general order “may define the scope of the duty of the accused under s 73A of the Defence Act and s 70 of the Crimes Act'”: order 1(b).
25․I did not understand Mr Odgers to contend that such orders are irrelevant to the scope of the duty for the purposes of those provisions. At times, the argument appeared to conflate the notion of jurisdiction (specifically, the distinction between the jurisdiction of the military tribunals and the civil jurisdiction of the courts in criminal proceedings) with the notion of the content of the duty on a proper construction of the statute.
26․In any event, it is enough for present purposes to indicate that I am not persuaded that there is sufficient doubt about the correctness of his Honour’s ruling on either issue to warrant interrupting the trial.
27․It is appropriate to refer to the other considerations ordinarily taken into account on an application for leave to appeal. One is whether the refusal of leave will occasion a substantial injustice. Mr Odgers noted that there are agreed facts in the trial which, apart from the issue the subject of the present application for leave to appeal, may determine most, if not all, of the elements of the offences with which Mr McBride is charged. He went so far as to indicate that it may indeed be the case that, being unsuccessful this morning, the accused might plead guilty to some of the offences. However, that indication was made in circumstances where it was common ground as between the accused and the Crown that, in that event, Mr McBride would still have a right of appeal against the allegedly erroneous ruling that prompted the plea.
28․If Mr McBride does not plead guilty, of course it goes without saying that his right of appeal on the present issues is preserved in the event that he is convicted by the jury.
29․Separately, the issue of fragmentation is a strong consideration in favour of refusing the leave sought today. In the present case, as I have indicated, the offences are alleged to have been committed some 6 to 10 years ago. A period of three weeks has been set aside in the Court’s listings for the hearing of a jury trial and a large jury panel has been summoned. It is already Thursday on the first week of the three-week trial, although I should indicate that, in the event that Mossop J’s attention to the trial is required for a fourth week, that can be accommodated. Conversely, a period of three weeks will not easily be accommodated in the Court’s roster, certainly in the first half of next year.
30․In any event, one of the considerations in favour of preventing fragmentation of criminal trials, apart from conserving the resources of the Court, is the fact that very often issues of this kind evolve and are contoured during a trial in ways that cannot be anticipated if an appeal is heard before the trial is complete.
31․In light of the remarks of the trial judge to which I have referred at [9] above, and the complex nature of the question of duty in the present case, I am of the view that it would be preferable for any appeal to be determined by reference to established facts and evidence rather than in a hypothetical statutory vacuum.
32․Finally, no exceptional circumstances have been identified militating against the refusal of leave.
33․For those reasons, the orders I make are:
(1)Leave to appeal from the orders of Mossop J made on 16 November 2023, for the reasons his Honour published on 15 November 2023, is refused.
(2)The application for a stay of the trial is refused.
| I certify that the preceding 33 [thirty-three] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum Associate: Date: 23 November 2023 |
8
7