McBride v The King - [2023] ACTCA 42

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…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading McBride v The King

Details

AGLC: McBride v The King [2023] ACTCA 42
Case: [2023] ACTCA 42
Decision Date: 16 November 2023

CaseChat Overview and Summary

McBride sought leave to appeal from an interlocutory ruling made by Mossop J in the Supreme Court of New South Wales concerning directions to be given to the jury in a criminal trial. The ruling was sought at the commencement of the trial, prior to the jury being empanelled. The trial judge had determined 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" where this conflicted with a lawful order given to the accused. Instead, the directions were to be framed to acknowledge that a lawful order could define the scope of the accused's duty.

The central legal issue before the Court of Appeal was whether the trial judge's ruling was sufficiently arguable to warrant granting leave to appeal, thereby interrupting the ongoing criminal trial. This involved considering the correctness of the ruling that a lawful order could circumscribe the scope of an accused's duty under the relevant Commonwealth legislation, and whether the concept of "public interest" or "Australian public interest" could override such an order in the context of jury directions.

McCallum CJ refused leave to appeal, finding that the trial judge's ruling was not obviously wrong and that the correctness of the ruling was not attended by sufficient doubt to justify interrupting the criminal trial. The Court emphasised the undesirability of fragmenting criminal trials through interlocutory appeals. Consequently, leave to appeal and the application for a stay of the trial were refused.

Orders

Orders of the court

(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.

Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

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