McBride v The King

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.