R v McBride (No 2) - [2023] ACTSC 330

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v McBride (No 2)
Citation:	[2023] ACTSC 330
Hearing Date:	16 November 2023
Decision Date:	16 November 2023
Before:	Mossop J
Decision:	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) Regulations 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 Act 1903 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.
Catchwords:	CRIMINAL LAW – PRACTICE AND PROCEDURE – Where accused sought determination prior to the commencement of trial of the directions which will be given to the jury as to the accused’s legal duty – reasons provided by court – reasons not accompanied by orders – where accused seeks leave to appeal – accused declined invitation for decision to be crystallised by orders – whether orders should be made – orders made
Legislation Cited:	Crimes Act 1914 (Cth), s 70 Defence Act 1903 (Cth), s 73A Defence (Personnel) Regulations 2002 (Cth) Defence Force Discipline Act 1982 (Cth), s 45
Cases Cited	R v Hyman & French (1990) 2 WAR 222
Parties:	The King David McBride ( Accused)
Representation:	Counsel P McDonald SC with C Tran ( Crown) E Kerkyasharian ( Accused) A Berger KC with L Johnston (Attorney-General (Cth))
Solicitors Commonwealth Director of Public Prosecutions Xenophon Davis ( Accused) Australian Government Solicitor (Attorney-General (Cth))
File Number:	SCC 127 of 2019

MOSSOP J:

After I had concluded in my reasons yesterday (15 November 2023), counsel for the accused indicated that his client intended to seek leave to appeal. I indicated that I had given reasons but not made any orders. After expressing some reluctance, counsel for the accused appeared to accept that the making of orders might be useful for the purposes of an application for leave to appeal.
After some enquiries, I indicated that a judge of the court would be available to hear an application for leave to appeal at 10 o’clock the next day, that is, today (16 November 2023). Counsel for the Crown, who expressed a position which was less unenthusiastic about the making of orders consequential upon my reasons, indicated that the Crown would attempt to draft some orders which could give effect to my reasons.
In the meantime, I started to hear a dispute about a claim for public interest immunity over certain documents. That application was heard, partially in closed court, until 4:15pm when the court adjourned. Neither party had raised again the terms of orders which might be made to give effect to my reasons. Well after the adjournment for the day, the Crown communicated with my associate requesting that the matter be listed at 9:15am this morning so that orders may be made. That course had an attraction in that if orders were made then that would be relevant to the application for leave to appeal to be made by the accused at 10am. Indeed, it may be essential so far as the accused is concerned because the base principle is that there is no appeal against reasons, only against orders.
The accused subsequently communicated his opposition to listing the matter at 9.15am. No reasons were given. The matter was then listed.
Subsequently there was a communication in which his legal representatives indicated that they would be occupied with preparation for the application for leave to appeal and suggested that the question of orders be ventilated after the application for leave to appeal. It communicated the position that “we do not see any need for the making of orders since his Honour’s judgment is clear as to the directions he intends to give the jury”.
Notwithstanding this confidence, the parties had been unable to agree as to the terms of the orders that would give effect to my reasons and, in earlier correspondence, had proposed orders in different terms.
At the hearing before me this morning, counsel for the accused maintained the accused’s opposition to the making of any orders. He suggested on the one hand that my reasons were sufficient to make an appeal competent and that my decision was clear, but on the other hand suggested that there had been an inadequate opportunity to prepare submissions as to what my orders should be. His submissions extended beyond these points but will be disclosed by an examination of the transcript.
I am concerned that the absence of orders may result in further inefficiency in the conduct of this case. As I have indicated, the starting point for any appeal, and hence any application for leave to appeal, is that it relates to orders made by the court. Without such orders it is difficult to see how any application for leave to appeal could be competent. The position would be similar to that which existed in R v Hyman & French (1990) 2 WAR 222, a case which I referred to in my earlier reasons. Notwithstanding the robust confidence of counsel for the accused, I am concerned that the substance of an application for leave to appeal may not be able to be dealt with if there is a fundamental procedural defect in the manner in which counsel for the accused has approached it. I therefore propose to make orders to give effect to my earlier reasons.
The purpose of the earlier hearing before me was to assist the parties in the conduct of their cases and allow them to make forensic decisions in light of the approach that the court would take to some fundamental legal issues which divided them. Those issues might have been left to the trial and crystallised upon a ruling relating to the admission of some evidence or, potentially, an application to discharge the jury. The determination of the legal issues allowed the Crown to make decisions as to how it would open to the jury and allowed the accused to make decisions as to the evidence that was likely to be admissible at the trial. The course proposed by the parties and adopted by the court allowed these issues to be resolved, to the extent that they could, in a way that did not require that to occur under the inevitable pressure that would exist once a jury had been empanelled and was waiting to hear evidence.
The significance of this recitation of the reasons for the pre-trial agitation of the legal issues is to indicate that the exercise was done in the way that it was for pragmatic, trial‑related reasons. In order for the pre-trial exercise to be useful it was not necessary that I make any formal orders at that stage or, indeed, at all. If I am to make any orders, any such orders that I make at this stage must accommodate the fact that as the case is run, different issues may arise and the critical time is the time at which the jury must be given directions. Insofar as the orders made now anticipate the directions that might ultimately be given to the jury, they ought to be in as limited terms as possible subject to the need to be useful. They will also be made expressly subject to any further order of the court. 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.
The formulation of the order relating to the accused’s fourth proposition will be in negative terms reflecting a rejection of the submissions that he put. The formulation of the order relating to the accused’s third proposition will be in slightly more general terms, reflecting the need to formulate the orders appropriately at the end of the trial, but will reflect, contrary to the submissions that the accused made, that a lawful order contained within a general order may be one of the matters that defines the duty of the accused.
The order of the court is:
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) Regulations 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.

I certify that the preceding twelve [12] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop.

Associate:

Date: