Court of Criminal Appeal Supreme Court New South Wales Medium Neutral Citation: Gall v R [2016] NSWCCA 82 Hearing dates: 18 November 2015 Decision date: 06 May 2016 Before: Simpson JA at [1], Johnson J at [34], Davies J at [35] Decision: Application for leave to appeal refused. Catchwords: JURISDICTION – application for leave to appeal under Criminal Appeal Act 1912 (NSW), s5F(3)(a) – pre-trial ruling concerning defence of superior orders – whether ruling an "interlocutory judgment or order" under s 5F(3)(a) – ruling concerned admissibility of evidence – ruling given in advance and concerned matters affecting conduct of trial – ruling not an interlocutory judgment or order under s 5F(3)(a) – leave refused for want of jurisdiction CRIMINAL LAW – appeal – dangerous driving occasioning death – dangerous driving occasioning grievous bodily harm – whether defence of superior orders available Legislation Cited: Crimes Act 1900 (NSW), s 52A Criminal Appeal Act 1912 (NSW), s 5F(3)(a) Criminal Procedure Act 1986 (NSW), ss 130, 130A, 142(1)(b), 143(1)(b) Evidence Act 1995 (NSW), s 97 Cases Cited: A v Hayden (No 2) [1984] HCA 67; 156 CLR 532 R v Edelsten (1989) 18 NSWLR 213 R v Powch (1988) 14 NSWLR 136 Steffan v R (1993) 30 NSWLR 633 Category: Principal judgment Parties: Alexander David Gall (Applicant) Regina (Respondent) Representation: Counsel: D A McLure SC/K Wolaham/P G Sharp (Applicant) T Smith (Respondent) Solicitors: Kennedys (Applicant) Office of the Director of Public Prosecutions (Respondent) File Number(s): 2013/246851 Decision under appeal Court or tribunal: District Court Date of Decision: 30 July 2015 Before: Tupman DCJ File Number(s): 2013/246851 Judgment 1. SIMPSON JA: The applicant seeks leave, pursuant to s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW), to appeal against a determination of a judge of the District Court in relation to a pending trial of criminal proceedings in which he is charged with a number of serious offences. 2. At the outset, an issue arises as to the jurisdiction of this Court to entertain the application. Section 5F(3)(a) allows an appeal, by leave, against "an interlocutory judgment or order". The jurisdictional issue that arises is whether the determination the subject of the application is properly characterised as "an interlocutory judgment or order". It will be necessary to consider that question as a preliminary issue. Preliminary 1. On 27 July 2015 the applicant was presented in the District Court on an indictment that contained seven counts under s 52A of the Crimes Act 1900 (NSW). One count is of driving in a manner dangerous causing death; six are of driving in a manner dangerous causing grievous bodily harm. All are offences of strict liability – that is, the Crown is under no obligation to prove any relevant state of mind or mens rea. All charges arise out of a single episode of driving, on 8 October 2012, at the Holsworthy Army Base in Sydney. 2. When arraigned on the indictment, the applicant entered a plea of not guilty to each count. On his behalf, it was indicated that he proposed to defend the charges on the basis that, in driving the vehicle, he was acting "under superior orders", as a result of which he was absolved of criminal liability for the death and the injuries. 3. The Crown's position was that such a defence is not known to the law (see A v Hayden (No 2) [1984] HCA 67; 156 CLR 532), and, in any event, could have no application to the facts of the present case. Since the applicant proposed to adduce evidence in support of the defence, and, (at least initially) to do so through cross-examination of the Crown witnesses, the parties sought a pre-trial ruling. No Notice of Motion was filed, with the result that the precise application was not formulated with any specificity. Counsel for the applicant said: "… the first issue which we'd ask your Honour to determine is a question of law, which is whether or not there is a common law defence of superior orders that would be available to the charges on the indictment. The defence for which we contend, and in the form that we put it, has not been expressly ruled on by an Australian Court before and by Court I mean a civilian court." 1. Identification of what was in issue is of fundamental importance, for two reasons. The first is that s 130 of the Criminal Procedure Act 1986 (NSW) (pursuant to which, it may be assumed, the question was submitted to her Honour), permits a judge (who may not be the trial judge), before a jury is empanelled, to make any orders that may be made for the purposes of the trial, and s 130A makes those orders binding on the trial judge unless, in the opinion of the trial judge, that would not be in the interests of justice, or the order is inconsistent with an order made on appeal. That is, jurisdiction under s 130 to resolve issues in advance of the empanelment of a jury is limited to circumstances where the resolution of the issue involves the making of an order. 2. Secondly, as indicated in [2] above, the jurisdiction of this Court depends upon there being an "interlocutory judgment or order". Whether the issue raised involved the making of a judgment or order is in dispute. 3. At the conclusion of argument, in a carefully considered judgment, Tupman DCJ ruled that, although a defence of superior orders does exist at common law (in certain circumstances), it is not available in the circumstances of the present case. Her final ruling was: "I thus will not allow the defence to be put to the jury and on those findings the evidence sought to be relied upon in support of it will not be admissible and there will be no basis upon which the Crown will need to lead the evidence of rebuttal." 1. I now turn to outline the Crown and defence cases, so far as they can be discerned at this stage of proceedings. The Crown case 1. The evidence before her Honour was a Statement of Facts which the Crown proposed to prove (Criminal Procedure Act, s 142(1)(b)) and a response on behalf of the applicant (s 143(1)(b)). 2. The Crown case may be outlined as follows. 3. On 12 March 2012 (when he was 19 years of age) the applicant enlisted in the Australian Army. He completed his recruitment training in June 2012 (at the age of 20) and was posted to the School of Military Engineering at Holsworthy, with a view to qualifying as an Engineering Corps soldier. He was then temporarily attached to the Army School of Transport, and undertook a four week course of driver training and basic operational requirements for two kinds of vehicles – "Unimogs" and Land Rovers. A Unimog is a personnel carrier, used to transport personnel and equipment off road. The rear wagon is fitted with bench seats, but not with seatbelts or other restraints. 4. Having completed the four week course, the applicant was assessed as competent to drive vehicles of either kind. He was then returned to the School of Military Engineering, where he was assigned duties as a driver to assist in a training exercise over six days commencing on 3 October 2012. In a Unimog, he transported numbers of Army trainees. The road on which he was required to drive was narrow, winding, uneven, unsealed and marked with potholes, dips and ruts. The terrain is marked by very steep hills, and in places the road is bordered by sheer cliffs. 5. On at least three days between 6 and 8 October, the applicant drove the vehicle. On 8 October he was directed to convey 17 soldiers to a location on the range. There is a posted speed limit of 40 kilometres per hour. Two of the soldiers sat in the cabin with the applicant. 15 sat in the rear, unrestrained. The applicant was following another vehicle, carrying stores and equipment. At some point the applicant overtook the equipment vehicle. He was travelling at a speed well in excess of 40 kilometres per hour. His manner of driving was such as to cause alarm to some of the passengers, who demanded that he reduce speed. Nevertheless, the vehicle reached a speed of 80 kilometres per hour while negotiating a bend in the road. One of the passengers in the cabin suggested to the applicant that he reduce speed. 6. Shortly after that, as the vehicle crested a sweeping left hand bend, the applicant lost control, and the vehicle rolled over. Soldiers in the rear, and equipment, were thrown from the vehicle and into nearby bushland. One soldier (Jordan Penpraze) was fatally injured. Six others suffered grievous bodily harm. 7. At the commencement of the proceedings, the Crown stated its intention to rely on tendency evidence under s 97 of the Evidence Act 1995 (NSW) to the effect that, in the days prior to 8 October, the applicant had driven the vehicle in an erratic and dangerous manner, and at excessive speeds, that he had been counselled in relation to the manner of driving, and that he had been unreceptive to advice. (No s 97 notice was provided to this Court, and Tupman DCJ recorded, in her judgment, that this evidence was not relied on as tendency evidence. It is neither possible nor necessary to resolve this apparent conflict in these proceedings.) 8. The Crown also intended to rely on admissions subsequently made by the applicant to the effect that he had been driving at excessive speed and that the rollover had been his fault. The defence response 1. The defence response identified the nature of the defence as threefold: * that the applicant's manner of driving was not dangerous; * that the applicant was: "… excused from any criminal responsibility arising from his driving at the time of the accident, as he was ordered by his superior officer to drive in accordance with his training and compliance with that order was not manifestly unlawful." * that the applicant was excused from any criminal responsibility by reason of a number of honest and reasonable mistakes that caused the incident. 1. With respect to the factual outline of the Crown case, the response stated that, prior to his enlistment in the Army, the applicant's driving experience had been limited "to a few lessons with a driving instructor in an automatic car" for which he held a "civilian driver's licence". (It may be that the word "permit" was intended.) Although the training course that the applicant undertook in the Army began on 3 September, he was not permitted to commence until 4 September, thereby missing the first day of training. He completed a personal particulars form that stated that he had "little driving experience and held 'L's' in automatic". The training course was limited to 18 hours in the Land Rover, 14 hours in a Unimog, and was also limited in the scope of activity. The applicant had never driven with passengers in the rear of a Unimog, and had never driven on a gravel road at speed. Although he was issued by the Army with a licence to drive the vehicles, he was incompetent to do so. 2. The applicant denied the allegations of erratic or dangerous driving, both on 8 October, and on the days preceding. 3. The response then outlined the proposed defence, and concluded: "29 The accused seeks a ruling, pursuant to s 130A of the Criminal Procedure Act, that as a matter of law there is a defence to the offences with which the accused is charged, excusing him from criminal responsibility for complying with an order, where engaging in the conduct the subject of the order is not manifestly unlawful. If the Court determines that it is bound by Hayden [A v Hayden (No 2), see above] the accused would seek a certificate or leave to appeal under s 5F of the Criminal Appeal Act 1912 (NSW) prior to the commencement of the trial." 1. Essentially, the applicant seeks to defend the charges on the basis that he was given inadequate training to drive a vehicle of the kind he was driving; that he was not competent to drive such a vehicle, particularly having regard to the circumstances of the terrain over which he was directed to convey the passengers; that he was, nevertheless directed to drive the vehicle with the trainees on board; and that, in the light of the disciplinary regime of the Army, he was in no position to refuse to comply with that direction. He was, therefore, acting under "superior orders" when he drove the vehicle. 2. The response of the Crown is that, even accepting that the applicant was directed to drive the vehicle, he was not directed to do so in a dangerous manner. Whatever role the disciplinary regime of the Army played in the applicant being at the wheel of the vehicle, it had no part to play in the manner in which the applicant complied with the direction to drive it. Jurisdiction 1. Jurisdiction under s 5F(3)(a) of the Criminal Appeal Act depends upon there being "an interlocutory judgment or order". It is well established that a ruling on the admissibility of evidence does not come within that category: R v Powch (1988) 14 NSWLR 136; Steffan v R (1993) 30 NSWLR 633. Nor does a preliminary ruling of a judge given in advance of matters affecting the trial: R v Edelsten (1989) 18 NSWLR 213 at 220; and see the comprehensive discussion by R A Hulme J in A2 v R; KM v R; Vaziri v R [2015] NSWCCA 244. 2. The above outline shows that it is quite clear that the question submitted to the trial judge had two components. One component was concerned with the rulings on evidence that she would make during the course of the trial. If she accepted that there did not exist in Australian law a defence of compliance with "superior orders", or that it was not available in the circumstances of the present case, then cross-examination of Crown witnesses would be limited, and would exclude as irrelevant evidence relating to the inadequacy of the applicant's training, his competence (or otherwise) to drive the vehicle, and any evidence the Crown would seek to have admitted in rebuttal of those propositions. It would also, of course, exclude any evidence to that effect sought to be given by or on behalf of the applicant. If, on the other hand, the trial judge held that there was such a defence, her rulings on the admissibility of evidence would be affected to some extent. But the issue was still as to the evidence that could be admitted. Powch and Steffan are conclusive authority that such rulings do not come within s 5F(3)(a). 3. The second part of the question submitted was no more nor less than an advance ruling on what the trial judge might put to the jury at the conclusion of the trial by way of summing up the defence case; it was excluded from the operation of s 5F(3)(a) by the principle stated in Edelsten. 4. Accordingly, the application should be dismissed for want of jurisdiction. The substance 1. It is appropriate, nonetheless, to comment briefly upon the merits of the proposed defence. In Hayden, it was unequivocally held by all members of the Court, as summarised in the headnote to the Commonwealth Law Reports report of the judgments, that: "There is no place for a general defence of superior orders or of Crown or executive fiat in Australian criminal law." 1. Counsel for the applicant sought to distinguish Hayden on the basis that that decision, properly understood, was concerned with compliance with unlawful orders (which, in that case, the relevant orders were). On that argument, the doctrine has no application to "apparently lawful" orders, such as a direction to the applicant to drive the Unimog. 2. It is immediately apparent that this proposition calls for close examination of what, on the applicant's case, was "the lawful order" given to him. He did not, and could not, contend that the order to drive the Unimog was unlawful. It was no part of his case that he was directed to drive the Unimog in a dangerous manner – that is, unlawfully. His case is that he was given a lawful order – to drive the Unimog – but that, given his inadequate training and incompetence, he could only comply with the order by driving the Unimog in a dangerous manner. Put differently, compliance with the apparently lawful order necessitated driving in a manner that was dangerous. But if, as the applicant contends, an essential incident of compliance with the order to drive the vehicle was doing so dangerously then it is difficult to see how the order could be anything other than unlawful – and squarely within Hayden. 3. Somewhat ironically, the applicant's case on this application depends upon acceptance that he drove the Unimog in a dangerous manner. If that were not so, he could not be convicted of the offences, notwithstanding the death and injury caused in the accident. Thus, unless it were concluded that his manner of driving was dangerous, there is no call for consideration of the defence he proposes to make. However, once it is established that his manner of driving was dangerous, his proposed defence of compliance with superior orders falls away, because, on no view of the direction he was given, could he be said to have been directed to drive in a dangerous manner. 4. Even if leave were granted, it would be necessary to dismiss the appeal. 5. The order I propose is: Application for leave to appeal refused. 1. JOHNSON J: I agree with Simpson JA. 2. DAVIES J: I agree with Simpson JA. ********** DISCLAIMER - Every effort has been made to comply with suppression orders or statutory provisions prohibiting publication that may apply to this judgment or decision. The onus remains on any person using material in the judgment or decision to ensure that the intended use of that material does not breach any such order or provision. Further enquiries may be directed to the Registry of the Court or Tribunal in which it was generated. Decision last updated: 06 May 2016