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Court of Criminal Appeal 6 May 2016

Gall v R

[2016] NSWCCA 82

Traffic & driving
JURISDICTION PRE APPEAL DANGEROUS DRIVING OCCASIONING DEATH

Citation: Gall v R [2016] NSWCCA 82
Court: Court of Criminal Appeal, New South Wales
Date: 6 May 2016
Judge(s): Simpson JA (with Johnson J and Davies J agreeing)

Background

An army private (the applicant) faced trial in the District Court on seven counts under s 52A of the Crimes Act 1900 (NSW): one count of driving in a manner dangerous causing death, and six counts of driving in a manner dangerous causing grievous bodily harm. All charges arose from a single incident on 8 October 2012 at Holsworthy Army Base, when the applicant was driving a Unimog personnel carrier carrying 15 unrestrained soldiers in the rear. The vehicle reached approximately 80 kilometres per hour in a 40 km/h zone on a narrow, winding, unsealed road, rolled on a bend, and caused the death of one soldier and grievous bodily harm to six others.

Before the jury was empanelled, the applicant sought a pre-trial ruling that a defence of superior orders was available to him. His case was that he had been ordered to drive the vehicle despite inadequate training, and that compliance with that lawful order necessarily resulted in dangerous driving. The District Court judge, Tupman DCJ, ruled against him: while she accepted that a defence of superior orders can exist at common law in limited circumstances, it was not available on these facts.

The applicant then sought leave to appeal that pre-trial ruling to the Court of Criminal Appeal under s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW), which permits leave to appeal against "an interlocutory judgment or order."

  • Whether the pre-trial ruling by Tupman DCJ was an "interlocutory judgment or order" within the meaning of s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW), giving the Court of Criminal Appeal jurisdiction to hear the application
  • Whether a defence of superior orders is available at common law to charges of dangerous driving occasioning death and grievous bodily harm under s 52A of the Crimes Act 1900 (NSW)

Decision

On jurisdiction, Simpson JA held that the pre-trial ruling was not an "interlocutory judgment or order" under s 5F(3)(a). The ruling concerned the admissibility of evidence and the conduct of the trial rather than a discrete order made on a formal application. Section 130 of the Criminal Procedure Act 1986 (NSW), under which the question was submitted, limits pre-trial rulings to circumstances where the resolution of the issue involves the making of an order. The ruling here did not have that character, and leave was therefore refused for want of jurisdiction.

On the defence of superior orders, Simpson JA addressed the merits in any event, noting that even if leave could be granted, the appeal would be dismissed. The High Court in A v Hayden (No 2) (1984) 156 CLR 532 unequivocally held that there is no place for a general defence of superior orders in Australian criminal law. The applicant sought to distinguish that decision by arguing it only concerned unlawful orders, whereas the order he received (to drive the Unimog) was lawful.

Simpson JA rejected that distinction on the particular facts. The applicant did not contend he was ordered to drive dangerously. His case was that, given his inadequate training, he could only comply with the order to drive by driving dangerously. If compliance with the order necessarily entailed dangerous driving, then the order itself could only be characterised as unlawful, bringing it squarely within Hayden.

There was also an internal tension in the applicant's position: the proposed defence depended on the premise that his driving was dangerous, yet once that premise was accepted, no version of his orders could be taken as directing him to drive in that manner. The defence therefore fell away regardless.

Orders Made

  • Application for leave to appeal refused.

Key Takeaways

  • The Court of Criminal Appeal confirmed it lacks jurisdiction under s 5F(3)(a) of the Criminal Appeal Act 1912 (NSW) to hear a pre-trial ruling that does not constitute an "interlocutory judgment or order." A ruling concerning admissibility of evidence and the general conduct of a trial does not meet that threshold.
  • Under s 130 of the Criminal Procedure Act 1986 (NSW), a judge's power to resolve issues before a jury is empanelled is limited to circumstances where the resolution involves the making of an order. Rulings that do not take that form fall outside the provision.
  • The High Court's holding in A v Hayden (No 2) (1984) 156 CLR 532 remains authoritative: there is no general defence of superior orders in Australian criminal law.
  • Where a defendant's case depends on showing that compliance with an ostensibly lawful order necessarily required unlawful conduct, the order cannot be treated as lawful for the purpose of the superior orders defence. The logical structure of such a case defeats the very distinction it seeks to draw.
  • No error was established in Tupman DCJ's pre-trial ruling, and the Court of Criminal Appeal indicated the appeal would have been dismissed on the merits even had jurisdiction existed.

Legislation and Cases Referenced

Legislation:
- 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:
- 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