R v McBride

[2023] ACTSC 328

Supreme Court of the ACT15 November 2023

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Interrogate

Catchwords

1. Criminal Law
2. › Statutory interpretation
3. › Offences involving concept of 'duty'
4. › Defence Act 1903 (Cth), s 73A(1)
5. › Crimes Act 1914 (Cth), s 70(1)
6. › Whether 'general orders' under Defence Force Discipline Act 1982 (Cth) define scope of accused's duties for purposes of criminal offences
7. › Whether obligations enforceable only under military discipline can inform content of 'official duty' in civilian criminal proceedings
1. Criminal Law
2. › Statutory interpretation
3. › Offences involving concept of 'duty'
4. › Whether oath of allegiance and s 45 of Defence Act 1903 (Cth) create duty to act in 'Australian public interest'
5. › Whether such duty could override lawful orders
6. › Defence Act 1903 (Cth), ss 38, 45
1. Criminal Law
2. › Jurisdiction, practice and procedure
3. › Pre-trial rulings
4. › Referral of questions to Court of Appeal
5. › Whether referral appropriate where proceedings on foot since 2019
6. › Supreme Court Act 1933 (ACT), s 37E(2)
1. Military Law
2. › Defence Force discipline
3. › Relationship between military disciplinary regime and civilian criminal law
4. › Defence Force Discipline Act 1982 (Cth), ss 3, 29, 190
5. › Whether rules of conduct in disciplinary legislation contribute to definition of member's duty for purposes of other statutes

Quick Take

Obligations under the Defence Force Discipline Act 1982 (Cth), including Defence Instructions given statutory effect as 'general orders', can define the scope of a Defence Force member's 'official duty' for the purposes of criminal offences under s 73A(1) of the Defence Act 1903 (Cth) and s 70(1) of the Crimes Act 1914 (Cth). The oath of allegiance and s 45 of the Defence Act do not create a duty to act in the 'Australian public interest' that could override specific legal obligations imposed by lawful orders. Cases concerning the duties of police officers under State legislative regimes do not establish general principles applicable to the military.