Legality of Army order questioned in court

Press, 4 November 1986, Page 6

Legality of Army order questioned in court

For what may be the first time in New Zealand legal history, a District Court judge was asked yesterday in Ashburton to rule on how far Armed Forces personnel were protected in law while obeying a lawful command.

Before Judge Fogarty, Donald Theodorus Vialle, aged 29, an insurance agent of Dunedin, pleaded not guilty to careless driving causing injury after a collision which left his passenger crippled.

It occurred at the southern end of the Rangitata bridge on State highway 1, about 6 a.m. on January 14 while Territorial Army units were taking part in an annual camp.

Sergeant Roger Gutberlet prosecuted and Mr Peter Churchman, of Dunedin, represented the defendant The police called witnesses involved in the same convoy who saw the defendant’s vehicle cross the white line into gravel on the right side of the road twice before it hit an abutment and dropped 17 metres down a bank. Susan Maria Murta said she was a passenger with Driver Wayne Sheridan and after he dozed once, she felt she had to keep talking to keep him awake. Driver Sheridan said that though he was too young to hold a heavy vehicle licence, he was ordered by a staff ser-

geant to drive an RL Bedford because no-one else was fit to drive.

Driver Sheridan had had just over three hours intermittent sleep in the previous 24 hours. Vialle said he had had about half that and he assumed he went to sleep.

Mr Churchman said the usual standard for careless driving was that of a reasonable and prudent person. In this case all factors had to be taken into account by the Court. He agreed with the Judge that an order to drive had to be considered lawful, but argued that there were other factors. He could find nd case law from New Zealand or England which might help the Court, but later cited published opinions. His client was a parttime soldier expected to make an abrupt transition from normal life to Army life with its consequent disruptions to his normal sleep pattern. The Court could not escape the fact he was subject to orders. Driving regulations required commercial drivers to have 10-hour breaks between shifts. His client could not have appreciated what might happen when he followed orders. An English opinion published in 1966 held that a soldier or servant had to abide by instructions from higher authorities if the instruction or command was not manifestly criminal, Mr Churchman said..

He later called Gregory Phillipson, a lecturer at Otago Medical School, who had a special interest in sleep patterns. After 16 to 18 hours of sleepless-

ness, a person would find attention, memory’, perception and judgment falling away.

However, it would be reasonable for the defendant to claim he felt alert, the doctor said.

At another point of cross-examination, Sergeant Gutberlet asked the defendant why the Army had opted out of assuming responsibility for the accident

Judge Fogarty advised he would set the case ■down for Dunedin on December 8, but if he could find time on the circuit he would deliver his reserved decision in writing through the court at Ashburton before then and waive the December date.