Whistleblower’s trial delayed after judge rejects he was duty-bound to leak information

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Defence whistleblower David McBride will appeal an ACT Supreme Court judge’s ruling the former military lawyer had no duty that allowed him to disobey military orders in pursuit of the Australian public interest.

The beginning of his jury trial will be pushed back from Thursday to Monday to hear an eleventh-hour Court of Appeal application lodged by his barrister, Stephen Odgers, SC, to seek leave to overturn the decision Justice David Mossop came to on Wednesday.

Former military lawyer David McBride is trying to delay his jury trial.Credit: Alex Ellinghausen

Odgers argued over two days his client disobeyed orders when he disclosed secret documents but he did so under the belief special forces troops were being improperly investigated for their actions in Afghanistan.

McBride, who did two tours of Afghanistan, is facing trial on five charges relating to the leaks, which allege that he breached his duties by sharing the information with journalists that helped unearth the investigation of war crimes involving Australian soldiers.

But in a lengthy judgment delivered on Wednesday morning, Justice Mossop said he would be directing the jury, which had been expected to be empanelled on Thursday, that McBride had no duty to act in the Australian public interest in circumstances where it conflicted with orders.

“Any duty contrary to law would not be able to be discharged,” Mossop said. “[It] could not be readily described as a duty at all.”

Rather, Mossop said the scope of a Defence Force member’s duties were defined by legal rules applied to soldiers.

He also rejected Odgers’ bid to have the question of duty referred to the Court of Appeal, saying it could take months, if not years, to resolve. “It would be completely inappropriate to defer the trial,” he said.

However, Odgers then told the judge he would be immediately seeking leave with the Court of Appeal to overturn the finding, with a hearing set down for Thursday morning.

The court is also hearing an application from lawyers for Attorney-General Mark Dreyfus to refuse access to documents due to public interest immunity principles. Odgers foreshadowed that if those documents were to be withheld, he would be applying to have the trial halted.

More to come.

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