A whistleblower who helped expose allegations of war crimes within the Australian Defence Force will not be able to argue in front of a jury he did so in the public interest, an ACT Supreme Court judge has ruled.
Former military lawyer David McBride provided classified information to journalists that outlined potential war crimes committed by Australian special forces in Afghanistan.
McBride is facing five charges relating to the disclosure of classified information without permission.
His lawyer Stephen Odgers SC argued McBride's defence force oath to "protect and serve" implied he had a duty to act in the public interest and disclose potential wrongdoings despite being bound by military laws to keep classified information secret.
Justice David Mossop rejected this argument during a preliminary trial hearing on Wednesday.
"I have not accepted that such a duty exists," he said.
He said he would issue a direction to the jury that there was no legal basis to infer the oath was underpinned by acting in the Australian public interest.
But Mr Odgers argued that the trial should be postponed and Justice Mossop immediately referred the decision on what McBride's duty was to the Court of Appeal rather than the defence needing to wait for the outcome of the trial before appealing.
Justice Mossop said "it would be completely inappropriate to defer the trial" as the Court of Appeal could delay proceedings for months, if not years.
A trial would still be inevitable in the event of a successful appeal with the argument only affecting what a jury would hear, he added.
The prosecution agreed the trial should go "full steam ahead", with Trish McDonald SC arguing that the Court of Appeal would still need to determine whether to hear McBride's case.
Mr Odgers will make his own application to the Court of Appeal on Thursday and a jury is scheduled to be empanelled on Monday.
The Supreme Court is still deciding what evidence can be used given the sensitive nature of some of the documents.
Andrew Berger QC from the Australian Government Solicitor's office argued some information needed to be withheld to protect national security.
Mr Berger added that disclosing intelligence given to Australia by foreign partners "will significantly erode the party's trust in Australia's ability to hold and protect sensitive information".
Mr Odgers argued that the redactions "would significantly prejudice the accused in developing this defence".
He indicated the defence may apply to have the trial halted if they couldn't rely on the evidence.
