David McBride has lost a bid to stave off his trial after again failing to convince a court that soldiers have a duty to act in the public interest.
On Wednesday, the ACT supreme court delivered a blow to McBride as he prepared for his jury trial over the alleged leaking of confidential military information to journalists.
McBride had wanted to argue before a jury that, as a member of the military, he had a duty to act in the public interest, even where that conflicted with a lawful order.
But the trial judge Justice David Mossop rejected the argument, finding the law provided no duty to members of the military to act in the public interest.
McBride’s counsel, Stephen Odgers SC, immediately sought to appeal to the ACT court of appeal and have the trial stayed to allow an appeal to be heard.
But Chief Justice Lucy McCallum, sitting on the appeal court, refused McBride’s bid to have the appeal heard and declined to delay the trial.
She described his argument as an “ambitious” one and said there appeared to be significant legal weight behind Mossop’s earlier decision.
She said Mossop’s decision was “not obviously wrong”.
“I am not persuaded that there is sufficient doubt about his honour’s ruling on either issue to warrant interrupting the trial,” she said.
Commonwealth prosecutors had earlier argued against further delays, given the already protracted nature of the case and the significant media and public interest it had attracted.
But Odgers said there was also significant public concern about the nature of Wednesday’s ruling.
“Our response to that is that there is likely to be significant public interest, and there may well be significant public concern, that it has been held by the ACT supreme court that a member of the Australian defence force must obey lawful orders, no matter how unreasonable or in breach of fundamental principles of justice they may be, and will commit criminal offence if he does not,” Odgers said.
He raised the example of a junior officer being given a lawful order to do something that would generally be perceived to constitute a war crime.
“Is that junior officer necessarily in breach of his duty? And there’s no way that a jury can say no he didn’t have a duty to obey that order? That’s the implications we say of his honour’s decision.”
McBride’s argument is that the oath he swore as a member of the ADF to serve the sovereign created a duty to act in the public interest, even where that conflicted with a lawful order.
The Crown, represented by Trish McDonald SC, says such an argument would invert the relationship between soldier and sovereign. It would give the soldier free will to decide what is in the public interest and how to act.
“A soldier does not serve the sovereign by promising to do whatever the soldier thinks is in the public interest, even if contrary to the laws made by parliament,” McDonald said. “This is in our submission the antithesis of service.”
McBride is charged with five offences, including one of theft, three relating to the disclosure of information to various journalists, and a fifth relating to his publication of material. McBride has pleaded not guilty.
The case continues on Thursday in closed court.
