ACT Supreme Court trial of whistleblower David McBride delayed

Former military lawyer David McBride faces five charges relating to the theft and disclosure of classified documents to journalists, which detailed alleged misconduct by Australian troops in Afghanistan.

McBride has pleaded not guilty and was set to face a jury trial on Thursday, however, it has been pushed back to next week.

Handing down a judgment in the ACT Supreme Court on Wednesday, Justice David Mossop said he would direct jurors that McBride had no duty to act in the Australian public interest by disobeying lawful orders.

The court had heard two days of legal argument about whether an oath of allegiance to the sovereign, sworn by McBride as a member of the military, gave rise to a duty to act in the public interest.

"There is no aspect ... that allows him to act in the Australian public interest when that is contrary to a lawful order given," Justice Mossop said on Wednesday.

"The authorities recognise that discipline in the defence force is dependent on obeying a lawful order.

"Any duty that was contrary to law ... is not able to be described as a duty at all."

Jury selection for the trial was delayed to allow time for McBride's barrister, Stephen Odgers SC, to seek leave to file an appeal of Justice Mossop's decision.

Justice Mossop had initially denied the application saying McBride had first been committed to trial in 2019, and further delay "would be contrary to the administration of justice".

He said vacating the trial and going to an appeal could delay the case for months, or even years.

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On Thursday morning, a different judge is scheduled to hear an application and decide whether to take the case to the ACT Court of Appeal.

The trial is set to begin on Monday.

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