The Supreme Court’s chief justice denied whistleblower David McBride’s attempt to appeal the trial judge’s decision to deprive him of a public interest defense, reports Joe Lauria.
By Joe Lauria
in Canberra, Australia
Special to Consortium News
Australian whistleblower David McBride’s failure to get a Supreme Court judge on Thursday to allow an appeal of the trial judge’s ban on a public interest defense was yet another setback in his quest for justice.
McBride, who leaked evidence to the media of Australian war crimes in Afghanistan, faces 10 years in prison on five counts, including stealing government property and unlawfully communicating classified information to journalists.
Though a government report found that 39 unarmed Afghans were murdered by Australian forces, McBride’s lawyers will be unable to argue to the jury that he’d followed a higher duty to the nation than merely obeying military orders intended to suppress evidence of war crimes.
The trial judge ruled on Wednesday that McBride’s duty was only to follow his superior’s orders and not to serve the interests of the nation. The judge, Justice David Mossop, said he would instruct the jury to disregard any public interest defense. “There is no aspect of duty that allows the accused to act in the public interest contrary to a lawful order,” he told the court.
It was that ruling that McBride’s lawyers sought to appeal on Thursday. Stephen Odger, McBride’s chief counsel, argued before Chief Justice Lucy McCallum, who was to determine whether McBride would be allowed to appeal Mossop’s decision. Odger said:
“His only real argument is that what he did was the right thing. There was an order: don’t disclose this stuff, but he bled, he did the right thing, to use his language, and the question is does the fact that he’s in breach of orders mean that he’s in breach of his duty, so that he’s got no defence?
In this case if that’s right and he proceeds to trial it may well mean that the consequence is that he’s got no real alternative but to enter pleas of guilty and that would obviously shorten things but he seeks an opportunity to have that critical issue determined by the court of appeal.
A jury, if they did have a public interest test, would proceed on the basis that there is a powerful public interest that members of the defence force do obey orders but circumstances might arise in which that is not in the public interest.
If our contention is correct that there is a public interest component to service, then we accept that in the vast majority of circumstances it would be in the public interest that a member of the defence forces obey an order.
The effect of His Honour’s ruling is not that orders are relevant to the question of duty but rather that they trump anything else, so that you must obey.”
But McCallum rejected that argument, saying Mossop’s ruling was “not obviously wrong.” She added: “I am not persuaded that there is sufficient doubt about his honor’s ruling on either issue to warrant interrupting the trial.”
In the above video, McBride reacted bitterly to the McCallum’s decision on X:
With McCallum’s ruling the case resumed under Mossop Thursday afternoon. He called a closed session in his courtroom to discuss the use of classified documents in the trial.
Mossop ruled that redactions must be made before they could be shown to the jury. Officials from the Attorney General’s office then removed unredacted documents possessed by the defense from the courtroom.
Read More HERE: https://consortiumnews.com/2023/11/16/mcbride-trial-appeal-bid-rejected-public-interest-still-denied/?eType=EmailBlastContent&eId=4894bcc3-dd29-44dd-82b9-9fd8c39db79d
LEFT WITH NO DEFENSE, McBRIDE PLEADS GUILTY - And THIS is Why You Must NEVER Be a Citizen or a Person, And NEVER Submit to the Globalist Maritime Commercial Court System!!
McBride Trial: Day One - Defense Argues Duty to Nation Supersedes Military Law
David McBride Trial - Day Two - If Wars Can Be Started By Lies, Then Peace Can Be Started By TRUTH!!
David McBride Trial - Day Three
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