Whistleblower David McBride has ACT Court of Appeal bid refused

The ACT Supreme Court jury trial of former military lawyer David McBride is scheduled to begin on Monday.

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

In court on Thursday, Justice David Mossop said he would not direct jurors that an oath of allegiance to the sovereign, sworn by McBride as a member of the military, meant his duty extended to acting in the Australian public interest even when in contravention of a lawful order.

In a separate courtroom, in the ACT Court of Appeal, lawyers for McBride applied to be given leave to appeal this decision, and stay the trial until this was determined.

Chief Justice Lucy McCallum denied the application, saying "it is not apparent to me that Justice Mossop's ruling is likely to be set aside".

"I am not persuaded that there is sufficient gap in his honour's decisions ... to warrant interrupting the trial," Chief Justice McCallum said.

"It would be preferable that any appeal be determined by established facts and evidence rather than a hypothetical statutory vacuum."

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Counsel for McBride, Stephen Odgers SC, said the issue of duty had "real significance" for the defence case.

"He seeks an opportunity to have that critical issue dealt with in the Court of Appeal," Mr Odgers said.

McBride has pleaded not guilty and was originally set to face the start of his trial on Thursday, however, it has been pushed back to next week.

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