The former military lawyer who exposed alleged war crimes in Afghanistan will be tried before a jury after his whistleblowing defence was quashed.
David McBride’s criminal trial will proceed next year after his lawyers withdrew his application for protection under public service whistleblower laws in the ACT Supreme Court on Thursday.
The unsuccessful effort was only the second time the legal defence had been tested since the government whistleblower protection laws were introduced in 2013.
If his whistleblower defence had succeeded, the case against Mr McBride could not have proceeded.
What was to be a four-day defence hearing was over in 15 minutes after lawyers for the commonwealth made a public interest immunity claim over parts of Mr McBride’s evidence.
The commonwealth claim was made on the grounds that the evidence would have been detrimental to national security if it was released.
It prevented Mr McBride from using the evidence of two experts he was relying on to seek immunity from criminal liability under the Public Interest Disclosure Act.
Mr McBride’s lawyer Mark Davis said outside court that it would have been too difficult to defend the case under the Act without the testimony of these experts.
“What have we got? The evidence is removed from us,” he said.
Mr Davis said sensitive material, such as what may have been provided by the two experts, regularly came before the courts, with judges able to then close a court to media and the public.
“If I could show...
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