 Welcome to Consortium News. This is Cathy Vogan reporting on Day 4 of the David McBride trial at the Supreme Court in Canberra. In what was described at one point by the prosecution as a bizarre situation, Day 4 saw the public shuffled across different courtrooms and finally excluded, while a troop of men in suits dealt with the problem of national security information contained in the defence's evidentiary files. In an earlier discussion about what was to be shown to the jury, we had been advised by Andrew Berger, KC, from the office of the Commonwealth Director of Public Prosecutions, that it was best if they were unaware material had ever been redacted. Rather than seeing blackened pages which would concern the jury, Trish McDonald, the lead prosecutor, said it would be preferable to remove the pages altogether and insert blank ones instead. It had become clear that the intended redactions and imminent removal of classified documents, including exculpatory evidence, would impede the development of McBride's defence. But just as David Mossop's ruling against a public interest defence had left accused in an indefensible position. Just as David Mossop had told the court, I will instruct the jury that there is no aspect of duty that allows the accused to act in the public interest, contrary to a lawful order. There could be no consideration of McBride's duty to the nation. A barrister serving with the military in Afghanistan who had reported the murder of 39 unarmed Afghan civilians by Australian soldiers and finding no remedy had finally leaked the information to Australia's national broadcaster. His duty was only to follow orders and the order was one of nondisclosure. McBride was now, in effect, gagged in the courtroom. His public interest motivation had been eliminated as a defence and his exculpatory evidence was scheduled to disappear. Leave was sought and obtained to apply for an appeal. McBride had left the courtroom on Wednesday expecting to return at 10 a.m. Thursday where the application for appeal and a possible stay was to be heard by Chief Justice Lucy McCallum. Around 9.30 p.m. Wednesday, however, McBride posted the following message on social media. The prosecutors, in my case, having yesterday claimed there were absolutely no exceptions to following orders under any circumstances at all, have realised that will be successfully appealed, so are backtracking. If that wasn't their belief, why did they say it was? Zero credibility. In a surprise move, Justice David Mossup had called the parties to open court at 9.15 a.m. in advance of the hearing with McCallum. Upon arrival, defence lawyer Kokisharian, who appeared irritated, requested this business be adjourned until 12.30 p.m. after the application was heard. But the judge and Crown insisted that he only wanted to be helpful by issuing orders. The defence lawyer said there was no need, not even for a temporary order. It would muddy the waters, he said. But there was no stopping Mossup. I will make orders, he said, taking the opportunity to soften what he had said the day before. The application hearing began with Chief Justice McCallum's announcement that she had indeed received orders from Mossup, but the defence did not want to address them directly. McBride's Chief Counsel Stephen Odger was simply issuing a plea that she call on a full bench to determine the scope and the meaning of duty. It had to be more than simply following orders. He told the Chief Justice, quote, 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? He went on. 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 a 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. Hodges explained why Mossop's position is problematic. If our contention is correct, he said, that there is a public interest component to service, then we accept that in the vast majority of cases, 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. At this point, McCallum interjects and she adds that they proscribe the universe of relevant consideration. He says, correct. That's the matter that we seek to have the court of appeal deal with. Chief Justice McCallum saw his point, but nevertheless deemed the discipline was essential within the military and the application was refused. At least on that issue, the removal of McBride's exculpatory evidence may well be grounds for another appeal. Stay tuned. Thank you. 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