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Jailed whistleblower David McBride appeals conviction
Former military lawyer David McBride challenges his jail sentence for distributing classified material to journalists over a ruling he says deprived him of a defence.
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Former military lawyer David McBride has asked the ACT Court of Appeal to set aside a ruling he said left him with no option but to plead guilty to theft and distributing classified material to journalists.
McBride was sentenced to five years and eight months in jail in May last year, with a non-parole period of two years and three months.Â
Today as he entered the court his supporters stood and applauded.
McBride is challenging the severity of the sentence and the ruling he said deprived him of a defence.
The sentence in May last year came after a messy prosecution at the end of 2023, when McBride was to have gone before a jury.
But that was abandoned when ACT Supreme Court Justice David Mossop refused to instruct the jury on the concept of "duty" in terms that McBride had requested.
Supporters gathered outide the ACT courts for David McBride's appeal hearing. (ABC News: Adam Kennedy)
The key issue in McBride's defence was that under his oath of enlistment he had a duty to act in the interests of Australia.
He had told police he did not believe he was breaking the law.
"I believe I was doing what I was meant to do as a soldier," McBride told police.
Today the ACT Court of Appeal heard if it overturns Justice Mossop's ruling on the point, there may have to be a re-trial because it will have been a miscarriage of justice.
David McBride's date for a jury trial was set when he pleaded guilty to three charges of stealing and unlawfully sharing secret information. (Four Corners: Nick Wiggins)
But lawyers for the Commonwealth told the court McBride's argument is the antithesis of his duty as a member of the defence force.
The court heard the core responsibility of a defence member is to obey orders, not to have a discretion.
Commonwealth lawyers said there is absolutely no reference to the public interest in the enlistment oath.
McBride's lawyers also argued Justice Mossop should have given more weight to a psychological report, which showed he was suffering a major depressive disorder and PTSD at the time of the offending.
They also suggested the judge had not properly explored a non-custodial option for sentencing.
The material McBride released was given to three journalists, and was ultimately used in the ABC's The Afghan Files, which revealed allegations that Australian soldiers were involved in illegal killings.Â
During the trial it emerged that McBride had handed over 207 documents classified as secret, and that he had carried the material home in small batches in a backpack.
The documents had been stored in plastic bins in a cupboard, and handed to the journalists to copy in a plastic bag.
ACT Supreme Court Justice David Mossop found McBride knew he had an obligation to protect the material he distributed. (ACT Supreme Court)
In the end McBride's case was that he did not believe he was breaking the law, and that he had a duty to share the information with the public.
But Justice Mossop found McBride knew full well his obligations to protect the material.
He said McBride seemed to have become obsessed with the correctness of his own opinions.
"He decided he knew best,"
Justice Mossop said.He said McBride chose to serve in the army but was not prepared to operate within the constraints of that organisation.
But Justice Mossop did accept that McBride's mental health, which included PTSD, might have had a minor contribution to the offending.
David McBride arrived at the ACT Court of Appeal in a white corrections van. (ABC News: Adam Kennedy)
McBride had known the charges were coming well before his arrest in 2018 at Sydney airport.
Having been living in Spain, he had come home for a family event and was arrested as he tried to depart.
But the case dragged through the ACT courts for years, disrupted by the COVID-19 pandemic, as well as attempts by McBride to thwart the plans to prosecute him.
Eventually a trial date was set, and plans for a jury put in place.
But the trial never happened, with McBride having pleaded guilty after Justice Mossop refused to instruct the jury that his duty under the Defence Force Discipline Act was outweighed by his duty to the Australian public as per his oath to the Queen as a member of the Australian Defence Force.
The decision has now been reserved.
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