By The Guardian (World News) | Created at 2024-10-04 15:15:17 | Updated at 2024-10-04 17:14:45
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The former army lawyer David McBride has lodged his appeal in the ACT supreme court almost five months after he was sentenced to a maximum of five years and eight months in jail.
McBride pleaded guilty to three charges in November 2023 after the court upheld a commonwealth intervention to withhold key evidence the government argued had the potential to jeopardise “the security and defence of Australia”. The charges included stealing commonwealth information and passing that on to journalists at the ABC.
McBride’s legal team is seeking to appeal against the convictions on the basis McBride believed it was his duty to release the information in the public interest. His defence will also attempt to appeal the severity of the sentence.
Eddie Lloyd, who took up McBride’s case after May, said McBride had been left with no arguable defence after the judge ruled he did not have a duty to act in the public interest.
“David will argue that as a soldier who took an oath to serve the country, and as a lawyer who took an oath to uphold the rule of law, he had a duty to the public, which led him to blow the whistle on the unequal application of the law by members of the ADF leadership,” Lloyd told Guardian Australia.
“We hope to be given a date by the court of appeal for the appeal to be heard early next year.”
Applications to appeal rulings in the ACT must occur within 28 days but Lloyd said there had been unavoidable delays due to a change in legal teams and security clearance processes to allow the defence team access to classified documents.
The court will determine McBride’s application to appeal out of the 28-day period at a hearing on Wednesday.
Lloyd said: “Now the real work starts. With the government having spent millions of dollars to date prosecuting McBride, the continued support of the public through crowdfunding of his David and Goliath battle is crucial.”
In May, the ACT supreme court justice David Mossop sentenced McBride to five years and eight months in jail with a non-parole period of 27 months.
McBride has since been imprisoned in Canberra’s Alexander Maconochie Centre and will remain there until at least August 2026 if his appeal is unsuccessful.
At McBride’s sentencing hearing, Mossop said the lawyer’s actions were driven by “misguided self-belief” and “he was unable to operate within the legal framework that his duty required him to”.
McBride collected mostly secret military information over an 18-month period in 2014 and 2015 and handed it to journalists at the public broadcaster. The material was used as the basis for a 2017 investigative series exposing alleged war crimes committed by Australian defence force personnel in Afghanistan titled The Afghan Files.
The court heard a total of 235 documents were taken by McBride from defence offices – mostly in the ACT – between May 2014 and December 2015 with 207 of them classified as secret and some marked as cabinet documents.
His counsel Stephen Odgers argued that McBride came to believe the ADF adopted a policy of “excessive investigation of soldiers” around 2013 to compensate for earlier war crime allegations levelled against Australian special forces soldiers that had been made public.
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McBride believed those within the “highest levels” of the military had concocted a “PR exercise”, the court heard.
Odgers argued McBride did not think he was committing an offence, that his decision-making was affected by poor mental health and post-traumatic stress disorder and that the risk of the documents being released to others beyond the journalists he gave them to was low.
The judge said there were three main risks: the removal, transportation and storage of secret documents; the disclosure of those documents to three journalists; and the publication of those documents on McBride’s blog in 2016.
Mossop said the commonwealth had argued the disclosure of such documents could harm Australia’s standing with “foreign partners” resulting in them sharing less information. The copying of documents, and their insecure storage – such as being kept in storage tubs – could lead to them being accessed by foreign intelligence officials, the court had been told.
But Mossop noted the Australian defence force had “taken no steps” to investigate whether any of the risks had eventuated and there was no evidence to suggest they had.
McBride made his first post-sentencing comments in June after the arrival of Julian Assange in Australia following his 14-year legal saga for his role in publishing classified US material. McBride said Assange’s release had given him hope in his own case.
“Julian’s freedom was achieved because of millions of people who have been protesting his persecution for years and years,” McBride told Guardian Australia at the time through his lawyer.
“With Assange’s release, the truth has been set free and I know that the truth will ultimately set me free too. I look forward to winning my appeal and being reunited with my family and friends and the many supporters who continue to stand by me and who stand by the truth.”
The Commonwealth Director of Public Prosecutions has been approached for comment.
