Lawyers for David McBride have argued their client’s lengthy prison sentence failed to take into account he was motivated by “bravely and selflessly” attempting to right what he saw as a “serious wrong”.
McBride, a former military lawyer, on Monday argued against both his conviction and his five-year, eight-month prison sentence for taking and leaking classified material to the Australian Broadcasting Corporation.
That material was subsequently used by the ABC as part of an exposé on alleged war crimes by Australian troops in Afghanistan.
Flanked by two corrections officers, McBride entered the ACT court of appeal on Monday to a standing ovation from his supporters. They had packed out the public gallery after earlier hearing a speech outside court by Bernard Collaery, who was charged over disclosures about Australia’s bugging of Timor-Leste, an impoverished ally, during oil and gas negotiations.
McBride smiled at his supporters and motioned for calm before the appeal began.
His barrister, Bill Neild SC, argued the sentencing judge made a series of errors when imprisoning McBride last year. He said he failed to take into account McBride’s motive, which was to blow the whistle to correct a serious wrong.
“In that respect he acted bravely and selflessly in what he saw as his duty as a soldier and the best interests of the ADF,” he said.
McBride’s motive, he said, differentiated him from others who may engage in similar conduct for financial gain or for ulterior or unknown motives.
It was also argued that the court erroneously found that McBride knew what he was doing was unlawful, something at odds with his position in the legal proceedings, where he maintained a not guilty plea until court decisions deprived him of the ability to defend himself.
Neild argued McBride’s mental health conditions were not properly taken into account and the court failed to properly consider an assessment of suitability for an intensive corrections order, which would have allowed his client to serve his sentence in the community under strict conditions.
McBride’s team also argued against a finding by the sentencing judge that his moral culpability for the offences was high, saying it did not accord with his motives and his belief that he was acting lawfully.
The court also heard an appeal against McBride’s conviction.
McBride’s team argued that he was acting in line with a duty he owed to advance Australia’s public interest, which was in line with the oath he swore upon joining the military.
Prior to his trial, the ACT supreme court rejected that argument, meaning it would not have been able to be put to the jury. McBride’s lawyers said he pleaded guilty as a result.
Later on Monday, commonwealth prosecutors argued there was nothing in the oath of service that referred to the notion of “public service”.
Barrister Patricia McDonald SC, acting for the prosecution, rejected the suggestion that this left soldiers only able to “blindly” follow orders.
She said there were formal internal avenues to raise concerns, including through the Australian Federal Police for instances of potential criminality, and the inspector-general of the Australian Defence Force.
“The appellant did that,” McDonald said. “Ultimately he wasn’t happy with the result.”
She also rejected the arguments that the sentencing judge erred by failing to take into account McBride’s mental health, his suitability for an intensive corrections order, and the motive for his conduct.
The court reserved its decision.
