David McBride’s legal team has made a last-ditch request to the attorney general, Mark Dreyfus, to intervene and end his prosecution, warning the public had made their “disapproval of the continued prosecution abundantly clear”.
McBride, a former military lawyer, is facing trial in the ACT courts next month for his alleged leaking of documents to the ABC, which were used to produce a series of articles exposing alleged war crimes by Australian troops.
Civil society and transparency groups, including the Human Rights Law Centre, have repeatedly called on the attorney general to use extraordinary powers to intervene and end the prosecution.
Dreyfus has so far declined, saying such powers are “reserved for very unusual and exceptional circumstances”, noting that the decision to prosecute is made independently by the commonwealth director of public prosecutions, and pointing to his government’s broader actions to improve whistleblower protections.
McBride’s lawyers, Xenophon Davis, wrote to Dreyfus last week in a last attempt to convince him otherwise. They argued that the prosecution “is not in the public interest to continue” and said circumstances had changed since it last approached the CDPP asking it to drop the case.
Their letter, seen by Guardian Australia, argued that public sentiment now significantly favours dropping his prosecution.
“Members of the public have made their disapproval of the continued prosecution abundantly clear,” he said. “Petitions calling for the charges to be dropped have been widely supported, including a recent GetUp petition with over 40,000 signatures.
“Various open letters and statements by lawyers, journalists and politicians calling on you to discontinue proceedings have also been circulated publicly.”
McBride’s lawyers also referred to an open letter last month, which was signed by numerous high-profile human rights organisations and religious organisations, as well as former judges, lawyers and barristers.
That letter, published in the Nine newspapers, called for an end to prosecutions of whistleblowers and spoke of the crucial role that whistleblowers and journalists play in exposing injustice.
“We urge you to hear these calls from the Australian public and discontinue the proceedings,” McBride’s lawyers wrote.
His lawyers also argued that there was no requirement that a case be “exceptional” or “unusual” for an attorney general to intervene.
“To the extent that any such requirement exists, we say that exceptional circumstances are clearly made out in relation to Mr McBride.”
McBride, earlier in the proceedings, withdraw a bid to use the Public Interest Disclosure Act to protect himself from prosecution. He did so after the commonwealth made a public interest immunity to keep some evidence from the court, which McBride said would have made his PID Act application impossible.
The attorney general was approached for comment.
