War crime whistleblower loses appeal, flags guilty plea

Whistleblower David McBride admitted leaking but insisted it was in the public interest.

Whistleblower David McBride admitted leaking but insisted it was in the public interest. Photo: AAP

The man who helped expose allegations Australian soldiers committed war crimes has lost a major appeal and subsequently flagged pleading guilty to charges of leaking classified information.

Former military lawyer David McBride faces five charges relating to providing classified information to journalists without permission.

The Defence Force documents led to news stories outlining potential war crimes committed by special forces troops in Afghanistan.

McBride was seeking to rely on an argument that his sworn defence force oath to “protect and serve” implied he could act in the public interest to disobey lawful military orders.

What constituted actions in the public interest was for a jury to decide, his lawyers argued.

But this argument was rejected by ACT Supreme Court Justice David Mossop who found there was no mention of the public interest in the oath.

McBride’s appeal of this decision was shot down by Chief Justice Lucy McCallum on Thursday.

“It is enough to say that His Honour’s ruling on that issue is not obviously wrong,” she said in her reasoning.

Prosecutor Trish McDonald argued that military personnel following orders was a foundational part of their service.

Disobeying orders due to what they thought was in the public interest would be “the antithesis of service”, she said.

Chief Justice McCallum agreed there was “strong legal support” for the prosecution’s case that discipline in the military “is of central importance”.

She branded McBride’s argument of a duty to act in the public interest under his oath as “an ambitious one”.

McBride’s lawyer Stephen Odgers said his client may be forced to plead guilty after the argument he acted in the public interest in accordance with his oath was stripped away.

Mossop is yet to determine whether the prosecution can withhold parts of the evidence for national security reasons.

McBride’s team is fighting to have redacted versions of the documents unsealed for the jury arguing it would hamper their case if the evidence wasn’t presented.

Odgers indicated they would push to halt the case if they lose this argument on the grounds it prejudiced the defence.

A jury will be empanelled on Monday. The trial was scheduled to run for three weeks.

McBride has retained his right to appeal a jury conviction following the trial.


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