Jailed whistleblower David McBride loses appeal against severity of sentence
Former military lawyer David McBride has lost his appeal against the severity of his sentence for sharing classified documents with journalists.
McBride pleaded guilty to theft and distributing the documents to three journalists, and was sentenced last year to five years and eight months jail, with a non-parole period of two years and three months.
The appeal had a two-pronged approach, targeting the sentence and a ruling by the judge that he could not rely on an argument that it was his duty to reveal the information in his defence.
McBride wanted to argue the duty came from the oath he swore to the Queen when he joined the military.
When the court refused to allow the argument, McBride said he had been stripped of his defence and his only option was to plead guilty.
Around 2013, McBride began copying material, putting it on his own computer, printing and taking it home in his backpack.
He ended up removing 235 documents, 207 of which held secret classifications.
The documents were stored in plastic bins in his cupboard.
He offered the material to three journalists, Chris Masters, Andrew Clarke and the ABC's Dan Oaks.
During the court hearings the details emerged.
Chris Masters and Andrew Clarke did nothing with the material. Mr Clarke told McBride in 2015 he had destroyed the documents.
Only the ABC used the material, to produce the Afghan files, which detailed allegations of unlawful killings by Australian soldiers.
But the story the ABC told was totally different to the one McBride wanted told.
He had hoped that by giving the material to the journalists he would expose his own concerns that there was too much scrutiny of soldiers.
Knowing charges were inevitable, McBride hung out in Spain for a while, before returning to Australia for an event at his daughter's school in 2018.
When he tried to leave the country again, he was arrested at Sydney Airport.
He faced the ACT Magistrates Court charged with theft and sharing the material in March 2019.
But he had already set off a chain of events with wide-ranging consequences, as the ABC was raided by Australian Federal Police officers looking for material.
And then came the pandemic.
It was years before the case reached the trial stage in 2024, with McBride unable to meet his lawyers face-to-face because of travel restrictions.
In the end the trial never really started, after ACT Supreme Court Justice David Mossop refused to allow what McBride said was his key defence: that he had a duty to release the information.
His lawyers lodged a last ditch appeal, but lost that too, and he pleaded guilty.
That decision was one of the issues raised in today's appeal.
McBride's lawyers said their proposed appeal to the High Court was necessary because of the ramifications McBride's case has for other Australians.
"We believe that only the High Court can properly grapple with the immense public interest and constitutional issues at the heart of this case," his lawyers said in a statement.
They also called for the federal government to pardon McBride.
"It is now time for the attorney-general to show leadership. To show Australians that this Labor government will no longer jail whistleblowers."
Through his lawyers, McBride said Australians would be outraged by the Court of Appeal decision.
"It is my own conscience and the people of Australia that I answer to. I have kept my oath to the Australian people," he said in the statement.
McBride has been in Canberra's jail since October last year.
His appeal was heard in March.
For each and every appearance McBride has been buoyed by a loyal group of supporters who gathered again today outside the ACT courts building.
McBride was in court in person for the ruling which threw out his appeal, with his supporters, including his wife, in the public gallery.
He has now been returned to Canberra's jail and his lawyers say they will prepare for a High Court challenge.
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