Thread by @Consortiumnews

We are in the Supreme Court in Canberra, Australia, waiting for David McBride @MurdochCadell's appeal to begin. Our live updates will be on this thread.

McBride's appeal will be in front of a full bench of three female judges: Justice Baker, Justice Taylor and Justice Abraham. Senior counsel for McBride is Bill Neild. Junior counsel Kieran Ginges. His solicitor is Edwina Lloyd @worldzonfire.

@worldzonfire We have been informed that proceedings will be late in starting because @MurdochCadell was still at the prison. No reason was given why he was not already in court.

Trish McDonald will be representing the Crown in R v. McBride. We are still waiting for David McBride to arrive from the Alexander Maconochie Centre (AMC), which is the only adult correctional centre in the Australian Capital Territory.

David McBride has arrived at the Canberra Supreme Court. He looks physically fit and is clearly pleased to see a full courtroom rise to their feet and applaud him.

Court in session. All legal parties introduce themselves. Request for affidavit of McBride's solicitor Edwina Lloyd to be read, concerning the circumstances under which he pled guilty plus one other if he is to be re-sentenced.

Accepted

Counsel for McBride:
It is alleged there was a miscarriage of justice that prompted McBride to plead guilty. His guilty plea was only due to Justice Mossop's wrong determination.

Directions were to be given to a jury regarding the definitions of duty. The "official duty" of a legal officer was to assure legal standards were upheld, and McBride had believed he was lawfully doing this, in the public interest.

There is a difference between "duty" and "official duty". The Crown says obeying orders is central to military discipline, but it does not follow that discipline (following orders) is central to "official duty". Cites case law.

There is a duty to obey lawful general orders, but that is separate to the initial duty of office (when taking an oath). The Crown cited inappropriate authorities, only repeating their fundamental point that discipline is central to the military.

[Counsel is difficult to hear but the defence continues to elaborate on the distinction between duty & official duty]

Counsel for McBride:
Is the relationship between superior officers and ordinary soldiers one of master-slave? The defence asserts there is a difference. After the oath of enlistment, the duty to obey orders is only one of many duties. It does not derive from the oath of enlistment.

Cites more case law in relation to the duty to obey orders. It is not clear from where this duty derives - statutory or otherwise. At trial, Judge Mossop assumed a centrality of duty to obey orders but counsel believes he erred.

One should not confound contemporary statutory law with the Commonwealth law of times of yore, where the relationship to the king was very different.

A discussion ensues by one judge and McBride counsel. The judge is inaudible because she has chosen to sit far away from her microphone. It concerns what is in the public interest to disclose.

McBride's counsel says it could be in the public interest to disclose information about wrongdoing. In this case the motivation of the accused should be taken into account - but the public interest value ought to be determined by a jury.

The duty of a Commonwealth officer not to disclose information depends on whether or not that is in the public interest. The primary obligation associated with the oath of office is the public interest.

Questions from judges regarding an accused's motivation. If the motivation were financial, but a jury saw the information in the public interest, does the defence suggest these two can co-exist?

Yes, but if the motivation is entirely financial it is unlikely to be in the public interest.

Counsel for McBride is tying duty of office to occupation - such as that of a legal officer. It arises from office rather than general military disciplinary regulations.

A civil court does not have jurisdiction to try service offences. There is a difference between military law and civil criminal law.

In the military context, official duty is to serve the sovereign by serving the public interest.

The Crown says non-compliance has led to many court-martial. We say exactly, military offences should be dealt with within a military context - not in a hybrid of military & civil.

Judge refers to slight differences in the wording of civil & military law regarding disclosure of information & the public interest. How does the Crown prove an offence has been committed irrespective of the public interest. McBride's counsel says it is up to a jury to decide if the official duty to serve the public interest, applies.

The duty of office, to serve the public interest, is assumed with the oath of enlistment. It is distinct from everyday duties that ensue in the course of employment.

Counsel for McBride:
The over-arching duty of office is to advance the Australian public interest.

It was asserted at trial that the only duty of a soldier is to follow lawful general orders. We say that although an order is lawful, it may not always be in the public interest to obey - and that is a matter that should be up to a jury to decide.

Counsel for McBride:
McBride was denied a jury at trial, and a jury was denied the right to determine whether his whistleblowing - to right a serious wrong - was in the public interest. This is where Justice Mossop erred - and led McBride to believe he could only plead guilty.

SEVERITY OF SENTENCE

In Mossop's outlining of the offence counts, he makes little effort to consider the accused's motives. He should also have considered the possibility of re-offending (which was zero, given he would no longer hold the position or security clearance).

Mossop also ignored that McBride at the time of offending, was convinced he was acting in a lawful manner in revealing wrongdoing. McBride maintained his plea of not-guilty right up to the point where he was advised that he had no option but to plead guilty.

Judge Mossop said McBride's psychological condition only contributed in a minor way, despite him having being diagnosed with severe depression, PTSD and generally declining mental health. These conditions were regarded as irrelevant by the judge in determining McBride's suitability for a custodial sentence - in the apparent interest of general deterrence (for other soldiers). We say he was of a diminished moral culpability.

Mossop thought McBride's likelihood of re-offending was high. This relates to secondary findings, and we say the primary findings, on which they rely, ought to be challenged. The judge should have taken into account McBride's motives when assessing his level of culpability.

In relation to harm done or risk of harm, Mossop said it was "inappropriate to apply a uniform gloss" to assess the level, but that is exactly what he proceeded to do by characterising the harm to the community as significant.

McBride was assessed and deemed eligible for an Intensive Correction Order (ICO), which is time served in the community. He failed to consider the assessment, opting for a long prison term of 5 years, 8 months instead, with 27 months non parole period. [McBride has already served 10 months].

Court adjourned until 2pm AEDT, at which time we will hear from Trish McDonald for the Crown.

R. v. McBride
Trish McDonald for the Crown:

Our submission deals with whether the trial judge erred in his advice to the jury. He said they would be advised there would be no public interest in McBride's disclosures. We say there is nothing in law to say there is a public interest.

The other of enlistment contains no mention of public interest. It requires that enlistees will well and truely serve the sovereign & discharge their duty according to law.

There is no indiction that a member of the defence force would have the right of discretion as to whether a disclosure was in the public interest. It is our view that following orders of superiors is inherent to the military. There were a number of general orders that prohibited McBride's communication of information to 3 journalists.

The oath does not form the basis of what the defence says it involves.

It was put that there is a singular "official duty". That should not be accepted by the court.

It was also put that the general disciplinary framework of the military is separate to the civil criminal law framework. We say these are not 2 streams that cannot intermingle. It is a matter of the seriousness of the conduct that determines where the proceedings are ultimately brought.

Defence says some offences can only be brought in military court. That is not so. If something is a crime in civil law it can be tried in criminal court.

R. v. McBride
Trish McDonald for the Crown:

Re public interest, cites case law of Quince(?), in which there were 3 separate rulings. Defence relies on one of 3 that refers to public service and public benefit. The other judges do not say anything in the same fashion. They mention the oath of enlistment, but do not say it implies any duty related to public service or benefit. But even Justice McTiernan, on whom defence relies, does not say such service derives from the oath.

R. v. McBride
Trish McDonald for the Crown:

Defences second authority (Dunn?), regarding an obligation to act in the public interest is also inappropriate.

The obligation of an inferior officer is to obey orders.

Defence starts with the oath, and derives from it an official duty to serve the public interest. We say the nature of military service is that there is only a duty to follow lawful orders. McBride's appeal on conviction should be denied.

For the history of the military and its long traditions, we rely on Clode. It is 19th century case law but it is still quoted today.

Defence referred to 73A of the Defence Act. & other sections which cite "official duty". These would not be helpful as they were written in 2024, after the time of the offence.

Non disclosure has a different basis in the public service & military. Defence is wrong to confuse rules related to the official duties between the two. A public servant is there to serve the public, but it cannot be accepted that any soldier would be the arbiter of what is in the public interest & a jury would decide if they got it right. That would produce too much uncertainty & instability.

R. v. McBride
Trish McDonald for the Crown:

Looking at Justice Mossop's decision at trial, what he did was go through the statutory provisions. Defence has glossed over these provisions and/or misinterpreted them.

It was put that an order could not be followed if it was not in the public interest. Nuremberg was referred to and it was asserted we could not rely on blind obedience. We say, that is the system we've got but it is not as black and white.

The defendant approached the police and the office of the Inspector General. He was given time to prepare a case and have his concerns investigated. He wasn't happy with the result [and went to the media].

McDonald refers judges to the chronology of events. McBride was advised that many complaints could not been substantiated. But while the IGADF was still conducting investigations, McBride disclosed defence information to 2 journalists.

Rather than it being a matter of blindly obeying orders, if there are problems, it is our submission that there are ways to deal with it.

This is our response to McBride's appeal on conviction. Essentially we say it can not be up to an individual to decide what is in the public interest.

R v. McBride
Trish McDonald for the Crown:

Re appeal on severity of sentence.

Count One was about theft of defence information which would give McBride the opportunity for future use outside of his official duty.

Motivation was taken into account, acknowledging that McBride's was honourable because of his belief that there was wrongdoing, and that leaking was not done for financial gain. However he paid no attention to the conclusions of IGADF investigations - which was less than honourable.

Re the claim McBride believed he was acting lawfully: We have references to him saying on numerous occasions that he could go to jail. He also left the country for some time. He also communicated to one journalist that he was ready to go to jail. Mossop also took into account that the Appellant was a lawyer.

R v. McBride
Trish McDonald for the Crown:

Re appeal on severity of conviction

McBride's mental condition: Justice Mossop concludes it is minor in relation to the offending conduct. Mossop found lack of contrition & that had relevance in terms of general deterrence (for others).

Mossop took into account that McBride was in a position of trust, with the obligations of a lawyer. Those factors, in our submission, contributed to His Honour's judgement that McBride's level of culpability was high, and they shouldn't be reviewed.

Re level of risk: Mossop continually identifies risks, different risks. He concluded the level as significant and this should not be questioned.

Re specific deterrence: Mossop considered an Intensive Correction Order but it was the seriousness of the offending that made him decide the ICO was inappropriate.

If your honors find errors and orders new trial , a new judgement from NSW court of appeal could apply regarding an ICO. Judge say she believes this only applies to NSW and is not relevant to ACT.

Counsel for McBride: One point is that "according to the law" in the oath means to "perform duty that the law requires me to perform." It does preclude acting in Australia's public interest.

R. v. McBride
Defence responds to points made by the Crown, on the interpretation of terms; on the alleged intermingling of civil and military law. The two legal systems are separate. Some military offences are strict liability...

Judge asks if all military offences are strict liability... but she is now speaking so quietly that no one can hear her.

Defence continues to distinguish between civil & military law, and to explain why the oath of enlistment implies a pledge to serve the public interest.

Defence comments on Crown's response to the Terence to the Nuremberg case. McBride was convinced his complaints were not being treated correctly by the IGADF. His genuine belief was there was bias in the military, not to acknowledge wrongdoing.

McBride was concerned about changes to the Rules of Engagement that could put lives at risk. His motive, to right a wrong in the Australian military, was not taken into account by the trial judge - and that led to an error of judgement.

McBride felt he had done the right thing, and had a duty to do what he did, as a legal officer. Given his strong convictions; but poor state of mental health, he should have been deemed to have reduced culpability.

Judges say they shouldn't have to look at any classified material to make judgement.

Appeal ends. Judgement is reserved.

Watch the speeches in support of David McBride @MurdochCadell by Australian politicians, whistleblowers, a former Attorney General, a doctor & a journalist outside the Supreme Court in Canberra.