Chris Wallace on the trial of whistleblower David Mcbride
The criminal trial of David Mcbride opened this week, with a heavy blow to the defence strategy and questions over the former army lawyer’s motives in revealing Australian Defence Force misconduct in Afghanistan.
Mcbride supporters question why the first prosecution regarding alleged Australian war crimes in Afghanistan relates to Mcbride – whose actions resulted in them coming to public notice – rather than any of the alleged perpetrators.
The centrepiece of David Mcbride’s defence collapsed in this first week of a scheduled three-week trial in the ACT Supreme Court.
The legal counsel for the former Australian Army lawyer had hoped to focus on whether a duty to protect the public interest coexists with a soldier’s duty to follow lawful orders.
This argument was dramatically struck down in a directions hearing on Wednesday, however, as Supreme Court Justice David Mossop ruled it had no foundation in law.
Strenuous efforts by Mcbride’s counsel, Stephen Odgers, SC, to keep the contention alive so it could be put to jurors failed when Chief Justice Lucy Mccallum heard but rejected further representations on the issue on Thursday.
Mccallum was not persuaded there were sufficient grounds to doubt Mossop’s initial ruling and to justify the appeal, despite Odgers underlining that refusal could influence how Mcbride would plead in the case.
The blow came the same day AttorneyGeneral Mark Dreyfus released a consultation paper on “a second stage of reforms to further improve the public sector whistleblowing framework”, including the possible establishment of a whistleblower protection authority, or commissioner, in the next phase of reform.
The irony will not be lost on Mcbride, who discontinued his application for protection under federal whistleblowing law in 2022 after a last-minute national security intervention by the Department of Defence denied access to documents he intended to use in his defence.
The Human Rights Law Centre said at the time the move raised “real questions”, given Mcbride’s whistleblower immunity bid was already shrouded in secrecy.
The trial that began this week is the focus of activism by whistleblower advocates who have mounted a pervasive media campaign in support of Mcbride. Repeated full-page ads across multiple newspapers in the lead-up to the trial urged Dreyfus to get the Director of Public Prosecutions (DPP) to drop the case.
The attorney-general told parliament on Monday that intervention as a result of public or political pressure could have a range of farreaching consequences.
“It could call into question the attorneygeneral’s motives,” he said. “It could politicise the prosecution process. It could undermine the independence of the Director of Public Prosecutions.
“So any suggestion ... that an attorneygeneral should intervene in prosecutions routinely, or has some kind of permanent, standing or ongoing supervisory jurisdiction in circumstances that are not truly exceptional, should be strongly resisted.”
However, Mcbride supporters question why the first prosecution regarding alleged Australian war crimes in Afghanistan relates to Mcbride – whose actions resulted in them coming to public notice – rather than any of the alleged perpetrators.
They also point to the attorney-general’s decision shortly after the government’s election in 2022 to end the prosecution of Bernard Collaery. The Canberra solicitor represented the former Australian Secret Intelligence Service intelligence officer known as Witness K, who was convicted over leaking classified information.
In 2020 the AFP also dropped its investigation into ABC journalists Dan Oakes and Sam Clark over their “Afghan Files” report – which was based on documents leaked to them by Mcbride – saying the inquiry was not in the public interest.
The reasons for Dreyfus’s unwillingness to publicly explain the apparent contradiction between these things and for his inaction on Mcbride remain a mystery.
A little-known facet of the case, which emerged this week as a key element of the prosecution strategy, may underpin Dreyfus’s position.
Patricia Mcdonald, SC, for the Crown, made brief mention on Monday and Tuesday of the prosecution’s intention to show Mcbride’s leaks were not driven by concern about alleged war crimes in Afghanistan, but rather that the Australian Special Air Service (SAS) personnel operating there were being investigated too much.
Mcbride felt the “over-investigation of special forces troops was not in the public interest”, Mcdonald said, adding that “reference to something as nebulous as the public interest” was no basis for the actions of military personnel.
The contention pointed observers to the complexities of the Mcbride case.
Supporters see him as a truth-teller, without whom the alleged war crimes would not have come to light, and say his concern is with the uneven application of justice in Afghanistan.
Critics see a leaker jeopardising national security, whose key defence argument would, if successful, undermine the fealty to lawful orders that underpins military discipline and effectiveness.
The government moved to protect a small amount of material from the documents leaked by Mcbride from further exposure in the trial.
Andrew Berger, KC, for the Commonwealth, used a public interest immunity argument to request redaction of at least some material in eight of the 400 documents leaked by Mcbride that are part of the case. This began in open court and then moved, to the jeers of some in the public gallery, into a closed hearing that spilled over into Thursday.
Berger emphasised the potential damage to Australia’s international intelligence community relationships should the redaction of the material, supported by affidavits from key Australian security officials, not be agreed to.
Asked about progress at the end of Wednesday’s closed hearing, one lawyer said, “No one’s allowed to know anything, including the judge. It’s un-fuckingbelievable.”
A few dozen demonstrators turned up to support Mcbride on day one, with someone playing bagpipes and several blowing whistles – preferable to drums, in the view of one stoic security officer.
The courtroom is new, airy and has plenty of light. It looks east across to Civic and the pencil pines of City Hill.
The gallery is dotted with mostly ageing activists. There’s the barefoot, grey-haired, goateed guy in a waistcoat, wearing an Indigenous flag badge with “NO” on it, next to the woman in Uggs and dreads. There’s another flowing grey-haired, goateed man in a “Bring Assange Home” T-shirt, and a woman with a “#Freeassange” sticker on the back of her wheelchair.
Underlining what a mixed bag the audience is, there’s also a young man in a khaki “freedavidmcbride.com.au” T-shirt with his girlfriend, and a middle-aged man in an “#Exposethe28” T-shirt.
A counsellor sits at the back of the gallery at the ADF’S expense, in case anyone needs to talk about things triggered by the trial.
Human Rights Law Centre lawyer Kieran Pender, a key player in the massive ad campaign advocating for Mcbride’s charges to be dropped, lobs in and out to confer with Peter Davis, Mcbride’s solicitor and fierce supporter.
On Monday the atmosphere was formal. By midweek it was like being in a lawyer’s locker room at day’s beginning and end, and in breaks, as they repeatedly donned and shed their legal accoutrements at the bar table.
The most colourful person in the room is, of course, Mcbride. The proof is less in his attire than in his just-published autobiography. The Mcbride who emerges in The Nature of Honour, published by Penguin on Tuesday, is not the man you’re expecting.
He’s the son of Dr William Mcbride, of thalidomide fame and infamy, and Patricia Mcbride, who practised medicine and published a guide to childbirth under her maiden name, Patricia Glover.
At seven years of age, David was sent to Tudor House in the New South Wales Southern Highlands as a boarder. Then he was a boarder at Sydney’s elite The King’s School in Parramatta. In the 1980s he studied law at Sydney University, where his rugby captain was former prime minister Tony Abbott.
Next came a BA (Jurisprudence) at Oxford. His father’s friendship with Oriel College provost Zelman Cowen smoothed the path there in a way his average university grades could not.
On Abbott’s advice, Mcbride took up boxing and became the Oxbridge heavyweight boxing champ. He joined the notorious allmale Oxford dining group, the Bullingdon Club, when David Cameron was a member.
Then it was on to the Blues and Royals, a Household Cavalry regiment. William Mcbride visited his son in Germany when he was posted there, bought him two polo ponies and helped organise their transport to England ready for David’s return.
“They weren’t expensive as far as horses go,” David writes, “about the same price as a carbon-fibre racing bike today.”
Getting into the Blues and Royals “involved a lot of jumping from log to log at just the right moment”, he wrote. That was 1990.
It’s been Mcbride’s lifelong modus operandi, the book suggests. Today he’s a former army lawyer, discharged on medical grounds in 2017, crowdfunding his bid to avoid serious jail time.
Mcbride will be counting on his defence team to secure his next landing. The trial continues.