David McBride’s trial has been slightly delayed to allow him a second chance to argue he was duty-bound to act in the public interest while leaking confidential military information to journalists.
Meanwhile, Australia’s intelligence agencies are supporting an effort to keep some material involved in the case secret, including from jurors, saying its disclosure could jeopardise “the security and defence of Australia”.
McBride, a former military lawyer, has pleaded not guilty to five charges in the ACT supreme court relating to his decision to leak confidential material to journalists at the Australian Broadcasting Corporation.
Prosecutors have told the court he leaked the material because he was frustrated at what he saw was the over-investigation of special forces troops. The ABC subsequently used the material as the basis for an investigative series exposing war crimes, titled The Afghan Files.
The prosecution’s case against McBride requires it to prove he breached his duties as a member of the Australian Defence Force by leaking the material to journalists.
But in a pretrial argument, McBride’s counsel, Stephen Odgers SC, tried to convince the court that McBride also owed a duty to the public interest, which overrode any duty to obey lawful orders.
Odgers asked that the jury be told this when considering the case.
But Justice David Mossop rejected the argument on Wednesday. He said there was no duty for members of the military to act in the “Australian public interest, where that is contrary to lawful order that he has been given”.
“Any duty that was contrary to law would not be able to be discharged, and as a consequence … could not readily be described as a duty at all,” he said.
McBride will seek to appeal against the decision in the ACT court of appeal on Thursday. That has delayed the start of his jury trial.
A jury was initially expected to be empanelled on Thursday, but that has now been delayed until Monday.
In arguing the matter should be heard by the appeal court, Odgers said the matter was complex, was of critical importance to four of the five charges he made, and that McBride was of limited means, meaning if he was convicted at a first trial and subsequently appealed, he may not be able to afford lawyers for a second trial.
But Mossop said such a course could create delays of “many months, if not years”.
“It would be completely inappropriate to defer a trial to allow for the determination of some matters by the court of appeal,” he said.
Following Mossop’s decision, Odgers put the court on notice that he would be filing a notice for leave to appeal immediately.
He again asked the court to delay the trial on that basis.
The commonwealth prosecutor Trish McDonald SC said her position was that the trial should proceed “full steam ahead”.
But the court decided to delay jury empanelment briefly to allow for the appeal to be heard on Thursday.
Before then, the court would also need to consider a public interest immunity claim made by the federal government.
That claim could keep some parts of the evidence secret and away from the parties.
Andrew Berger KC, acting for the commonwealth, said some material in the case should be kept entirely secret on national security grounds.
“The public interest at play here is a very important one, the national security and defence of this country,” he said. “Indeed, we say it is harder to think of a stronger public interest than the security and defence of Australia.”
Berger presented evidence from intelligence agencies, including the Office of National Intelligence, suggesting that its disclosure could compromise intelligence information provided by Australia’s allies.
That, he said, would jeopardise Australia’s information-sharing agreements with foreign intelligence agencies. It would also damage Australia’s reputation more broadly.
“The knock-on effect, if you like, is potentially significant,” he said. “Your honour will see the agencies involved in due course. But in doing so, your honour should be mindful that it is not just those relationships, but Australia’s broader reputation … that is at play here.”
Odgers previously indicated that, if the commonwealth’s bid to keep documents secret was accepted, he may apply to have the trial halted.
Mossop also rejected an argument that civilian courts could not consider a duty created by the system of internal justice and discipline that operated within the military.
Odgers had also argued that McBride, as a legal practitioner, had a separate duty to preserve the administration of justice and disclose information about criminality.
Mossop said that question did not need to be resolved prior to the commencement of the trial.
