War crimes whistleblower David McBride has defence quashed

There’s been a twist in the criminal trial of a whistleblower who exposed alleged war crimes committed in Afghanistan.

The former military lawyer who exposed alleged war crimes in Afghanistan will be tried before a jury after his whistleblowing defence was quashed.

David McBride’s criminal trial will proceed next year after his lawyers withdrew his application for protection under public service whistleblower laws in the ACT Supreme Court on Thursday.

The unsuccessful effort was only the second time the legal ­defence had been tested since the government whistleblower protection laws were introduced in 2013.

If his whistleblower defence had succeeded, the case against Mr McBride could not have proceeded.

What was to be a four-day defence hearing was over in 15 minutes after lawyers for the commonwealth made a public ­interest immunity claim over parts of Mr McBride’s evidence.

The commonwealth claim was made on the grounds that the evidence would have been detrimental to national security if it was released.

It prevented Mr McBride from using the evidence of two experts he was relying on to seek immunity from criminal liability under the Public Interest Disclosure Act.

Former military lawyer David McBride was greeted with cheers from supporters outside the ACT Supreme Court on Thursday. Picture: NCA NewsWire / Gary Ramage

Mr McBride’s lawyer Mark Davis said outside court that it would have been too difficult to defend the case under the Act without the testimony of these experts.

“What have we got? The evidence is removed from us,” he said.

Mr Davis said sensitive material, such as what may have been provided by the two experts, regularly came before the courts, with judges able to then close a court to media and the public.

“If I could show it to you, the material is not that controversial. But you would think it’s the identities of agents or codes,” he said.

Mr McBride said he was disappointed by the result.

“But I did always want to do a trial. I think the issues will only be properly ventilated in a jury trial,” he said.

“I was never really comfortable with having the case decided under the Act. I would prefer a jury of Australian people to consider my conduct and make a ruling on that.”

Earlier, Mr McBride told supporters “this is the best morning of my life” after they greeted him with cheers and applause as he arrived at court on Thursday.

“I’ve never been so proud to be an Australian at the moment,” he said.

Mr McBride said he was proud to be an Australian. Picture: AAP Image/Mick Tsikas

“Obviously, we have not particularly good people in high places, but the average Australian is quite incredible.”

About 30 people, including independent MP Monique Ryan, GetUp activists and other members of the public, gathered outside the court to voice their support.

Mr McBride shared information with journalists that in 2017 lifted the lid on alleged war crimes committed by Australians deployed in Afghanistan.

The resulting Brereton inquiry found credible evidence to support the allegations, including that 39 Afghan civilians were killed by Australian special forces.

Mr McBride has been charged with five offences include the unauthorised disclosure of information, theft of commonwealth property and three counts of breaching the Defence Act. He has pleaded not guilty.

He argues that he first tried to blow the whistle internally, then to oversight agencies and finally to the ABC.

He has plenty of support. Picture: NCA NewsWire / Gary Ramage

The Human Rights Law Centre said the government’s last-minute national security intervention made it impossible for Mr McBride to succeed in his whistleblowing defence.

Senior lawyer Kieran Pender said it was a “devastating blow” for democracy as he urged the Commonwealth Director of Public Prosecutions or Attorney-General Mark Dreyfus to “end this unjust case”.

Mr Pender called on Mr Dreyfus to use the same powers he used to have whistleblowing lawyer Bernard Collaery’s charges dropped in July.

Mr Collaery had been facing a possible jail sentence after being charged with assisting his client, Witness K, to leak classified information about Australia’s alleged spying operation in East Timor in 2004.

Originally published as War crimes whistleblower David McBride has defence quashed