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Whistleblower David McBride's Court Case Begins: Expert Witnesses Denied, Defence Quashed

Updated: Oct 27

David McBride is a whistle-blower, soldier and military lawyer currently being prosecuted after leaking details of alleged war crimes committed by Australian soldiers in Afghanistan to the ABC. These documents came to be known as "The Afghan Files" and the release of this information lead to a police raid of the ABC headquarters in June of 2019 and The "Brereton Report ," which revealed that Australian Defence Force personnel had allegedly killed 39 Afghan civilians.

David McBride, wearing a suit, with the text "David McBride" foregrounding the image.

In 2018 Mr. McBride had plead not guilty to five charges which included include theft of Commonwealth property, disclosing information without due authorisation and breaching the Defence Act. He is facing up to 50 years in prison as a potential result of these charges.


Mr. McBride initially sought to defend his case on the grounds of the Public Interest Disclosure Act. This legislation attests that whistleblowers can legally reveal information publicly in particular circumstances, such as when they have exhausted all internal complaint mechanisms. The ADF has argued that Mr. McBride is not protected under the Act as one of the files leaked to media contained "maps of Afghan" which could potentially cause "serious damage to our national security."


Mr. McBride's case began in the ACT Supreme Court on October 27th 2022. The hearing, which was intended to take four days, was over after only 15 minutes. Mr. McBride's lawyers withdrew his application for protection under the Act after lawyers representing the Commonwealth made a public interest immunity claim, preventing Mr. McBride from utilising evidence from two witnesses who were essential to his defence. The case will now be tried before a jury.


Mr. McBride, speaking to NCA NewsWire, expressed his preference for the trial to be conducted before the Australian public:

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

Mr. McBride served two tours in Afghanistan as a military lawyer, the first in 2011 and again in 2013. Mr. McBride initially raised his concerns internally with the Australian Defence Force (ADF), before speaking to police and then to a government minister before speaking to media.


A change.org petition calling on the Attorney-General to drop the charges against Mr. McBride has garnered over 74,000 signatures.


In October 2022, Mr. McBride commented on the public debate regarding the Federal ICAC and whether or not its hearings should be public or private:

"I was charged with a number of serious offences four years ago. I’m yet to have the issues adjudicated, although there has been plenty of publicity. I challenge anyone for the ALP or LNP to debate me, as to why public hearings for NACC are worse than what I’m going through."

Sources & Further Reading

https://www.theguardian.com/commentisfree/2022/oct/27/the-prosecution-of-david-mcbride-for-exposing-australian-war-allegations-is-an-outrageous-injustice


https://www.abc.net.au/news/2017-07-11/killings-of-unarmed-afghans-by-australian-special-forces/8466642?nw=0&pfmredir=sm


https://www.news.com.au/technology/innovation/military/war-crimes-whistleblower-david-mcbride-has-defence-quashed/news-story/a5905a8552f149dc6be5ca8f6a0e40c1


https://www.smh.com.au/national/australian-federal-police-raid-abc-headquarters-at-sydney-s-ultimo-20190605-p51uof.html


https://independentaustralia.net/politics/politics-display/david-mcbride-should-be-protected-not-prosecuted,16903


https://www.theguardian.com/commentisfree/2022/oct/27/the-prosecution-of-david-mcbride-for-exposing-australian-war-allegations-is-an-outrageous-injustice


https://www.news.com.au/technology/innovation/military/war-crimes-whistleblower-david-mcbride-has-defence-quashed/news-story/a5905a8552f149dc6be5ca8f6a0e40c1


https://intpolicydigest.org/the-david-mcbride-case-whistleblowing-afghanistan-and-australian-war-crimes/


https://twitter.com/MurdochCadell/status/1576365316275580928?ref_src=twsrc%5Etfw%7Ctwcamp%5Etweetembed%7Ctwterm%5E1576365316275580928%7Ctwgr%5E2d7d4fdb3db513c6dad37bae5f573e9f1ada03c7%7Ctwcon%5Es1_&ref_url=https%3A%2F%2Fwww.theguardian.com%2Faustralia-news%2Flive%2F2022%2Foct%2F02%2Faustralia-live-news-jeff-kennett-hawthorn-racism-indigenous-ukraine-russia-icj-optus-data-dreyfus-covid-cases-nrl-grand-final%3Fpage%3Dwith3Ablock-6338e1988f08ec87f1106454


https://www.change.org/p/save-our-aussie-whistleblower-david-mcbride


https://michaelwest.com.au/afp-raids-and-prosecution-of-whistleblowers-sparks-global-condemnation/


https://www.sydneycriminallawyers.com.au/blog/military-whistleblower-cant-choose-his-lawyer-an-interview-with-david-mcbride/


https://www.canberratimes.com.au/story/6630878/whistleblower-urges-public-to-help-put-government-on-trial/


https://www.theguardian.com/australia-news/2020/nov/19/key-findings-of-the-brereton-report-into-allegations-of-australian-war-crimes-in-afghanistan


https://www.smh.com.au/politics/federal/what-i-ve-done-makes-sense-to-me-the-complicated-colourful-life-of-david-mcbride-20190621-p5204h.html


https://www.theguardian.com/law/2019/jun/13/afghan-files-whistleblower-david-mcbrides-trial-delayed-to-protect-state-secrets


https://www.theguardian.com/media/2019/jun/06/whistleblower-protections-a-sham-says-lawyer-whose-leaks-led-to-abc-raids


https://www.theguardian.com/australia-news/2019/jul/16/police-investigating-national-security-leak-grilled-whistleblower-about-journalists


https://www.9news.com.au/national/david-mcbride-ex-military-lawyer-whistleblower-appears-in-court-news-australia/068211f1-07d2-4ce7-950f-3fa12de341c5


https://www.sydneycriminallawyers.com.au/blog/a-totalitarian-regime-with-a-sunny-climate-mcbride-on-whistleblower-persecution/


https://www.sydneycriminallawyers.com.au/blog/drop-the-charges-against-former-military-lawyer-david-mcbride/

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