David McBride fought his charges for years before pleading guilty. Photo: Albert McKnight.
David McBride has failed in his attempt to appeal his convictions and sentence after he shared confidential documents from the Australian Defence Force (ADF), for which he became a whistleblower in the eyes of many.
Last year, the ACT Supreme Court sentenced the then-60-year-old to five years and eight months’ jail with a non-parole period of two years and three months.
He appealed against his convictions and sentence, which was heard earlier this year.
On Wednesday (28 May), his appeal was unanimously dismissed by the three judges on the ACT Court of Appeal.
Before announcing the result, Justice Belinda Baker warned those in the public gallery that there would be no tolerance for any conduct that disrupted the proceedings.
The courtroom’s gallery had been packed with supporters, and it erupted in protest once the jail sentence was delivered last year, with cries of “Shame on you”, “You know what you’re doing is wrong”, “This is not justice” and “Evil”.
McBride did not visibly react when he heard he lost his appeal, but he had walked into the courtroom, greeting supporters in the gallery.
After spending years fighting his charges, he pleaded guilty to one count of theft and two counts of the unauthorised communication of military information to other people while a member of the Defence Force.
Court documents say he had been a lawyer with a high-level security clearance and held the rank of major in the Australian Army.
When police raided his home in February 2018, they seized 235 documents that had been stolen from ADF facilities – 207 of which were classified as secret.
David McBride became a whistleblower in the eyes of many. Photo: Albert McKnight.
McBride had several complaints about ADF management and submitted a report to the Inspector General of the Australian Defence Force (IGADF) in August 2014, which included numerous confidential documents.
One of his complaints was that special forces soldiers involved in the deaths of civilians in Afghanistan were being investigated by military police even where there was no reasonable suspicion that the war crime of murder had been committed.
The IGADF began an inquiry into his claims. Meanwhile, McBride submitted his documents to journalists Chris Masters and Andrew Clark, who ultimately didn’t use them in their reporting.
Then, in April 2016, he set up a website on which he published some documents. Afterwards, he was contacted by ABC journalist Dan Oakes, who gave him his IGADF submission and other documents he had taken from ADF facilities.
Mr Oakes used the documents to publish The Afghan Files, which featured allegations that special forces soldiers were unnecessarily killing Afghan civilians.
McBride later told police, “He did do a story on it, but a totally different story to the one that I was pushing”.
His sentencing judge, Justice David Mossop, said the focus of these articles was “the exact opposite” of what McBride had intended when he handed the documents over.
Commonwealth Bank whistleblower Jeff Morris, who spoke to a crowd of supporters outside the ACT Courts before the appeal result was announced on Wednesday, claimed the Army had been investigating soldiers who were “plainly innocent” to obscure other alleged war crimes, including those by Ben Roberts-Smith.
“So they investigated where they knew they wouldn’t find anything,” Mr Morris claimed.
Commonwealth Bank whistleblower Jeff Morris (second left) speaks outside the ACT Courts on Wednesday in support of David McBride. Photo: Albert McKnight.
The Federal Court found imputations of murder, violence, bullying and domestic violence by the former Special Air Service (SAS) Regiment veteran Mr Roberts-Smith largely proved. His appeal was then dismissed earlier this month.
“[Mr McBride] realised there was a massive cover-up going on at the highest level to conceal these war crimes,” Mr Morris alleged outside the courts.
“[He said] he was not hunting corporals, he was hunting generals.”
Mr Morris said if McBride was not successful in his appeal, he may go to the High Court.
McBride’s non-parole period means he can be released from custody from August 2026.
The Court of Appeal’s reasons will be published at a later date.
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