“This Is Not Just About David”: Lawyer Eddie Lloyd on the Forthcoming McBride Appeal

Former Australian Defence Force lawyer David McBride is about to stand before the ACT Court of Appeal to challenge the legitimacy of his conviction on three counts relating to his having exposed confidential ADF information to the ABC, which revealed to the Australian public that war crimes were being perpetrated in its name by Australian special forces (SAS) in Afghanistan in the 2010s.

McBride also took issue with the way ADF management was running the war in the Central Asian nation, and he only took the matter to the press, after he’d raised the issue internally, in line with the steps set out in the Public Interest Disclosure Act 2013 (Cth).

Yet, the journalists at the ABC didn’t pursue the matter that McBride raised in handing across 235 documents, as he was attempting to blow the whistle on the sudden scapegoating of some officers via 2013 prosecutions, in which reasonable grounds for suspicion had not been met, whilst evidence of multiple war crimes perpetrated by Australian troops in the years prior was being overlooked. 

Some of these events were made public in 2017’s The Afghan Files report. And despite rumours of rogue SAS soldiers circulating for years, as well as the federal government-commissioned Brereton report turning up evidence of 19 current and former ADF soldiers warranting investigation in relation to an alleged 39 murders, McBride is the only person imprisoned.

Shooting the messenger

McBride’s case has always carried the sense of a vendetta being played out on high, as the respected lawyer was denied his ability to run a legitimate public interest disclosure defence, as a public interest immunity claim was imposed upon it, and this meant the prosecution could remove any of his evidence, and therefore, there was no point in moving ahead with the defence argument.

The same approach was taken at trial in November 2023. A week into the case, the prosecution was permitted to bundle up a large swag of David’s defence evidence and run out the back door with it, leaving him with no real option but to plead guilty. And on 14 May last year, Justice David Mossop sentenced McBride to 5 years and 8 months inside, with non-parole set at 2 years and 3 months.

Solicitor Eddie Lloyd is running McBride’s appeal which goes before the ACT Court of Appeal on Monday 3 March, and barrister Kieran Ginges will be providing junior counsel with barrister Bill Neild the senior counsel.

Sydney Criminal Lawyers spoke to solicitor Eddie Lloyd about how the public should be keeping an eye on the McBride case, as it carries implications for the entire constituency, along with how David is bearing up in prison and that any last-minute assistance with funding the expensive appeal is much appreciated.

David McBride’s appeal is set to take place in the ACT Court of Appeal on Monday 3 March, which is less than a fortnight away. Eddie, what do you consider is important to say now in relation to the upcoming case?

Everyone should be paying attention to this case, because what we are seeing is the erosion of our right to speak freely and importantly, to access justice. 

When the government can step into the remit of the court and make decisions as to what evidence is allowed in and what is not, then that is an abuse of power. 

That is exactly what we have seen in David McBride’s case and this kind of abuse has wider ramifications for all citizens. 

The courts exist as the last bastion when the government/executive have gone too far. The court is there to regulate that power and administer justice. 

Without the courts checking on the power of the government, we no longer live in a democracy but an autocracy.  

David was sentenced to 5 years and 8 months on 14 May last year, with non-parole set at 2 years and 3 months. This was a severe sentencing outcome.

So, at close to 9 months inside, how is David doing? 

David is doing as well as can be expected. He has a strong fitness regime. He was prepared to go to gaol. Although it is worse in there than I think he even imagined.

But being in there has actually made David more committed to the cause. He is not going to give up. If the appeal on conviction is not successful, he is going to take this to the High Court.

So, this will continue until we get justice because it is not just about justice for David McBride but for all of us.

You’ve been working on the McBride appeal for most much of the time that David has been in the ACT’s only adult correctional facility, the Alexander Maconochie Centre.

So, what can you say about how the case is going to be run?

David’s sentence was excessive. We are appealing that, and we are appealing his conviction before a three-judge bench.

We are hopeful that this time, with the three intelligent minds, they may come to the same view as we have, in that the conviction should be overturned and a new trial set down.

If that happens, there will be no appeal on severity of sentence. But if we lose the conviction of appeal, then the court of appeal will determine the sentence appeal. 

We have a number of grounds of appeal regarding his sentence. One such ground is that David didn’t receive much of a sentencing discount for his guilty plea, as the judge didn’t consider the plea had much utility, however we say that he would have pleaded guilty on day one had there been a definition of what his official duty was at an earlier point.

So, that is the argument we will put in terms of his guilty plea.

We also feel that Judge Mossop didn’t properly consider the option of David serving his sentence by way of an intensive correction order (ICO). David is a veteran, who has PTSD and other vulnerabilities. He is at a minimal risk of ever offending and we believe it is much more appropriate for him to serve his time on an ICO. 

But obviously, the conviction appeal is the main game. If we win the conviction appeal, the matter gets set down for another trial. And then it would be a matter for the prosecution to consider whether it is worth putting David McBride to trial again.

Is it worth spending another few million dollars of taxpayers’ money to prosecute someone, who has already done nine hard months in gaol, and in circumstances, where the three-judge panel has considered that Justice Mossop was wrong in his ruling on what the definition of official duty is?

I don’t think it is in the public interest to retry David McBride. But that’s all academic at this point. We would hope they give heavy consideration to stopping the prosecution if he does in fact win his conviction appeal.

But that doesn’t impact David’s fight, he just wants to keep going until we get justice.

David, like many others, understands the importance of having a government that is in check and a military that is acting in the public interest and not in the interests of a few people in the ADF leadership and government.

And lastly, Eddie, there are many people out there in the community who consider David McBride a hero for what he has done in blowing the whistle, so how can his supporters be of assistance in these final days before his appeal? 

I would thank them all for the support they’ve provided up until today, and I’m sure that is what David would say. We are not giving up, as we understand that with all his supporters, this case is not just about one man.

This is not just about David McBride, it is about all of us having the right to speak up when we see wrongdoing, and for public service officials to act in the public interest in their various roles in the many bureaucratic arms of government.

We would encourage everyone to support however they can. To come to the court on 3 March. There is a rally on at 9 am. The proceedings start at 10.15 am. And everyone is welcome to come along to these events in Canberra, outside the ACT court.

Also, we encourage people to become more informed about the case of McBride and how it may relate to their lives.

Of course, we encourage people to donate to our fundraiser because appeals are very expensive.

Yesterday, we filed about 50 folders. There is an incredible amount of work that goes into these high-level appeals. They don’t come cheap.

My barristers are doing a lot of this case at close to pro bono. So, if people have a spare $5 or $10 they could donate to the chuffed fundraiser, it would be much appreciated.

Please donate to the David versus Goliath fund to see McBride able to run a successful appeal against his conviction with adequate representation

David is keen to receive mail from supporters, although it’s best to send him postcards. His address is: David McBride Pin 134463 Locked Bag 7775 Alexander Maconochie Centre Canberra BC ACT 2609