Former military lawyer David McBride has asked the ACT Court of Appeal to set aside a ruling he said left him with no option but to plead guilty to theft and distributing classified material to journalists.
McBride was sentenced to five years and eight months in jail in May last year, with a non-parole period of two years and three months.
Today as he entered the court his supporters stood and applauded.
McBride is challenging the severity of the sentence and the ruling he said deprived him of a defence.
The sentence in May last year came after a messy prosecution at the end of 2023, when McBride was to have gone before a jury.
But that was abandoned when ACT Supreme Court Justice David Mossop refused to instruct the jury on the concept of "duty" in terms that McBride had requested.
The key issue in McBride's defence was that under his oath of enlistment he had a duty to act in the interests of Australia.
He had told police he did not believe he was breaking the law.
"I believe I was doing what I was meant to do as a soldier," McBride told police.
Today the ACT Court of Appeal heard if it overturns Justice Mossop's ruling on the point, there may have to be a re-trial because it will have been a miscarriage of justice.
But lawyers for the Commonwealth told the court McBride's argument is the antithesis of his duty as a member of the defence force.
The court heard the core responsibility of a defence member...
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