David McBride's sentencing delayed due to 'failure' by lawyers

The sentencing hearing for David McBride, which was scheduled for next week, has been delayed due to what a judge said was a “failure” by the lawyers involved to properly assist the court when setting dates.

McBride, who was accused of providing confidential information to three ABC journalists from 2013 to 2017 while he was a lawyer and a major in the army, pleaded guilty days before his trial late last year.

His sentencing hearing was set for 12 March, but on Wednesday (6 March), just six days before it was to take place, McBride’s lawyers asked for the date to be vacated.

Justice David Mossop said the defence wanted extra time to respond to evidence served by the Crown.

He said both parties had explained the circumstances that led to this situation differently, putting different emphasis on responsibility.

“I observe that the source of the difference is probably the failure by both parties to provide adequate assistance to the registrar when she was making the orders that she did, including the sequence and filing of submissions,” he said.

He said parties needed to be fully conscious of how proceedings could “unravel” due to their opposing positions.

Earlier, McBride’s barrister Emmanuel Kerkyasharian said that on 29 February, the Crown told them it wanted to establish at sentence, through an as-yet served affidavit, a series of contentions about the hypothetical risks of harm that could have arisen due to the public dissemination of the documents.

He also said his team received a draft version of the proposed statement of facts for the case on 21 December, and there have been a few versions since then.

The court heard the Crown accepted the defence was not in a position to respond to the material in the time available.

Christopher Tran, appearing for the Crown, accepted that his team could have communicated better with the defence to use the date set for next week but disagreed with some of the things that had been said about the material.

During a discussion about how the court may have to be closed at times during the sentencing hearing, Justice Mossop remarked the court would have to go “fully spooky” in terms of court setup.

Justice Mossop ultimately vacated the sentence hearing date but said the matter would have to go back before the registrar on Thursday (7 March) to find a new one.

He also set dates for the parties to meet while working out the agreed facts.

The sentence hearing currently has an estimate of two days.