Collaery v The Queen - [2021] ACTCA 1

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL

Case Title:	Collaery v The Queen
Citation:	[2021] ACTCA 1
Hearing Date:	27 January 2021
DecisionDate:	27 January 2021
ReasonsDate:	9 February 2021
Before:	Burns J
Decision:	See [20]
Catchwords:	APPEAL – application to vacate appeal dates – where new senior counsel volunteered to provide services to appellant pro bono – senior counsel not available to appear at listed appeal dates – failure of Attorney-General to amend certificate issued under s 26 of the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) to permit senior counsel to take instructions – consideration of impact on appellant
Legislation Cited:	Intelligence Services Act 2001 (Cth) s 39 National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) ss 26, 27 Supreme Court Act 1933 (ACT) s 37J(1)(k)
Parties:	Bernard Collaery (Appellant) The Queen (Respondent)
Representation:	Counsel K Archer with C Flynn and K Harris (Appellant) C Tran with D Johns (Respondent) T Begbie (Attorney-General (Cth))
Solicitors Gilbert & Tobin (Appellant) Commonwealth Director of Public Prosecutions (Defendant) Australian Government Solicitor (Attorney-General (Cth))
File Number:	ACTCA 27 of 2020
Decision under appeal:	Court/Tribunal: ACT Supreme Court Before: Mossop J Date of Decision: 26 June 2020 Case Title: R v Collaery (No 7) Citation: [2020] ACTSC 165

BURNS J:

On 27 January 2021, exercising the jurisdiction of the Court of Appeal as a single judge pursuant to s 37J(1)(k) of the Supreme Court Act 1933 (ACT), I vacated the date allocated for the hearing of this appeal, indicating that I would provide my reasons later. These are those reasons.

Background

The appellant, Bernard Collaery, is awaiting trial on four charges alleging breaches of s 39 of the Intelligence Services Act 2001 (Cth), and one charge of conspiracy to breach s 39. Those charges are contained in an indictment dated 12 September 2019. The charges are based upon events alleged to have occurred between 1 December 2012 and 17 March 2014.

Between 25 and 29 May 2020 the primary judge conducted a hearing pursuant to s 27 of the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) (the NSI Act). On 26 June 2020 his Honour pronounced orders and published reasons in effect determining that significant parts of the accused’s trial would be closed to the public and that aspects of the evidence to be led at the trial could not be published. These orders were sought by the Attorney-General of the Commonwealth (the Attorney-General).

The appellant was represented at the hearing before the primary judge by

P Boulton SC, C Ward SC and R Khalilzadeh. Both the Crown and the

Attorney-General were represented by senior and junior counsel.

On 3 August 2020 the appellant filed a Notice of Appeal from the orders made by the primary judge. On 7 October 2020 this Court listed the appeal for hearing on

15 February 2021 with an estimate of two days.

On or about 23 December 2020 the appellant had a conversation with

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Collaery v The Queen

Details

AGLC: Collaery v The Queen [2021] ACTCA 1
Case: [2021] ACTCA 1
Decision Date

CaseChat Overview and Summary

This matter concerned an application by the appellant, Bernard Collaery, to vacate the scheduled hearing dates for his appeal before the Supreme Court of the Australian Capital Territory. The appeal arose from orders made by the primary judge on 26 June 2020, concerning the closure of parts of the appellant's trial to the public and restrictions on the publication of evidence, which were sought by the Commonwealth Attorney-General. The appellant was facing charges under the *Intelligence Services Act 2001* (Cth) and conspiracy to breach that Act.

The central legal issue before the Court of Appeal was whether the appeal dates should be vacated to accommodate the appellant's engagement of new senior counsel, Mr Bret Walker SC, who had volunteered to act pro bono. This engagement was complicated by the operation of the *National Security Information (Criminal and Civil Proceedings) Act 2004* (Cth) (NSI Act), which required the Attorney-General to amend a certificate issued under s 26 of that Act to permit Mr Walker access to sensitive information and to take instructions from the appellant. The appellant argued that the Attorney-General's delay in amending the certificate prejudiced his ability to benefit from Mr Walker's expertise, particularly given Mr Walker's unavailability on the original appeal dates.

The Court reasoned that the power vested in the Attorney-General under the NSI Act to control access to sensitive information by legal representatives is significant and should be exercised with efficiency and for its intended purpose, not to gain a forensic advantage. The Court noted that the Attorney-General did not amend the s 26 certificate to include Mr Walker until 25 January 2021, despite the appellant's request on 23 December 2020. This delay, coupled with Mr Walker's subsequent unavailability for the original appeal dates, meant that any benefit the appellant might have gained from briefing Mr Walker was likely to be significantly reduced or lost. The Court considered this delay and its impact to be unfair to the appellant.

Consequently, the Court acceded to the appellant's application to vacate the appeal dates.

Orders