SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY COURT OF APPEAL
Case Title:
Collaery v The Queen (No 2)
Citation:
[2021] ACTCA 28
Hearing Date(s):
17 and 18 May 2021
Decision Date:
6 October 2021
Before:
Murrell CJ, Burns and Wigney JJ
Decision:
Appeal allowed. See [127]–[130]
Catchwords:
APPEAL – National security – appeal from order prohibiting disclosure – consideration of s 31 of the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) –whether statements had already been confirmed or denied – consideration of the risk of prejudice to national security – consideration of effect on appellant’s right to a fair trial – consideration of the risk of damage to public confidence in the administration of justice
Bernard Collaery (Appellant) The Queen (Respondent)
The Attorney-General (Intervenor)
Representation:
Counsel B Walker SC with C Ward SC and K Archer (Appellant) R Maidment QC with C Tran (Respondent) J Kirk SC with A Mitchelmore SC, T Begbie QC and D Forrester (Intervenor)
Solicitors Gilbert + Tobin (Appellant) Commonwealth Director of Public Prosecution (Respondent) Australian Government Solicitor (Intervenor)
File Number(s):
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
THE COURT:
The appellant, Bernard Collaery, is awaiting trial on four charges of breaching s 39 of the Intelligence Services Act 2001 (Cth) (the ISA), and one charge of conspiring with another person (referred to as Witness K) to breach s 39 of the ISA. Subject to…
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.
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AGLC
Collaery v The Queen (No 2) [[2021]] ACTCA 28
Case
[2021] ACTCA 28
Decision Date
CaseChat Overview and Summary
This matter concerned an appeal from an order prohibiting the disclosure of certain information. The appellant, Bernard Collaery, sought to appeal an order made by a single judge of the Supreme Court of the Australian Capital Territory. The appeal was heard by Murrell CJ, Burns and Wigney JJ of the Supreme Court of the Australian Capital Territory.
The central legal issues before the Court of Appeal were whether the single judge erred in finding that the disclosure of certain statements would be contrary to the public interest, specifically in relation to national security. This involved considering whether the statements had already been confirmed or denied, the risk of prejudice to national security, the effect on the appellant's right to a fair trial, and the potential damage to public confidence in the administration of justice. The Court was required to assess these factors in light of section 31 of the *National Security Information (Criminal and Civil Proceedings) Act 2004* (Cth).
The Court of Appeal allowed the appeal. The reasoning behind this decision, as indicated by the orders, suggests that the Court found the single judge's prohibition order to be erroneous, likely concluding that the disclosure of the statements did not, in fact, pose the risks to national security or the administration of justice that had been asserted. The specific grounds for allowing the appeal would have involved a detailed re-evaluation of the evidence and the application of the principles under section 31 of the *National Security Information (Criminal and Civil Proceedings) Act 2004* (Cth).