SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
COURT OF APPEAL
Case Title: | Collaery v The Queen (No 3) |
| Citation: | [2021] ACTCA 34 |
| Hearing Date(s): | 2 November 2021 |
| Decision Date: | 5 November 2021 |
| Before: | Murrell CJ |
| Decision: | The judgment is varied in accordance with the table to these reasons |
Catchwords: | JURISDICTION, PRACTICE AND PROCEDURE - Request to vary statement of reasons pursuant to section 32 of the National Security Information (Criminal and Civil Proceedings)Act 2004 (Cth) - where information is the subject of a certificate under section 26 - consideration of applicable general principles - whether information in the statement directly or indirectly reveals protected information - whether information in the statement tends to confirm or deny protected information - consideration of extent of interference with the administration of justice |
Legislation cited: | Intelligence Services Act 2001 (Cth) s 39 |
Cases cited: | R v Collaery(No 7) [2020] ACTSC 165 |
| Parties: | Bernard Collaery (Appellant) Attorney-General (Cth) (Intervenor) |
| Representation: | Counsel L Crowley QC (Respondent) |
| Solicitors Gilbert + Tobin (Appellant) Commonwealth Director of Public Prosecutions (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 |
MURRELL CJ:
The applications
In relation to the public disclosure of information in the criminal trial of the appellant, the Court of Appeal has decided that, subject to the primary judge's consideration of further material, at the trial there should be public disclosure of information relating to the truth of six specific matters (the Identified Matters).
The Attorney-General requested that, pending the primary judge's consideration of the further material, the proposed reasons of the Court of Appeal (AJ) be varied, predominantly by redaction.
Further, in relation to a limited part of the proposed reasons (AJ [85], [86] and [92]), by a separate application the Attorney-General sought orders under s 19(1A) of the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) (NSIA) to the effect that details of the information in those paragraphs be disclosed only to persons immediately connected with the trial.
History of the proceedings
The appellant 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.
The charges concern media statements made by the appellant in 2012-2014 alleging that Australia had engaged in an espionage operation affecting Timor-Leste.
Pursuant to s 26 of the NSIA, the Attorney-General issued a certificate defining "sensitive information" by reference to highlighted portions of the prosecution brief of evidence, which the Attorney-General said should not be publicly disclosed.…
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- AGLC
- Collaery v The Queen (No 3) [2021] ACTCA 34
- Case
- [2021] ACTCA 34
- Decision Date
CaseChat Overview and Summary
The central legal issues before the Court were whether the information contained within the statement of reasons directly or indirectly revealed protected information, and whether it tended to confirm or deny protected information. The Court was also required to consider the extent to which any such revelation or confirmation/denial would interfere with the administration of justice.
In determining these issues, Murrell CJ applied the general principles governing the assessment of information under the *National Security Information (Criminal and Civil Proceedings) Act 2004*. The Court considered the nature of the protected information and the potential impact of its disclosure or confirmation. The judgment was subsequently varied in accordance with the table provided in the reasons.
Orders
Orders of the court
The judgment is varied in accordance with the table to these reasons
Background
Background to the litigation
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Evidence
Evidence Before The Court
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Decision
Reasons for decision
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Ratio Decidendi
Legal Principle Established
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