Collaery v The Queen (No 3)

[2021] ACTCA 34

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
National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) ss 3, 17, 19, 20, 26, 27, 29, 31, 32, 34, 37, 43
Supreme Court Act 1933 (ACT) s 37J

Cases cited:

R v Collaery(No 7) [2020] ACTSC 165

Parties:

Bernard Collaery (Appellant)
The Queen (Respondent)

Attorney-General (Cth) (Intervenor)

Representation:

Counsel
C Ward SC with K Archer (Appellant)

L Crowley QC (Respondent)
A Mitchelmore SC (Intervenor)

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

1. 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).

2. 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.

3. 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

1. 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.

2. The charges concern media statements made by the appellant in 2012-2014 alleging that Australia had engaged in an espionage operation affecting Timor-Leste.

3. 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.…