Collaery v The Queen (No 4) - [2023] ACTCA 47

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

COURT OF APPEAL

Case Title:	Collaery v The Queen (No 4)
Citation:	[2023] ACTCA 47
Hearing Date:	23 September 2022; written submissions closed 21 October 2022
Decision Date:	12 December 2023
Before:	McCallum CJ
Decision:	(1) The order of the Court of Appeal of 5 November 2021 is vacated. (2) The judgment of the Court of Appeal in Collaery v The Queen (No 2) [2021] ACTCA 28 is to be published in the form proposed by the Attorney-General in MFI 2. (3) The judgment of the Court of Appeal in Collaery v The Queen (No 3) [2021] ACTCA 34 is to be published in the form proposed in Annexure C to the affidavit of Anthony Desmond Giugni dated 20 July 2022.
Catchwords:	NATIONAL SECURITY – JURISDICTION, PRACTICE AND PROCEDURE – Appropriate form of publication of judgment that includes national security information – where trial judge made order under s 31(4) of the National Security Information (Civil and Criminal Proceedings) Act – where accused succeeded in interlocutory appeal concerning appropriate scope of order – where final form of order remitted to trial judge to be determined after considering further confidential evidence – where prosecution discontinued before further hearing held – whether appeal judgment should be redacted consistently with existing certificate or order APPEAL – INTERLOCUTORY APPEAL – Where Court had previously determined application to vary form of judgment to redact national security information – where Attorney-General brings second application following discontinuance of prosecution – whether an abuse of process
Legislation Cited:	Intelligence Services Act 2001 (Cth) s 39 Judiciary Act 1903 (Cth) s 71 National Security Information (Civil and Criminal Proceedings) Act 2004 (Cth) ss 3(1), 19(1A), 24, 26, 27, 31, 32 Supreme Court Act 1933 (ACT) s 37(1)(k)
Cases Cited:	Collaery v The Queen (No 2) [2021] ACTCA 28 Collaery v The Queen (No 3) [2021] ACTCA 34 D A Christie Pty Ltd v Baker (1996) 2 VR 58 Hogan v Hinch [2011] HCA 4; 243 CLR 506 Nominal Defendant v Manning [2000] NSWCA 80; 50 NSWLR 139 R v Collaery (No 10) [2021] ACTSC 311
Parties:	Bernard Collaery ( Appellant) The Queen ( Respondent) Attorney-General for the Commonwealth (Intervenor)
Representation:	Counsel P Boulton SC with S Robinson ( Appellant) P Hertzfeld SC with T Glover (Intervenor)
Solicitors Gilbert + Tobin ( Appellant) Australian Government Solicitor (Intervenor)
File Number:	ACTCA 27 of 2020
Decision Under Appeal:	Court: ACT Supreme Court Before: Mossop J Date of Decision: 26 June 2020 Case Title: R v Collaery (No 7) Citation: [2020] ACTSC 165

McCALLUM CJ:

1․Bernard Collaery was due to face trial in the ACT Supreme Court on an indictment dated 12 September 2019 alleging five federal offences, being four counts of breach of s 39 of the Intelligence Services Act 2001 (Cth) and one count of conspiring with another person to breach that section. The prosecution brief of evidence included national security information. The Attorney-General for the Commonwealth accordingly took steps to restrict…

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 (No 4)

Details

AGLC: Collaery v The Queen (No 4) [2023] ACTCA 47
Case: [2023] ACTCA 47
Decision Date: 12 December 2023

CaseChat Overview and Summary

This matter concerned an application by the Attorney-General following the discontinuance of a prosecution against Mr Bernard Collaery. The core dispute revolved around the appropriate form of publication for judgments of the Court of Appeal that contained national security information, particularly in light of an earlier interlocutory appeal where the accused had succeeded in varying the scope of a redaction order. The application was heard by McCallum CJ.

The primary legal issue before the Court was whether the Court of Appeal's judgment in *Collaery v The Queen (No 2)* should be published in a form consistent with an existing certificate or order, or whether a different form of redaction was now appropriate following the discontinuance of the prosecution. A secondary issue was whether the Attorney-General's second application constituted an abuse of process, given the prior interlocutory appeal.

McCallum CJ determined that the earlier order of the Court of Appeal of 5 November 2021 should be vacated. The Chief Justice reasoned that the discontinuance of the prosecution fundamentally altered the circumstances relevant to the publication of the judgments. Consequently, the judgment in *Collaery v The Queen (No 2)* was to be published in the form proposed by the Attorney-General, and the judgment in *Collaery v The Queen (No 3)* was to be published in the form proposed in Annexure C to the affidavit of Anthony Desmond Giugni.

Orders

Orders of the court

(1) The order of the Court of Appeal of 5 November 2021 is vacated.

(2) The judgment of the Court of Appeal in Collaery v The Queen (No 2) [2021] ACTCA 28 is to be published in the form proposed by the Attorney-General in MFI 2.

(3) The judgment of the Court of Appeal in Collaery v The Queen (No 3) [2021] ACTCA 34 is to be published in the form proposed in Annexure C to the affidavit of Anthony Desmond Giugni dated 20 July 2022.

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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