McBride v Commonwealth Director of Public Prosecutions (No 2)

[2021] ACTSC 201

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:

McBride v Commonwealth Director of Public Prosecutions (No 2)

Citation:

[2021] ACTSC 201

Hearing Date:

27 August 2021

DecisionDate:

27 August 2021

Before:

Elkaim J

Decision:

See [15]

Catchwords:

CIVIL LAW – Pre-trial application – adjournment due to COVID-19

Legislation Cited:

National Security Information (Civil and Criminal Proceedings) Act 2004 (Cth)

Public Interest Disclosure Act 2013 (Cth)

Parties:

David William McBride ( Applicant)

Commonwealth Director of Public Prosecutions (Respondent)

Commonwealth Attorney-General (Interested Party)

Representation:

Counsel

M Davis ( Applicant)

N Wootton ( Respondent)

J Davidson (Interested Party)

Solicitors

Xenophon Davis ( Applicant)

Commonwealth Director of Public Prosecutions ( Respondent)

Australian Government Solicitor (Interested Party)

File Number:

SC 119 of 2021

ELKAIM J:

1. Mr David McBride is facing five charges included in an indictment filed on 15 October 2019 (being SCC 127 of 2019). His criminal trial does not have a hearing date because it is first of all necessary to deal with his application for immunity from prosecution pursuant to the Public Interest Disclosure Act 2013 (Cth).

1. This hearing is due to commence on 20 September 2021, with an estimate of six days. In these proceedings Mr McBride is the plaintiff and the Commonwealth Director of Public Prosecutions is the defendant.

1. In order to prepare for this hearing the parties have been subject to a timetable, most recently amended on 3 June 2021.

1. By an application dated 24 August 2021 the plaintiff wishes to adjourn the upcoming hearing. The application is supported by an affidavit of Mr Mark Davis, the plaintiff’s solicitor, sworn on 24 August 2021.

1. The application is not opposed.

1. This matter has been awaiting a hearing for a considerable time. The first allocated hearing date was on 2 March 2020. This date was allocated on 11 November 2019. It was vacated (on the application of the plaintiff). The current hearing date was set on 21 April 2021. 

1. I have no doubt that the plaintiff wishes to have these proceedings commence as soon as possible. The criminal proceedings that might follow are serious and potentially carry a severe penalty.

1. The stress and financial weight on the plaintiff must be significant. The respondent no doubt is also keen to have the matter proceed as soon as possible. I note that the defendant has served a large number of affidavits so that a number of persons will be inconvenienced by any delay.

1. The essential basis for the application is that the plaintiff is not able to get his case ready. This is through no personal fault of his own but rather a result of the COVID-19 pandemic.

1. Mr Davis, in his affidavit, sets out the restrictive effects, on the gathering and compilation of evidence, of the National Security Information (Civil and Criminal Proceedings) Act 2004 (Cth). To give but one example, in order to deal with some of the relevant information, the plaintiff’s lawyers need to be in Security Cleared Premises. They need to “communicate in-person absent the presence of transmitting devices”.

1. Although the Australian Government Solicitor has endeavoured to assist the plaintiff’s lawyers to overcome the difficulties, no completely satisfactory solution has been found.

1. The application describes the geographical spread of the plaintiff’s lawyers. They are located in Sydney, Adelaide and Canberra. They cannot come together because of the assorted travel restrictions imposed, in particular by New South Wales, and perhaps to a lesser degree by the Australian Capital Territory and South Australian governments.

1. It is unquestionably time for the matter to be heard.

1. Nevertheless the application is by the plaintiff and it is not opposed. The reasons given are sound. I do not think I have any choice but to allow the application.

1. I make the following orders:

(1)     The 20 September 2021 hearing date be vacated;

(2)     The matter is set down for hearing to commence on 24 October 2022 for an estimate of 7 days;

(3)     Leave is granted to the parties to re-list the matter for any reason;

(4)     Bail is to continue until 24 October 2022.

I certify that the preceding fifteen [15] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Elkaim.

Associate:

Date: 27 August 2021