R v Collaery (No 10) - [2021] ACTSC 311

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Collaery (No 10)
Citation:	[2021] ACTSC 311
Hearing Date:	3 December 2021
DecisionDate:	7 December 2021
Before:	Mossop J
Decision:	See [35]
Catchwords: .	NATIONAL SECURITY – JURISDICTION, PRACTICE AND PROCEDURE – Remittal following appeal – where Court of Appeal set aside primary decision subject to consideration of court only evidence – scope and consequences of the remittal – terms of remittal do not permit updating of court only evidence by the Attorney-General
Legislation Cited:	Court Procedures Rules 2006 (ACT), pt 2.6, rr 4055, 5001 Crimes (Sentence Administration) Act 2005 (ACT), ss 12, 17 National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth), ss 8, 10, 31 Supreme Court Act 1933 (ACT), ss 37J, 37M
Cases Cited:	Collaery v The Queen (No 2) [2021] ACTCA 28 House v The King (1936) 55 CLR 499 Minister for Immigration and Border Protection v SZVFW [2018] HCA 30; 264 CLR 541 O’Rafferty v The Queen (No 2) [2014] ACTCA 52; 10 ACTLR 278 R v Collaery (No 7) [2020] ACTSC 165
Parties:	The Queen ( Crown) Bernard Collaery ( Defendant)
Representation:	Counsel C Tran ( Crown) C Ward SC ( Defendant) J Kirk SC with T Glover (Attorney-General (Cth))
Solicitors Commonwealth Director of Public Prosecutions ( Crown) Gilbert + Tobin ( Defendant) Australian Government Solicitor (Attorney-General (Cth))
File Number:	SCC 195 of 2019

MOSSOP J:

Introduction

The procedural history of this matter is set out in the decision of the Court of Appeal: Collaery v The Queen (No 2) [2021] ACTCA 28 at [1]-[11]. The effect of the Court of Appeal’s decision was to set aside the decision which I had earlier made in R v Collaery (No 7) [2020] ACTSC 165 (the primary decision) under s 31 of the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) (NSI Act) and remit the matter to me. It is uncontroversial that I must comply with the order of remittal including any limitation on the scope of the remitted proceedings. The issue between the parties is now the consequences of the terms of that remittal order and whether the “court only” material referred to in the order of the Court of Appeal is limited to the material that was available at the time of the primary decision or whether it is open to the Attorney-General to seek to rely upon updated “court only” evidence. The reference to “court only” evidence is to affidavit evidence which the Attorney-General sought to have admitted into evidence on the basis that it would be provided only to the court and not to Mr Collaery or to the Director of Public Prosecutions (representing the Crown).

The decision of the Court of Appeal

The description of the decision of the Court of Appeal which follows does not include reference to matters which the Attorney-General has sought to have redacted or varied in the reasons of the Court of Appeal. The decision of Murrell…

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 R v Collaery (No 10)

Details

AGLC: R v Collaery (No 10) [2021] ACTSC 311
Case: [2021] ACTSC 311
Decision Date

CaseChat Overview and Summary

In the Supreme Court of the Australian Capital Territory, the case of R v Collaery (No 10) [2021] ACTSC 311 saw the Court address the remittal of a case following an appeal decision. The appeal had set aside the primary decision under section 31 of the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) and remitted the matter to the primary judge, requiring him to consider the admissibility of "court only" material and its effect on the section 31(4) order. The central issue before the court was whether the terms of the remittal order permitted the updating of the "court only" evidence by the Attorney-General. The court held that the remittal order did not allow for the updating of the "court only" evidence; it was limited to the material that was available at the time of the primary decision. The court reasoned that the use of the definite article in the remittal order indicated a reference to the existing court only material, not any court only material generally. The court concluded that while the desirability of having updated evidence was acknowledged, it was not a sufficient reason to interpret the remittal order differently. The court found that the orders of the Court of Appeal, which bind the court upon remittal, required the court to consider whether to admit the court only evidence and, if admitted, to reach a conclusion in relation to the terms of the s 31(4) order in light of that material and the reasons given by the Court of Appeal. The court also noted that if the court only material was outdated, it would then be open to the Attorney-General to apply for an order in different terms to accommodate current circumstances. The court made orders adjourning the proceedings to permit consideration of these issues and requested the perfected orders of the Court of Appeal.

Orders