Case Title:	R v Collaery (No 11)
Citation:	[2022] ACTSC 40
Hearing Date:	9 February 2022
DecisionDate:	11 March 2022
Before:	Mossop J
Decision:	See [79]
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 – in the interests of national security to permit reliance on court-only evidence – public interest in maintaining confidentiality of material – appropriate to allow the Attorney‑General to rely on court-only evidence not disclosed to the defendant NATIONAL SECURITY – JURISDICTION, PRACTICE AND PROCEDURE – Attorney-General proposed court-appointed “special counsel” to represent the defendant’s interests in relation to the court-only evidence – whether court has power to appoint special counsel under the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) – court has inherent and statutory power CONSTITUTIONAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Whether reliance on court-only evidence would deny the defendant procedural fairness – whether orders sought would contravene chapter III of the Constitution – Constitution does not add to requirement for procedural fairness applicable in any event
Legislation Cited:	Acts Interpretation Act 1901 (Cth), ss 15AA, 15AB(2) Constitution (Cth), Ch III Counter-Terrorism Legislation Amendment Act (No 1) 2016 (Cth) Criminal Code Act 1995 (Cth), Div 104, ss 90.1, 93.2 Intelligence Services Act 2001 (Cth), s 39 National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth), ss 7, 8, 9, 10, 11, 17, 19, 19(1A), 20B, 22, 25, 26, 29, 31, 32, 38PA, 38PB, 38PC, 38PD, 38PE, 38PF, 38PG, 38PH National Security Legislation Amendment Act 2010 (Cth)
Cases Cited:	Alistair v R (1984) 154 CLR 404 Al Rawi v Security Service [2012] 1 AC 531 Collaery v The Queen (No 2) [2021] ACTCA 28 Condon v Pompano Pty Ltd [2013] HCA 7; 252 CLR 38 Conway v Rimmer [1968] AC 910 Gypsy Jokers Motorcycle Club Inc v Commissioner of Police [2008] HCA 4; 234 CLR 532 Hogan v Hinch [2011] HCA 4; 243 CLR 506 HT v The Queen [2019] HCA 40; 269 CLR 403 Kable v DPP (NSW) (1996) 189 CLR 51 Commissioner of Police v Tanos (1958) 98 CLR 383 Re Minister for Immigration and Multicultural and Indigenous Affairs; Ex parte Lam [2003] HCA 6; 214 CLR 1 R v Collaery (No 7) [2020] ACTSC 165 R v Collaery (No 10) [2021] ACTSC 311 R v Khazaal [2006] NSWSC 1061 R v Lappas [2001] ACTSC 115 R v Lodhi [2006] NSWSC 586; 163 A Crim R 475 R v Massey [2016] ACTSC 108; 309 FLR 299 R v Scerba [2015] ACTSC 176; 299 FLR 221 Roberts-Smith v Fairfax Media Publications Pty Ltd (No 14) [2021] FCA 552 Sankey v Whitlam (1978) 142 CLR 1 SDCV v Director-General of Security [2021] FCAFC 51; 284 FCR 357 State of New South Wales v Public Transport Ticketing Corporation (No 3) [2011] NSWCA 200; 81…

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 11)

Details

AGLC: R v Collaery (No 11) [2022] ACTSC 40
Case: [2022] ACTSC 40
Decision Date

CaseChat Overview and Summary

The case of R v Collaery (No 11) before the Supreme Court of the Australian Capital Territory, heard by Mossop J, involved a complex interplay of national security, procedural fairness, and the role of court-appointed special counsel in criminal proceedings. The central issue was whether the Attorney-General could rely on "court-only" evidence, which had not been disclosed to the defendant, Bernard Collaery, in a proceeding that determined the extent of public disclosure in his trial. The court was also tasked with deciding whether it had the inherent or statutory power to appoint special counsel to represent Collaery's interests in relation to this evidence.

The legal issues before the court included the interpretation of the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth), the court's power to appoint special counsel, and whether such reliance on undisclosed evidence would deny Collaery procedural fairness in contravention of the Constitution. Mossop J concluded that the court had both inherent and statutory power to appoint special counsel under the Act and that permitting reliance on court-only evidence did not necessarily contravene the principles of procedural fairness required by the Constitution. The court found that procedural fairness could be achieved through the appointment of special counsel, allowing the defendant to challenge the admissibility and relevance of the undisclosed evidence.

In reaching this decision, the court examined the sensitive nature of the evidence and the potential harm to national security if disclosed. It balanced the public interest in maintaining the confidentiality of certain information against the defendant's right to a fair trial. The court held that the proposed use of court-only evidence, coupled with the appointment of special counsel, was appropriate in the interest of national security and procedural fairness. The orders of the court permitted the Attorney-General to rely on the court-only evidence and appointed special counsel to represent Collaery's interests, subject to certain conditions. The court also directed the Attorney-General to identify any redactions required before publishing the reasons for judgment and to provide minutes of proposed orders.

Orders