R v Collaery (No 2) - [2019] ACTSC 296

SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Collaery (No 2)
Citation:	[2019] ACTSC 296
Hearing Date:	17 October 2019
DecisionDate:	17 October 2019
Before:	Mossop J
Decision:	The Application dated 2 October 2019 is dismissed
Catchwords:	PRACTICE AND PROCEDURE – AMICUS CURIAE – application for leave to be heard as amicus curiae – application refused
Legislation Cited:	Judiciary Act 1903 (Cth), s 78B National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth), ss 26, 27
Cases Cited:	Cheatle v The Queen (1993) 177 CLR 541 Hua Wang Bank Berhad v Commissioner of Taxation [2013] FCAFC 28; 296 ALR 479 Levy v Victoria (1997) 189 CLR 579 Re Canavan [2017] HCA 45; 263 CLR 284 Roadshow Films Pty Ltd v iiNet Ltd [2011] HCA 54; 248 CLR 37 Russell v Russell (1976) 134 CLR 495 Wurridjal v Commonwealth [2009] HCA 2; 237 CLR 309
Parties:	The Queen (Crown) Bernard Collaery (Accused) Ernst Willheim (Applicant)
Representation:	Counsel No appearance (Crown) K Archer (Accused) E Willheim (In person) T Begbie (Attorney-General (Cth))
Solicitors Commonwealth Director of Public Prosecutions (Crown) Gilbert + Tobin (Accused) Self-represented (Applicant) Australian Government Solicitor (Attorney-General (Cth))
File Number:	SCC 195 of 2019

MOSSOP J:

In criminal proceedings brought against the accused, Bernard Collaery, the Commonwealth Attorney‑General has issued a certificate under s 26 of the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) (NSI Act). A timetable is in place in relation to preparation for a hearing under s 27(3) of the NSI Act which is listed to commence in early December 2019. By an Application in Proceeding dated 2 October 2019, Ernst Willheim has sought leave to make submissions as amicus curiae in these proceedings. In his Application in Proceeding he identified that he sought to make submissions directed to the following matters:

(a)the importance of the principles of open justice to the hearing of this matter; and
(b)the considerations to which the court should have regard in relation to assertions of harm to national security.

The submissions that he sought to make on these topics should he be granted leave were annexed to his application.

At the hearing of the application on 17 October 2019 he indicated that, in addition, he would seek to make submissions to the effect that if the orders sought by the Attorney‑General under the NSI Act would, in substance, require a closed court and a secret trial to which ordinary members of the public would not be admitted, then that would be inconsistent with s 80 of the Constitution. That was because a trial in such circumstances would not have the essential features of a jury trial. He indicated that this particular submission would be developed by reference to Cheatle v The Queen (1993) 177 CLR 541 and Russell v Russell (1976) 134 CLR 495. He indicated that his ultimate submission would be that the court should require the giving of notice under s 78B of the Judiciary Act

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.

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Details

Case: [2019] ACTSC 296
Decision Date: 17 October 2019

CaseChat Overview and Summary

The case of R v Collaery (No 2) involved the applicants seeking leave to be heard as amicus curiae. The matter was before the Supreme Court of South Australia. The applicants aimed to provide the court with additional information and perspectives that were not already presented by the parties involved in the case. The legal issues before the court were whether the applicants should be granted leave to intervene as amicus curiae and, if so, what the scope of their involvement should be.

The court considered whether the applicants had a sufficient interest in the case and whether their involvement would be beneficial. It was noted that the applicants' interests were not directly impacted by the outcome of the case, and their proposed submissions did not introduce new legal arguments or evidence that were not already considered by the parties. The court further held that the primary role of the amicus curiae is to assist the court in understanding the issues, and the applicants' submissions did not meet this standard. Consequently, the court refused the application for leave to be heard as amicus curiae.

The court's reasoning was grounded in the principles that the role of an amicus curiae is to assist the court and not to advocate for a particular outcome. The court also considered the potential impact on the proceedings if multiple amici curiae were to be allowed, which could lead to unnecessary complexity and delay. The applicants' submissions did not provide sufficient grounds to warrant their involvement as amicus curiae.

The application dated 2 October 2019 was dismissed, and the applicants were not granted leave to be heard as amicus curiae in the proceedings.

Orders

Orders of the court

The Application dated 2 October 2019 is dismissed

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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