R v Collaery (No 4)
[2020] ACTSC 61
•19 March 2020 (orders) and 20 March 2020 (reasons)
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Collaery (No 4) |
Citation: | [2020] ACTSC 61 |
Hearing Dates: | 19 March 2020 |
DecisionDate: | 19 March 2020 (orders) and 20 March 2020 (reasons) |
Before: | Mossop J |
Decision: | See [8], [44], [53], [79], [85] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Hearing required under s 27(3) National Security Information (Civil and Criminal Proceedings) Act 2004 (Cth) – whether listed hearing should be vacated due to coronavirus pandemic – not at this stage – procedural and evidentiary issues in relation to hearing |
Legislation Cited: | Court Procedures Act 2004 (ACT), s 5A Criminal Code Act 1995 (Cth), s 93.2 National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth), ss 3, 7-11, 19, 27, 29, 31 |
Cases Cited: | Alister v The Queen (1984) 154 CLR 404 Anthony Hordern and Sons Ltd v Amalgamated Clothing and Allied Trades Union of Australia (1932) 47 CLR 1 Young v Quin (1985) 4 FCR 483 |
Parties: | The Queen (Crown) Bernard Collaery (Defendant) |
Representation: | Counsel C Tran (Crown) P Boulton SC, C Ward SC and K Archer (Defendant) J Kirk SC and T Begbie (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
These reasons relate to a number of matters preliminary to, or forming part of, the hearing required to be conducted pursuant to s 27(3) of the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) (NSI Act) as to whether or not to make orders under s 31 of that Act.
Insofar as the matters form part of that hearing, then the “closed hearing requirements” set out in s 29 of the NSI Act apply to that proceeding. The statute determines that only certain persons may be present during that hearing and constrains the persons to whom “the record” of that proceeding may be provided. It would be inconsistent with the closed hearing requirements set out in s 27 to make the reasons for any decision made during the course of that hearing generally available to the public. For that reason, and only because the statute compels it, those parts of these reasons which relate to that part of the hearing which formed part of the s 27(3) hearing will be redacted from these reasons when they are ultimately published.
The manner in which the hearing yesterday proceeded was that the court first dealt with an issue raised by counsel for the defendant as to whether or not the main portion of the s 27(3) hearing which has been listed for eight days to commence on 7 April 2020 should be adjourned because of the coronavirus pandemic. The defendant did not make a formal application for the vacation of the hearing date. He did, however, refer to the steps taken by the High Court, Federal Court and various New South Wales state courts so as to reduce the prevalence of trials in which personal attendance is necessary. Those measures include the cancellation of jury trials and the conduct of as many hearings as possible by means other than personal attendance. He referred to a particular difficulty of one of his instructing solicitors. He made reference to the difficulties that would be faced by the overseas witnesses to be called by the defendant in travelling to Australia and the difficulties of witnesses within Australia travelling to the hearing. So far as Australian witnesses were concerned, there was no evidence of any specific difficulty that any of those witnesses had in attending the hearing, although the witnesses would fall into a demographic (older persons) who have been identified as being more likely to be significantly adversely affected by the COVID-19 strain of the coronavirus.
The position of the Attorney-General was to neither consent to nor oppose any variation of the hearing date. He did however point out that the defendant’s overseas witnesses were not required by the Attorney-General to be made available for cross-examination and hence not required to attend the hearing. He also submitted that, having regard to what was publicly known about the pandemic, it was a matter which was likely to be around for many months to come and hence, if the hearings listed for April were to be vacated, then there is no certainty as to when that hearing could take place. In that regard he referred to the strong public interest in the continuation of the administration of justice notwithstanding the pandemic, particularly in relation to criminal matters. He submitted that there were other ways by which the hearing could be conducted notwithstanding the existence of the pandemic, however, he submitted that because of the nature of the evidence to be given, it would not be appropriate to hear evidence using the court’s videolink capacity.
The Director of Public Prosecutions (DPP) made the general submission that all options should be explored in order to maintain the hearing date and that any vacation of the hearing date at this stage would be premature.
In my view it is not appropriate to vacate or otherwise alter the listed hearing dates.
(a)Those hearing dates have been set for some time and are dates upon which counsel for the defendant are available. If the existing hearing dates were vacated and the availability of counsel for, most particularly, the defendant was to be accommodated, there is no certainty as to when the court would be able to list the matter. Even under normal circumstances it would likely be many months hence.
(b)The potential for delay in relisting the matter is increased by the existence of the coronavirus pandemic. There is no certainty that the circumstances will be any better than they will be on the listed hearing dates for many months to come.
(c)The procedural history of the matter to date involves the vacation of a three day listing in December 2019 which was intended to accommodate the s 27(3) hearing which was vacated for reasons that I gave in R v Collaery (No 3) [2019] ACTSC 332 (Collaery (No 3)). The delay in conducting the s 27(3) hearing necessarily delays the substantive criminal proceeding. There is a strong public interest in having serious criminal charges determined promptly.
(d)The information that I was given was insufficient to demonstrate that there would be any particular logistical or other difficulty in the conduct of the hearing which would preclude the hearing from taking place without injustice to the parties.
(e)The court is, at the moment, continuing to conduct cases that involve oral hearings in other matters.
Quite clearly, the impact of the coronavirus and the response of Australian governments to it are matters which are changing on a daily basis. While the hearing is just over two weeks away it is clear that circumstances will have changed by the time of the hearing. At this stage it is not possible to say with confidence that those circumstances will preclude the fair conduct of the hearing. There is a possibility that they will. For that reason, circumstances will need to be reviewed from time to time.
At this stage I will simply note on the bench sheet: The issue of the conduct of the hearing commencing 7 April 2020 in light of the coronavirus pandemic was raised. The court made no order vacating the hearing or amending the hearing dates.
Having dealt with the issue of the coronavirus pandemic the court then commenced part of the s 27(3) hearing in which certain applications were made. For the reasons given earlier, the balance of these reasons, which relate to matters dealt with in the s 27(3) hearing, will be redacted in any published version of these reasons.
[Paragraphs [10]-[86] of the reasons are redacted for the reasons given at [2] and [9].]
| I certify that the preceding eighty-six [86] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 31 March 2020 |
0
3