R v Collaery (No 5)
[2020] ACTSC 68
•31 March 2020
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Collaery (No 5) |
Citation: | [2020] ACTSC 68 |
Hearing Date: | 31 March 2020 |
DecisionDate: | 31 March 2020 |
Before: | Mossop J |
Decision: | See [21] |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Application to vacate listed hearing – COVID-19 pandemic – where the hearing has already been re-listed once – where the delay to the hearing is likely to be lengthy – application consented to by all parties – hearing vacated |
Legislation Cited: | National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth), ss 22, 26, 27(3) Public Health Act 1997 (ACT) Public Health (Self-Isolation) Emergency Direction 2020 (ACT) |
Cases Cited: | R v Collaery (No 3) [2019] ACTSC 332 R v Collaery (No 4) [2020] ACTSC 61 |
Parties: | The Queen (Crown) Bernard Collaery (Defendant) |
Representation: | Counsel C Tran (Crown) P Boulton SC and C Ward SC (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:
Application
The defendant has applied to vacate the hearing to be conducted for the purposes of s 27(3) of the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) (NSI Act), which is presently listed on 7-9 and 14-17 April 2020.
The application was a matter initially raised in an email to my associate on 23 March 2020 which set out the facts relied upon in support of the application. The parties consented to that email being treated as an application in proceedings and to the facts stated in the email being treated as if they had been deposed to on oath or affirmation.
At the hearing conducted on 19 March 2020, counsel for the defendant raised the possibility of the vacation of the hearing for reasons associated with the current COVID-19 coronavirus pandemic. However, he made no formal application for vacation of the hearing. I declined to make any order vacating the hearing dates and gave reasons for adopting that approach on 20 March 2020: see R v Collaery (No 4) [2020] ACTSC 61 at [6]. I recognised that, having regard to the fact that circumstances related to the pandemic were changing on a daily basis, the matter would need to be kept under review.
As at 19-20 March 2020 the position adopted by the Attorney-General and the Commonwealth Director of Public Prosecutions (DPP) was to neither consent to nor oppose the vacation of the hearing dates. However, that position changed. On 26 March 2020 the solicitors for the Attorney-General and the solicitors for the DPP communicated to my associate that the position of each was to consent to the defendant’s application.
I requested some further information from the Attorney-General in relation to the availability of suitably secure telephone facilities which would permit the witnesses to be called by the defendant to be cross-examined by telephone. Further information was provided.
The matter was listed for directions on 31 March 2020. That hearing was conducted by telephone. Counsel for the defendant and the Attorney-General gave some further explanation of their clients’ positions. It remained the case that the defendant sought the vacation of the hearing dates and both the Attorney-General and the DPP consented to that order.
Position of the defendant
The position of the defendant was that a number of factors collectively meant that it was appropriate to vacate the hearing date. They may be summarised as follows:
(a)There would be an impact on the defendant’s ability to prepare for the hearing by reason of Commonwealth and state governments’ shutdown of non‑essential services and increased recommendations for social distancing in response to the COVID-19 pandemic. This has made it more difficult for the defendant to prepare, having regard to the fact that material subject to the certificate under s 26 of the NSI Act or orders under s 22 of that Act may only be accessed in particular locations, and government recommendations in relation to social distancing make preparation of submissions and conferences with witnesses more difficult.
(b)The Commonwealth has advised against all non-essential travel and the conduct of the hearing would involve all but two of the defendant’s lawyers travelling to and from Sydney at least twice.
(c)Both senior counsel appearing for the defendant have underlying health issues which increase the risk of adverse consequences from an infection with COVID-19. Both, however, indicated that if the hearing proceeded they would, despite the concerns arising from those conditions, appear for the defendant.
(d)Mr Flynn, the solicitor with principal carriage of the matter on behalf of the defendant, is in self-isolation as a result of medical advice relating to a medical condition of a member of his family and would not be able to be present for the hearing. There are, however, other senior solicitors who are able to conduct the proceeding on behalf of the defendant.
(e)The witnesses who have been required by the Attorney-General for cross‑examination include older persons who would be required to travel from Sydney or Melbourne if they were required to give evidence in court. The recommendations by the Commonwealth are that, because of the likelihood of more severe consequences of COVID-19 in older persons, such persons should self-isolate to the extent practicable.
Position of the Attorney-General
The position of the Attorney-General changed from neither consenting nor opposing the vacation of the hearing to consenting to the defendant’s application because of the difficulties in making available the witnesses whose affidavits he wished to rely upon and who had been required for cross-examination. Five of the six witnesses relied upon by the Attorney‑General are agency heads who participate in the Secretary’s Committee on National Security which operates to support the National Security Committee of Cabinet. By reason of the COVID-19 pandemic and the actions of the Australian Government in response to it, each of those persons is very heavily engaged in activities unrelated to this court case. Counsel for the Attorney-General indicated that this would significantly constrain their capacity to prepare for the hearing and, in the case of two of them, prevent them from being available on the listed hearing dates for cross-examination. As a consequence, in relation to those two witnesses, because they have been required for cross-examination, the Attorney-General would not be in a position to rely upon their evidence.
The Attorney-General also identified that it would not be practical for the court to permit the witnesses to be called by the defendant who have had access to confidential material to give their evidence other than in person. That was because the court’s facilities were not considered by the Attorney-General to be appropriately secure. If the court was prepared to sit elsewhere in order to hear that evidence by telephone, none of the other facilities available to the Commonwealth satisfied the three criteria of providing a suitable level of security, being of a size sufficient to accommodate the hearing and being available during the relevant period. As a consequence, it was not possible to overcome the difficulties associated with the defendant’s witnesses being required to undertake interstate travel during the pandemic by having them give their evidence by telephone from their home cities (being Sydney or Melbourne).
Counsel also referred to the difficulties involved in preparation for the hearing insofar as it involves confidential material which can only be examined in particular locations where appropriate social distancing may be difficult and the inability to discuss the content of such material over the telephone where the relevant lawyers are in different cities.
Position of the DPP
Consistent with the position of the Attorney-General, the DPP consented to the vacation of the hearing dates.
Decision
The matters identified in my earlier reasons remain relevant:
(a)The hearing has been listed for some time and, even without the complication of a COVID-19 pandemic, if the hearing is vacated it is likely to be delayed by many months.
(b)The COVID-19 pandemic and its interference with the business of the court means that any future hearing date is likely to be further delayed than would be the case in ordinary circumstances.
(c)The procedural history of the matter has already involved the vacation of the s 27(3) hearing on one previous occasion: R v Collaery (No 3) [2019] ACTSC 332.
(d)The court is continuing to conduct cases that involve oral hearings in other matters and remains available to hear the matter on the listed dates. Having regard to the fact that the hearing is required by statute to be conducted in closed court, only limited numbers of persons would be present and appropriate social distancing measures would be able to be imposed in the courtroom during the hearing.
(e)There remains a very strong public interest in having cases involving serious criminal charges heard and determined promptly.
So far as the COVID-19 pandemic is concerned, there is a real risk that the position will not improve for many months. At present, identified community transmission of the virus within the Australian Capital Territory is limited. As at today’s date, of the 80 identified cases in the Territory, none are identified as “Unknown/local transmission”, although one is identified as “Under investigation”. That will change and is likely to present increased risks for the lawyers and witnesses who are older or who have pre-existing health conditions. The risks associated with contraction of the COVID-19 virus through community transmission are only likely to abate once a vaccine is in widespread use. As a consequence, the vacation of the listed hearing dates may have adverse consequences for the defendant who has an interest in having the s 27(3) hearing as soon as possible, as a precursor to his trial and the determination of his guilt or innocence. However, that delay will be an inevitable consequence of the application that he has made.
At present there are no legally enforceable restrictions on lawyers conducting the activities necessary to prepare for the case. In the Australian Capital Territory the restrictions imposed by the Public Health (Indoor gatherings) Emergency Direction 2020 (ACT) made under the Public Health Act 1997 (ACT) only prevent indoor gatherings of greater than 100 people and the Public Health (Self-Isolation) Emergency Direction 2020 (ACT) and Public Health (Closure of Non-Essential Business or Undertaking) Emergency Direction 2020 (No 3) (ACT) have no application to the preparation for, or conduct of, the proceedings.
In New South Wales the Public Health (COVID-19 Restrictions on Gathering and Movement) Order 2020 (NSW) made under the Public Health Act 2010 (NSW) contains exemptions from the restrictions on movement and gatherings for work and the fulfilment of legal obligations which would permit lawyers and witnesses to meet with each other and lawyers and witnesses to attend court: Schedule 1, item 2, item 11; Schedule 2 item 7, item 11. There may be doubt as to the capacity of witnesses to leave their place of residence for the purposes of participating in a pre-hearing conference with lawyers when not under a legal obligation to so participate: Schedule 1, item 11.
The inability of the defendant to make available for cross-examination, other than by interstate travel, the witnesses upon whom he wishes to rely, is a significant factor impeding the proper conduct of the hearing. There is a possibility that the Attorney‑General may decide that cross-examination of those witnesses is no longer required. However, that is merely a possibility and would not be known until the conclusion of the cross-examination of the Attorney-General’s witnesses. I would be reluctant to require those older witnesses to travel interstate for the purposes of giving evidence in circumstances where there were strong recommendations against such travel. Information provided by the Attorney-General is that the alternative of telephone evidence is not available on the dates when the hearing is listed to occur.
The inability of the Attorney-General to rely upon two of his proposed witnesses and the difficulties associated with making the others available for cross-examination during this stage of the pandemic is also a significant factor tending against the conduct of the hearing on the date listed.
The difficulties with the management of confidential information during the preparation and conduct of the hearing, which would be significant in normal circumstances, are exacerbated by the desirability of minimising travel outside the home as recommended by Commonwealth, State and Territory governments.
Finally, in assessing whether it is appropriate to accede to the parties proposal to vacate the hearing it is relevant to take into account the general desirability of participating in a reduction of human interaction in circumstances where that is the clear policy of Commonwealth, State and Territory governments. While I have noted the personal circumstances of the lawyers acting for the defendant I give those matters limited weight as the defendant would remain appropriately represented at the hearing and their participation in the hearing is not inconsistent with the enforceable restrictions in New South Wales or the Australian Capital Territory.
In aggregate, the matters referred to at [16]-[19] above are such that, notwithstanding the matters referred to at [12] above, it is appropriate to accede to the consent position of the parties.
The orders of the Court are:
1. By consent, the email from Christopher Flynn of 23 March 2020 12:48pm be taken as an Application in Proceedings seeking the vacation of the hearing listed to commence on 7 April 2020 and the facts stated therein be treated as if they were evidence given on oath or affirmation.
2. By consent, the hearing listed to commence on 7 April is vacated.
3. The date by which the Attorney-General must file submissions in reply as set by order 3 made on 12 March 2020 is amended to 9 April 2020.
4. The proceedings are listed for mention before Mossop J at 9.15am on 1 May 2020, which, unless the court otherwise directs, is to be conducted without any in person appearances.
| I certify that the preceding twenty-one [21] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Mossop. Associate: Date: 31 March 2020 |
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