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R v Collaery (No 7)

R v Collaery (No 7)

Case [2020] ACTSC 165 26 June 2020

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SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY

Case Title:	R v Collaery (No 7)
Citation:	[2020] ACTSC 165
Hearing Dates:	25 May 2020 – 29 May 2020
DecisionDate:	26 June 2020
Before:	Mossop J
Decision:	[See 157]
Catchwords:	NATIONAL SECURITY – APPLICATION FOR ORDERS PROHIBITING DISCLOSURE – Nature of task under s 31(7) and (8) of National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) – Real risk of prejudice to national security – no substantial adverse effect on defendant’s right to fair hearing – orders consistent with the Attorney-General’s certificate should be made
Legislation Cited:	Classified Information Procedures Act (18 USC App III) Criminal Code 2002 (ACT), s 712A Criminal Code Act 1995 (Cth), s 11.5 Evidence (Miscellaneous Provisions) Act 1991 (ACT), s 74, Ch 4 Intelligence Services Act 2001 (Cth), s 39, 41A National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth), ss 3, 6, 7, 8, 9, 10, 17, 24, 26, 27, 29, 31, 43 Parliamentary Privileges Act 1987 (Cth)
Cases Cited:	Alister v The Queen (1984) 154 CLR 404 Commonwealth v Vance [2005] ACTCA 35; 158 ACTR 47 Gilbert v The Queen [2000] HCA 15; 201 CLR 414 Hogan v Hinch [2011] HCA 4; 243 CLR 506 Lodhi v The Queen [2007] NSWCCA 360; 179 A Crim R 470 Maxwell v The Queen (1996) 184 CLR 501 R v Collaery (No 6) [2020] ACTSC 164 R v Lappas and Dowling [2001] ACTSC 115 R v Lodhi [2006] NSWSC 571 R v Scerba [2015] ACTSC 176; 299 FLR 221 Sankey v Whitlam (1978) 142 CLR 1
Texts Cited:	Australian Law Reform Commission, Keeping Secrets, Report No 98 (2004) Walker, B, Independent National Security Legislation Monitor Annual Report (7 November 2013) Whealy, A, “Difficulty in obtaining a fair trial in terrorism cases” (2007) 81 ALJ 743
Parties:	The Queen (Crown) Bernard Collaery (Defendant)
Representation:	Counsel R Maidment QC and C Tran (Crown) P Boulton SC, C Ward SC and R Khalilizadeh (Defendant) J Kirk SC, A Mitchelmore SC, T Begbie and D Forrester (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

Bernard Collaery is facing five charges on an indictment dated 12 September 2019. Four of the counts on the indictment allege breaches of s 39 of the Intelligence Services Act 2001 (Cth). A further count on the indictment (Count 1) is a charge of conspiracy to breach s 39, alleged to have been entered into with a person known as Witness K.

These reasons relate to an application by the Attorney-General of the Commonwealth for orders under s 31 of the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) (NSI Act), which would have the effect of requiring that significant parts of the trial on those charges not be conducted in public and that persons involved in the trial, including the jurors, not disclose the information given…

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 7)

Details

AGLC: R v Collaery (No 7) [2020] ACTSC 165
Case: [2020] ACTSC 165
Decision Date: 26 June 2020

CaseChat Overview and Summary

In the case of R v Collaery (No 7), the respondents sought orders prohibiting disclosure in relation to information protected by the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth). The application was brought before the High Court, with the primary focus being on the interpretation and application of the specified sections of the Act, particularly in the context of national security concerns. The respondents argued that the disclosure of certain information would cause a real risk of prejudice to national security and that the orders sought were necessary to protect sensitive information without substantially affecting the respondents' right to a fair hearing.

The legal issues central to the case revolved around the interpretation of sections 31(7) and 31(8) of the Act, which pertain to the protection of national security information in criminal proceedings. The court had to determine whether the orders sought by the respondents were appropriate in light of the risk to national security and whether such orders would unduly infringe upon the respondents' right to a fair trial. Additionally, the court needed to assess whether the Attorney-General's certificate, which supported the application for non-disclosure orders, was valid and appropriately aligned with the requirements of the Act.

In its reasoning, the High Court found that the respondents had demonstrated a real risk of prejudice to national security if the protected information were disclosed. The court concluded that the orders sought by the respondents were consistent with the Attorney-General's certificate and would not have a substantial adverse effect on the respondents' right to a fair hearing. The court emphasized the importance of balancing national security interests with the fundamental right to a fair trial, and determined that the orders were necessary to safeguard sensitive information without compromising the integrity of the judicial process. The court granted the orders sought by the respondents, consistent with the requirements of the Act.

Orders

Orders of the court

[See 157]

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

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Citations

AGLC Citation

R v Collaery (No 7) [2020] ACTSC 165

Most Recent Citation

R v Collaery (No 9) [2020] ACTSC 291

Cases citing this decision · 12 of 12 shown

Straczek and Director-General, National Archives of Australia
[2025] ARTA 1045 Para 19

…ce in relation to the value of the NCND principle and the risks of prejudice that would arise from disclosure appropriately in the circumstances. [4] [2020] ACTSC 165 [68]. Evidence…
Collaery v The Queen (No 4)
[2023] ACTCA 47

…Court: ACT Supreme Court Before: Mossop J Date of Decision: 26 June 2020 Case Title: R v Collaery (No 7) Citation: [2020] ACTSC 165…
Zhang v The Age Company Pty Ltd
[2023] ACTCA 10 Para 1

…t and public exposure of prosecutorial decisions is a key mechanism encouraging the reasonable and fair exercise of that power: R v Collaery (No 7) [2020] ACTSC 165 at [127]. More generally, the conduct of governments in court proceedings and the conduct of governments who are potentially subject to court proceedin…
R v Parlov; R v Mena; R v Roberts (No 2)
[2022] ACTSC 223 Para 1

…evant to refer to the observations of French CJ in Hogan v Hinch [2011] HCA 4; 243 CLR 506 at [21]–[22], cited with approval in R v Collaery (No 7) [2020] ACTSC 165; 354 FLR 7 at [122]:…
Monday (a pseudonym) v The Queen
[2022] ACTCA 25 Para 1

…evant to refer to the observations of French CJ in Hogan v Hinch [2011] HCA 4; 243 CLR 506 at [21]–[22], cited with approval in R v Collaery (No 7) [2020] ACTSC 165; 354 FLR 7 at [122]:…
R v Collaery (No 12)
[2022] ACTSC 108

…; 36 VR 402 Project Blue Sky Inc v Australian Broadcasting Authority [1998] HCA 28; 194 CLR 355 R v A2 [2019] HCA 35; 269 CLR 507 R v Collaery (No 7) [2020] ACTSC 165 R v Saengsai-Or [2004] NSWCCA 108; 61 NSWLR 135 R v Saleam (1989) 16 NSWLR 14 R v Saleam [1999] NSWCCA 86 R v Tang [2008] HCA 39; 237 CLR 1…
R v Collaery (No 11)
[2022] ACTSC 40 Para 1

…he subject of orders under s 22 of the NSI Act regulating their handling and disclosure. The affidavits relied upon are listed in R v Collaery (No 7) [2020] ACTSC 165 at [57] and [59].…
R v Collaery (No 10)
[2021] ACTSC 311 Para 1

…1] 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 t…
Collaery v The Queen (No 3)
[2021] ACTCA 34 Para 9

…e highlighted material, including the material relating to the truth of the Identified Matters, should not be publicly disclosed: R v Collaery (No 7) [2020] ACTSC 165. Consequently, it was unnecessary for his Honour to address the admissibility and possible effect of the "court only" material.…
Collaery v The Queen (No 2)
[2021] ACTCA 28 Para 1

…he effect of prohibiting public disclosure of certain information likely to be disclosed to the Court in the appellant’s trial: R v Collaery (No 7) [2020] ACTSC 165; (2020) 283 A Crim R 524. A consequence of the order is that part, perhaps a large part, of the appellant’s trial will be closed to the public and evid…
Collaery v The Queen
[2021] ACTCA 1

…Court/Tribunal: ACT Supreme Court Before: Mossop J Date of Decision: 26 June 2020 Case Title: R v Collaery (No 7) Citation: [2020] ACTSC 165…
R v Collaery (No 9)
[2020] ACTSC 291 Para 1

…on of the Commonwealth witnesses including a number of departmental and agency heads. The court then determined those issues: R v Collaery (No 7) [2020] ACTSC 165. In those circumstances it is not clear why the defendant should be entitled to pursue documents for the purpose of, in effect, reopening the s 27 hearin…

View all 12 citing cases →

Cases cited in this decision · 11 of 11 shown

R v Collaery (No 6)
[2020] ACTSC 164 Para 1

…uded by s 16 of the Parliamentary Privileges Act 1987 (Cth). I have given my reasons in relation to that question separately: see R v Collaery (No 6) [2020] ACTSC 164. I observe that although an objection was taken by the Attorney-General to the admission of that material, that objection was taken without enthusias…
R v Scerba
[2015] ACTSC 176 Para 1

…In the context of the NSI Act, the principle of open justice has also been referred to and the authorities discussed by this court in R v Scerba [2015] ACTSC 176; 299 FLR 221 at [7]-[16].…
Hogan v Hinch
[2011] HCA 4 Para 1

…A useful articulation of the open court principle is provided in the concurring judgment of French CJ in Hogan v Hinch [2011] HCA 4; 243 CLR 506 ( Hogan ) at [20]-[22] which was as follows:…
Lodhi v R
[2007] NSWCCA 360 Para 1

…n R v Lodhi [2006] NSWSC 571 ( R v Lodhi ). His Honour’s decision was upheld by the New South Wales Court of Criminal Appeal: see Lodhi v The Queen [2007] NSWCCA 360; 179 A Crim R 470 ( Lodhi v The Queen ).…
Regina v Lodhi
[2006] NSWSC 571 Para 1

…The constitutional validity of the Act and, in particular, s 31(8) of the Act, was considered by Whealy J in R v Lodhi [2006] NSWSC 571 ( R v Lodhi ). His Honour’s decision was upheld by the New South Wales Court of Criminal Appeal: see Lodhi v The Queen [2007] NSWCCA 360; 179 A Crim R 470 ( Lodhi v The Queen ).…
Commonwealth v Vance
[2005] ACTCA 35 Para 1

…er to ensure that the court did not fall into error as a consequence of the issue not being properly drawn to its attention: see Commonwealth v Vance [2005] ACTCA 35; 158 ACTR 47. In case my ruling on the issues raised by the objection is wrong I indicate that the evidence the subject of the ruling was largely per…
R v Simon Lappas and Sherryll Ellen Dowling
[2001] ACTSC 115 Para 1

…oceedings on at least one charge were stayed as a result of the inability to protect certain documents from public disclosure: R v Lappas and Dowling [2001] ACTSC 115 ( Lappas ). It is likely that the Lappas case prompted the then Attorney-General to refer the issue of the protection of classified and security sens…
Gilbert v The Queen
[2000] HCA 15 Para 1

…pon which jury trials take place is that jurors understand and comply with the directions that they are given by the trial judge: Gilbert v The Queen [2000] HCA 15; 201 CLR 414 at [31]. While trials involving the NSI Act or the subject matter of the present charges are not common, the issues as to the management…
Maxwell v The Queen
[1996] HCA 46 Para 1

…ring proceedings against a particular defendant for particular charges is a matter over which the court has very limited control: Maxwell v The Queen (1996) 184 CLR 501 at 514, 534. Clearly, placing prosecutorial decisions in the hands of statutorily independent prosecuting authorities will usually mean that the powe…
Alister v the Queen
[1984] HCA 85 Para 1

…be given to the opinion expressed by the Attorney-General or other senior government officials in relation to national security: Alister v The Queen (1984) 154 CLR 404 at 435; Sankey v Whitlam (1978) 142 CLR 1 at 44. The NSI Act does not itself mandate such an approach. In a usual case, such an approach will be adop…
Sankey v Whitlam
[1978] HCA 43 Para 1

…torney-General or other senior government officials in relation to national security: Alister v The Queen (1984) 154 CLR 404 at 435; Sankey v Whitlam (1978) 142 CLR 1 at 44. The NSI Act does not itself mandate such an approach. In a usual case, such an approach will be adopted by courts because the evidence of such…

Legislation cited in this decision · 6

National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth)
10, 17, 24, 26, 27, 29, 3, 31, 43, 6, 7,... 14 mentions (from Para 1)
Intelligence Services Act 2001 (Cth)
39, 41A 3 mentions (from Para 1)
Criminal Code Act 1995 (Cth)
11.5 2 mentions (from Para 1)
Evidence (Miscellaneous Provisions) Act 1991 (ACT)
74, 74) 2 mentions (from Para 1)
Australian Security Intelligence Organisation Act 1979 (Cth)
1 mention (from Para 1)
Parliamentary Privileges Act 1987 (Cth)
1 mention (from Para 1)