R v Johns (a pseudonym) (No 2)
[2023] ACTSC 83
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Johns (a pseudonym) (No 2) |
Citation: | [2023] ACTSC 83 |
Hearing Dates: | 4 April 2023; 14 April 2023 |
DecisionDate: | 18 April 2023 |
Before: | McCallum CJ |
Decision: | (1) That the sentencing decision of Burns J be published in the redacted form attached to this judgment. (2) That the unredacted decision be placed on the Court file in a sealed envelope marked “not to be opened without leave of a judge of the Court, such leave not to be granted without first hearing from the Attorney-General for the Commonwealth”. |
Catchwords: | JUDGMENT – SENTENCE – Publication of sentencing remarks – principle of open justice – where the principle of open justice must give way to the interests of national security |
Cases Cited: | Hogan v Hinch [2011] HCA 4; 243 CLR 506 John Fairfax Group v Local Court of New South Wales (1991) 26 NSWLR 131 |
Parties: | The Queen ( Crown) Attorney-General for the Commonwealth of Australia Alan Johns (a pseudonym) ( Defendant) |
Representation: | Counsel C Tran ( Crown) A Berger KC ( Attorney-General) J Nottle ( Defendant) |
| Solicitors Commonwealth Director of Public Prosecutions ( Crown) Australian Government Solicitor ( Attorney-General) Operational Legal Australia ( Defendant) | |
File Number: | SCC 248 of 2018 |
McCALLUM CJ:
Several years ago, Alan Johns (a pseudonym) was sentenced to a term of imprisonment after pleading guilty to five criminal offences based on his treatment of sensitive classified information.
The proceedings were conducted entirely in closed court. That extraordinary course was evidently seen as the only means to address concerns arising from the circumstance that the prosecution was, of its nature, based on facts that included national security information. The sentencing judge, Burns J, nonetheless contemplated that a version of his sentencing decision would in due course be published after the parties and the Attorney-General for the Commonwealth had been heard as to any redactions that should be made to preserve the secrecy of such information. His Honour made directions to facilitate that process but specified in those directions that, in any event, the offences to which the offender had pleaded guilty were not to be disclosed. No party has questioned the appropriateness of that direction.
After the conclusion of the sentencing process, there was an exchange of correspondence between the sentencing judge’s chambers, the offender and the Attorney-General for the Commonwealth but the form in which the judgment could appropriately be published was not settled before his Honour retired, following which the issue fell into abeyance. The fact that the issue remained unresolved was ultimately brought to the attention of the Registrar, who then listed the proceedings before me.
The prospect of a person being imprisoned in this country in proceedings closed to the public on suppressed charges proved by secret evidence is inherently likely to cause consternation. Secrecy is anathema to the rule of law. The administration of justice thrives on the discipline that comes with public scrutiny. That is the premise of the principle of open justice.
That said, it is recognised in the authorities that the principle of open justice is not absolute. There will be occasions on which some limitation of the principle is necessary to secure the proper administration of justice. The appropriateness of recognising the occasional need to depart from the principle of open justice is best explained in the examples given by French CJ in Hogan v Hinch [2011] HCA 4; 243 CLR 506 at [21]:
In a proceeding involving a secret technical process, a public hearing of evidence of the secret process could “cause an entire destruction of the whole matter in dispute”. Similar considerations inform restrictions on the disclosure in open court of evidence in an action for injunctive relief against an anticipated breach of confidence. In the prosecution of a blackmailer, the name of the blackmailer's victim, called as a prosecution witness, may be suppressed because of the “keen public interest in getting blackmailers convicted and sentenced” and the difficulties that may be encountered in getting complainants to come forward “unless they are given this kind of protection.” So too, in particular circumstances, may the name of a police informant or the identity of an undercover police officer. The categories of case are not closed, although they will not lightly be extended. Where “exceptional and compelling considerations going to national security” require that the confidentiality of certain materials be preserved, a departure from the ordinary open justice principle may be justified.
(Citations omitted.)
A common feature of those examples is that the interest at stake would be defeated if certain information (sometimes the interest at stake itself) were disclosed. The Attorney-General submits that the present case falls within the last example, raising exceptional and compelling national security considerations. That claim is supported by two affidavits, one which was read in open court and one which was confidential and made available only to the parties. The open affidavit provided a redacted version of the sentencing decision which the Attorney-General accepts could be published without harm to the interests of national security. The confidential affidavit provided the complete transcript of the sentencing decision to enable the Court to consider the content of the proposed redactions.
Having considered that evidence, both the Crown and the offender accepted the need for redactions. Both consented to publication of the sentencing decision in the redacted form proposed by the Attorney-General. In so doing, however, the offender made two important points.
First, the offender submitted that, as a matter of principle, the Court should publish as much of the sentencing decision as is consistent with the legitimate protection of national security. He noted that, in cases involving claims for secrecy in the interests of national security, any decision to redact the judgment should be based on “specific evidence together with a clear, cogent and logical reasoning process.” I agree. Claims for secrecy in the interests of national security that, of their nature, cannot be tested openly are apt to induce scepticism in the public mind. The public has no choice in such a case but to trust that the Court has subjected the government’s claim to appropriate scrutiny. It is accordingly appropriate for the Court to scrutinise the evidence in support of such a claim carefully and to test the need for secrecy with sceptical analysis.
That is particularly so in light of the second point made by the offender, which was that there are significant practical impediments to any potential challenge by him to the redactions proposed by the Attorney-General in this case. In that circumstance, which means that there is in effect no contradictor to the Attorney-General’s application, close scrutiny of the Attorney-General’s claims for secrecy is all the more important.
I have considered the evidence adduced on behalf of the Attorney-General carefully. That evidence, particularly the content of the confidential affidavit, leaves me in no doubt that the present case is one in which the principle of open justice must give way to the interests of national security. It is appropriate to record that, in one sense, the Attorney-General’s claim for secrecy here is against his own interest in that it undermines the deterrent effect of punishing the offender. That is significant because it may assist the reader of this judgment to accept that it is a claim that has not been lightly made.
For the reasons already explained, I have subjected the Attorney-General’s claim to sceptical analysis. However, in so doing, I have been mindful of the limitations of judicial experience compared with the extensive specialised expertise displayed in the confidential material before me. In that material, the proposed redactions are addressed with specificity and the reasons for seeking each redaction are clearly explained. The logic of requiring secrecy is exposed and is cogent.
I am accordingly satisfied that this is a case in which the principle of open justice must be modified because, to adopt the words of Kirby P in John Fairfax Group v Local Court of New South Wales (1991) 26 NSWLR 131 at 141, the very openness of the proceedings would “derogate from even more urgent considerations of public interest (as by endangering national security)”.
For those reasons, I make the following orders:
(1) That the sentencing decision of Burns J be published in the redacted form attached to this judgment.
(2) That the unredacted sentencing decision of Burns J be placed on the Court file in a sealed envelope marked “not to be opened without leave of a judge of the Court, such leave not to be granted without first hearing from the Attorney-General for the Commonwealth of Australia”.
| I certify that the preceding thirteen [13] numbered paragraphs are a true copy of the Reasons for Judgment of her Honour Chief Justice McCallum Associate: Date: 18 April 2023 |
ATTACHMENT
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v Johns (a pseudonym) |
Citation: | [2019] ACTSC 399 |
Before: | Burns J |
Decision: | See [38]. |
Catchwords: | CRIMINAL LAW – JURISDICTION, PRACTICE AND PROCEDURE – Judgment and Punishment – Sentence – national security information – where pleas of guilty entered at earliest opportunity – where defendant demonstrates remorse |
Legislation Cited: | Crimes Act1914 (Cth) s 16A |
Cases Cited: | R v Lappas [2003] ACTCA 21; 152 ACTR 7 R v Scerba (No 2) [2015] ACTSC 359 |
Parties: | The Queen ( Crown) Attorney-General for the Commonwealth of Australia Alan Johns (a pseudonym) ( Defendant) |
Representation: | Counsel A Sprague (Crown) J Davidson (Attorney-General) K Ginges (Defendant) |
| Solicitors Commonwealth Director of Public Prosecutions ( Crown) Australian Government Solicitor (Attorney-General) Gabbedy Milson Lee ( Defendant) | |
File Number: | SCC 248 of 2018 |
BURNS J:
Alan Johns, [REDACTED] you entered pleas of guilty to five charges in the ACT Magistrates Court and you were committed to this Court for sentence. You have maintained your pleas of guilty and it now falls to me to sentence you for those offences. I will refer initially to the charge numbers in the statement of facts.
Charge 1 is a charge [REDACTED] alleging [REDACTED] you communicated information [REDACTED] and the communication was not made in circumstances as permitted [REDACTED].
[REDACTED].
Charge 2 is a charge [REDACTED] alleging that [REDACTED]. The particulars of this charge are that [REDACTED]. The maximum penalty for this offence is [REDACTED] years imprisonment and/or a fine of [REDACTED] penalty units.
Charge 3 is also a charge [REDACTED] alleging that [REDACTED]. The particulars of this charge are that [REDACTED].
Charge 4 is a charge [REDACTED] alleging that [REDACTED] you made a record of information or other matter [REDACTED] and the record was not made in circumstances permitted [REDACTED]. The particulars of this charge are [REDACTED]. This offence carries a maximum penalty of [REDACTED] years imprisonment and or a fine of [REDACTED] penalty units.
Charge 5 is a charge [REDACTED] alleging that [REDACTED] you communicated information [REDACTED] and the communication was not made as permitted [REDACTED]. The particulars of this charge are [REDACTED]. This offence also carries a maximum penalty of [REDACTED] years imprisonment and/or a fine of [REDACTED] penalty units.
An agreed comprehensive statement of facts was tendered at the sentence hearing. I will not read the statement of facts, but I will however refer to the facts in somewhat greater detail in the course of these reasons. It is important to give consideration to the maximum penalty prescribed by the legislature with respect to each of the offences. The maximum penalty indicates how seriously the legislature considers the offence. While the maximum is to be reserved for cases that fall within the category of the worst type of offence covered by that section, it acts as a yardstick to assisting in determining the appropriate penalty for individual offences that fall outside of the worst-case category.
[REDACTED].
ln sentencing you, I must consider the factors set out in s 16A of the Crimes Act1914 (Cth), so far as they are relevant. I am obliged to impose individual sentences and an aggregate sentence that is of a severity appropriate in all of the circumstances of the offending. The first such factor is the nature and circumstances of the offending.
As an [REDACTED] you had access to sensitive [REDACTED] information. You were trusted [REDACTED] on behalf of the Australian people with highly classified material for the purpose of discharging your duties [REDACTED]. These offences commenced [REDACTED]. Your [REDACTED] security clearance was in the process of being reviewed. Undoubtedly, any reduction in your level of security clearance was likely to have a detrimental effect upon your career [REDACTED]. As someone who had dedicated himself over many years to work [REDACTED] I am sure that you found this [REDACTED] review of your security clearance to be stressful. I will add that I have little information regarding [REDACTED] the review of your security clearance but the fairness or otherwise of that process is not an issue in these proceedings.
Your offending traversed [REDACTED] a period of just over [REDACTED] months. It only ceased when you [REDACTED] were arrested [REDACTED].
Charge 1 is a rolled-up charge encompassing two breaches [REDACTED].
I accept that there is no evidence of that actually occurring, but the gravamen of the offence is the risk that is created by the offending conduct and the potential consequences if that risk eventuates. If there is evidence that the risk has eventuated that may be a reason for finding the offence is objectively more serious. Here there was a clear risk, albeit slight, that sensitive or confidential material may be disseminated [REDACTED] with potentially significant consequences [REDACTED].
Your motive [REDACTED] appears to have been to vent your anger over what you considered to be unfair treatment [REDACTED]. You were still angry when you [REDACTED]. I am satisfied that you did so as a lever to persuade those with whom you were dealing to comply with your wishes at that time.
Charge 2 relates to [REDACTED]. While this only occurred on a single occasion [REDACTED]. There was a clear risk that this information may be disseminated [REDACTED].
Charge 3 encompasses two breaches [REDACTED] and as such is a rolled-up charge. [REDACTED]. I accept that this was not intended to be published to the world at large but, as I have said earlier, it was a publication that carried with it a real, if not particularly significant risk, that it may be [REDACTED] disseminated, but with a real risk of significant detrimental consequences to national security and individuals were that to occur.
Charge 4 relates to a scheduled meeting [REDACTED]. The purpose of the meeting was to inform you of the decision to revoke your [REDACTED] clearance [REDACTED]. You were told of avenues for review of the decisions but you said you did not have trust in those processes and made comments about the Australian public being best placed to bring to account bad behaviour and cultural issues. You stated that the public has, "a lot of reach”.
[REDACTED].
The gravamen of Charge 4 is not the comments or statements you made in the course of this meeting, the gravamen is that you [REDACTED]. There was a real, clear risk that the information [REDACTED] could be obtained by third parties and if that were to occur it could lead to critical harm to Australia’s national security as well as critical risk to [REDACTED].
I am not satisfied that your motive for [REDACTED]. You clearly believed that you were being treated unfairly and in a different way to that in which others in the organisation had been treated in the past. You also expressed your lack of confidence in the processes available to challenge the decisions which had been made. On balance, I accept that one reason why you [REDACTED] was because you did not trust the process that was occurring [REDACTED]. This is not a mitigatory circumstance, as any motive on your part [REDACTED] to disseminate the contents to others would be a significant aggravating circumstance. The absence of an aggravating circumstance is not in itself a mitigating circumstance.
[REDACTED]. The question is why did you want them to know that? There are two clear possibilities. First, you may have wanted them to know that [REDACTED] to ensure that no attempt was made to misconstrue or misrepresent what had occurred. This would be consistent with your attitude demonstrated in the meeting of mistrust of the processes and those involved.
The second clear possible motive was to use the fact that you had this [REDACTED] as leverage in your dealings [REDACTED]. This would be an aggravating circumstance accompanying the commission of the offence and as such I would need to be satisfied beyond reasonable doubt of its existence. I am not so satisfied and accordingly, I will not sentence you on the basis that was a veiled threat to reveal [REDACTED] the information contained therein. The offence is nevertheless a very serious example of this type offending.
Charge 5 is a rolled-up charge [REDACTED].
[REDACTED]. Your purpose in doing so could only have been to remind those that you were dealing with that you could hurt [REDACTED] Australia’s security interests by disclosing the material in your possession. I am not satisfied that you actually intended to publish or disseminate that information, but you clearly wanted those you were dealing with [REDACTED] to believe that there was a possibility.
Your motive for wanting to engender that belief may have been revenge for what you considered to be unfair treatment or to use it as leverage in your dealings [REDACTED]. Whatever may have been your motive, I am satisfied that you intended that this statement should be considered a threat, albeit one that you were not intending to carry out. This was not merely an exercise in venting anger or frustration, it was directed towards engendering the belief to which l have referred.
There is no evidence that any of the information referred to in these charges has [REDACTED]. We may, in fact, never know if any of the obvious potential risks have come to fruition. As I earlier said, absence of evidence that the risk has come to fruition is not mitigatory.
Your counsel submitted that your conduct represented a grave lapse of judgment, but it was not malicious in the sense that you were not setting out deliberately to harm Australia's national security interests. I accept that your conduct was not malicious in that sense, but it was a continuing course of conduct that posed real risks for national security as well as for individuals. Some of the risks to individuals had the potential to be quite grave.
With your long history of employment in organisations engaged in high level security work and requiring an understanding of the need for secrecy, I cannot accept that you were unaware of the gravity of your conduct and the risks to national security as well as the lives and wellbeing of individuals that was inherent in your conduct. You were grossly reckless in your conduct because of your anger towards what you perceived to be unfair and discriminatory treatment of you [REDACTED].
You entered pleas of guilty to these charges at the earliest opportunity. Your pleas have significant utilitarian value and evidenced a willingness to facilitate the course of justice. I am also satisfied that your plea is evidence of remorse for these offences. I will reduce the otherwise appropriate sentences by approximately 25 per cent because of your pleas of guilty.
There is no evidence that you have attempted to pass on to third parties any confidential information [REDACTED]. You have cooperated in bringing the present charges to an early finality in a manner least likely to attract attention. You also provided or attempted to provide assistance to the authorities [REDACTED]. I am told that you intend commencing a career in business with your brother when you are released from custody. You accept that you will never again be able to work in an environment which requires a high-level security clearance.
You have no prior criminal history. You are [REDACTED] years old and therefore you are still relatively young. I am satisfied that you have demonstrated remorse for these offences and that it is unlikely that you will commit offences of this nature again. I am satisfied that you have excellent prospects for rehabilitation and that specific deterrence should not be given significant weight in sentencing you for these offences.
For the purpose of the sentence hearing, you were seen by Dr [REDACTED] a consultant forensic psychiatrist [REDACTED]. Dr [REDACTED] opined that at the time you were suffering a depressive illness of mild severity. Your mood declined [REDACTED] such that Dr [REDACTED] diagnosed a depressive illness of moderate severity. At the time he saw you he described the condition as mild to moderate severity. Dr [REDACTED] stated:
I consider that his ill-considered actions as alleged reflect the impaired judgment of depression and a reaction to what he believed as injustices directed at him. I do not consider that depression was the predominant cause of him acting in the manner alleged but I consider that impairment of judgment due to depression was likely to have been a significant element underpinning the alleged offences.
On balance, I interpret Dr [REDACTED] report as expressing the opinion that your depressive illness played a significant role in the commission of these offences by impairing your judgment, but it was not the only or even predominant circumstance relevant to your offending. I nevertheless accept that your moral culpability is moderately reduced by reason of your depressive illness and there should be some sensible moderation of the importance of general deterrence.
I take into account your personal history as set out in the report of Dr [REDACTED]. Prior to these offences you led an exemplary life [REDACTED]. Prior good character has a limited role to play in mitigation offences of the present type as you would not have been in a position to have had access to the information and material referred to in the charges if you had not been a person of previous good character.
I accept that your present period in custody has been considerably more difficult for you than it would be for most remandees. You have to use an alias [REDACTED] and you have been precluded from telling anyone except your brother and uncle that you are in custody. Even your mother has not been told. Accordingly, your visitors have been limited. You have had to largely keep to yourself in custody and to be circumspect with other detainees. These conditions are not conducive to improving your depressive condition.
I find little assistance in the sentencing imposed in previous cases to which I have referred, being R v Lappas [2003] ACTCA 21; 152 ACTR 7 and R v Scerba (No 2) [2015] ACTSC 359. The circumstances of each of those cases differed markedly from the present. I am satisfied that each of the present offences call for a term of imprisonment. A degree of accumulation is also appropriate. In my opinion, at least part of the aggregate sentence must be served by way of full time in prison.
Alan Johns, please stand:
(1) On the charge that is referred to as charge 5 in the statement of facts, or charge 24 on the information and summons, you are convicted and sentenced to 15 months’ imprisonment [REDACTED]. I have reduced this from 20 months by reason of your plea of guilty.
(2) On charge 1 on the statement of facts which is charge 20 on the information and summons, you are convicted and sentenced to 12 months’ imprisonment [REDACTED]. I have reduced this from 16 months because of your plea of guilty.
(3) On charge 3 in the statement of facts, which is charge 22 on the information and summons, you are convicted and sentenced to 12 months’ imprisonment [REDACTED]. I have reduced this from 16 months because of your plea of guilty.
(4) On charge 4 on the statement of facts, which is charge 23 on the information and summons, you are convicted and sentenced to 10 months’ imprisonment [REDACTED]. I have reduced this from 14 months because of your plea of guilty.
(5) On charge 2 on the statement of facts, which is charge 21 on the information and summons, you are convicted and sentenced to 9 months’ imprisonment [REDACTED]. I have reduced this from 12 months because of your plea of guilty.
(6) The aggregate sentence which l have imposed is therefore one of 2 years and 7 months’ imprisonment, [REDACTED].
(7) I order that [REDACTED] on a recognisance self in the sum of $1,000 to be of good behaviour for a period of three years [REDACTED] with conditions:
a. Firstly, that you undertake treatment with a psychologist [REDACTED] for that period of 3 years or such lesser period as recommended in writing by your psychologist;
b. Secondly, that you authorise your psychologist to provide a report every 6 months [REDACTED] setting out your attendance for treatment and the nature of the treatment provided;
c. Thirdly, you are not to travel overseas without the prior approval of [REDACTED] this Court.
| I certify that the preceding thirty-eight [38] numbered paragraphs are a true copy of the Reasons for Sentence of his Honour Justice Burns Associate: Date: |
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