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…

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 Johns (a pseudonym) (No 2)

Details

AGLC: R v Johns (a pseudonym) (No 2) [2023] ACTSC 83
Case: [2023] ACTSC 83
Decision Date

CaseChat Overview and Summary

In the matter of R v Johns (a pseudonym) (No 2), the Supreme Court of the Australian Capital Territory was tasked with determining the appropriate manner in which the sentencing decision of Burns J should be published. The defendant, Alan Johns, had pleaded guilty to five criminal offences related to the handling of sensitive classified information, and the sentencing proceedings were conducted entirely in closed court due to the nature of the prosecution based on facts involving national security information. The sentencing judge had contemplated that a version of his sentencing decision would eventually 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. However, the issue of the form in which the judgment could appropriately be published remained unresolved before the sentencing judge retired, and the matter was brought before McCallum CJ.

The legal issue before the court was whether the sentencing decision should be published in its entirety or whether some or all of it should be redacted to protect national security. The court considered that the principle of open justice is not absolute and that there may be occasions when some limitation of the principle is necessary to secure the proper administration of justice. The court recognised that exceptional and compelling considerations going to national security may require a departure from the ordinary open justice principle. Having carefully considered the evidence presented by the Attorney-General for the Commonwealth, both the Crown and the offender accepted the need for redactions. Both parties consented to publication of the sentencing decision in the redacted form proposed by the Attorney-General. However, the offender made two important points. First, he 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. Second, he noted that there are significant practical impediments to any potential challenge by him to the redactions proposed by the Attorney-General in this case. The court agreed that 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 court accordingly scrutinised the evidence in support of the Attorney-General's claim carefully and tested the need for secrecy with sceptical analysis.

The court was satisfied that this was a case in which the principle of open justice must be modified because the very openness of the proceedings would "derogate from even more urgent considerations of public interest (as by endangering national security)." The court made the following orders: (1) that the sentencing decision of Burns J be published in the redacted form attached to this judgment and (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."

Orders