R v Scerba
[2015] ACTSC 176
•30 June 2015
HUMAN RIGHTS ACT
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | R v SCERBA |
Citation: | [2015] ACTSC 176 |
Hearing Date(s): | 30 June 2015 |
DecisionDate: | 30 June 2015 |
Before: | Refshauge J |
Decision: | See the Schedule to the Reasons for Judgment. |
Category: | Principal Judgment |
Catchwords: | CRIMINAL LAW – Jurisdiction, practice and procedure – Unauthorised access to or modification of restricted data – Disclosure of information by a Commonwealth officer – Dealing with sensitive information in the context of a fair trial – Prejudice to national security – Principle of open justice – Public interest – Orders by consent |
Legislation Cited: | Crimes Act 1914 (Cth), ss 70, 85B Criminal Code 1995 (Cth), ss 93(2), 478.1 |
Cases Cited: | Alister v The Queen (1984) 154 CLR 404 Attorney-General for New South v Stuart (1994) 34 NSWLR 667 |
Parties: | The Queen (Crown) Michael Scerba (Accused) |
Representation: | Counsel Ms K Haig (Crown) Mr T Begbie (Commonwealth Attorney-General) Mr P Edmonds (Accused) |
| Solicitors Commonwealth Director of Public Prosecutions (Crown) Australian Government Solicitor (Commonwealth Attorney-General) Canberra Criminal Lawyers (Accused) | |
File Number(s): | SCC 131 of 2015 SCC 132 of 2015 |
REFSHAUGE J:
By summons on information dated 13 February 2015, the accused, Michael Scerba, was brought before the Magistrates Court on 22 April 2015, where he was charged with unauthorised access to or modification of restricted data, an offence against s 478.1 of the Criminal Code 1995 (Cth) and disclosure of information by a Commonwealth officer, an offence against s 70 of the Crimes Act 1914 (Cth).
He was, on 5 June 2015, committed for trial to this Court. No date has yet been set for the trial. It appears that he has proposed to plead guilty to one count and the other count may also be subject to a plea, although that has not yet been proposed.
The relevant information and data, the subject of the charges, is sensitive information contained in a classified report by the Defence Intelligence Organisation, which it is alleged has been improperly disclosed.
I have read a confidential affidavit, filed without objection, which sets out reasons, which I accept, as to why the public disclosure of the contents of the affidavit and the sensitive information would be prejudicial to national security. Accordingly, I have returned the affidavit to the Commonwealth, upon accepting an undertaking that it will be returned to the court should that be required for the court's purposes.
The question then is how to deal with the issue of the sensitive information, the subject of the charges, in the context of a fair trial.
Legislation at the Commonwealth level has been enacted to provide a framework and process to deal with this issue. I refer to the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth). It is not necessary to describe that Act or its reach in detail. The objectives make the intent but balance of the Act clear. Those objectives are set out in s 3 of the Act and are as follows.
s 3 Object of this Act
(1) The object of this Act is to prevent the disclosure of information in federal criminal proceedings and civil proceedings where the disclosure is likely to prejudice national security, except to the extent that preventing the disclosure would seriously interfere with the administration of justice.
(2) In exercising powers or performing functions under this Act, a court must have regard to the object of this Act.
The first principle is, of course, that justice should be open. I have discussed the principle in some detail in R v Meegan [2014] ACTSC 263 at [7]-[16], although acknowledging that there is a power to limit that principle. The principle is also recognised in the principles of a fair trial under s 21 of the Human Rights Act 2004 (ACT).
The principle of open justice has long been recognised as fundamental, for instance, in the United Kingdom in Scott v Scott [1913] AC 417 at 473, where it was described as constitutional, and has been described as, "one of the most fundamental aspects of the system of justice in Australia", in John Fairfax Publications Pty Ltd v District Court of New South Wales (2004) 61 NSWLR 344 at [18]. See also John Fairfax Publications Pty Ltd v Ryde Local Court (2005) 62 NSWLR 512 at [60] and Hogan v Hinch (2011) 243 CLR 506 at [20] and [22].
However, it is accepted that this important public interest is a "principle and not a right", as pointed out in Fairfax Publications Pty Ltd v Ryde Local Court. It is, as the High Court pointed out in Hogan v Hinch, at [20], ‘a means to an end and not an end in itself.’ Accordingly, the principle must, of necessity, give way or accept modification to ensure that the proceedings are conducted in a manner which serves the overall interests of society.
Thus, where the openness of court proceedings "would derogate from even more urgent considerations of public interest as by endangering national security, the rule of openness must be modified", as was held by the Court of Criminal Appeal in Lodhi v R (2006) 171 A Crim R 448 at [25]-[26]. A court must also consider each case separately to decide how significant the actual departure from the principle of open justice will be. For example, in Australian Broadcasting Commission v Parish (1980) 29 ALR 228 at 236, the Full Court of the Federal Court pointed out:
The derogation from the principle, which is involved in making any order under s 50, may be very great; or it may not be great; it may be very small. In placing that principle in the scales, the degree of derogation involved in the proposed order is an important matter to be considered.
One of the areas where derogation is not only well recognised but commonly respected, is in the area of national security. Thus, the courts have continually placed emphasis on the interests represented by national security issues and the respect that the court must give to those interests. A few examples provided by Mr T Begbie, counsel for the Attorney-General, are representative and instructive. They are as follows.
Wilson and Dawson JJ in the High Court in Alister v The Queen (1984) 154 CLR 404 at 436 said, "National security undoubtedly forms a category of public interest of special importance."
Stephen J pointed out in Sankey v Whitlam (1978) 142 CLR 1 at 57, that documents concerning defence secrets and also diplomatic relationships with foreign governments are regarded as "archetypes" of public interest immunity claims.
In R v Mallah (Unreported, NSW Supreme Court, 11 February 2005), the New South Wales Supreme Court pointed out that "[t]he interests of national security and effective intelligence operations in an age of heightened terrorist activity are of great importance."
Mason CJ and Deane, Dawson and Gaudron JJ said in Church of Scientology Inc v Woodward (1982) 154 CLR 25 at 59 and 76:
No-one could doubt that the revelation of security intelligence in legal proceedings would be detrimental to national security...The public interest in national security will seldom yield to the public interest in the administration of civil justice.
Again, in R (Roberts) v Parole Board [2005] 3 WLR 152 at [73], the Court of Appeal in the United Kingdom pointed out that national security concerns are likely to be "especially compelling".
As noted above (at [4]), I have had an affidavit of a senior officer of the Defence Intelligence Organisation, information of which organisation had been the subject of the alleged disclosure.
The courts have required that, as described by Gibbs ACJ in Sankey v Whitlam at 44, full weight and proper respect be given to the views of the Executive about what the interests of national security are.
Indeed, Stephen J referred in the same case, at 60, to the need to give "great weight" to the opinion of the appropriate minister as had been referred to by Lord Pearson in Rogers v Home Secretary [1973] AC, at 406. I was, however, provided with a comprehensive and detailed explanation of the circumstances under which the sensitive information could be at significant risk to national security interests were that to be disclosed.
In Alister v The Queen, Wilson and Dawson JJ pointed out at 435 that:
[q]uestions of national security naturally raise issues of great importance, issues which will seldom be wholly within the competence of a court to evaluate. It goes without saying in these circumstances that very considerable weight must attach to the view of what national security requires as expressed by the responsible Minister.
The minister is, of course, the representative of the Executive and it seems to me that an appropriately experienced officer, as was the deponent to the affidavit in this case, is someone on whose opinion I could rely, particularly as I was fortunate to have a detailed and careful explanation of the rationale for the opinion that was expressed.
Having read that affidavit I was very much minded to acknowledge what Brennan J also said in Alister at 455, that the court is "ill-equipped itself to evaluate pieces of intelligence obtained by" the relevant intelligence agencies. Other courts have similarly referred to the need to attach significant weight to the views of such officers.
In R v Lodhi (2006) 163 A Crim R 508 at [37], Whealy J referred to the need to attach significant weight to the views of the Director-General of Security. The House of Lords emphasised in SSHD v Rehman [2003] 1 AC 153, that a court should not differ from the opinion of the Secretary of State on matters of national security provided there is an evidential basis for that opinion. The opinion has been clearly expressed in the affidavit and the evidence for that has also been set out in it and, indeed, I see no reason for departing from that opinion.
Naturally, courts have an obligation to hear and determine claims for the protection of sensitive information. In our system of justice, it is not the case that the Executive can, by mandate, provide for the interference with the open justice principle, which is an important one. Nevertheless, the hearing itself would be defeated, as pointed out in Scott v Scott, if the way in which it was conducted defeated the very protection which the claims sought to invoke. See R v Fandakis [2002] NSWCCA 5 at [41].
This may require the court, for example, to close the hearing, as has been done in matters that require such sensitivity, or implement less restrictive means of protecting the information, such as receiving affidavits, hearing submissions and inspecting documents on a confidential basis, as has been done in this case. Documents might be not shown to the public but handed up to the court, and as in this case, returned to the person tendering the document. In some cases it may require even documents not to be shown to other parties. See Lodhi v The Queen: R v Khazal [2006] NSWSC 1061 at [11]-[12]; R v Francis (2004) 145 A Crim R 233 at [12], [14] and [21]; Attorney-General for New South v Stuart (1994) 34 NSWLR 667 at 681; Alister v The Queen; Commonwealth v Northern Land Council (1992-93) 176 CLR 604 at 620; and Jackson v Wells (1985) 5 FCR 296 at 307.
The application currently before me has been made by consent and the other parties have agreed that it is appropriate that I make the orders sought. A draft order has been provided to me which relies upon the National Security Information (Criminal and Civil Proceedings) Act. Apart from that provision, the court has full power to make orders necessary to ensure the protection of national security. It has an inherent jurisdiction for that, as pointed out in Scott v Scott. Such orders may also be made under s 85B of the Crimes Act 1914 and s 93(2) of the Criminal Code. These provisions were relied upon to make broad protective orders in R v Lodhi, which were upheld on appeal. Such orders may also be made, as I have indicated, under the court's inherent power.
The source of power to make the orders sought by the Attorney-General, however, is s 22 of the National Security Information (Criminal and Civil Proceedings) Act. For the purposes of s 22, arrangements have been agreed between the parties and the Attorney-General on the terms of the draft orders. Those draft orders were handed up to me and I made some marginal amendments to those. The orders will, as amended by me, be submitted to the Court in due course.
The test under s 22(2) is that the court may make such order as it considers appropriate to give effect to the arrangements. The question then for the court is whether the orders are appropriate.
Having read the confidential affidavit, having read the proposed orders in careful form, having made some suggested amendments to them and having heard the consent of the parties, it is my view that the disclosure of the sensitive information may cause prejudice, in some instances very serious prejudice, to Australian national security and that the means proposed by the orders that are asked to be made by consent will be an appropriate limited, but effective, means of protecting that information.
They secure the protections necessary for security but do not prevent the parties or the Court from having appropriate access to the information. They address the national security protections comprehensively and it is appropriate that they do so at the outset of the proceedings. I note that such orders were made in the Magistrates Court when the committal proceedings were on foot and this was also by the consent of the parties.
The orders will obviate the need for the parties and the Court to comply with stringent processes which the National Security Information (Criminal and Civil Proceedings) Act would otherwise require the operation of s 22. Obviating that need is a welcome and sensible way for the parties and the court to proceed and a sensible offer within the legislation to do so.
I note that orders of the kind presently sought have been made in numerous proceedings, including proceedings in this Court, and I was referred to the decision of R v Benbrika (Ruling No 1) [2007] VSC 141, in which the range and extent of protective orders which would be made were illustrated in that case.
Having regard to the matters to which I have referred and the course of the proceedings before me, I am satisfied that the orders, as I have approved them, by the manuscript amendments that I have made to the draft orders, with the consent of the parties, are appropriate to be made for the balance of the interests that need to be protected in these proceedings and I make the orders as set out in that document as I have amended it.
These orders are a Schedule to these reasons.
| I certify that the preceding thirty-four [34] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge. Associate: Date: 31 July 2015 |
SCHEDULE
IN THE SUPREME COURT
AT CANBERRA IN THE NO SCC 131/15
AUSTRALIAN CAPITAL TERRITORY
| REVISED FORM | R |
| V | |
| MICHAEL SCERBA |
ORDERS FOR THE PROTECTION OF INFORMATION
RELATING TO NATIONAL SECURITY
Date of order: | |
Justice: | Refshauge J |
THE COURT NOTES THAT, under section 23(2) of the National Security Information (Criminal and Civil Proceedings) Act 2004 (Cth) (NSI Act), these orders apply in lieu of the National Security Information (Criminal and Civil Proceedings) Regulations.
BY CONSENT THE COURT MAKES THE FOLLOWING ORDERS UNDER section 22 of the NSI Act, section 93.2 of the Criminal Code Act 1995 (Cth) and section 85B of the Crimes Act 1914 (Cth), which orders shall operate until further order.
Preliminary
1.1Liberty is reserved to each party and the Attorney-General to apply to the Court to vary these orders.
1.2Any application to vary these Orders may only be made on the giving of 4 days’ notice to the Australian Government Solicitor (AGS) and any affected party or such shorter time as agreed or as ordered.
For the avoidance of doubt, these orders apply to ‘criminal proceedings’ (as defined by section 13 of the NSI Act) and continue to apply according to their terms after the conclusion of this proceeding.
In these Orders:
3.1‘Defendant Representative’ means:
(a) a solicitor or counsel engaged by the defendant to represent him in these proceedings; and
(b) any other person whom such solicitor or counsel concludes requires access to Sensitive Information for the purposes of the defendant’s representation in these proceedings.
3.2‘DIO Report’ means the report prepared by the Defence Intelligence Organisation dated 16 May 2012, the disclosure of which is the subject of the alleged offences.
3.3‘national security’ has the same meaning as provided for in section 8 of the NSI Act.
3.4‘notified Defendant Representative’ means a Defendant Representative who has:
(a) advised AGS in writing of their (i) full name (ii) date and place of birth and (iii) role in relation to the proceeding;
(b) provide AGS with a signed document acknowledging the existence of these Orders and that he or she is bound to observe them.
3.5‘redacted DIO Report’ means the version of the DIO Report from which information has been redacted and which forms part of the prosecution brief of evidence.
3.6 ‘Relevant person’ means:
(a) a party to this proceeding;
(b) a Defendant Representative;
(c) a representative of the Commonwealth Director of Public Prosecutions (CDPP);
(d) a Court official undertaking duties for the purposes of this proceeding; or
(e) any person who has been given a copy of these Orders, or has otherwise been made aware of the substance of these Orders;
but does not include a person who has or will have access to Sensitive Information in the ordinary course of their duties for the Commonwealth and who has a ‘need to know’ that information.
3.7‘Security Classified Document’ means:
(a) the DIO Report; or
(b) a document which has a security classification marked on it (such as ‘For Official Use Only’, ‘Restricted’, ‘Confidential’, ‘Secret’, ‘Top Secret’, ‘Protected’ or ‘Highly Protected’); or
(c) a document which the Commonwealth advises the parties and the Court must be treated as a Security Classified Document, whether the advice is provided before or after the document is received by a Relevant Person; or
(d) a copy of a Security Classified Document; or
(e) a document which, by these orders, must be treated as a Security Classified Document,
but does not include (i) the redacted DIO Report or (ii) any other document in respect of which the Commonwealth has advised in writing is not a Security Classified Document for the purposes of these orders.
3.8‘Sensitive Information’ means:
(a) any information contained in the DIO Report other than information which is also contained in the redacted DIO Report;
(b) any information contained in a Security Classified Document;
(c) any information from which (a) or (b) could be discerned; and
(d) any information which the Commonwealth advises the parties and the Court is Sensitive Information, whether the advice is provided before or after the information is disclosed,
but does not include information in respect of which the Commonwealth has advised in writing is not Sensitive Information for the purposes of these orders.
3.9For the avoidance of doubt, references to the ‘Commonwealth’ in these orders do not include the Commonwealth Director of Public Prosecutions (CDPP).
Disclosure of Sensitive Information and Security Classified Documents
A Relevant Person must not disclose, permit access or otherwise reveal Sensitive Information or Security Classified Documents to any person unless the following requirements are satisfied:
4.1the disclosure, access or revealing is necessary for the conduct of the proceedings; and
4.2the disclosure, access or revealing is confined to one or more of the following persons:
(a) the Chief Justice or a Judge of the Supreme Court,
(b) the Associate to the presiding Judge;
(c) the Registrar of the Supreme Court (Registrar);
(d) any court or transcription official holding a security clearance, if any, which the Commonwealth advises the Registrar appropriate to the particular Sensitive Information which is to be disclosed during court hearings;
(e) the parties;
(f) officers of the CDPP acting in the proceedings;
(g) a notified Defendant Representative;
(h) AGS lawyers or Commonwealth officials representing the Commonwealth Attorney-General; and
(i) any other person in respect of whom the Commonwealth has provided written consent to the disclosure.
Recording, storing etc Sensitive Information and Security Classified Documents
Relevant Persons must not convey, communicate, transmit, transport, store, record, reproduce or copy Sensitive Information or Security Classified Document except when:
(a) doing so using means or equipment provided by, or approved in writing by, the Commonwealth as being appropriate for the particular Sensitive Information; and
(b) doing so in accordance with prior written advice from AGS that the Commonwealth consents to that particular action being taken with that particular Sensitive Information.
Order 5 does not prevent any person from disclosing Sensitive Information in the course of face to face discussions, provided the disclosure is in accordance with the requirements in Order 4.
Use of Sensitive Information and Security Classified Documents in Court
For the purposes of these proceedings, a version of the brief of evidence which has Sensitive Information redacted from it, and any such redacted document, may be used in the proceedings.
A legal representative for the CDPP or a notified Defendant Representative must not, in any proceedings in open Court:
8.1disclose or reveal any Sensitive Information; or
8.2invite or cause a witness or any other person to disclose or reveal any Sensitive Information.
If a legal representative for the CDPP or a notified Defendant Representative believes that it is necessary to:
9.1disclose or reveal any Sensitive Information in Court; or
9.2invite or cause a witness or any other person to disclose or reveal any Sensitive Information in Court,
they must advise AGS as soon as practicable after coming to that belief.
Upon receiving advice under order 9, AGS must advise the parties, through their legal representatives, of:
10.1any process or means by which the Commonwealth considers that particular Sensitive Information could be used in Court without it being disclosed or revealed to any person other than a person specified in order 4.2; and
10.2any of the following orders which the Commonwealth proposes to seek to enable the use of the Sensitive Information in Court while maintaining the protection of that information:
(a) an order for the closure of the Court;
(b) an order as to the persons who may be present in Court while it is closed;
(c) orders as to the secure recording of the proceedings in closed Court and any secure making and handling of the transcript of those proceedings;
(d) orders as to the other notes or records made during the course of proceedings in closed Court;
(e) orders limiting the disclosure of information which is to be disclosed in closed Court;
(f) orders as to electronic devices which are permitted to be brought in to the closed Court proceedings;
(g) any other orders the Commonwealth advises.
A Relevant Person who tenders or otherwise asks the Court to receive a Security Classified Document must tender the document as a confidential exhibit or ask the Court to receive the document on a confidential basis.
Filing, storing and access to Classified Court Documents
All Security Classified Documents must be filed by handing the documents in a sealed envelope to the Registrar.
The Registrar will place all Security Classified Documents produced, filed or tendered in the proceedings (referred hereafter as Classified Court Documents) on a file being used for these proceedings and no other proceedings (referred hereafter as the Classified Court File).
Other than when in use for the purposes of the proceedings, the Classified Court File will be
14.1placed in a sealed envelope(s) marked ‘Not to be opened without the authority of a Justice of the Supreme Court;
14.2locked in a safe, which is only accessible by the Registrar.
The Registrar will not make the Classified Court File, any Classified Court Documents or the redacted DIO report available to any person other than:
15.1the Chief Justice or Judge of the Supreme Court presiding over this proceeding from time to time (the presiding Judge);
15.2 the Associate to the presiding Judge;
15.3 the Chief Justice or other Judge of the Supreme Court;
15.4 a person specified in paragraphs 4.2(e) to (h) above.
If a person (other than a person mentioned in order 15) wishes to access a Classified Court Document they may seek to do so by writing to the Registrar specifying the Classified Court Document(s) to which access is sought and the reason for which access is sought.
Where a written request is made in accordance with Order 16 and, but for these Orders the person would have been given access to the Classified Court Document(s), the following steps will be taken:
17.1 the Registrar will provide a copy of the request to the legal representatives for the parties and to AGS.
17.2 the parties and the Commonwealth must, within 3 business days of receiving the request from the Registrar, advise the Registrar whether any objection, or provisional objection, is made to the inspection and, if so, on what basis; and
17.3 if any objection relates to the disclosure of Sensitive Information in the document the Commonwealth must, within 7 days of making the objection, provide the Registrar with:
(a) advice that the provisional objection is withdrawn because the document does not contain Sensitive Information; or
(b) a copy of the document from which all Sensitive Information has been redacted (the Redacted Court Document).
The Registrar will thereafter:
18.1 provide access to any Classified Court Document(s) or Redacted Court Document(s) which the Commonwealth has advised do not contain Sensitive Information; or
18.2 make arrangements for any objection to inspection to be determined by a Justice of the Supreme Court.
Disclosure etc of redacted DIO Report
A Relevant Person must not disclose, permit access or otherwise reveal the redacted DIO Report to any person unless the following requirements are satisfied:
19.1the disclosure, access or revealing is necessary for the conduct of the proceedings; and
19.2the disclosure, access or revealing is confined to one or more of the persons in Order 4.2 above.
If the Court receives the redacted DIO Report into evidence or for any other purpose, it will include the redacted DIO Report in the Classified Court File and treat it in accordance with Orders 14 and 15 above.
Destruction of Security Classified Documents and redacted DIO report
The defendant and any Defendant Representative who has in his or her possession, custody or control a Security Classified Document or the redacted DIO report must comply with order 22 within 28 days of the earlier of:
21.1 the conclusion of the criminal proceedings or any trial or appeal arising from the proceedings; or
21.2the person ceasing to act in the proceeding (unless the documents are provided to another lawyer who has commenced to act in the proceeding and is a notified Defendant Representative).
The defendant and any Defendant Representative must provide any such Security Classified Document or the redacted DIO report (including any copies of them) to AGS so that the Commonwealth can arrange for the destruction of the documents.
If the defendant or any Defendant Representative so requests, the Commonwealth will arrange for the destruction of the documents to be done at an agreed time and place so that the person can witness their destruction.
Date Entered:
Registrar
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