Australia: Judgment handed down on secrecy in Bernard Collaery prosecution

Lawyers Weekly write…

The ACT Court of Appeal has handed down its judgment on the secrecy provisions that has followed the prosecution of Bernard Collaery on conspiracy charges.

Bernard Collaery has won his appeal to overturn a decision to keep parts of his trial in total secrecy, with the Court of Appeal unanimously ruling that open justice is important to deter political prosecutions. Although some sensitive information will remain out of the public’s reach, “six specific matters” were accepted.

While the Court of Appeal accepted that public disclosure of these matters would involve a “risk of prejudice to national security”, it doubted that a significant risk of prejudice to national security would materialise throughout the trial.

“On the other hand, there was a very real risk of damage to public confidence in the administration of justice if the evidence could not be properly disclosed. The court emphasised that the open hearing of criminal trials was important because it deterred political prosecutions, allowed the public to scrutinise the actions of prosecutors and permitted the public to properly assess the conduct of the accused person,” the judgment read.

The Commonwealth is chasing the prosecution of Mr Collaery for disclosing details about the bugging of Timor-Leste government buildings in 2004, an operation that was designed to give Australia an advantage in negotiation talks for Timor Sea resources. Mr Collaery’s co-charged and client, former spy Witness K, was given a three-month suspended sentence and was ultimately spared jail time.

Mr Collaery is facing a charge involving conspiracy to breach a secrecy provision in the Intelligence Services Act with Witness K and a further four charges for breaching the provision by communicating with journalists about the Timor-Leste bugging.

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