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Top-secret evidence will be allowed in Bernard Collaery's court case, ACT Supreme Court judge rules

ABC News - March 16, 2022

Elizabeth Byrne – Evidence so secret that Canberra lawyer Bernard Collaery himself cannot know what it is will be permitted to be used by Commonwealth prosecutors in a trial against him.

Mr Collaery is accused of conspiring to reveal classified information about an alleged Australian spying operation in East Timor, during sensitive oil and gas treaty negotiations.

But the prosecution in the ACT Supreme Court has been bogged in a legal battle over secrecy, which has gone all the way to the High Court.

The delay has been further compounded by the fact the Commonwealth wants to rely on two types of evidence:

The first is the general prosecution evidence, and the second is so-called "court only" evidence, which the Commonwealth says should not even be shared with Mr Collaery or his lawyers.

In a ruling this week, Supreme Court Justice David Mossop found the evidence could be presented as "court only" material, with Mr Collaery's interests represented by a specially appointed counsel.

That special counsel would be able to see the evidence and advocate on Mr Collaery's behalf.

Mr Collaery had objected not just to the inclusion of the material but also to the appointment of a special counsel.

But Justice Mossop found it was a good idea.

"The appointment of special counsel will, assuming the defendant wishes to participate in the process, reduce the disadvantage to the defendant arising from the non-disclosure of the material," he said.

"It will allow any proper objections to the admissibility of the evidence to be made.

"It will allow submissions to be made about whether there should be cross-examination, and if that is permitted, allow a degree of testing of the evidence."

Balancing procedural fairness and national security concerns

The secret material allowed as court-only evidence is contained in a series of affidavits from past and present senior government officers, including Frances Adamson and Nick Warner.

However, while prosecutors can rely on the top-secret evidence, the Commonwealth will have to rely on the material originally filed to the court, and will not be able to bring in updated material as it had hoped.

This week's ruling is a setback for Mr Collaery's case after a win last year in the ACT Court of Appeal, which cleared the way for other key evidence in the case to be heard in public.

Despite finding in Mr Collaery's favour last year, the full judgement has not been released by the Court of Appeal, because the Commonwealth has taken parts of the case to the High Court, where a decision on special leave to appeal is yet to be considered.

Mr Collaery's co-accused, known as Witness K, pleaded guilty and was given a three-month suspended sentence for his part in the conspiracy.

Source: https://www.abc.net.au/news/2022-03-16/bernard-collaery-top-secret-evidence-allowed/10091443