Source
r/auslaw•
ajdlinux

R v Collaery (No 10) [2021] ACTSC 311

Judgment

Judgment here: https://www.courts.act.gov.au/supreme/judgments/r-v-collaery-no-10

Questions from a non-lawyer:

  1. Paragraphs 3-5 seem, as Kieran Pender put it on Twitter (https://twitter.com/KieranHRLC/status/1468078125342859264) to be "remarkable criticism" of the Court of Appeal. By judicial standards, how remarkable is it? (Another non-lawyer acquaintance thought that it was so critical as to be inappropriate for a judge, I personally have no idea. Noting of course that we don't have the Court of Appeal's judgment yet...)

  2. Mossop J seems to be saying that Court of Appeal's interpretation of correctness vs discretion is going to cause significant practical issues for any future NSIA case. How valid is that concern?

  3. Can someone explain to me what seems to be a bit of a procedural mess at paragraphs 11-15/32?

Posted Dec 7, 2021, 2:30 PM UTC

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jb0318Pleads the fifth•

Nice try, ASIS. Get your own legal advice.

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Boeyn•
  1. Not that remarkable, especially given how rare decisions about the NSI are. It might be described as criticism, but I think it's really just commenting (albeit directly) on the practical implications of treating a decision under s 31 as one that does not involve the exercise of a discretion. It's not uncommon for judges at the coal face to throw some shade at intermediate appellate courts about the practical implications of their decisions and remind them what life is like as a first instance judge where you have to perform such trivial tasks as 'case management'.
  2. The bit of the court's decision that actually does the thing their reasons say is going to happen is an 'order', which is usually a typed document that is signed by the judge (or authenticated by the Registry on their behalf) and delivered to the parties after the court's reasons are published. It sounds like that document was never created, and all that happened in this case was that the parties received a handwritten document listing the orders made in court, which was presumably taken by the Associate when the reasons were handed down. That's not exactly a reliable document, particularly when a single word in an order can be the source of confusion/debate (see Elliott v Lindholm [2020] VSCA 260 at [46]-[49] as an example). I think there are some jurisdictions where parties don't receive the formal order as a matter of right and have to actually request it from the Registry if they want it (QLD maybe?), but it's rare, especially for a Court of Appeal.
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Agreeable-Currency91•

There have been so many hearings and applications etc... that I might be confusing them, but I seem to recall this lower Court's written decision (x about 5 copies from memory) was handed out by his associate then all copies were confiscated ("security!") by drones from AG's about 20 minutes after they were handed out.

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ajdlinuxOPNot asking for legal advice but...•

Cheers.

> It's not uncommon for judges at the coal face to throw some shade at intermediate appellate courts about the practical implications of their decisions and remind them what life is like as a first instance judge where you have to perform such trivial tasks as 'case management'.

Again I'm no lawyer so I'm only going off what I've read (and the fact that my housemate served on a jury a few years back with Murrell CJ as the judge), but I get the feeling that at least in the ACT with its tiny judiciary it's not like the Chief Justice or the other judges who sit on appeals (perhaps except the Federal Court judges serving as additional judges, as Wigney J was in this case) have any shortage of their own first instance work.

> It sounds like that document was never created, and all that happened in this case was that the parties received a handwritten document listing the orders made in court, which was presumably taken by the Associate when the reasons were handed down.

Hmm, it's kinda surprising to me that both parties wouldn't bother following up and getting a proper order when there was a couple of months between the ACTCA decision and the hearing before Mossop?

1
Minguseyes•

The whole concept of ‘court only evidence’ is odious and should have no place in Australian jurisprudence.

5
os400Appearing as agent•

It seems perverse to have people with a (supposed) duty to the proper and efficient administration of justice arguing for secret trials and 'court only evidence'.

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Agreeable-Currency91•

The applicants didn't come out of that with much "yay, we won the appeal" because the government jumped in before it ended and demanded it go back to the Magistrates Court so they could argue for judge-alone evidence, which means more #@#%ing cynical delays.
When I read the judgment, I thought, "they've had far more than just a win here, did they read it???"
" it is likely that his Honour gave too much weight to the risk of prejudice to national security and too little weight to the interests of the administration of justice " !!!
"The Parliament has made the court the gatekeeper who determines whether proceedings should be held in closed court" !!!
"The open court principle stands as a bulwark against the possibility of political prosecutions by allowing public scrutiny and assessment of the actions of the Crown and the Attorney-General by reference to the evidence adduced in a criminal trial."
"in this case we are satisfied that the interests of the proper administration of justice clearly outweigh any risk of prejudice to national security." !!!

Sensational

This shows the Supreme Court is long way from being on the fence about a government using unsubstantiated claims of "national security" to cover up corrupt behaviour and/or punish an inconvenient teller of truth and/or increase the budget deficit and/or WhateverTF it is the AG thinks she is doing this for.

3
iamplasmaSecretly Kiefel CJ•

I rather agree with Mossop in paragraphs 3-5. That's a very unhelpful decision from the CoA, and frankly seems wrong to me.

Aside from criminal sentencing, most House v King decisions would probably be decisions between binary outcomes. Does the judge make a costs order or not? Does the judge grant leave to do X or not? Is it seriously to be suggested that those kinds of decisions do not attract House v King merely because they do not involve a range of outcomes?

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