R v Bersinic [2007] ACTSC 46 (6 July 2007)

Last Updated: 28 July 2008

Human Rights Act

R v MICHAEL ROBERT BERSINIC

[2007] ACTSC 46 (6 July 2007)

PRACTICE AND PROCEDURE - Disclosure - public interest immunity - national security information.

Crimes Act 1914 (Cth), s 85B

Criminal Code 1995 (Cth) s 93.2

Human Rights Act 2004, s 21

Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1

Arthur Stanley Smith (1996) 86 A Crim R 308

R v Lodhi (2006) 65 NSWLR 573

Alister v The Queen (1983) 154 CLR 404

R v Lodhi [2006] NSWSC 596; (2006) 163 A Crim R 508

Leghaei v Director-General of Security [2007] FCAFC 37

Young v Quin (1985) 4 FCR 483

No. SCC 225 of 2004

Judge: Connolly J

Supreme Court of the ACT

Date: 6 July 2007

IN THE SUPREME COURT OF THE )

) No. SCC 225 of 2004

AUSTRALIAN CAPITAL TERRITORY )

THE QUEEN

v

MICHAEL ROBERT BERSINIC

REASONS FOR RULING

1. These are my reasons for making an order prohibiting the publication of certain evidence and protecting certain witnesses in the course of a criminal trial.

2. On Monday 2 July 2007 the accused was arraigned and pleaded not guilty to a range of offences said to arise from a dispute that arose in the course of a personal relationship. The accused and the other person had been involved in a personal relationship of short duration at the time of the alleged offences.

3. After the jury was empanelled, counsel indicated that certain evidential matters would have to be resolved in the absence of the jury. This is of course a common procedure in a criminal trial. An application was then made in the absence of the jury for an order to close the court, and then counsel for the Commonwealth made application for orders which would have the effect of preventing the publication or disclosure of the occupations of certain witnesses, including the complainant, and precluding cross-examination in this area on the grounds that publication could have an adverse impact on the national security or defence of the Commonwealth.

4. The power to make orders preventing the publication of certain matters on grounds that it would adversely affect national security or defence is well-established, being found in both the Crimes Act 1914 (Cth), s 85B and the Criminal Code 1995 (Cth), s 93.2, as well as in the inherent jurisdiction of the Supreme Court (Sankey v Whitlam [1978] HCA 43; (1978) 142 CLR 1 at 44, 79, Arthur Stanley Smith (1996) 86 A Crim R 308 at 311, R v Lodhi (2006) 65 NSWLR 573 at 584).

5. The courts have traditionally attached significant weight to properly brought claims by the executive in such matters. Where, as in this case, there is an affidavit provided to a judge in closed court by a senior and responsible official stating that disclosure of certain information could have adverse consequences, the Court must take such a claim very seriously indeed. In Sankey v Whitlam, Gibbs ACJ (at 45-46) referred to giving "full weight" and "proper respect" to reasons advanced by a responsible official. In Alister v The Queen (1983) 154 CLR 404, Wilson and Dawson JJ said (at 435) that:

Questions 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 is expressed by the responsible Minister.

6. Tragically we live in an era where there is, to adopt a phrase well-established in United States jurisprudence, a "clear and present danger" of acts of terrorism. We know all too well from the front pages of our newspapers that such incidents can occur at any place and at any time. Thus a court should be particularly cautious when confronted with a claim for non-disclosure on grounds of national security. The court should, it seems to me, be mindful that the mere publication of apparently trivial information such as names and occupations could have adverse consequences for persons involved in certain areas of responsibility. It is probably safer to err on the side of non-disclosure provided the interests of other citizens, in this case an accused person, are able to be protected. It seems to me that this increased deference has been reflected in recent decisions where such claims have been advanced.

7. In R v Lodhi [2006] NSWSC 596; (2006) 163 A Crim R 508 at 517, Whealy J stated that:

... it is clear that considerable respect should be paid to the views expressed by the Director-General of Security. National security forms a category of public interest of special importance. Considerable weight must attach to the view as to what national security requires as expressed by a person holding the office of the Director-General of Security.

8. In Leghaei v Director-General of Security [2007] FCAFC 37 the Full Court of the Federal Court (Tamberlin, Stone and Jacobsen JJ) stated (at [65]) that:

... the question is what weight is to be given to an opinion of a responsible officer on a matter of national security. We are not reviewing the Director-General's opinion. Nor, of course, was the primary judge. His Honour correctly determined in accordance with established authority that, genuine consideration having been given by the Director-General to the question of disclosure, and in the absence of countervailing evidence, the balance was to be struck on the side of non-disclosure.

9. I was satisfied on the affidavit evidence before me that proper and genuine grounds were established to make the orders sought by the Commonwealth.

10. It is clear that any such order must involve two competing principles. As the NSW Court of Appeal said in R v Lodhi (per McClellan CJ at 585), a judge making such an order is:

required to exercise a discretion and weigh the principles of open justice and the objective of providing a fair trial with the need to protect the security and defence interests of the Commonwealth.

11. The public interest in, and every accused person's right to, a fair and open trial is recognised by s 21 of the Human Rights Act 2004, although the protection of national security in a democratic society is recognised as a potential factor that can justify exclusion of the press or public from proceedings (s 21(2)(a)).

12. It seemed to me that, having been presented with material that, in accordance with established authority, justified making the order, it would be necessary to give careful consideration to the question of whether the accused person could, notwithstanding the prohibition of disclosure of certain information, and the consequent preclusion of certain lines of cross-examination of a complainant (Young v Quin (1985) 4 FCR 483) have a fair trial before the jury. It seemed to me that, should the protective orders be granted, a real question would lie as to whether the prosecution should proceed or be stayed. Upon the making of the orders, Counsel for the Director of Public Prosecutions requested a brief adjournment of the proceedings to consider his position, and upon the resumption of proceedings, indicated that the Crown would no longer proceed with the charges. That decision, it seems to me with respect, was clearly correct and proper.

I certify that the preceding twelve (12) numbered paragraphs are a true copy of the Reasons for Judgment herein of his Honour, Justice Connolly.

Associate:

Date: 6 July 2007

Counsel for the Prosecution: Mr J Lundy

Solicitor for the Prosecution: ACT Director of Public Prosecutions

Counsel for the Accused: Mr K Archer

Solicitor for the Accused: Legal Aid Office (ACT)

Counsel for the Commonwealth: Mr T Glover

Solicitor for the Commonwealth: Australian Government Solicitor

Date of hearing: 2 July 2007

Date of reasons for ruling: 6 July 2007