Justice David Mossop wonders if Bernard Collaery court case will ever finish

Justice David Mossop made that comment on Wednesday, when Mr Collaery criticised the Commonwealth for what he called a "hypocritical obsession with secrecy".

Mr Collaery, a Canberra lawyer and former ACT Deputy Chief Minister, is set to stand trial accused of five offences.

He is pleading not guilty to four charges alleging he broke the law by sharing protected information about the Australian Secret Intelligence Service in media interviews.

He is also fighting a single count of conspiring with his former client, the ex-spy known as Witness K, to unlawfully communicate such information to the government of East Timor.

The allegations concern the exposure of a 2004 espionage operation, in which Australian spies bugged a government building in East Timor. Australia was negotiating with its impoverished ally over lucrative oil and gas resources at the time.

Following long-running proceedings in the ACT Court of Appeal, which has denied the Commonwealth the mostly closed trial it was seeking, the case returned to the Supreme Court on Wednesday.

The next step in the matter involves Justice Mossop being asked to determine whether certain material to be relied on at Mr Collaery's eventual trial should be considered "judge-only evidence".

The Commonwealth considers this material to be such a risk to Australia's national security it cannot even be revealed to Mr Collaery or his lawyers, let alone the public.

On Wednesday, Attorney-General Michaelia Cash's barrister, Tim Begbie QC, said he would be seeking to update some of this material because it was now some 20 months old and a number of its authors no longer occupied the positions they once did.

Mr Begbie raised the possibility of the court appointing a special counsel who would not be part of Mr Collaery's legal team, but who would be able to look at this material and "prosecute his interests" in relation to it.

He said using such a person, a senior counsel who would be funded by the Commonwealth, would be a kind of "middle ground" that would "meet our national security needs".

But Christopher Ward SC, a barrister for Mr Collaery, told the court this idea was "not one which we embrace".

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He added that the Attorney-General was not merely wanting to update the so-called judge-only evidence, arguing her counsel was in fact wanting to lead fresh evidence at a time this was not allowed.

Mr Ward said his client's position was that if some of this material was now outdated or inaccurate, it should simply not be used.

Justice Mossop said the case involved "processes which never seem to end".

He referred to the fact it had taken the Court of Appeal more than a year to overturn secrecy orders he made in June 2020.

Justice Mossop said it now seemed it would take "a long time" for the Commonwealth to do what it wanted to do next, including potentially updating what he described as "the spooky material".

"Is there any prospect of this matter ever being completed, or will we just get stuck in a perpetual vortex of updating?" he asked.

Mr Begbie replied that it could "of course" be completed.

Justice Mossop listed the matter again next Wednesday, saying he wanted to ensure the people involved were taking a disciplined approach to the issues instead of "drifting off into a correspondence war".

Outside court, Mr Collaery said he "strongly objected" to the Commonwealth wanting to rely on "super secret evidence" neither he or his lawyers would be allowed to see.

He said this made "a shameful mockery of open justice".

"This takes the Commonwealth's hypocritical obsession with secrecy to new heights," he said.

Senior lawyer Kieran Pender, of the Human Rights Law Centre, added: "Secret evidence, that even the person on trial cannot see, has no place in our legal system."

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