ACT Supreme Court may release Witness J sentencing remarks next week

The veil may finally be lifted on years of secrecy next week, when Chief Justice Lucy McCallum is set to rule on a request backed by the federal Attorney-General and the Commonwealth Director of Public Prosecutions.

Witness J, also known by the pseudonym Alan Johns, was prosecuted and sentenced behind closed doors in a case his barrister has described as "almost without precedent".

The fact the former Commonwealth official spent 15 months in Canberra's jail was only revealed in 2019, shortly after his release, as a result of civil action he took against prison authorities.

The revelation sparked outrage among the public and politicians alike, with the man's incarceration not even disclosed to the ACT's justice minister at the time.

Some details have since emerged courtesy of the independent national security legislation monitor, Grant Donaldson SC, who reviewed the case.

Mr Donaldson said Witness J had held a high-level security clearance that made him subject to strict reporting obligations and behavioural standards.

After concerns about his conduct resulted in his clearance being revoked and his employment terminated, Witness J complained to the agency that fired him.

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He complained of unfair treatment using unsecure means, and, in the process, breached his secrecy obligations by communicating classified information.

"[His] actions put at risk this classified information, which was a kind that could endanger the lives or safety of others," Mr Donaldson's review, published in 2022, says.

Witness J was accordingly charged with a number of offences related to what has since been broadly described as "mishandling classified information".

When he pleaded guilty to five undisclosed charges in the ACT Magistrates Court in 2018, Chief Magistrate Lorraine Walker remanded him in custody.

He was subsequently committed to the ACT Supreme Court, where Justice John Burns sentenced him in early 2019 to two years and seven months in jail.

Justice Burns backdated the sentence to account for time served on remand, and ordered that the final 16 months of the term be suspended.

In February, four years on, the court heard parties to the case were still trying to agree on a form in which Justice Burns' sentencing remarks could be published.

When the case returned to court on Tuesday, written submissions filed on behalf of Witness J, the Commonwealth Director of Public Prosecutions and federal Attorney-General Mark Dreyfus KC were released to the media.

Andrew Berger KC, representing Mr Dreyfus, said everyone agreed the court should publish the sentencing remarks to the greatest extent possible.

All parties accepted some redactions would be necessary, with the Attorney-General providing the court with a confidential affidavit to explain why the disclosure of certain information would prejudice national security.

Barrister Joshua Nottle, on behalf of Witness J, urged the court to apply "the most minimal redactions" in order to ensure the community was not misled about the case.

"In the present case, the community is entirely in the dark about the facts and circumstances," he submitted.

"As best as possible, the court should seek to provide as much information to the public as is consistent with the protection of legitimate national security concerns."

Chief Justice McCallum, who has taken over the case following the retirement of Justice Burns, indicated she would decide what to release next Friday.

"To the extent we can be transparent, we should be transparent," she said, citing the principle of open justice.

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