Concerns about the coronavirus pandemic could delay the case of a Canberra lawyer accused of breaching national security laws.
Bernard Collaery is fighting allegations that he conspired with the former spy known as Witness K to reveal classified information about a secret operation in which Australian Secret Intelligence Service spies bugged East Timor's cabinet room during sensitive oil and gas negotiations.
At a pre-trial hearing in the ACT Supreme Court on Thursday, Mr Collaery's barrister, Phillip Boulten SC, expressed concerns about the impact of COVID-19 on the case.
Mr Boulten said he was not yet making a formal application to vacate a scheduled April hearing, but he was "alive to the issues confronting this court because of the coronavirus".
He said one of his instructing solicitors was already unable to participate in court proceedings because of the pandemic, while Mr Collaery would rely upon domestic and international witnesses who might not be able to get to Canberra.
"It's becoming increasingly fraught to travel by air," Mr Boulten said.
Mr Collaery's defence intends to call evidence from a range of witnesses including former East Timorese presidents Xanana Gusmao and Jose Ramos-Horta.
Mr Boulten told ACT Supreme Court Justice David Mossop on Thursday that he had not spoken to one of the East Timorese witnesses, but the other was "definite that he will not come".
"It's a real issue at the moment," Mr Boulten said of the coronavirus.
"Canberra is remarkably buoyant ... but it's not like that in other places like Sydney.
"I can tell Your Honour the place is like one of those wild west scenes. The only thing missing is the tumbleweed."
Mr Boulten made reference to the "drastic measures" many courts had taken to combat the spread of COVID-19. He gave examples including the High Court, which will not sit in Canberra or on circuit between April and June.
Barrister Jeremy Kirk SC, for the Commonwealth Attorney-General, told Justice Mossop he would neither consent to nor oppose any application by Mr Collaery's defence to vacate the April hearing dates because of coronavirus.
Mr Kirk did say, however, that if the court went down the path of requiring witnesses to give evidence from remote locations rather than in person, there would be difficulties.
Much of the evidence would touch on national security issues, and Mr Kirk expressed doubt as to whether audio-visual link and telephone arrangements would suffice given the sensitivity of these issues.
A barrister for the Commonwealth Director of Public Prosecutions indicated he would oppose any application to delay because of coronavirus, saying unless the ACT Supreme Court stopped hearing cases entirely, it was incumbent upon legal practitioners to find a way through.
Mr Collaery's pre-trial hearing, which is set to continue on Friday, was closed to the public and the media following discussions about the pandemic, as the court turned its attention to issues of national security.
The uncertainty around Mr Collaery's case in light of COVID-19 comes after ACT Chief Justice Helen Murrell indicated that upcoming Supreme Court trials could be delayed because of the coronavirus, though rescheduling was expected to be kept to a minimum.
The ACT Magistrates Court has also ramped up its response to the health emergency by modifying practices to minimise the number of people physically attending court.
It is still performing all its usual functions this week, but parties and their legal representatives have been encouraged to immediately begin using email, audio-visual and telephone facilities as an alternative to attending court in person wherever those options are available.
From Monday, the Magistrates Court will pause all non-essential final hearings for two weeks.
"The court will continue to make efforts to redirect available resources towards matters where criminal defendants remain in custody," Acting Chief Magistrate Glenn Theakston said on Thursday evening.
"We hope that this will reduce the number of defendants in custody on remand."
Courts surrounding the ACT, including the Queanbeyan Local Court, have also acted on the threat of coronavirus, with an announcement on Thursday morning that NSW local courts will defer all non-custody hearings listed between next Monday and May 1.
The intention is to catch up on those cases in October, when no new hearings will be scheduled.
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