You weren’t allowed to know about ‘Witness J’ – inside the most ‘secret’ court case in Australia

Exactly what a judge said when a former Australian intelligence officer was jailed three years ago – in a trial shrouded in an unprecedented level of secrecy – has finally been revealed.

An ex-spy named Witness J and known in court by the pseudonym Alan Johns was imprisoned in complete secrecy after threatening to extort top secret national security information out of the belief that he had been wronged.

The case was – until recently – kept almost entirely behind closed doors under national security laws.

But comments about ACT Judge John Burns’ sentencing for the man dubbed Witness J were made public Wednesday after the attorney general launched a review of the country’s national security laws.

ACT Justice John Burns found that the man disclosed sensitive information to convince those he was dealing with to comply with his wishes.

Johns filed a series of complaints about an unsecured platform containing classified information after his security clearance was revoked and he was fired.

One of the five charges took place over an undetermined number of months and did not stop until Johns was arrested.

He was sentenced to two years and seven months in prison and spent 15 months behind bars before being released in mid-2019.

The now-retired judge said he accepted Johns’ distrust of official grievance procedures, but it didn’t mitigate the nature of the offense.

Burns said that while there was no evidence the information had been passed on to third parties or that national security had been harmed – which would have made the allegations more serious – the nature of the crime was not ruled out.

But he also argued that the court may never know whether Australia’s national security has been breached by his actions.

“There was a clear risk, albeit small, that sensitive or confidential material would be disseminated … with potentially significant consequences,” Burns said in his remarks.

“I accept that this was not intended to be published to the whole world, but it was a publication that carried a real, if not particularly high, risk of being … distributed.”

But Mr Burns said Johns’ actions could only be considered a threat, despite him not intending to carry it out.

“This wasn’t just an exercise in expressing anger or frustration,” he said.

“Your purpose in doing so could only have been to remind those you dealt with that you … could harm Australia’s security interests by disclosing the material in your possession.”

Johns’ defense attorneys argued that his actions were a serious error of judgment and not malicious, as his intent was not to intentionally harm national security.

Johns disclosed classified information on an unsecured platform after his security clearance was revoked and he was fired

Mr Burns said that while he accepted that Johns was not acting maliciously, he should be aware of the seriousness of his actions due to his long history in intelligence services.

“You were extremely reckless in your behavior because of your anger,” he said.

A doctor claimed that Johns’ history of depression hampered his thinking when he faced what he perceived as unfair treatment, but this was not the main factor.

ACT Chief Justice Lucy McCallum released Mr Burns’ sentencing comments and said the court had made appropriate inquiries into what had been made public in the heavily redacted comments.

“Secrecy is an abomination to the rule of law,” she said.

But the chief justice said the logic of some secrecy in the case was clear.

Australia’s national security watchdog cracked down on the unprecedented secrecy surrounding the case, which only came to light after Johns took legal action against the prison for tipping off police about a memoir he was writing.

Kieran Pender of the Human Rights Law Center said secret trials have no place in Australia’s legal system and should never happen again.

‘Secret processes have a long history in authoritarian states. They have no place in democracies like Australia, where open justice is a fundamental protection of human rights,” the senior lawyer said.

Attorney General Mark Dreyfus chastised the former coalition government’s secrecy, saying a completely secret process violated the rule of law.

“Court proceedings, including verdicts and motivations, should be as open as possible while protecting national security information,” he said.

A review of Australia’s national security laws is expected in November.