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

Just what a judge said when a former Australian intelligence officer was jailed three years ago – in a court case cloaked in an unprecedented level of secrecy – has finally been revealed.  

An ex-spy, dubbed Witness J and known in court by the pseudonym Alan Johns, was locked up in complete secrecy, after he threatened to extort highly classified national security information out of the belief he had been wronged.

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

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

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

Johns made a series of complaints over an unsecured platform that included classified information after his security clearance was revoked and he was fired.

One of five charges occurred over a period of an unspecified number of months and only stopped when 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 complaints processes, but it didn’t mitigate the nature of the offending.

Mr Burns said while there was no evidence the information was passed on to third parties or that national security was harmed – which would have made the charges more serious – it didn’t discount the nature of the offence.

But he also contended the court may never know if Australia’s national security had been contravened due to his actions.

‘There was a clear risk, albeit slight, that sensitive or confidential material may be disseminated … with potentially significant consequences,’ Mr Burns said in his remarks.

‘I accept this was not intended to be published to the world at large but it was a publication that carried with it a real, if not particularly significant risk, that it may be … disseminated.’

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

‘This was not merely an exercise in venting anger or frustration,’ he said.

‘Your purpose in doing so could only have been to remind those that you were dealing with that you could hurt … Australia’s security interests by disclosing the material in your possession.’

Johns’ defence lawyers contended his actions were a grave lapse of judgment and were not malicious as he didn’t set out to deliberately harm national security.

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

Mr Burns said while he accepted Johns didn’t act in a malicious manner, he had to be aware of the gravity of his actions due to his long history in intelligence organisations.

‘You were grossly reckless in your conduct because of your anger,’ he said.

One doctor contended Johns’ history of depression impaired his thinking when faced with what he perceived to be unfair treatment but wasn’t the main factor.

Releasing Mr Burns’ sentencing remarks, ACT Chief Justice Lucy McCallum said the court had given appropriate scrutiny as to what was made public in the highly redacted remarks.

‘Secrecy is anathema 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 chastised the unprecedented secrecy around the case, which only came to light after Johns launched legal action against the jail for tipping off police about a memoir he was writing.

Kieran Pender from the Human Rights Law Centre said secret trials had no place in Australia’s justice system and should never be allowed to happen again.

‘Secret trials 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 secrecy of the former coalition government, saying a completely secret trial was inconsistent with the rule of law.

‘Court proceedings, including judgments and reasons, should be as open as possible whilst ensuring national security information is protected,’ he said.

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