Witness K has been released from jail for his role in reporting the 2004 Australia interception of Timor-Leste with a Canberra court which concluded that he appeared to be motivated by justice, not personal gain.
The former Australian Secret Intelligence Service officer stood behind a wall of black panels, invisible to the crowded courtroom, as he was sentenced Friday to three months in prison with suspension and a 12-month good conduct order.
The sentence was the culmination of nearly three years of lengthy and secret court proceedings against Witness K, now an elder, for his role in publicizing Australia’s 2004 spy operation against Timor-Leste while the two allies negotiated the resources of oil and gas in the Timor Sea.
Witness K’s actions have marked him as a Timor-Leste hero. In Australia, former Attorney General Christian Porter signed his indictment.
In delivering his sentence, Magistrate Glenn Theakston said that Witness K appeared to be motivated by justice rather than personal gain.
Witness K made the unlawful disclosures in two affidavits in 2013, which were intended to be used in The Hague, where Timor-Leste had accused Australia of failing to negotiate in good faith by spying on its impoverished ally.
The Witness K revelations, Theakston said, were an attempt to participate in the rules-based order of international relations.
The ex-spy’s moral guilt was also reduced due to his mental health conditions, which, according to the court, were related to the disclosure of the information.
But Theakston also cautioned that the offense “was not trivial.” He described it as an “express and deliberate breach of the defendant’s obligations to keep Asis’s operations secret.”
There were good reasons for the total secrecy around agencies like Asis, which Theakston described as “strict and absolute.”
Violations could jeopardize the agency’s effectiveness, jeopardize safety and security, and jeopardize Australia’s relationships and reputation.
“It cannot and should not be dependent on… former staff members unilaterally deviate from those security obligations,” Theakston said.
Despite this, the magistrate said, Witness K had not tried to hide his actions from the Australian government. “It was not a gap that was going to remain hidden for some time,” he said.
Efforts by Witness K’s attorneys to obtain a no-conviction order failed. The court found the offense to be too serious.
The extraordinary delays in the presentation of the case against Witness K were taken into account during Friday’s sentencing.
Witness K’s home was raided in 2013 and his passport confiscated.
“That means the constant threat of sanction has been hanging over Witness K’s head ever since,” Theakston said.
Despite the raid, no charges were filed until 2018. It took another three years to reach sentencing, despite Witness K indicating that he pleaded guilty in 2019.
Former Attorney General George Brandis had avoided giving approval to the prosecution for years, the court has previously heard. But when Porter walked into the office, approval came quickly.
Witness K’s overtly committed conspire with his pending trial lawyer Bernard Collaery to communicate the protected information to the government of Timor-Leste in 2013.
This week there was a discussion between prosecutors and Witness K’s attorneys about how long that conspiracy had lasted. Theakston discovered that the conspiracy was ongoing between February and November 2013, during which time Witness K filed the two affidavits.
The court heard that Collaery had also disclosed some of the contents of Witness K’s affidavits during an interview with the late Mark Colvin, a famous ABC announcer.
Theakston said there was no evidence that Witness K knew of Collaery’s plans to reveal the material during the interview. It didn’t put any weight on him.
The court heard only limited information regarding the identity of Witness K. He is in his 70s and had served with distinction in the Navy and multiple government agencies prior to his employment with Asis.
He was highly decorated and had suffered significant trauma from a vaguely described incident that was “on a large scale” during his career.
Witness K was married with adult children and grandchildren, but now suffered from post-traumatic stress disorder, suicidal ideation, depression, anxiety, and hypermania.
Earlier on Friday, Witness K’s lawyers had urged the court to show the former intelligence officer “judicial mercy,” saying he suffered from numerous afflictions and should not be used as an example to dissuade others.
Counsel for the Commonwealth Director of Public Prosecution, Richard Maidment QC, had confirmed that he was not seeking an immediate prison sentence, but rejected Witness K’s attempt to obtain a non-conviction order.
Maidment argued that the Witness K case should be used as a vehicle to dissuade others in the community from participating in similar acts.
The court heard Witness K may have been motivated by a sense of altruism or a sense of “justice for Timor-Leste.” But Maidment said he shouldn’t be granted any mitigation simply because he thought the act was “appropriate.”
“In our opinion, the consideration of whether it was appropriate for him to breach the obligations, which had been pointed out many times, does not provide mitigation,” he said.
Maidment said Witness K’s conspiracy to reveal protected intelligence information had lasted for many months, spanning the preparation of the two affidavits in early and late 2013. It was not an “instantaneous” act, he said.
“He had the opportunity to consider, reconsider, reconsider, many times,” Maidment said.
Before sentencing, Witness K’s attorney, Robert Richter QC, had argued that the crime was “related to and arose out of” his client’s mental illness.
He argued strongly against using the case to achieve general deterrence against others who commit similar acts, saying that his client was elderly and suffered from various afflictions. Not using the Witness K case to dissuade others would be an “exercise of judicial mercy,” Richter argued.
The prosecution said Witness K’s initial interactions with Collaery were to seek legal advice about a promotion that had been denied because Asis wanted someone younger.
He was approved by the intelligence and security inspector general (IGIS) to approach Collaery with complaints about his treatment, the court heard. Maidment said Witness K was “totally consumed” by the decision to deny him the job.
IGIS had no record of receiving a complaint about Australia’s operations in Timor-Leste.