A former Australian spy was released from court on Friday with a three-month suspended prison sentence over his attempt to help East Timor prove that Australia spied on the fledgling nation during multibillion dollar oil and gas negotiations.
The former spy publicly known as Witness K and his lawyer Bernard Collaery had been charged in 2018 with conspiring to reveal secret information to the East Timorese government.
K pleaded guilty on Thursday at the beginning of a two-day sentencing hearing in the Australian Capital Territory Magistrates Court. The public and media were excluded when classified evidence was discussed.
Magistrate Glenn Theakston sentenced K to three months in prison fully suspended. K, who was hidden behind black screens in a courtroom throughout the hearing, must also pay a 1,000 Australian dollar ($840) security to be of good behavior for 12 months.
K had faced a potential maximum of two years in prison. The maximum has been increased since his offense to 10 years as Australia tightens controls on secrecy.
The Australian government has refused to comment on allegations that K led an Australian Secret Intelligence Service operation that bugged government offices in the East Timorese capital Dili in 2004 during negotiations on the sharing of oil and gas revenue from the seabed that separate the two countries.
The government canceled K’s passport before he was to testify at the Permanent Court of Arbitration in The Hague in 2014 in support of East Timor’s challenge to the validity of the 2006 treaty.
The East Timorese argued that the treaty was invalid because Australia had failed to negotiate in good faith by engaging in espionage.
There was no evidence heard in open court of a bugging operation, which media had reported was conducted under the guise of a foreign aid program.
But K and Collaery had prepared for the East Timorese government two affidavits that identified K as a former ASIS member and details of ASIS functions.
Theakston noted that the case was unusual because K’s offense was committed “in plain sight of Australian authorities.”
“That suggests to me it was brazen and indifferent or mistaken,” Theakston said.
Theakston said it was open to him to find K had made a mistake rather than a deliberate breach “based on a perception of justice.”
The judge described K as an “elderly man” who was more than 70 years old and had had the threat of prison hanging over him for eight years.
The ASIS secrecy rules were “strict and absolute” for serving and former officers, Theakston said.
Defense lawyer Robert Richter said “Mr. K” had suffered from not being able to travel overseas with his wife because of the loss of his passport.
Richter blamed K’s post-traumatic stress disorder, clinical depression and anxiety for his offending. He argued for K to escape a conviction being recorded for “reasons that will be made clear in closed court.”
Collaery, K’s former lawyer and co-accused, has pleaded not guilty and wants to fight the charge in a Australian Capital Territory Supreme Court trial without media or the public being excluded.
Collaery was allowed to sit in the public gallery of K’s hearing during the closed and open hearings. Collaery declined to comment on the sentence.
Richter told The Associated Press: “I think it’s a fair outcome.”
Prosecutor Richard Maidment declined to comment on the result.
Australia and East Timor agreed on a new maritime border treaty in 2018
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