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A Sydney businessman
accused of unlawfully selling information to Chinese spies has
vehemently denied the allegations and is vowing to defend the
charges.
55-year old Bondi marketing director,
Alexander Csergo, was charged earlier this year with one count
of
reckless foreign interference under section 92.3 of the
Criminal Code Act 1995 (Cth) (‘the Act’) which carries a
maximum penalty of 15 years in prison.
The
offence
To establish the charge of reckless foreign interference against
Mr Csergo, the prosecution will need to prove four ‘essential
elements’ (or ingredients) beyond a reasonable doubt that:
That he engaged in specific conduct,
That his conduct was on behalf of, or in collaboration with, a
foreign principal, or a person acting on behalf of a foreign
principal, or was directed, funded or supervised by a foreign
principal, or a person acting on behalf of a foreign
principal,
That he was reckless as to whether his conduct would:
(a) Influence a political or governmental process of the
Commonwealth, or of a state or territory within the
Commonwealth,
(b) Influence the exercise of an Australian democratic or
political right or duty, whether within Australia or overseas,
(c) Support intelligence activities or a foreign principal,
or
(d) Prejudice Australia’s national security, and
That any part of his conduct:
(a) Was covert or involved deception
(b) Involved a threat to cause serious harm, or
(c) Involved a demand with menaces.
What is the
definition of ‘reckless’?
Under the Act, being ‘reckless’ is defined as being
aware there was a substantial risk the conduct would bring about a
state of affairs described in (3) above, and it was unjustifiable
to take that risk, but the defendant went ahead with his or her
actions regardless.
Who is
considered a ‘foreign principal’?
The Act defines a ‘foreign principal’ is defined as:
A foreign government principal
A foreign political organisation
A public international organisation
A terrorist organisation, or
An entity or organisation owned, directed or controlled by a
foreign principal/s.
What is the
meaning of ‘deception’?
A ‘deception’ encompasses any intentional or reckless
deception, whether by words or other conduct, and whether as to
fact or law, and includes:
A deception as to the intentions of the defendant or other
person, and
Conduct that caused a computer, machine or electronic device to
make an unauthorised response.
What does it
mean to ‘menace’?
A ‘menace’ is defined as including:
An express or implied threat of conduct that is detrimental or
unpleasant to another person, and
A general threat of detrimental or unpleasant conduct that is
implied, because of the status, office or position of the maker of
the threat.
Proof of
particular foreign principal is not required
A person may be found guilty of the offence regardless of
whether the person had a particular foreign principal in mind, or
whether he or she had more than one foreign principal in mind.
Statutory legal
defence
A person is not guilty of the offence if the person establishes,
‘on the balance of probabilities’, that his or her conduct
was:
In accordance with a law of the Commonwealth
In accordance with an arrangement or agreement to which the
Commonwealth was party, or
In the person’s capacity as a public official.
General legal
defences
A range of general legal defences also apply to the charge,
including duress, necessity and self-defence.
In the event evidence is raised of a general legal defence, the
onus shifts to the prosecution to prove beyond a reasonable doubt
that the defence does not apply.
The defendant must be acquitted if the prosecution is unable to
do this.
Attorney-General’s consent required for prosecution
Significantly for Mr Csergo, the Commonwealth
Attorney-General’s consent is required for a prosecution to
proceed under the section.
It is understood the Attorney-General has not provided such
consent.
If the prosecution does continue, Mr Csergo’s trial may
occur ‘in camera’ (in secret) if the court believes this is
in the interests of national security.
The specific
allegations
The majority of the allegations against Mr Csergo relate to
documents he wrote for two Chinese nationals, named “Ken”
and “Evelyn”, after they approached him through social
media and asked him to prepare reports for a think-tank.
Throughout 2021 and 2022, Mr Csergo wrote reports on a number of
topics including lithium mining, German politics and
Australia’s military alliance to the US along with other
subjects to do with Australia’s defence, economic and national
security arrangements.
He was paid about $4,000 for each report.
Mr Csergo became stuck in Shanghai during the height of Covid
lockdowns. He told Australian police that he had held concerns, but
could not be certain, that he was being groomed by intelligence
officers from China’s powerful Ministry of State Security.
He also told police he had filed his reports with an open-source
information system, and also wrote a fabricated interview with a
former Australian prime minister – to placate his
hosts until he could return to Australia.
This raises the possibility of the
general legal defence of duress, which is where a person
engages in conduct under imminent threat of serious physical harm
to themselves, a loved-one or someone else close to them, and there
is no reasonable way to avoid the perceived consequences of that
threat.
Defiant behind
prison walls
Mr Csergo is being detained in
Parklea Correctional Centre, from where he has penned a letter
asserting the case against him represents a false narrative that is
not supported by the evidence, that it “will fail” and
cause “embarrassment” to Australia in doing so.
His defence lawyers made an application for his release on bail
last month, making similar submissions regarding the weakness of
the prosecution case and offering security in the sum of
$300,000.
But the presiding magistrate disagreed, finding that the case
against him “cannot be described as weak” and refusing
bail.
The matter will be back before
Downing Centre Local Court this Wednesday, 29 November
2023.
Landmark
cases
Mr Csergo is only the second person to be charged under
Australia’s foreign interference laws.
The other person is a Melbourne businessman and local community
leader named Di Sanh Duong, 68,
who has pleaded not guilty in the Victorian County Court to one
charge of preparing for or planning an act
of foreign interference.
He faces up to 10 years in prison if convicted.
Lawyers and politicians are keeping a close eye on how these
Commonwealth criminal cases unfold.
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