Justice Denied

by John Suter Linton

  In Mallard and Veen there were absolutely tragic sequels after release from gaol. Both men again committed almost identical criminal homicides. That supports the correctness of the sentences of penal servitude for life imposed by the trial judge.

  In Mallard’s case, a life sentence was mandatory following conviction for murder. Although the expert evidence he called was highly impressive, his defence of diminished responsibility had failed. In Veen No.1, the defence succeeded and the conviction was for manslaughter only, but Justice Rath exercised his discretion and still imposed the maximum of life imprisonment. The High Court substituted twelve years and did not specify a non-parole period.

  Shortly after Veen’s second trial, legislation was introduced reducing the maximum sentence for manslaughter from life to twenty-five years. This was no accident, and it raises interesting technical legal questions. Had Veen been sentenced for the second homicide after the amendment, Justice Hunt would have been constrained by the 25-year maximum. The change, subsequently, to twenty-five years should be taken into account if ever Veen applies for release from his life sentence. It is also important to remember in this context that prisoners no longer earn remissions for good behaviour in New South Wales—they were abolished in 1988. That was another cruel piece of legislation in the name of law reform. Even without remissions, twenty-five years would have elapsed for Veen in 2011.

  The Veen/Mallard dilemma was resolved differently by the availability of sentence of imprisonment for the term of the prisoner’s natural life. That sentence was available and applied when Mallard was sentenced to life the second time. It was implicit with Veen’s sentencing. Release can never take place. Only death determines and concludes their punishment.

  Today, even where a life sentence is not imposed for murder, the days of release on licence after fifteen to twenty years in gaol are effectively gone. Sentences requiring time in gaol to be even double that are now frequent. These are, however, set by judges in open court and are subject to appeal. That is a preferable procedure than administrative decisions made essentially in private by boards and not subject to appeal.

  It must be conceded that killers who kill again after having served their time are as great an evil to the community as the serial killer. Plainly, their mental problems provide an explanation but not an excuse for their crimes. The enormity of the subsequent tragedy done to the victim is not diminished by the perpetrator’s mental condition. Surely a modern, sophisticated society can devise a better and safer remedy to deal with tragic cases like Veen and Mallard than putting them in gaol and literally throwing away the key for one and keeping alive hope for the other?

  The protection of the community is the paramount consideration, but detention in a secure hospital environment, as in the United Kingdom, would be a sounder solution. Sentences of preventative detention are available by statute in New Zealand, which means an indefinite period in gaol or custody. During its duration such an order protects the community by removing the offender from it.

  There must be a more humane way of dealing with offenders with very serious mental problems, rather than the ancient and unscientific definition of legal insanity and diminished responsibility and the M’Naghten rules, which explain but do not excuse mental impairment. Medication can provide a safe solution, but it is dependent upon the patient’s cooperation. That is easier to state than to enforce. There remains a need for legislative and judicial recognition of the legal consequences of mental impairment.

  In a civilised society it seems there remain at least three options to address the problem of protecting the public where there is a high risk of re-offending. They are: 1. Restore capital punishment; 2. Detain the offender in a maximum security prison until the offender’s life ends; and 3. Offer humane treatment until it is safe conditionally to allow the offender back into the community.

  Perhaps the bottom line is, there is no bottom line.

  In 2013, the New South Wales Attorney-General, Greg Smith SC, a highly experienced silk before and after politics, introduced legislation for five-year extensions of sentences already served by violent offenders. This was directly aimed at protecting the community. Queensland has similar legislation. The approval of the Supreme Court was required for such orders. The real sting was the number of five-year extensions is unlimited. This approach drastically infringes the centuries-old rights of man in a free society. As with the reintroduction of capital punishment, one suspects this legislation enjoys strong community approval.

  With all homicides, the mood of the community remains overwhelmingly and unapologetically punitive and harsh. In a democracy, through parliament, the community makes the law. The courts are merely there to interpret and enforce it.

  * * *

  In Mallard and Veen there were two outcomes on a collision course: the protection of the community and the treatment of two men whose control of their own conduct was devastatingly impaired. The solution to this problem is not the court system. Much greater hope lies in a medical breakthrough in treatment at some time in the future.

  Not surprisingly, the community view of preventative sentencing has been extremely conservative and, indeed, punitive. Other than in Veen No. 1, juries are traditionally reluctant to mitigate criminal liability in horrible cases. The horrific, motiveless nature of the homicide, frequently of a loved one, obviously diminishes sympathetic considerations of the totality of the evidence. This is understandable and is open to the jury. While the outcomes are equally tragic, a stabbing is easier to understand by the jury than beheading or another bizarre act.

  In Mallard’s cases, he failed both—or is it three, if you include Victoria?—legal attempts to explain his criminal conduct. On the other hand, Veen succeeded in both of his. In the first, he persuaded a jury, but not the trial judge on sentencing. In the second, the Crown accepted his plea of diminished responsibility.

  The outcome for both, however, was not identical. Rodney Mallard’s sentence left him devoid of hope or a future. Richard Veen, however, had an opportunity, all because he was sentenced prior to the changes of 1989 and the reduced 25-year maximum sentence for manslaughter. He, therefore, had the legal right to have his sentence redetermined under the act.

  The highly experienced silk John Nicholson SC, a former Senior Public Defender and judge, took up Veen’s crusade. Mr Nicholson is now back in private practice and is known for taking on battlers with unpopular causes. Richard Veen certainly fitted the category. The Aboriginal Legal Service briefed Nicholson and he was finally successful in his application on behalf of Veen. Earlier, Justice Brian Sully had accepted Veen need not serve out a life sentence in custody, and set a fixed, non-parole period of thirty years, which is dated back to Veen’s arrest in 1983. This meant he was eligible for release in 2013. It took another two years to convince the parole board to release him.

  Less than a year before his sixtieth birthday, Richard Veen was finally a free man, albeit conditionally. He is under strict conditions and wears a monitoring bracelet. Should he break any of his conditions, he will immediately be returned to prison.

  For the first time since birth, Veen will not spend his birthday institutionalised. He’s seen the inside of orphanages, juvenile detention centres and adult prisons. The majority of his life has been confined behind high walls. During the years in gaol, Veen suffered some of the worst and most inhumane institutions available, notably the OBS at Long Bay. At the time of writing this book, Veen is living in a caravan. The humble abode he now finds himself in must be heaven compared to the hell he would have suffered inside. Sadly, Veen has cancer, but at least he is in more comfortable surroundings and is receiving treatment.

  The inescapable fact remains that two human lives have been lost to Richard Veen’s criminality. The retribution exacted by society has been heavy, and sanctions to ensure observance are strict. To paraphrase from Shakespeare, the quality of justice and mercy have finally come together. Hopefully, Veen’s twilight years will be calm and healthy.r />
  Sadly, Mallard remains devoid of all hope. The distinction between him and Veen is not the level of criminality or moral turpitude, but the level of mental impairment. Mallard’s bizarre devil worship diminishes his responsibility, but the law decided it wasn’t enough. Veen’s diminished responsibility was because of brain damage caused by alcohol. That was accepted. The fact of mental impairment in both Mallard and Veen was never in dispute, merely its level. Moreover, that level is incapable of being calculated scientifically or diagnosed like a broken limb. That too is a matter of human judgement, with all its frailty.

  CHAPTER

  11

  Tim Anderson—Conspiracies and Bombings

  In 1978, just as today, along with all major cities of the world, Sydney and other Australian cities were at constant risk of a terrorist attack. To illustrate my point, on 17 November 1966, a bomb exploded at Melbourne’s General Post Office; in May and June 1971 there were bomb threats made against the Qantas and Ansett airlines respectively; on 6 September 1972 two bombs exploded in George Street, Sydney, aimed at the Yugoslav General Trade Agency; in 1975 there was a bomb threat made against Woolworths and a letter bomb exploded in the Queensland Premier’s department on 19 November. Then, in 1977, bomb threats were made against Coles, and Sydney’s Boulevarde, Hilton and Noah’s Northside hotels.

  The one most people remember and, despite my list above, believe to be the first terrorist bombing on Australian soil, was the explosion outside the Hilton Hotel during the Commonwealth Heads of Government Meeting (CHOGM) on 13 February 1978, at around 1.40 am. The bomb had been planted in a public rubbish bin and exploded when the bin was emptied into a garbage truck. The two garbage collectors, Alec Carter and William Favell, were killed instantly. A uniformed police officer, Paul Birmistriw, who was on guard duty at the entrance of the hotel, died some nine days later of injuries he received. Shrapnel and debris was blown as far as 100 metres, injuring eleven others. Inside the Hilton, about a dozen Commonwealth leaders were sleeping, including our own prime minister at the time, Mr Malcolm Fraser, and the Indian prime minister, Mr Morarji Desai. Mr Fraser and the premier of New South Wales, Mr Neville Wran, requested an immediate mobilisation of the army, and almost 2000 troops descended on the city. Mr Fraser told journalists: ‘at this stage it must appear that the dead and injured are utterly innocent victims of a senseless act of violence’. The Sydney Morning Herald on 14 February wrote in the editorial, ‘Australia this week had a new and shocking experience … it was our first full taste of Twentieth Century terrorism.’

  New South Wales Police special branch and the Australian Secret Intelligence Organisation (ASIO) conducted a joint investigation. Four months elapsed without any hint of a breakthrough. The bombing remained unsolved and a major international embarrassment, as well as a major tragedy. This was despite a $100,000 reward and a team of 100 full-time detectives.

  Enter 26-year-old Richard Seary. He told police a small Indian religious sect, the Ananda Marga, which meant ‘path of bliss’, was responsible. The Margis, as the sect’s members were known, had apparently been involved in worldwide protests for some years, demanding the Indian government release their spiritual leader, Pabhat Ranian Sarkar, or ‘Baba’ as he was called by the faithful, who was serving a life sentence for murder. Not surprisingly, the Free Baba Ananda Marga campaign was not a popular one in the community at large—it was very much a minority cause. Seary, nonetheless, convinced the authorities the Indian prime minister was the Margis’ target. The problem was, neither the police nor ASIO had any hard evidence. They didn’t have any evidence, other than Richard Seary. He was the best police special branch and ASIO could recruit.

  Seary became a member of the Ananda Marga in March 1978, having been a member of the Hare Krishnas from 1972 to 1974, before leaving the sect to go to England. He returned to Australia in 1976. The Ananda Marga was a small, unsophisticated group into which he was readily accepted. Welcoming Seary to the fold were long-time Margis Ross Dunn, Paul Alister and Timothy Anderson, all in their early to mid twenties. Tim Anderson was the sect’s publicity officer, writing copious media releases to inform Australians of their cause.

  Acting as a police informant, Seary soon earned his stipend and notified police of an upcoming bomb plot, involving Anderson, Alister and Dunn, to murder the New South Wales leader of the extreme right-wing National Front, professed Nazi Robert Cameron. ASIO and the special branch swung into action, obtaining warrants for phone intercepts and listening devices, and putting the three Margis under surveillance.

  The crime of conspiracy is very serious and is committed the moment a criminal agreement is entered into. Should the crime be prevented by efficient police work, the community benefits, but the actual crime is committed not when the deed is done but when the parties involved agree to make it happen.

  On the night of 16 June 1978, Alister, Dunn and Seary drove to the western Sydney suburb of Yagoona where Robert Cameron lived. On arrival at Cameron’s house, the police swooped and arrested Alister and Dunn. In their car, police found a homemade bomb. Anderson was also arrested at the Ananda Marga headquarters in Queen Street, New-town, an inner-west suburb. All three were charged with conspiracy. They were dubbed the ‘Yagoona Three’ by the media. The authorities interrogated each conspirator, which resulted in three verbals or, to put it more politely, unsigned police records of interview, admitting to planning to bomb Cameron’s house. There was no evidence linking the trio to the Hilton bombing. It appeared arresting the Yagoona Three for conspiracy was a situation of the authorities taking what they could get. If the police couldn’t get the three for the Hilton bombing, then they would get them for the conspiracy.

  According to Seary, Alister and Dunn were tasked to plant the explosive at the Yagoona house, while Anderson would produce a media release. He also said the three Margis told him they had ‘fixed’ the Hilton bombing, and Anderson had stated, ‘You’ve got to be willing to die for your ideology.’ Police claimed Dunn told them during his arrest, ‘We will never be stopped … Ananda Marga will cleanse the world.’

  The Yagoona Three were committed for trial at a hearing in September, despite vigorously denying all of Seary’s allegations and the unsigned police records of interview, and saying they had only intended to graffiti Cameron’s house, not blow it up, hence the cans of paint. Alister and Dunn denied knowledge of an explosive device being in their car.

  The trial was set for 19 February 1979 before Justice John Flood Nagle. Prosecuting for the Crown was WH ‘Sandy’ Gregory QC, who led Anna Seeto, a very able prosecutor herself. Appearing for Ross Dunn was Public Defender Michael Adams. The forceful and impressive Marcus Einfeld QC appeared for Tim Anderson. Einfeld was an authentic leader of the Bar, having taken silk at thirty-nine. The scholarly and eloquent Ken Shadbolt represented Paul Alister. Shadbolt had a polished and persuasive forensic style, ideally suited to a case in which there was an inevitable conflict with top detectives. This was a very strong team. All three became judges. Given the quality of advocates on both sides of the table, the trial was hotly contested, but resulted in what could be considered a draw. The jury couldn’t return a unanimous verdict. It was not one eccentric juror holding out—they were hopelessly deadlocked: fifty-fifty. It was a mistrial, leaving Anderson, Alister and Dunn to face a second trial on 9 July.

  For the second trial, before Justice Jack Lee, Bill Job QC led for the Crown. The defence side was without the formidable talents of Ken Shadbolt and Marcus Einfeld QC. Public Defender Sean Flood, a fighter of courage and commitment, replaced Ken Shadbolt at the last minute. He was a young man with an aggressive style. In later life, Sean Flood accepted an appointment as a Local Court magistrate.

  Substituting for an unavailable Einfeld was the courtly and elegant Sir Kenneth McCaw, a former Attorney-General, recently knighted and the recipient of the honour of Queen’s Counsel. Sir Kenneth was a brilliant parliamentary performer. His selection was considered to be a good replacement for Einfeld
. He was also the Attorney-General who appointed me Public Defender some six years earlier. If Sir Kenneth had launched himself into a full-scale forensic attack on the police, as his instructions from Anderson demanded, it would have been an electrifying confrontation and, undoubtedly, impressed the jury. Unfortunately, it didn’t happen. As we found out, Sir Kenneth was a very experienced politician, but not so as a barrister. His worth in the trial was sadly overestimated. The tactic he employed was the discredited ‘confess and avoid’. This meant he would seek to gloss over the confession—the verbal—thus avoiding any confrontation with police or the trial judge, and pass the arrest off as ‘all a bit of a misunderstanding’. As if any jury would accept such a flimsy claim. It never worked, and it didn’t for Tim Anderson. It may even have given the jury the impression the wise Sir Kenneth didn’t believe the accused. This was not Tim Anderson’s defence, not his instructions, and not his sworn evidence. Sir Kenneth’s tactic didn’t extricate Anderson from his predicament, but buried him deeper.

  Sir Kenneth’s approach was in opposition to the instructions, not only of his client, but of each of the defendants. To each of the accused the unsigned confessions were acts of perjury. Although none of the three had a criminal record, on arrest, each behaved in an identical fashion. According to police, Anderson, Alister and Dunn all owned up and confessed to the crime. Then each, coincidentally, refused to authenticate the confession with his signature. Therefore, each confession was denied authenticity. As was the custom in the seventies, the perennial question arose, yet again: Why would three cleanskins be so cooperative as to make a full confession yet, at the same time, firmly decline to authenticate it with a signature? This was the principal trial issue. Michael Adams, who was still representing Dunn, doggedly pursued the verbals. One valiant exchange between Adams and Justice Lee highlighted the drama. It ended with the judge’s taut observation, ‘when [police] are held up as perjurers, there is no room for niceties’. And don’t we all know it?