Justice Denied

by John Suter Linton

  The prejudicial pall of the Hilton Hotel bombing hung over the trial. The voluble Seary claimed that, while driving to Yagoona, Alister and Dunn had admitted being the Hilton Hotel bombers to him. But he did not bother to tell the police that momentous news until much later, well after the arrests. Seary’s reason was he was unhappy with the way police treated him and he decided to drip-feed them information. That decision provided the basis for a strong attack on Seary’s credibility. The defence resolved that, on balance, it was better to make capital of it, even though this allowed the jury to hear otherwise inadmissible prejudicial evidence. Experienced counsel were divided on the wisdom of introducing the Hilton prejudicial evidence. Seary, however, was a vital target. They opted to risk it. The defence answer to the prosecution was stark but simple: Seary was an absolute liar.

  Crown prosecutor Bill Job QC made much of the introduction of the Hilton bombing and, opportunistically, put the accusation straight to all three defendants during cross-examination. His questioning highlighted, unfairly, the highly emotive non-issue of the still unsolved Hilton bombing. Anderson, Alister and Dunn held their own and denied any involvement.

  Justice Lee was a fair judge. He did not exhibit a bias for either the Crown or defence, but set out the facts plainly for the jury to decide. During his summing up, Justice Lee did instruct the jury that the confessions called for support from other evidence and should not be given too much weight. The jury swiftly returned from their deliberations and found all three guilty of conspiracy. Justice Lee then imposed upon each young man a sentence of sixteen years penal servitude. Despite their prior good character, the judge declined to set a minimum term. In conclusion, Justice Lee praised the police. Not a good day for the Yagoona Three.

  Each of the men showed great fortitude in their adversity. Perhaps their public relations presentation could have been a shade better. For example, after being convicted, they defiantly asked Justice Lee to impose life sentences upon them. Their taunt might have been bold, but it was hardly wise. The challenge of Anderson and Alister for the judge to impose maximum life sentences was not arrogance or rebellion, but a valiant protestation of innocence. Brave yes, but also foolhardy. It wasn’t the smartest of taunts, not that any taunting of a trial judge is smart.

  My first involvement with any of the Yagoona Three came when I appeared for Ross Dunn in the Court of Criminal Appeal in October 1980. That was the year in which I took silk. He impressed me then as an earnest, softly spoken young man, desperately unhappy about finding himself, although innocent, in gaol serving a long sentence. At this time I also, naturally, briefly met Tim Anderson and Paul Alister. Anderson, particularly, struck me as an intelligent and strong-minded type of person. Like Dunn, Anderson and Alister were unhappy with their lot, but also determined to prove their innocence. They were all handling the circumstance, not of their making, as best they could. Sadly, the Court of Criminal Appeal dismissed their appeal.

  * * *

  Of course, there were still questions about who bombed the Hilton. The community and the media all wanted answers. The authorities, however, believing Seary’s claims that Anderson, Alister and Dunn were responsible for the attack on CHOGM, were content with having the Yagoona Three behind bars, even if only for conspiracy.

  As time passed, more and more theories began spreading as to what might have really happened that warm February morning. There were conspiracy theories on top of conspiracy theories. One of the strongest suggested ASIO and special branch had planted the bomb themselves, to then ‘discover’ and defuse, as a publicity stunt to justify their existence. If so, it went horribly wrong. To try to sort fact from fiction, a coronial inquiry was held in September 1982, just over four and a half years after the bombing. The inquiry heard evidence from a range of people, including the Crown’s star, Richard Seary. Based on the evidence, particularly Seary’s, Stipendiary Magistrate Norman Walsh found a prima facie case of murder existed against two members of Ananda Marga, Ross Dunn and Paul Alister. Tim Anderson was not mentioned. Mr Walsh then, prematurely, ended the inquiry. No charges were ever laid against any of the Yagoona Three from the coronial findings.

  As an aside, so brilliant was Michael Adams’s cross-examination of Richard Seary, the star Crown witness, at the Hilton Hotel bombing inquest at Glebe that it was included in James Glissan’s collection of great cross-examinations, Cross Examination – Practice and Procedure – An Australian Perspective. It must be said there were never any half measures involving the future Honourable Justice Michael Adams QC. Adams was a rising star at the Bar and this trial proved it. He did not have the years of experience of Bill Job QC, but he certainly matched his opposite number in intellect. Adams’ style was robust and forceful yet, at the same time, observed the etiquette of the Bar.

  Apart from the conspiracy theories, and not because of them, there was a strong movement calling for the release of Anderson, Alister and Dunn. The trio’s supporters ranged from politicians, celebrities and the like, to the man on the street. Supporters believed an injustice had been done to the trio. At the least, the act of violent terrorism seemed at odds with the beliefs of the Ananda Marga. The Ananda Marga were protesters and not criminals. The sect continues to this day and believes in yoga and meditation, that we are all part of a collective consciousness, and advocates a world of justice, security and peace for all. Hardly the basis for a radical extremist group. It’s worth noting that Ananda Marga had been on ASIO’s radar a year before the bombing and, while recommending the sect be banned, ASIO found no evidence of extremism or of plans to bomb CHOGM prior to Seary’s allegations. At the time, Ananda Marga were seeking publicity for their unfashionable cause, to free their religious leader from an Indian gaol.

  Dunn, Alister and Andersen then appealed to the High Court of Australia in 1983. Despite having, again, the great Ian Barker QC, the five judges on the bench dismissed the appeal, delivering their decision in 1984. One of the arguments for appeal was the trial judge had erred in law by setting aside a subpoena directing ASIO to produce all files relating to Seary’s involvement. The judges inspected the ASIO documents and, with only Justice Lionel Murphy dissenting, held that none of the documents were relevant to the issues at the trial. The contents of the documents were marked secret, and have never been revealed. It was a crushing blow. The three young men now seemed destined to see out their sixteen-year gaol sentence.

  * * *

  While the Ananda Marga’s cause to free their leader was still relatively unknown to the populace, the movement to free Anderson, Alister and Dunn, conversely, gained huge momentum. Supporters held public protests, appeared on news outlets, and kept the Yagoona Three in the spotlight. Whether it was due to this public outcry of injustice, or discoveries made behind the scenes, the New South Wales Attorney-General Paul Landa made a surprising, but welcome, announcement. On 7 March 1984, he ordered a judicial inquiry into Anderson’s, Alister’s and Dunn’s conspiracy convictions. It was a sensational decision.

  The hopes of the Yagoona Three were now revived when all had seemed lost with their failure in the High Court, the final court of appeal. Their fate now rested not with a jury of twelve or an appellate court of three or five judges, but with one man as appointed by the Attorney-General. That man was the Honourable Justice James Wood, a very newly appointed judge of the Supreme Court of New South Wales. He was forty-three. This was the beginning of the distinguished judicial career of Justice Wood spanning over twenty years on the Supreme Court bench, seven of which he was Chief Judge at Common Law. Justice Wood, with a soft voice, was possessed of unfailing courtesy and equanimity, while also presiding with an impressive firmness and authority. The inquiry would be heard in No. 6 Court at the Darlinghurst Court complex.

  So, four years after having unsuccessfully represented Ross Dunn at the Court of Criminal Appeal, I was now selected to represent Tim Anderson at the inquiry. Anderson remembered me from the appeal, but was hesitant in taking on, yet again, another barrister to
represent him. He needed lots of persuasion to accept me as silk, along with my junior, Jim Glissan, and solicitor, Michael d’Arbon, as his lawyers for the Wood Inquiry. There would be no legal cost to him or his family—the government would meet the legal cost of all three young men, indeed, the legal costs of everybody involved.

  Few could blame Tim Anderson for his reluctance to accept legal aid and lawyers. He was probably more intelligent than most of the lawyers, myself included, and he knew the case backwards. The legal system, police, judges and lawyers through every step, including the High Court lawyers, had failed him. Given the circumstances, Anderson’s lack of confidence in our legal system could hardly be characterised as unreasonable. He, in fact, wanted to represent himself. To support his case he produced the following chart, showing the range and quality of legal representation up to and including this point. Anderson’s list includes, with James Glissan and myself, two chief magistrates, two city coroners, a police prosecutor who became a magistrate, a Knight of the Realm, two Chiefs Justice of Australia, a president of the Court of Appeal, a judge of appeal, two Federal Court judges, two Solicitors-General, two barristers who became High Court judges, a half-dozen Supreme Court judges, and double that for the District Court bench, and an array of eminent silks.

  Anderson was, and is, highly intelligent and articulate, and he certainly knew his defence well enough to have made a capable advocate, despite lacking a legal degree. But as much as Anderson would have preferred to appear for himself, there were logistical problems. We would be subpoenaing, among other documents, all material being held by ASIO and Special Branch in relations to the Ananda Marga and the conspiracy against Robert Cameron. Due to the complexity and the form of the material produced, it was simply not practicable for Anderson to be available to review the documents and, therefore, to appear for himself. After all, the Yagoona Three were still serving their time at Long Bay.

  Ultimately, Tim Anderson agreed to allow James Glissan, Mike d’Arbon and me to present his case. He was a good client. His analysis and contribution to the conduct of his case was invaluable. His elderly parents, who were strongly supportive of their son, travelled from Victoria for the inquiry and lived in a flat at Manly, on Sydney’s northern beaches, for its duration.

  When the Wood Inquiry began, the Yagoona Three were brought to and from Darlinghurst Courts in a prison van with other prisoners. As the inquiry proceeded, the trio qualified for, and obtained, work release. They then travelled, unescorted, by bus to and from the Metropolitan Training Centre at Long Bay, the former women’s prison. Justice Wood graciously gave Anderson, Alister and Dunn his permission to sit in the comfortable chairs in the empty jury box. They behaved impeccably. They had a six pm deadline to return to gaol using public transport. After court most days they spent the time at my chambers consuming litres of apple juice, not my preference, but much valuable work was done during those conferences.

  Jim Glissan and I conferred with Marcus Einfeld QC, Michael Adams and Tom Molomby on virtually a daily basis, including weekends. Einfeld, Adams and Molomby appeared for petitioners—as they are referred to in these hearings—Ross Dunn and Paul Alister. We usually met in Mr Einfeld’s chambers in Martin Place, the centre of Sydney’s central business district, discussed matters long into the night and planned tactics for the next day. All-day Saturday meetings were not unusual.

  Marcus Einfeld was a fierce advocate and strong leader. Such was his dedication and ambition, he would go on to be a justice of the Federal Court of Australia and of the Supreme Courts of New South Wales, Western Australia and the Australian Capital Territory. He would also become president of the Human Rights and Equal Opportunity Commission between 1986 and 1990. Einfeld retired as a judge in April 2001, but the tranquillity of retirement was shattered when he was gaoled for perjury: he had lied in an attempt to avoid a traffic infringement for speeding. Even so, Marcus Einfeld’s legacy and vast achievements remain, particularly his leadership during the first Yagoona Three trial and now the inquiry.

  Einfeld, Adams and Molomby received close to appropriate fees for their magnificent legal aid work. Glissan and I were fiscally more attractive propositions for the government—we simply continued to receive our salaries as Public Defenders. During the inquiry, Michael Adams even travelled overseas to pursue evidence. He had been involved in the case from the committal proceedings, to the two trials, the Court of Criminal Appeal, the High Court and now the inquiry. Other than the petitioners, Michael Adams’ knowledge and history was also vital in our preparations. Those Public Defenders who had previously appeared for the trio, such as Ken Shadbolt and Sean Flood, often called in to say hello.

  At the start of the inquiry, Justice Wood made a crucial early ruling: he would not allow the inquiry to be a rerun of the two earlier trials, he would only hear new evidence. The judge’s objective was not to review the two trials, but evaluate the ‘new’ evidence. This meant the disputed police records of interview would not be given again. The ruling meant our clients would have no evidence that fell within the framework to give. That did not please them. As would be expected from wrongly convicted men, all they wanted to do was again publicly proclaim their innocence. James Glissan and I reasoned this decision was not a setback, but a positive development, as it removed any prospect of the judge hearing their evidence and not accepting, or even rejecting it. Justice Wood would have gained little or nothing from observing the demeanour of the witnesses. Experienced detectives being cross-examined by Einfeld, Adams and me would add little to assist the judge either.

  This ruling also suited the wily tactician, Frank McAlary QC, who appeared for the detectives concerned. Their virtual ineligibility to give evidence greatly reduced the possibility of a negative finding against his clients, the arresting detectives. His brief was not to support the convictions. After all, the Yagoona Three had served almost seven years. The task of keeping them in gaol was enthusiastically performed by Michael Finnane QC for the Crown. McAlary’s primary job was to avoid an adverse finding against the officers concerned. And an adverse finding was a real possibility with a judge as independent as Justice James Wood. We, as counsel for the petitioners, were not seeking to lay blame or be agents of a witch hunt, but to seek freedom and vindication for our clients. The evidence presented at the trials was, however, documented and available to Justice Wood. Several times I was at pains to ensure this would not operate to the detriment of the petitioners. The judge had before him the transcripts of both trials, but it is never possible to assess the credibility of a witness solely by reference to the transcript.

  Without Justice Wood’s decisiveness the inquiry could literally have dragged on for a year. It would have cost the state, which funded all legal representation, millions more. The judge quickly assessed the issues and ensured proceedings did not get out of control. That was no easy task given the overcrowded bar table, not populated with timid or modest advocates. Justice Wood did not wear a wig or civil or criminal robes. Nor did counsel wear robes. Nor was the judge preceded into court by his tipstaff. Although he was a Supreme Court judge, he was sitting in the more humble office of Justice of the Peace. Having said that, it was really a royal commission in all respects but name. That technicality was to meet the rarely used terms of the legislation, which allowed the inquiry to be convened pursuant to Section 475 of the Crimes Act.

  A constant visitor to the inquiry was state Labor MP and Member for Illawarra, George Petersen. Mr Petersen, a noble crusader for lost causes if ever there was one, had campaigned tirelessly for years for an inquiry. Many credit his efforts with the decision of the Attorney-General, Paul Landa, to order the Wood Inquiry. It must also be said the decision of the Attorney-General to order the inquiry was a courageous one.

  Malcolm McGregor QC was an inspired choice as counsel assisting the inquiry. For those who remember, he bore a striking physical resemblance to the British film star Alistair Sim. If you have no idea who I’m referring to, a more contemporary, albeit
cartoonish, reference would be a healthier looking Montgomery Burns from The Simpsons. This comparison is in no way meant as an insult or reflection of Mr McGregor’s personality. Far from it. Through the inquiry, McGregor’s stance, although neutral, occasionally revealed he found aspects of the police investigation troubling. He was a Crown Prosecutor who was on special duties assisting Solicitor-General Mary Gaudron QC. She would become the first woman to be appointed to the Bench of the High Court of Australia. The law offers no greater distinction than an appointment to that court. Justice Gaudron’s claims to legal distinction were set in stone long before her elevation.

  As counsel assisting the judge, Mr McGregor determined the order of witnesses and the pace of the inquiry. Any judicial inquiry can only be effective if all relevant material is placed before it for evaluation and judgement. McGregor left no stone unturned. He and those assisting him used, as their chambers, the jury room adjoining No. 6 Court, where the hearing took place. He shared the room with Wayne Haylen, later to become Justice Haylen, and his secretarial staff.

  The secretary of the inquiry, who sat in the courtroom in front of the judge in the associate’s position, was a young man named Robert Hulme. He was at the beginning of his legal career. And what a career it was. He became a Crown Prosecutor, Public Defender, District Court judge, and then Justice RS Hulme of the Supreme Court.

  Facilities for counsel, witnesses and the public at Darlinghurst Court are virtually non-existent. The fine old Colonial building has simply run out of space. In the whole complex there are two toilets, and no interview rooms or refreshment facilities. Judges and Crown Prosecutors, however, have their own excellent chambers. Marcus Einfeld, who was sometimes referred to as the ‘field marshall’ of the petitioners’ legal team, imperiously commandeered the witness room of the next-door Central Criminal Court. We moved in all of our files and books and affixed on the door an unauthorised sign asserting our claim. It didn’t last. Court authorities retaliated by not only removing the sign, but the door with it. This bureaucratic act produced a letter of complaint from Einfeld to Chief Justice Sir Laurence Street. An unsatisfactory compromise was reached: we were allowed some storage space for our files and transcripts, but the location was on the other side of the court complex, well away from No. 6. The most comfortable conferences, if not the most productive, were over gourmet schnitzel meals at the Balkan Restaurant on the other side of Taylor Square in Oxford Street, presided over by Michael Adams.