Justice Denied

by John Suter Linton

  The subpoenaed material, which had been denied to the petitioners during their trials, revealed what ASIO had on the Ananda Marga: not a lot. It may grieve my former clients for me to say it, but Ananda Marga was never a powerful or influential group and in Australia it was tiny. As ASIO and special branch tapes revealed to us during the Wood Inquiry, the group was spectacularly overrated. While there were allegations, none were strongly supported with reliable evidence. With the subpoenaed files from ASIO and special branch, more was being learned about the Crown star, Richard Seary, and his involvement. What was learned was, basically, Seary was a narcissistic liar. He had, initially, blamed the Hare Krishnas for the bombing, but later switched to the Ananda Marga. At the time of the inquiry, Seary had conveniently relocated to England and declined an invitation to attend the inquiry. Seary revelled in the fact that, being out of our jurisdiction, he could not be compelled to appear.

  It was of crucial importance to persuade Justice Wood to reject Seary as a witness of truth and reliability. I began my submissions recalling the eighteenth-century advocate Curran, who is reputed to have dismissed the evidence of a police informer with a florid passage along these lines: ‘I conjure you, suffer him not to fake an oath; the hand of a murderer should not pollute the purity of the Gospel, if he swear, let it be upon the knife, the proper symbol of his profession.’ Florid but fair. Dealing with this very case in the High Court of Australia, Justice Lionel Murphy said of Seary, ‘The record shows that Richard Seary … must be one of the most unreliable persons ever presented as the principal prosecution witness on a charge of serious crime.’

  I described Seary’s refusal to attend the inquiry as ‘craven cowardice’, and condemned his attempt at ‘clandestine correspondence’ with the judge, adding, ‘the infamy of this man, Seary, and his consequences … chills the blood of decent people’.

  In setting out our case I explained,

  The evidence in this inquiry discloses that these young men have suffered one of the truly spectacular miscarriages of justice in our legal history … the full story was not told because the inspection of certain material [referring to the ASIO files] not being allowed … to allow these convictions to stand on the evidence before Your Honour, it would be an affront to the community’s sense of justice. The evidence compels these findings: first of all, that the trial miscarried because relevant and highly significant material relating to Seary was wrongly withheld from the petitioners … Seary was presented by the Crown as a credible witness. Fresh evidence at this inquiry renders that presentation as untenable … the cross-examination of the petitioners was improper … [the Crown case] falls into three compartments: the evidence of Seary, circumstances and inferences said to arise, and the alleged verbal admissions … if any of these compartments falls, or Your Honour regards it as tainted by doubt, that is the end of the matter and it would be unsafe to allow the verdicts to stand.

  In his book Free Alister, Dunn and Anderson, Tim Anderson quoted a submission of mine about Seary: ‘not only able to lie but he was able to lie convincingly. He could take an acorn of truth and turn it into an oak-tree of falsehood.’ In retrospect, addressing a judge and not a jury, that was probably a bit over the top. In common with Marcus Einfeld and Michael Adams, however, I found it difficult to maintain objectivity in the face of what appeared to be an injustice, which wrongly kept three innocent young men of good character in gaol for seven years.

  We prepared for the Christmas law vacation when, in a shock development, Richard Seary was funded by the New South Wales government to return to Australia to give evidence. Seary was a cross-examiner’s dream. To be fair, it was never going to be an equal contest. Each time, cross-examination pitted an experienced barrister against a self-confessed garrulous deceiver with mental problems. On his own admission, Seary was a liar who inhabited a fantasy world. The car which Seary told Alister and Dunn he had borrowed, unbeknown to them, had been stolen. Alister and Dunn, with Anderson, were set up by Seary. It was Seary who convinced the others to target Robert Cameron under the deception they would spray paint slogans over Cameron’s house. Therefore, to Alister and Dunn, the purpose of the Yagoona trip was to spray graffiti on a house. Childish? Yes. Vandalism? Certainly. A major violent crime was never on their agenda, at least, not in the minds of the two Margis. Seary used this opportunity to plant the homemade bomb in the stolen car, having alerted the police, who elaborately tracked the car to Yagoona, where others lay in wait.

  Cracking Seary in the witness box was good theatre, but it was not the main game. The centrepiece of the Crown case against Alister, Dunn and Anderson was always the disputed verbal admissions. From the outset, the prosecution realised relying upon the word of Seary alone was building a house of straw. It was surprising, then, that it allowed him to become the focus at the inquiry. The Crown erred in allowing the credibility of Seary to become the focus, instead of highlighting the army of police to whom the admissions were allegedly made, or who claimed they were present and were, therefore, witnesses when they were made. It was the police evidence, not Seary, that Justice Jack Lee featured during the second trial.

  In New South Wales State Parliament, George Petersen MP, not a lawyer, shrewdly analysed the case as a layman and lashed out at the obvious injustice. Mr Petersen was a top orator. As recorded by Hansard on 7 March 1985 in the grievance debate, Petersen rose in the Legislative Assembly and stunned the chamber by saying:

  The case of the Ananda Marga trio, sentenced in 1979 to 16 years’ jail for conspiracy to murder Nazi Robert Cameron, shows that it is only a short step from using such tactics against criminals to using them against people involved in political activity. In the case of the Ananda Marga trio the recent Section 475 inquiry has demonstrated that the chief Crown witness, Richard Seary, is a pathological liar, a dangerous lunatic, and a contemptible psychopath who will do and say anything to gain attention. Whilst his evidence is worthless, the real problem is that it is supported by verbals concocted by five police officers … In the High Court in 1977, Mr Justice Gibbs warned juries that sometimes police fabricate evidence to secure conviction of people they believe to be guilty … One must be grateful to counsel for the Crown for publishing these verbals in full. Detectives Burke and Gilligan have Ross Dunn confessing: ‘We will never be stopped. Ananda Marga will cleanse the earth.’ Detectives Godden and O’Brien invented comments from Paul Alister such as: ‘Nazi racists do not belong here. You have prevented us from doing this but others will follow.’ Detective Roger Rogerson has the highly intelligent political analyst, Tim Anderson, using this language, ‘It will not stop here. What was going to happen tonight is the only justice Cameron and his kind deserve.’ Rogerson’s inventive genius was demonstrated particularly when he had Anderson’s reply to the advice that he would be charged with conspiracy to murder recorded as ‘(No reply in English – outburst in foreign language.)’

  Counsel for the trio, Marcus Einfeld, QC, and Bill Hosking, QC, pointed out that in none of their evidence and in none of their admitted writings and words are there any expressions remotely reminiscent of the alleged confessions. One bizarre example is that Dunn is said to have boasted of being reborn in the Ananda Marga—a concept which is western Christian and quite foreign to Ananda Marga ideology. Regarding Anderson, Mr McGregor commented that a more articulate response might have been expected from the Ananda Marga’s publicity officer … It is pointed out also that whilst all three men have different personalities from one another, there are nine phrases that are found in two or more confessions, as if all the confessions had a single author or group of authors. Who was the author, or were the authors?

  … Counsel raise five other points regarding these particular confessions: first, that each readily confessed notwithstanding prior adherence to a policy of not talking to the police; second, that no confession provided any information that the police did not know already; third, that each defendant spoke admitting guilt, and then lapsed into uncooperative silence; fou
rth, that each was interviewed at two different places, hours apart, and spoke the same way each time; and fifth, that each confessed boastfully to an adherence to the terrorist cause and then spent the next seven years denying it … In short, although counsel for the trio do not say so, the conviction was a frame-up. It is quite pertinent that their submission should ask how the convictions can be upheld when the Government stated last November that it is about to outlaw such confessions. I have no illusions that the recording of confessions by electronic methods, or a provision that a witness of the accused’s choice must be present for a confession to be legal, will totally outlaw such practices as those so well analysed by Messrs McGregor, Einfeld and Hosking.

  * * *

  Michael Finnane QC, in his closing address to Justice Wood, criticised the petitioners for failing to give evidence at the inquiry. This was hardly fair, given the judge’s clear indication he would only receive fresh evidence. I felt obliged to take the unusual step of interrupting Finnane’s closing to point this out. An acrimonious exchange resulted and was brought to an end by the judge firmly observing that he was quite capable of giving appropriate weight to the various segments of the evidence. And he was. The inquiry was not a court and, thus, the hearing was not adversary proceedings.

  In any case, the petitioners had nothing to fear from going into the witness box. They relished the idea. Each had given evidence at the two trials and had been trenchantly cross-examined. Indeed, the cross-examination of Tim Anderson by Bill Job QC in the second trial was the subject of an appellate challenge which drew criticism by the Court of Criminal Appeal.

  Through all of their travails, the Ananda Marga men never had a single victory in a courtroom. When the evidence and addresses concluded, Justice Wood simply ‘retired’, as the saying goes, to write his much awaited report. And he did that in his own time. Whatever the finding, there was no appeal process available. It was a blend of the due process of executive and judicial function. The independence of the judiciary ensured the impartiality of the process.

  In due course, Justice Wood’s report was formally submitted to the governor, but in reality to the government, which tabled it in parliament. As a result, on 15 May 1985, Ross Dunn, Paul Alister and Timothy Anderson were released with a pardon after six years and eleven months in gaol, but not exonerated or adequately compensated. That was not the judge’s fault, it was the decision of the government of the day.

  In his findings, Justice James Wood ruled that Seary had lied on at least fifty occasions. He described Seary as ‘a person of considerable intelligence and imagination who craved recognition and status and who was willing to exaggerate, bend the truth and lie in appropriate circumstances’. At the end of the day, the police did not come in for the criticism which was well and truly open to the judge to make. Wood did, however, state:

  While some criticism can be levelled at the police in hindsight for an inadequate investigation of Seary before his recruitment, I am left in no doubt as to the bona fides of the officers who were concerned in the inquiry, and who made the necessary decision to operate him in the field. I am satisfied that police engaged in the shadowy area of intelligence have to work with the personnel and inside sources available. In very few cases will a potential informer or non-service agent be a person of unblemished character.

  Paul Alister, Ross Dunn and Tim Anderson were awarded $100,000 each in compensation, which, in my opinion, was ridiculously inadequate for what they had gone through. Alister and Dunn moved to an Ananda Marga community in Queensland, and Anderson pursued a PhD at Macquarie University. Tim Anderson’s own book, Free Alister, Dunn and Anderson, which he wrote during his seven years in gaol, is a stirring insight into their legal fight and incarceration. To his credit, it is devoid of bitterness. He graciously gave me a copy, which he inscribed, To Bill—many thanks for all your sincere efforts. It is dated 9 September 1985, literally hot off the press. Sadly, Tim Anderson’s ordeal was not over yet.

  * * *

  Sometime before 1989, police received information related to the Hilton Hotel bombing from a highly suspect source. Raymond John Denning was a career criminal. He’d been institutionalised for most of his life from his early teens, serving sentences for armed robbery, break and enters, car theft, assaults, and having escaped most of the prisons he’d been serving time in. Towards the end of his career, Denning turned police informant, no doubt earning favours for dogging on his mates. Denning was eventually released in 1993 and died of a heroin overdose in June that year.

  During the period Tim Anderson had been imprisoned on conspiracy charges, he and Denning had shared the same prison, along with hundreds of others. According to Denning, he and Anderson befriended each other and Anderson openly admitted, on different occasions, he had set the bomb at the Hilton Hotel. You can select the company you keep, but that choice is lost when you become a prisoner; it is one of the many dangers of prison life. The identity and quality of your fellow inmates is determined not by you but by the gaol authorities.

  Confessions to another prisoner while in gaol are prolific, but always highly suspect—much, much more suspect than the unsigned record of interview. The gaol environment forces strange friendships. The idea, however, that Tim Anderson could resist confessing to the police, but would confide in Raymond Denning, is absolutely unbelievable. He and Denning had nothing in common, no common interests, education, sporting or other concerns. True, they were fellow prisoners, but with a big difference: Tim shouldn’t have been in gaol in the first place, as was later proved, and Denning was a hardened criminal with a long record culminating in a life sentence.

  Police believed Denning, although Denning had not revealed the conversations until four years after Anderson’s release on the Yagoona conspiracy. Denning’s information led to Anderson being charged with the Hilton Hotel bombing on 30 May 1989, four years after his pardon on the conspiracy charges. This, then, set about a shock development. Enter Evan Dunstan Pederick, a 33-year-old Brisbane public servant and Ananda Marga member who, on hearing of Anderson’s arrest, went to police and admitted he was involved in the bombing under orders from Tim Anderson. He said Anderson had provided the explosives and Pederick planted them in the bin to detonate remotely on the Indian prime minister’s arrival, but it didn’t work, so he panicked and ran.

  Pederick, who had failed in securing immunity for himself, was dealt a swift blow. On his own admission, he was charged and found guilty on three counts of murder, despite arguing he was only guilty of conspiracy to murder the Indian prime minister. The judge found he had been reckless in leaving the explosives in the bin. He was sentenced to twenty years in gaol.

  With Denning’s and Pederick’s statements, supported by Pederick’s plea of guilty, the most feared prosecutor of his era, Senior Crown Prosecutor Mark Tedeschi QC, convinced a jury of Tim Anderson’s involvement in the bombing. In October 1990, Anderson was given the extraordinarily lenient sentence of fourteen years gaol for the triple murder. Life imprisonment, without hope of ever being released for such a heinous crime, would have seemed to be inevitable. It was never alleged Anderson had actually planted the bomb, but he was convicted on being an accessory before the fact, otherwise known as an accomplice. The presiding and very experienced judge, Justice Michael Grove, said Anderson had been ‘brainwashed’ by the Ananda Marga cult when he instigated the bombing. On the day of the verdict, the Sydney Morning Herald ran the headline, Guilty: the Hilton bomber. It also wrote the bombing had been ‘finally solved’.

  In June the following year, Anderson appealed his conviction to the Court of Criminal Appeal. His senior counsel again was the brilliant Ian Barker QC, who had argued the Ananda Marga appeals in 1980 in the same court. The Crown Prosecutor was Mark Tedeschi QC, who had, only months before, secured Anderson’s conviction at trial. It is rare for the Crown Prosecutor at trial to retain the brief for the appeal, but Tedeschi did nonetheless.

  The credibility of the witnesses, Denning and Pederick, came u
nder heavy fire from Ian Barker QC. Huge work had been done cross-checking dates and examining the statements of each witness. In doing so, glaring errors became obvious. For one, Denning was not even in the same prison as Anderson on some of the dates he claimed Anderson had confessed to him. Pederick had also given police three different scenarios of how and when he planted the bomb, but none were plausible due to security, arrivals of dignitaries and other factors.

  On 6 June 1991, the three judges on a particularly strong Court of Criminal Appeal came to a unanimous decision. They agreed the verdicts of guilty in Anderson’s trial were unsafe and unsatisfactory. Chief Justice Murray ‘The Smiler’ Gleeson dismissed Denning as a ‘notorious prisoner’. In relation to Pederick he said, ‘on any view of the matter, his account of the events of 12 February 1978, and in particular of the circumstances relating to his actual attempt at assassination, is clearly unreliable. He is incapable of giving a description of those events which does not involve serious error.’ It is difficult to imagine a shakier basis than that adopted by the Crown to charge Tim Anderson with the Hilton Hotel bombing.