Chief Justice Gleeson continued, ‘I do not consider that in those circumstances the Crown should be given a further opportunity to patch up its case against the appellant. It has already made one attempt too many to do that, and I believe that, if that attempt had never been made, there is a strong likelihood that the appellant would have been acquitted.’ So, rather than order a retrial, the full bench quashed Anderson’s conviction and he walked free a second time. The unanimous judgement of that bench is enshrined in Volume 53 of the Australian Criminal Reports, bound distinctively in blue and red with gold lettering proclaiming (1991) 53 A.Crim.R. 421.
* * *
In May 1995, Evan Pederick recanted his confession. After six years in gaol, Pederick decided he might be innocent. He accused police of failing to test his evidence and state of mind. In an interview he granted to News Limited, he gave a possible explanation as to why he would have confessed by posing this question: ‘Is it possible that in 1978, dominated by the influence of the Ananda Marga and yet in conflict with the demands of the sect, I had acquired a deep sense of guilt which expressed itself in an obsession with the cataclysmic events for which Ananda Marga was held responsible at the time? I do not know.’
In 1997, the NSW Court of Criminal Appeal dismissed Pederick’s new claims. In rejecting his appeal, the judges insisted the decision of the court ‘cannot be validly interpreted as casting doubt upon its previous decision to acquit Anderson’. Six months later, Pederick was released on parole.
Pederick was flawed but, like his fellow turncoat Seary, he deceived a jury and achieved another grotesque miscarriage of justice. Was he truly a penitent for committing such an atrocity? Evan Pederick’s personality remained a complex blend with many facets and cultures. But diffidence was never an attribute. Even years in gaol did not dim his relentless search for the spotlight.
* * *
Despite there being no evidence linking Alister, Dunn or Anderson to the bombing, efforts to punish them for it were unrelenting. Gaol, loads of it, was their punishment. Bad luck for those three men who had been selected to take the blame. Appeals all the way to the High Court failed. They stayed in gaol for almost seven years until cleared and released following the Wood Inquiry.
Today, Dr Timothy Anderson is a University of Sydney senior lecturer. His is not a case of turning one’s back on crime and reforming with maturity—he was never a criminal in the first place. Yet he served, all up, nearly eight years in maximum security gaols. Disgraceful! In the tormented process, Dr Timothy Anderson became the only innocent man in Australian history to be framed twice, cleared twice and released from gaol twice. Today he maintains the clear criminal record of which he is justly proud.
Although not part of the investigation team, the ubiquitous Detective Roger Caleb Rogerson was, on the night of the Ananda Marga Three’s arrests, put on standby to organise the police confessionals. There are three typed confessions belonging to the men but, alas, they joined the growing band of alleged recalcitrants who were not prepared to go that extra, binding, step of cooperating by signing the confessions. In those days, that was seldom an obstacle to convictions, as the three men so sadly found out.
But for Labor MP George Petersen, Attorneys-General Frank Walker and Paul Landa, Public Defender Michael Adams and solicitor Will Hutchins, these three young men would have served out that long and crushing sentence.
I have not seen Will Hutchins since the inquiry. The chart Tim Anderson drew up reveals his involvement from 30 June 1978. His dedicated contribution to the Yagoona Three legal cause began with Michael Adams soon after their arrest. I read Richard Ackland’s piece in the Sydney Morning Herald on 7 June 2013, which said of Mr Hutchins, ‘30 years later his skills are still devoted to the Prisoners’ Legal Service, an underpaid but crucial body which specialises in helping prisoners fronting the New South Wales Parole Authority. Not an easy task as seeking and successfully negotiating conditional release for clients invariably very much down on their luck.’ That is vintage Will Hutchins.
The fourteen-year sentence Dr Anderson received for the Hilton Hotel triple murder was, in a context devoid of any remorse or any redeeming features, astonishingly lenient. It is extremely doubtful whether the seven years in gaol as an innocent man would, as a matter of strict law, potentially have even been available as a mitigating feature. Nonetheless, it is difficult to imagine how the correct sentence for such an atrocity could be anything other than incarceration for the term of his natural life. Even if the judge thought he was innocent he was powerless to act in any way which was inconsistent with the jury’s verdict.
In the end, the justice system did not fail and the men were cleared, but the cost to these three young lives remains enormous. No one should ever have to suffer what Paul Alister, Ross Dunn and Dr Timothy Anderson did all those years.
CHAPTER
12
Angelo Maric—Guilt by Hearsay
Terrorism is not a product of the twenty-first century; it has been around in its many forms for as long as mankind. During the 1960s, 1970s, and into the 1980s, Australia found itself in the middle of a long-standing war between Croats and Serbs that dated back to 1929. In truth, it was probably earlier, as both sides clung to their nationalist identities while being forced to live under one banner: Yugoslavia. Nearly every Australian capital city was subject to letter bombs, parcel bombs and conspiracies to murder. The then communist Yugoslavian government even accused Australia of being a recruiting and training ground for the right-wing extremist Croat group, Ustasha. It was this group that was blamed for the 1972 bombing of two Yugoslav-related businesses in Sydney.
The bombs exploded on 16 September, a Saturday, at business premises at 668 George Street, Sydney, near Central Railway Station. The owner, Josef Martin, was badly injured. Depending on the news reports of the day, sixteen to eighteen people suffered varying, but minor, degrees of injuries from the blast. Shortly after, further up George Street at number 736, a second bomb was discovered and detonated in the street without anyone being hurt. This was terrorism on a major scale.
The bombings were, no doubt, a political hot potato, as evident from this news report in the Canberra Times:
Australia has assured Yugoslavia since the bombing of two Yugoslavian offices in Sydney that it would not tolerate being used as a base for terrorism, a Department of Foreign Affairs spokesman said yesterday. The assurance was given on Friday in a reply to a formal protest from the Yugoslav Ambassador to Australia, Mr Uros Vidovic. The protest followed an attack on September 16 on a Yugoslav travel agency and a Yugoslav clothing factory in Sydney, when 16 people were injured. The then Federal opposition leader, Mr Gough Whitlam, commented the bombings in Sydney at the weekend showed there were threats to life and limb in Australia on a scale which the country had never before seen. Mr Whitlam would become Prime Minister of Australia after the Federal election on 2 December.
Even before these incidents, the Commonwealth Government was under pressure to closely vet immigrants from southeastern Europe and the Balkans, and deport any Croats or Serbs who committed acts of violence. In response to the Sydney bombings, and similar happenings in Melbourne, however, the Australian Secret Intelligence Organisation (ASIO), the federal police and every state police force joined to identify and weed out extremists. Rewards totalling $40,000—more than the price of an average home back then—were also offered for information leading to an arrest. The reward was funded by both the federal and New South Wales governments. Raids were conducted across the nation involving, at times, over 200 officers. The raids uncovered a cache of weapons and explosives, and gathered valuable intelligence material. In fact, in one raid, police uncovered a plan to assassinate the Yugoslav ambassador to Australia, Mr Vidovic; the then prime minister, Gough Whitlam; Attorney-General, Senator Lionel Murphy and his wife; as well as the Sydney detectives who were working on investigations into the activities of Croatian extremists.
By November, around thirty people had been ta
ken into custody in New South Wales alone. Even so, police had yet to find those responsible for the George Street bombings. Then, on 27 November, uniformed officers, detectives and bomb squad officers from the New South Wales Police Force raided houses across nine suburbs in Sydney. They arrested six persons, one of whom was 28-year-old crane driver Angelo Maric. Maric was a Croatian migrant and self-professed patriot. After being interviewed by police, Maric allegedly confessed to having made the bombs and claimed, ‘I done it for Croatia … I hate all Yugoslavs. I blow them up in Sydney. They kill my people … I only make them [bombs]. Something must have gone wrong. They should have exploded after all the people gone home.’ He was then charged with having maliciously caused grievous bodily harm to Mr Martin and with aiding, inciting and counselling a person or persons unknown who placed the explosives.
Angelo Maric’s trial was held late in 1976. The four-year delay was never explained. Maric, of course, denied having anything to do with the bombings. The Crown evidence against him was his confession. And, as was the custom in the seventies, the damning confession was unsigned. Angelo Maric was yet another victim of the police verbal.
The trial judge was the formidable Justice John O’Brien, a dour man of Irish heritage. His lugubrious mien had earned him the soubriquet of ‘Happy Jack’. There was not a high acquittal rate in trials listed before him. The son of a country schoolteacher, Justice O’Brien possessed a fine legal brain which befits a scholar who graduated from Sydney University with first class honours and the University Medal. He enlisted in the army as a private soldier and saw service in the Middle East and New Guinea during World War Two. At the end of the war he had attained the rank of major and went to the Bar. He specialised in common law, industrial and criminal law, and was also Crown prosecutor in conspiracy trials. In 1964 he was appointed as a Judge of the Supreme Court of New South Wales.
Angelo Maric was ably represented by Public Defender, Charles Luland. Luland had studied law at night while working in the day as a sergeant in the Commonwealth Police force. To my knowledge, the unsigned record of interview was not in the Commonwealth Police’s armoury. Mr Luland may have thought he had an easy task, not only because Maric denied having made the confession, but his alibi was rock solid: Angelo Maric wasn’t even in Sydney, let alone New South Wales, at the time of the bombings. He was, in fact, in Townsville, North Queensland, over 2000 kilometres away. And it wasn’t only Maric’s word the court was asked to believe; there were a number of work colleagues who vouched for him and offered to appear as witnesses. A pretty good alibi.
Justice O’Brien, however, took more than his usually active role in the trial and dismissed the alibi. In the judge’s view, Maric didn’t have to be in Sydney to have made the bombs and encouraged others to plant them. Then, during the evidence of the Crown witness, Norman David Pratt, Justice O’Brien took over the questioning, leading the witness in answers that were prejudicial to the accused, Maric. Devastatingly, the judge elicited from Pratt that it was said about the accused—not by him or to him—‘Maric was good at making bombs’. This was hearsay at best, which is completely inadmissible in normal circumstances. Juries decide their verdicts on the facts, not rumour. Yet it was this the Crown relied upon to suggest Maric’s guilt. The inference being drawn was, if Maric heard this statement and didn’t deny it, it must be true and he must be guilty. Pretty optimistic drawing of the long bow, I would have thought.
This was day seven of a nineteen-day trial. From that moment on, a fair trial was doomed. The trial should have been terminated. Mr Luland tried to undo the damage to his client’s cause due to the judge’s error, but to no avail. The judge again took over the questioning. Mr Luland again objected. He asked the judge to take the extreme step of discharging the jury, thus aborting the trial. This application failed and the trial proceeded. Justice O’Brien made no attempt, either then or in his summing up, to cure the grave prejudice he had caused.
In December 1976, Justice O’Brien sentenced Angelo Maric to sixteen years imprisonment with a non-parole period of four years. For someone found guilty of exploding bombs in George Street, Sydney, no challenge to the severity of the head sentence of sixteen years imprisonment could be made. The crime was at the top of the sentencing range. The non-parole period of four years, however, being one quarter of the head sentence, appeared very lenient. This meant, once Maric earned parole he would be under supervision for a record period of twelve years. Did Justice O’Brien think the lenient non-parole period would discourage an appeal? Well, it didn’t.
During the years Maric was in gaol, under sentence after his trial and awaiting his appeals, he lost weight and visibly aged. It may have been due to the fact that gaol, while unpleasant for all prisoners, bears more heavily on first offenders. His decline in health may also have been due to the tortured emotions of an innocent man suffering an unjust imprisonment.
Senior Public Defender, Howard Purnell QC, appeared for Maric in the Court of Criminal Appeal. He had the gifted Paul Byrne as his instructing solicitor. Both were of the opinion the trial had miscarried. The basis for appeal was obvious: the trial judge erred by dismissing Angelo Maric’s strong alibi in favour of the unsigned police record of interview, and the inadmissible, prejudicial evidence introduced by the judge himself caused the trial to miscarry. Indeed, Justice O’Brien should have accepted Mr Luland’s request to have the trial aborted. Those arguments, unfortunately, were not good enough for the Court of Criminal Appeal, which split two to one against Maric. Purnell had persuaded one of the appeal judges, Justice Tony Larkins, an injustice had occurred. So much so, Justice Larkins delivered a strong dissenting judgement criticising the trial judge. He said, ‘How could the tag of bomb maker, and a good one at that … ever be forgotten by the jury?’
Although the appeal had been lost there was still a chance the High Court of Australia would see reason. Howard Purnell QC was, of course, briefed to also appear in the High Court and he chose me as his junior. Paul Byrne continued as our instructing solicitor.
Howard Purnell and I needed no reminders of the dangers and harshness of gaol life. It was certainly brought home to us one morning when conferring with Angelo Maric in the legal boxes of the Central Industrial Prison at Long Bay. As we talked, smoke and shouting heralded the start of some inmate-led disturbance. As the atmosphere literally thickened with smoke, Maric, obviously caring for our safety above his own, advised us to leave quickly. We did, while feeling empty at leaving our client behind. Not that Maric had a choice.
The problem with an appeal to the High Court was to invest it with that ‘special leave’ quality. The fact Justice Tony Larkins had delivered such a strong dissent in the Court of Criminal Appeal was a starting point. There is no test which defines special leave; to be granted so lies in the discretion of the High Court. Indeed, attempts to define it have been abandoned. Howard Purnell advised Maric his chance of success was borderline, but worth a try.
The High Court of Australia was sitting in Brisbane. In fact, this was the same day in 1979 that Purnell and I appeared before the High Court to appeal Richard Veen’s sentence. Back then, photostatting, or copying, legal documents was not taken for granted as it is today. It was a big task. There were no USBs, compact drives or even floppy disks to condense everything, it was all hard copies. Purnell and I travelled with copious amounts of paperwork all relevant for arguing our clients’ causes. As I looked out the window of the plane, I could see Purnell’s red (QC) and my blue (junior) bar bags bulging with law books, sitting on the motorised trolley on the tarmac at Sydney Airport. Rain poured down, drenching the bags as they sat waiting to be loaded.
The High Court was initially reluctant to grant special leave but, having done so, they showed no hesitation in ordering a retrial. It was an ‘incurable irregularity’, so said Acting Chief Justice Harry Gibbs, who gave the leading judgement. He held the trial judge’s intervention was mistaken. Justice Gibbs went on: ‘It is hardly possible to conceive of evidence mor
e likely to prejudice the jury against the applicant to his detriment … I find it quite impossible to be sure that the scales were not tipped against the accused by the wrongful admission of this evidence.’
Justice Lionel Murphy was critical of the Crown’s failure to support defence counsel Charles Luland’s application for the discharge of the jury. Yes, the same Lionel Murphy who was a senator and Attorney-General in the Whitlam Government, and named as a target for assassination. What can one say, it’s a small world. Justice Murphy held the Crown should not be able to take this stance without penalty, knowing the worst that could happen on appeal would be a retrial. Being wrongly told Angelo Maric was a skilled bomb maker could hardly be more damaging evidence than in a bombing trial. The harm done by this disclosure was heightened by the fact it was elicited by a question from the judge, and the jury was never told to disregard it. It was highly prejudicial. Justice Murphy regarded it so seriously, he voted against any retrial. He felt Maric should be acquitted and released. He was a lone voice on that aspect, but he made his point. Senior Crown Prosecutor Bill Job QC conceded, as he had no option but to do, that the challenged evidence was inadmissible.
Charles Luland’s action, requesting Justice O’Brien abort the trial due to his interference, turned out to be a winning appeal point. Indeed, it was crucial and saved the day for Maric, Howard Purnell and me in Brisbane. Luland was a fine lawyer. Like myself, he rose to the office of Deputy Senior Public Defender, before being poached by the first Director of Public Prosecutions, Reg Blanch QC, as one of his deputies. Charles Luland then went on to become Judge Luland QC of the District Court.
Angelo Maric’s retrial was scheduled for 2 November 1979. The presiding judge was the astute Justice David Yeldham. Reading through all the material related to the case against Angelo Maric, Justice Yeldham turned to the jury, soon after they were empanelled, and instructed them to find the accused ‘not guilty’. The retrial didn’t even begin in real terms. Suffice to say, Justice Yeldham saw there was no case for Maric to answer. He was set free.
Justice Denied Page 20