Alister v The Queen

Alister v The Queen - [1984] HCA 85 - HCA 1983 case summary — Zoe

[15]

The fact that disclosure of the fact whether the documents sought by the subpoena in the present case exist, and their production if they do exist, would be harmful to the public interest is sought to be established by the affidavit of the Attorney-General. But Sankey v. Whitlam decides that an objection, even if properly taken, is never conclusive, although there will of course be instances (such as documents containing defence secrets in time of war) when, as Stephen J. said in Sankey v. Whitlam, [(15)] "the Court's acceptance of the claim [to Crown privilege] may often be no more than a matter of form". When the grounds of objection in the present case are examined it will be seen that the first ground (that stated in par. (a)) is merely preliminary and not in itself sufficient. To say that it is in the public interest to maintain an intelligence organization does not mean that it would necessarily be contrary to the public interest to disclose whether that organization had any records of a particular kind. The second ground (stated in par. (b)) is prima facie convincing, but is expressed, with candour, only in a qualified way. ASIO now functions under the Australian Security Intelligence Organization Act 1979 Cth, as amended, the provisions of which have been discussed by this Court in Church of Scientology v. Woodward. [(16)] Its functions include the obtaining of intelligence relevant to security: s 17(1)(a). The disclosure of information that a particular person had gathered intelligence for ASIO would in many cases not only injure the national security but also endanger the person concerned, but that would not always be so. The ground stated in par. (b) calls for an examination of the circumstances of the particular case in order to decide whether any danger to the public interest is likely if the information is disclosed in those circumstances. The third ground (stated in par. (c)) is expressed absolutely. If it is intended to do no more than state the effect of pars. (a) and (b), it cannot be regarded as accurate, because the categorical assertion made in par. (c) does not follow from the qualified claim made in par. (b). If par. (c) is intended to stand alone as an independent ground, it is unconvincing, because it is difficult to accept that effective security can be maintained only if ASIO can refuse in all cases to disclose whether any documents sought exist. For example, if it was publicly known that a particular person, acting for ASIO, had gathered certain intelligence, it would not seem, generally speaking, to jeopardize security to disclose whether any documents prepared by that informant were in existence. Notwithstanding the respect that must be paid to a claim for immunity made by a Minister in relation to a matter of national security, I am not at all convinced that the public interest requires that ASIO should be able in all cases to refuse to disclose whether any document exists, and to refuse to produce it if it does exist.

[18]

Both Burmah Oil Co. Ltd. v. Bank of England [(17)] and Air Canada v. Secretary of State for Trade [(18)] support the view that where the Crown objects to the production of a class of documents on the ground of public interest immunity, the judge should not look at the documents unless he is persuaded that inspection would be likely to satisfy him that he ought to order production; in the words of Lord Wilberforce in Air Canada v. Secretary of State for Trade, [(19)] he must have "some concrete ground for belief which takes the case beyond a mere "fishing" expedition". In the latter case the House of Lords divided on the question whether, before inspection is ordered, the documents should appear likely to support the case of the party seeking discovery, or whether it is enough that they should appear likely to assist any of the parties to the proceedings; the majority favoured the former view. In both cases the proceedings were civil and not criminal. Just as in the balancing process the scales must swing in favour of discovery if the documents are necessary to support the defence of an accused person whose liberty is at stake in a criminal trial (see Sankey v. Whitlam [(20)] ), so, in considering whether to inspect documents for the purpose of deciding whether they should be disclosed, the court must attach special weight to the fact that the documents may support the defence of an accused person in criminal proceedings. Although a mere "fishing" expedition can never be allowed, it may be enough that it appears to be "on the cards" that the documents will materially assist the defence. If, for example, it were known that an important witness for the Crown had given a report on the case to ASIO it would not be right to refuse disclosure simply because there were no grounds for thinking that the report could assist the accused. To refuse discovery only for that reason would leave the accused with a legitimate sense of grievance, since he would not be able to test the evidence of the witness by comparing it with the report, and would be likely to give rise to the reproach that justice had not been seen to be done.

[22]

In the present case I am not persuaded that the public interest would be harmed by discovery of the fact (if it be a fact) that Seary had made reports to ASIO concerning the applicants. Even though it is not certainly known that Seary was an agent for ASIO, at least his activities in this investigation are publicly known; indeed he gave evidence that posters, bearing his photograph, and stating that he had framed Ananda Marga, appeared all over the city. The facts that he was an agent and an informer, and that the subjects of his inquiries were Ananda Marga and the bombing at the Hilton Hotel, are public knowledge. Notwithstanding the assertions in the affidavit of the Attorney-General, although I fully accept that in many cases it would be contrary to the public interest to disclose what inquiries had been made on behalf of ASIO, it does not appear to me that it has been established that the public interest would be damnified if the reports by Seary that are relevant to the present case were inspected or produced. Looking at the matter from the point of view of the administration of justice, Seary was a most important witness for the Crown. The defence challenged the Crown case "as a fabrication and a frame-up", and if Seary had made a report which showed that he had fabricated his evidence at the trial it would be dangerous to allow the conviction to stand. In all the circumstances of the present case the interest of the applicants to obtain any report made by one of the principal Crown witnesses on his investigation into the crimes charged is not outweighed by the public interest that would ordinarily require investigations by ASIO to be kept secret. Unlikely as it may be that any report would assist the applicants, I consider that we could not safely refrain from inspecting any report that Seary has made on the activities of the applicants. The subpoena in my opinion was too wide - I can see no reason to inspect all documents that may relate to any investigations made by Seary into Ananda Marga. We should in my opinion inspect all documents that relate to any investigation by Seary into the alleged crimes of which the applicants were convicted or into the activities of the applicants. The Attorney-General should, however, be given an opportunity to raise any further objection that may seem necessary in relation to any particular documents. When the court has inspected any documents that may be produced, it can decide whether or not they should be shown to the applicants, and what further action, if any, should be taken.

[34]

In his summing up, the learned trial judge told the jury that they were concerned with the actions of the accused, and not with those of Ananda Marga, although the cross-examination in regard to that organization might assist them in understanding the conduct of the accused. In argument before us, there was no very full discussion of the principles governing admissibility of evidence of this kind and no authorities were cited. The question is likely to be of importance at a time when crimes are committed by members of bodies which resort to violence and terror to attain their ends. In the United States in a number of cases it has been held that evidence of the character and purposes of an organization is admissible to prove a motive for the commission of the crime charged: see Hester v. The Commonwealth, [(23)] where the accused was allegedly a member of the "Molly Maguires", a secret society allegedly organized for purposes of crime, and The State v. Sing, [(24)] where the accused and the deceased were members of rival and warring tongs. In New South Wales, it was held by the Court of Criminal Appeal in Reg. v. Ciesielski [(25)] that it was admissible to show that the accused, who were charged with assault causing bodily harm, were members of a gang called the "Hell's Angels", and to give evidence of the rules of the gang, since that evidence tended to explain the actions of the accused, who, according to the Crown case, were inflicting punishment on the victim for an offence against the code of the gang. It appears to me, as at present advised, that these cases were correctly decided in principle, but it is obvious that the greatest care must be exercised in controlling the admission of evidence of this kind, lest the accused be prejudiced by evidence of association or simply by innuendo. When evidence of this kind is sought to be adduced, whether by means of cross-examination or otherwise, the trial judge should exclude it if its prejudicial effect appears to him to outweigh its probative value.

[36]

The learned trial judge was right in telling the jury that some of the statements allegedly made by the applicants could be properly assessed and understood only with some knowledge of the beliefs of the members of Ananda Marga. However the fact (if it be a fact) that Ananda Marga preaches revolution had nothing to do with the present case, since the applicants were not charged with activities of a revolutionary kind. Although the doctrines of Ananda Marga did not throw any direct light on the motives which impelled the applicants to act as they were alleged to have done, since it did not appear that the assassination of nazis and racists is advocated by Ananda Marga, the cross-examination regarding those doctrines might serve to explain what, on the Crown case, was the fanaticism of the applicants and their willingness to use violence, and if necessary to die themselves, in order to cleanse the earth of unworthy persons and to obtain publicity for the organization. The cross-examination went too far, as I have already indicated. In particular, it was wrong to ask questions to suggest that other members of Ananda Marga had committed crimes of violence. However, some of those questions were put without objection, and in all cases in which it was admitted that members of Ananda Marga had been convicted, it was asserted that the convictions were wrong. The objections taken on two occasions by counsel for Dunn to the line of questioning were in one respect too wide, since evidence that the organization approved of acts of violence was admissible, and in another respect too imprecise, having regard to the width and range of the cross-examination. Of course, the fact that proper objection is not taken is not conclusive when inadmissible evidence is adduced, but it is a factor to be considered in deciding whether a miscarriage of justice has occurred. No objection was taken to the manner in which the Crown proved the contents of the publications to which reference was made, and in any case, assuming that the applicants were not prejudiced by the giving of evidence as to the contents of the documents, it has not been shown that they suffered any prejudice by the manner of proof. The decisive feature of this aspect of the case is that evidence as to the relationship of the applicants to Ananda Marga, and of their statements which could only be understood in the light of that relationship, was properly given in evidence in chief. The line of questioning as to the doctrines of Ananda Marga was admissible, although some particular questions should not have been put. In most instances it is the putting of the question, and the inferences that might be drawn by a jury from the questions, rather than any evidence elicited thereby, of which the applicants complain. The learned trial judge gave a proper direction as to the use to which the evidence that was given in response to the cross-examination might be put. In all the circumstances I do not consider that any miscarriage of justice occurred as a result of the cross-examination. This ground of the applications for special leave to appeal has not in my opinion been made out.

[41]

Therefore, if one person attacks another, inflicting a wound in such a way that an ordinary, reasonable person must know that at least grievous bodily harm will result, and death results, there is the malice aforethought sufficient to support the charge of murder. But, if the charge is one of attempted murder, the intent becomes the principal ingredient of the crime. It may be said that the law, which is not always logical, is somewhat illogical in saying that, if one attacks a person intending to do grievous bodily harm and death results, that is murder, but that if one attacks a person and only intends to do grievous bodily harm and death does not result, it is not attempted murder, but wounding with intention to do grievous bodily harm. It is not really illogical because, in that particular case, the intention is the essence of the crime while, where the death of another is caused, the necessity is to prove malice aforethought, which is supplied in law by proving intention to do grievous bodily harm. Similarly, a person who explodes a bomb with reckless indifference as to whether it causes death will be guilty of murder if death results but he would not be guilty of attempted murder if death did not result. Apparently in Scotland and South Africa an accused may be convicted of murder although he did not intend to kill, since recklessness is there regarded as enough: Smith and Hogan, op. cit., p. 248. And in Canada it has been held that an intent to cause bodily harm which the accused knew was likely to cause death is sufficient to establish a charge of attempt to murder: Reg. v. Lajole, [(30)] a decision of the Court of Appeal of British Columbia. In my opinion however the statement of the law in R. v. Wybrow was correct in principle. That decision has been followed in New Zealand (Reg. v. Murphy [(31)] ) and accords with the view taken in Australia: see Reg. v. Matthews; [(32)] Reg. v. Bell; [(33)] and Reg. v. Zerafa [(34)] (where, however, no concluded view was expressed). I regard the law as correctly stated in Russell on Crime, 12th ed. (1964), vol. 1, p. 177, where it was said that "a man cannot attempt to do that which he does not intend, if he is able to, to do" and that "obviously there can be no question of "recklessness" or "negligence" amounting to sufficient mens rea for a criminal attempt". Since those words were written, it has been held in Reg. v. Mohan [(35)] that an attempt to commit a crime requires "proof of specific intent, a decision to bring about, in so far as it lies within the accused's power, the commission of the offence which it is alleged the accused attempted to commit " [(36)] and that a reckless state of mind is not enough. In reaching that conclusion the court relied to some extent on s 8 of the Criminal Justice Act 1967 UK, but that section brought the law of England into conformity with what was already held to be the position in Australia: see Smyth v. The Queen [(37)] and Parker v. The Queen. [(38)] In the present case the Court of Criminal Appeal may well have been right in saying that if Dunn had detonated the bomb and killed himself and Detective Senior Constable Gilligan, Alister, had he survived, could properly have been convicted of the murder of Detective Senior Constable Gilligan. It does not follow that Alister can be convicted of the attempted murder of Detective Senior Constable Gilligan when he did not share with Dunn the intention that Gilligan should be killed. 1. [1978] A.C. 55, at p. 68. 2. (1951) 35 Cr.App.R. 141, at pp. 146-147. 3. [1962] 2 Q.B. 621, at p. 628. 4. (1971) 4 C.C.C. (2d) 402. 5. [1969] N.Z.L.R. 959. 6. (1863) 2 S.C.R. N.S.W. (L.) 227. 7. [1972] Tas.S.R. 127, at p. 131. 8. [1935] St.R.Qd 227. 9. [1976] Q.B. 1. 10. [1976] Q.B., at p. 11. 11. (1957) 98 C.L.R. 163. 12. (1963) 111 C.L.R. 610.

[131]

But perhaps the critical consideration, the consideration which must go far to determine whether the applicants have succeeded in mounting a strong claim to discovery of the information is what they expect to gain from such discovery. It is here that their case completely breaks down. Even if it be assumed that ASIO is in possession of reports from Seary, they have no idea what they would contain. They may or may not contain admissible evidence in support of their defence. The highest credible point to which they can pitch their case for discovery is that it might provide them with material suggesting that Seary had given to ASIO an account of the events of the night of 15 June which varied from that which he had given in his examination in chief or that in some other respect the material may have had a significant bearing on his credit. As was said by their counsel, Seary's credit was "a burning issue" at the trial. So it may have been. But there was a great deal of evidence in the Crown case tending to confirm Seary's evidence. That evidence would remain even if his credit were completely demolished. In our opinion, the applicants cannot show any basis for a rational inference of any likelihood that the documents which ASIO might produce would go substantially to proof of their innocence of the charges against them. This much at least would, we think, be essential before any balancing exercise against a danger to the national security would become more than a formality. In Burmah Oil [(74)] Lord Edmund-Davies postulated the test of likelihood that the class of documents contained material substantially useful to the party seeking discovery, regarding that qualification as necessary in order that "what is no more than a "fishing expedition" ought not to be advanced by the judge's having a peep to see whether they contain an attractive catch". His Lordship's observation was made in the context of a consideration whether in the case before them their Lordships should inspect the disputed documents in order to complete the balancing exercise.

[132]

It was suggested in argument that if the court was in any doubt as to whether a miscarriage of justice had occurred by reason of the trial judge's refusal to compel an answer to the subpoena then the court should itself inspect any documents that may exist. That may often seem an attractive proposition in order not only that justice may be done but that it should also appear to be done, but we do not think there is any warrant in the present case for adopting that course. A bare unsupported assertion that on inspection something may be found that is helpful to the defence is not enough. Mere speculation is not enough. In Air Canada, [(75)] Lord Fraser of Tullybelton, in a speech in which Lord Edmund-Davies concurred, expressed the opinion that a court "should inspect documents only where it has definite grounds for expecting to find material of real importance to the party seeking disclosure". Lord Wilberforce accepted the tests of "likelihood" and "reasonable probability" enunciated in Burmah Oil as identifying some concrete ground for belief which takes the case beyond a mere fishing expedition. [(76)] The question arose in a civil case. The public interest immunity relied upon to resist discovery was based on necessity for the proper functioning of the public service. It may be contended that in a serious criminal case a court should apply a lower standard where an accused person seeks the production of documents for which immunity is claimed, at least in deciding whether to inspect the documents for itself. However, we doubt whether a satisfactory criterion can be found which falls between the requirement that a likelihood be shown and mere hopeful anticipation. We do not think that fishing expeditions ought to be encouraged. In any event, notwithstanding that we are here dealing with a criminal case, the reliance upon danger to national security which is the basis of the claim to immunity takes the case beyond the considerations which might be appropriate in dealing in a criminal case with a claim based on the proper functioning of the public service. In this case a court must be more than ordinarily cautious in requiring the production of security documents even if it is only to itself. Clear and sufficient reasons must be shown.

[195]

The struggle for the right of an accused person to compulsory process to secure the attendance of witnesses is sketched by Blackstone in his Commentaries (8th ed., Book IV, pp. 359-360), culminating in the passing of the statutes of 1695 and 1702 (7 Wm III c. 3 and 1 Anne (2) c. 9) which permitted the right theretofore enjoyed by persons accused of misdemeanours, namely, the right to compel witnesses to attend and to be sworn, to be enjoyed thereafter by any person accused of treason or felony. In the American Colonies, the right of "all Criminals" to the same privileges as prosecutors in the securing of witnesses was first recognized by the Pennsylvania Charter of Privileges in 1701 and came to be enshrined in the Sixth Amendment to the Constitution of the United States. The right of an accused person to compulsory process as of course to secure witnesses has been acknowledged for nearly three centuries. It is so basic and important an aspect of our criminal procedure that a trial in which the right is denied cannot be, in my opinion, a trial according to law. There is no distinction to be drawn in this respect between a subpoena ad testificandum and a subpoena duces tecum: see Amey v. Long. [(85)] Lawrence J. is there reported to have said during argument [(86)] that "he could not reconcile it to his mind to suppose, that the innocence of a person accused might depend on the production of a certain document in the possession of another, who had no interest in withholding it, and yet that there should be no process in the country which could compel him to produce it in evidence". Of course, the applicants did not know and do not know now whether ASIO have possession of any document admissible in aid of the defence case. But the right to compulsory process cannot be dependent upon the party's ability to prove the existence and content of a document when the party has reasonable grounds to believe that a document exists and seeks to obtain it by subpoena. That would eviscerate the right and limit its enforcement to occasions when the party already has in his possession secondary evidence of the original document the production of which the subpoena is intended to secure.

[209]

In this case, his Honour did not know whether there were any documents which would have to be produced in answer to the subpoena, but there were good grounds for suspecting that there were. It appears to have been common ground at the trial that the Ananda Marga had come under suspicion as the organization responsible for the bomb explosion that occurred outside the Hilton Hotel in Sydney during a Commonwealth Heads of Government Meeting in 1978. Seary had joined the Ananda Marga after that event. In evidence Seary said that Alister had said on the way to Yagoona that he, Anderson, Dunn and a fourth person had been responsible for that bombing and that the bomb "was supposed to be set up an hour before Desai [the Prime Minister of India] came". There was material before the trial judge that suspicion of the Ananda Marga as a terrorist organization was entertained in some quarters. It would not have been surprising if ASIO were investigating the Ananda Marga organization; it would have been surprising if ASIO were not. It was likely that ASIO had documents relating to Seary's investigation of the Ananda Marga. The bombing at the Hilton Hotel was an act of terrorism and it was clearly a function of ASIO to obtain intelligence about that event and the persons or groups responsible for it: see the Australian Security Intelligence Organization Act s 5(1) and the discussion of ASIO's functions in Church of Scientology v. Woodward. [(95)] If ASIO were to disclose the information and documents sought by the subpoena to the court with a view to disclosure to the accused, ASIO would be disclosing some or perhaps all of the intelligence it had about a suspected terrorist organization (or, conversely, its failure to obtain intelligence about that organization) at the behest of persons who might well have been under investigation by ASIO as suspected terrorists. There would have to be weighty reasons for allowing the accused access to the documents sought from the ASIO file, if such documents existed, or for allowing them to know that there were no such documents. If the subpoena yielded documents which could not be used to do more than damage Seary's credit as a witness or to reveal ASIO's assessment of the character of the Ananda Marga organization, I should not have thought it right to make those documents available for inspection by the accused. After all, the jury's verdict would be affected as much by the assessment of the credit of the police witnesses as by their assessment of Seary's credit, so that a document which bruised Seary's credit would not have broken the Crown case. Even if the subpoena yielded material showing ASIO's assessment of the character of the Ananda Marga, the assessment itself could not have been proved in evidence. Had it been possible to assume that nothing would be found in the ASIO file amounting to an admission by Seary or by the police that the case against the accused was a fabrication and a frame-up, it would not have been necessary or desirable for Lee J. to have inspected the ASIO file. The court, ill-equipped itself to evaluate pieces of intelligence obtained by ASIO, would not have been justified in contemplating the possibility of disclosure of the information sought from the ASIO file to the accused.

[211]

That circumstance shows the subpoena to have been merely the hook cast in a fishing expedition in the hope of catching something worthwhile to the defence case. When the defence undertakes a fishing expedition, should the court abstain from inspecting documents in the possession of the Crown for which public interest immunity has been claimed? In Air Canada v. Secretary of State for Trade, [(96)] a case in which an objection to production was taken in proper form, it was accepted that the court would inspect documents with a view to ordering their production if, to cite Lord Wilberforce's criterion there were "some concrete ground for belief which takes the case beyond a mere fishing' expedition"; [(97)] some concrete ground for believing that the documents contained material substantially useful to the party seeking discovery. Air Canada v. Secretary of State for Trade was concerned with discovery in a civil action. This is a criminal case. The obligation to produce documents under a subpoena issued to a government instrumentality in a criminal case is not merely an obligation incurred by the Crown or a Crown instrumentality as a party to litigation to give such discovery to its adversary as is necessary to dispose fairly of the cause. In a criminal case it is appropriate to adopt a more liberal approach to the inspection of documents by the court. The more liberal approach is required to ensure, so far as it lies within the court's power, that the secrecy which is appropriate to some of the activities of government furnishes no incentive to misuse the processes of the criminal law. The procedural safeguards are neither easy to devise nor simple to apply. On the one hand, they may prove to be ineffective to prevent injustice in a particular case; on the other, there is a risk that they may breach the tightness of security that is desirable in the public interest. It is of the essence of a free society that a balance is struck between the security that is desirable to protect society as a whole and the safeguards that are necessary to ensure individual liberty. But in the long run the safety of a democracy rests upon the common commitment of its citizens to the safeguarding of each man's liberty, and the balance must tilt that way: cf. Sankey v. Whitlam. [(98)]

[214]

Accordingly, his Honour made a wrong decision on a question of law in simply setting the subpoena aside without having regard to the contents of the documents sought. The verdicts on both counts in the indictment must be set aside unless the proviso to s 6(1) of the Criminal Appeal Act 1912 NSW applies. The Crown bears the onus of showing that the error has not caused a substantial miscarriage of justice: Mraz v. The Queen. [(99)] To discharge that onus, which is not to be confused with the onus resting on the Crown at the trial, the Crown must be able to show the appellate court that the applicants have not lost a chance of acquittal that was fairly open to them. In the circumstances of this case, it seems to me that there are three possible ways in which the Crown might be able to discharge the onus of showing that none of the applicants lost a chance of acquittal to which he was entitled when the subpoena was set aside. First, the Crown may show that there were no relevant documents which could have been produced in answer to the subpoena. Secondly, the Crown may show that, although the applicants ought to have been given access to such relevant documents as could have been produced, no substantial miscarriage of justice has occurred by denying them access to those documents. Or thirdly, the Crown may show that on grounds of national security none of the applicants ought to have been given access to such relevant documents as could have been produced. However, in the last-mentioned case, it would be necessary for the Crown to go further. Even if access ought not to have been given to the accused, the documents ought to have been produced for inspection to the trial judge. He would then have seen whether justice would be done by permitting the trial to continue in ignorance of the contents of those documents. As that step was not taken, it would fall to this Court, after inspecting the documents and having regard to their contents, to say whether it is satisfied that the convictions are safe and satisfactory.

[220]

The facts in issue emerge from the other evidence adduced by the Crown and by the respective accused, and a brief survey of that evidence is required. Seary gave evidence that Anderson had discussed with him, Alister and Dunn the reasons for attempting to kill Cameron, and that Anderson had asserted that Cameron was a demon who deserved to die, that "spiritually minded people" must deal with his ilk, and that society would see the killing of Cameron to be a good act when responsibility for the killing was claimed by the One World Revolutionary Army. Anderson, when later asked by the police about the connection between the Ananda Marga movement and the One World Revolutionary Army, had allegedly replied: "One is part of the other." Seary said that Anderson had admonished Alister, Dunn and Seary "to live, fight and die for your ideology", remarking that "a true moralist should lay down his life if necessary for the good of society". Alister and Dunn had acquiesced in the plot to kill Cameron, Dunn expressing himself flippantly. Alister, who was in a position of authority in V.S.S., had reproved Dunn for his remark saying: "It's not a game. If anyone mentions anything, be it guns, stabbings, or bombings, don't you smile. You keep a completely straight face." Seary said that it was arranged that Anderson would make public the claim of the One World Revolutionary Army for the killing of Cameron as soon as he received a telephone call from the party who were to go out to Yagoona to explode the bomb. On the way to Yagoona, Alister had spoken of the need for bravery and praised the bravery of one of the Margis (that is, one of the members of the Ananda Marga) who had attacked Singh, the Indian military attache in Canberra, single-handed. Alister had spoken about "the brave self-immolated Margis" who had burnt themselves to death for Baba (the leader of the Ananda Marga). Alister had turned to Dunn, who was sitting in the back seat holding the bomb, and said: "If we are stopped that should be exploded so there is nothing that can possibly connect this to the Ananda Marga" and Dunn said: "Yes, I know, but whichever way the job goes it will be a great propaganda victory for Prout." Dunn was the head of Prout.

[257]

Before you could convict Alister it must be proved that there was a common purpose between him and Dunn to detonate the bomb if they were stopped, for the purpose of killing everyone who was about at that time, that is, all the police who were about. Now the evidence upon which the Crown relies to establish that there was a common purpose between Alister and Dunn to explode the bomb if the police intervened is to be found in the evidence of the witness Seary. On the way out to Yagoona Seary said that he said, "What happens if we are stopped in this?" And that Alister replied, "A good Sud Vepra (that is what they call themselves, it means a holy person) should be prepared to give their lives for Baba if necessary" and Seary went on, "When I said to him, "What happens if this goes off in the car?" and he said, "You have got to be prepared to give your life for Baba." I asked him then if we were stopped and he said, "Many Margis died while fighting demons." He said, "Prennam (that is Duff, the Margi called Duff in Canberra) was brave because he attacked Singh, the military attache, down there single-handed", and that we had to be equally as brave; and then he spoke about - I do not know the exact wording of this conversation - about "the brave, self-immolated Margis who burnt themselves to death for Baba". That is when he turned to Dunn and said, "If we are stopped, that should be exploded so that there is nothing that can possibly connect this with Ananda Marga." Dunn said, "Yes, I know, but whichever way the job goes it will be a great propaganda victory for Prout", because Dunn was head of Prout." He goes on, "I was still very agitated. Alister said to me, "Close your window and lock your door so they can't stop us, they can't prevent us from exploding it." I said, "I don't think I am ready to die yet." Alister said, "You must have more faith. Baba is God, meditate on that." I said, "Well, I don't want the window closed because I get asthma in a closed car," and he said, "All right, if you must." "

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