//
© 2026 Zoe. All rights reserved.
Zoe is a legal information platform. Always consult the Federal Register of Legislation for authoritative text.
[1984] HCA 85
High Court of Australia
1983-12-13
Dawson JJ
Original judgment source is linked above.
High Court of Australia Gibbs C.J. Murphy, Wilson, Brennan and Dawson JJ. Alister v The Queen
(2) Appeals stood over until Tuesday, 13 December 1983 to permit the Director-General of ASIO on or before that time either -
(a) to file an affidavit showing that ASIO has not and never had in its possession any documents which were supplied by Richard John Seary or which relate to any investigation made by him and which refer to the applicants or any of them or to the crimes of which they have been convicted; or
(b) if ASIO has or has had in its possession any documents which were supplied by Richard John Seary or which relate to any investigation made by him and which refer to the applicants or any of them or to the crimes of which they have been convicted, to secure the production to this Court for inspection of all such documents, subject, however, to the liberty of the Attorney-General if he should be so advised to raise a further objection (for reasons which must be fully stated) to the production of particular documents on the ground that it would be contrary to the public interest to produce the same for inspection by the Court.
Thereupon the matter to be relisted for argument or judgment as the court may direct. Application dismissed.
Before the Court are three applications for special leave to appeal from a decision of the Court of Criminal Appeal of the Supreme Court of New South Wales affirming convictions against all three applicants for conspiracy to murder and against two of them (Dunn and Alister) for attempted murder. The Crown case, stated very shortly, was as follows. On 15 June 1978 the three applicants conspired to murder one Cameron by exploding a bomb under or near his house. They thought that Cameron deserved to die, because of his position as the leader of a body known as the National Front, and because of his racist views. They believed that by killing Cameron they would be carrying out the aims of Ananda Marga, an organization to which they all belonged, or of V.S.S. or Prout or the One World Revolutionary Army, which are branches of or associated with Ananda Marga. They had discussed their plans with one Richard John Seary, who had pretended to join in the conspiracy, but who informed the police of the plans. Seary had joined Ananda Marga soon after a bombing had occurred at the Hilton Hotel in Sydney in February 1978. It was suspected that the bombing was an attempt to kill the Prime Minister of India and Seary had joined Ananda Marga in the hope of establishing that that organization was involved in the attempt. Early in the morning of 16 June 1978 Seary, Alister and Dunn left in a motor car to go to Cameron's house. Dunn was carrying a large bomb with a timing device. The plan was that they would report to Anderson by telephone as soon as the explosion occurred. The police, warned by Seary, intercepted the car and arrested the occupants. When the car was intercepted Dunn attempted to detonate the bomb, his purpose, which, according to the Crown, was shared by Alister, being to kill the police.
The applications for special leave to appeal are supported on three grounds, the first of which is that the learned trial judge erred in law in setting aside a subpoena directed to the officer in charge, Australian Security Intelligence Organization ("ASIO"), requiring him "TO PRODUCE all files, notes and memoranda relating to or supplied by the investigation by Richard John SEARY into the Ananda Marga organization and activities from 15 June 1977 to date". In response to the subpoena Senator Durack, who was then the Attorney-General for the Commonwealth, swore an affidavit in which he stated that to disclose whether or not documents meeting the description in the subpoena existed would be prejudicial to security on the following grounds:
(a) it is in the public interest to establish and maintain an organization whose function it is to obtain, correlate and evaluate intelligence relevant to security and to advise Ministers of State as to matters of security and intelligence insofar as they are relevant to the Departments of State and public authorities of the Commonwealth administered by them;
(b) the disclosure of information that a particular person has or has not been employed by, or carried out an investigation for, the Organization and the disclosure of information as to whether any investigation has or has not been carried out by or for the Organization could, in general, and would certainly, in specific circumstances, be a crucial breach of the security and confidentiality which is required for the effective operation of the Organization: moreover, the disclosure of the identity of an officer of or person employed by the Organization may, in addition, place that person, his family and his property in danger; and
(c) effective security, in relation to the Organization and its activities, can only be maintained if the Organization is able to refuse in all cases, where information or documents are sought, to divulge whether such information or documents are available or do exist.
He went on to say that he objected "on the grounds of danger to the national security" to the giving of any evidence relating to the question whether ASIO had any records or documents of the type described in the subpoena, or, if they exist at all, to the production of any such documents.
The law relating to what was commonly, but misleadingly, known as Crown privilege, but is now referred to as public interest immunity, was discussed at length in this Court in Sankey v. Whitlam [(11)] and has since been considered in the House of Lords in Burmah Oil Co. Ltd. v. Bank of England [(12)] and Air Canada v. Secretary of State for Trade [(13)] and by the Court of Appeal of New Zealand in Environmental Defence Society Inc. v. South Pacific Aluminium Ltd. [No. 2]. [(14)] Those later cases do not cast any doubt on the correctness of Sankey v. Whitlam, but do carry further the discussion on one aspect of the matter, namely when, and in accordance with what criteria, the court should inspect documents for the purpose of deciding whether they should be produced. The present case raises for consideration the analogous question whether the court should require the production of any documents that may answer the description in the subpoena, to enable the court first to discover whether any such documents exist, and then to inspect them for the purpose of deciding whether they should be disclosed to the applicants.
Sankey v. Whitlam establishes that when one party to litigation seeks the production of documents, and objection is taken that it would be against the public interest to produce them, the court is required to consider two conflicting aspects of the public interest, namely whether harm would be done by the production of the documents, and whether the administration of justice would be frustrated or impaired if the documents were withheld, and to decide which of those aspects predominates. The final step in this process - the balancing exercise - can only be taken when it appears that both aspects of the public interest do require consideration - i.e., when it appears, on the one hand, that damage would be done to the public interest by producing the documents sought or documents of that class, and, on the other hand, that there are or are likely to be documents which contain material evidence. The court can then consider the nature of the injury which the nation or the public service would be likely to suffer, and the evidentiary value and importance of the documents in the particular litigation. But the anterior question arises - should the court look at the documents to assist it in answering these questions?
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.
On the other hand, the applicants are unable to say that any documents of the kind described in the subpoena exist or, if they do exist, that they are likely to assist the applicants' case. There are reasons for suggesting that Seary may have been an agent of ASIO, and if he was it is likely that he did make reports on the activities of Ananda Marga. It appears that Seary joined Ananda Marga as an undercover agent - of what instrumentality does not appear - to make investigations into matters which would naturally be of interest and concern to ASIO, and it is not unreasonable to suggest that Seary did make reports to ASIO concerning Ananda Marga in general and the applicants in particular. There is, however, not the least ground to suppose that any such reports were favourable to the applicants' case; if one were to speculate, one would guess that any reports made by Seary would be adverse to the applicants.
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.
In the present case the trial judge, Lee J., was faced with a difficult decision. His difficulty was made the greater by the fact that if he had decided to inspect the documents, it would have been his duty to defer making an inspection to give the Attorney-General an opportunity to test his decision on appeal if he wished to do so, notwithstanding the inconvenience that would result from interrupting the trial in that way: see Sankey v. Whitlam; [(21)] and Burmah Oil Co. Ltd. v. Bank of England. [(22)] We of course are not faced with that difficulty.
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.
The second ground argued in support of the applications is that the learned trial judge wrongly permitted the Crown prosecutor to ask, in cross-examination of each of the applicants, questions that were irrelevant and prejudicial. The questions thus described related to the aims and methods of Ananda Marga and of the other bodies said to be associated with that organization, and were designed to elicit admissions that Ananda Marga used and approved of violence to attain its ends.
Before the Crown case was opened to the jury, counsel for the Crown told the judge that it was proposed to lead from Seary evidence of statements made by Alister and Dunn which implicated them in the Hilton bombing; at a previous abortive trial, the applicants had attacked Seary's credit on the ground that he had not reported those alleged admissions to the police. Counsel for the applicants said that they proposed to cross-examine Seary on this matter in any event, and did not object to the evidence being led in chief. Further, Seary, in his evidence in chief, gave evidence of conversations that might have seemed fanciful or incredible without some knowledge of the beliefs of the speakers; it included evidence that one or other of the applicants made such statements as that Cameron was a demon and deserved to die, that many Margis had died while fighting the demons and that some had bravely burnt themselves to death for Baba (the head of the organization), that Ananda Marga would cleanse this earth, that it was a revolutionary army of moralists, and so on. No objection was then, or is now, made to that evidence.
The first of the applicants to give evidence was Anderson. In his evidence in chief he said that the oaths taken by persons joining Ananda Marga were to do good and not to do harm, and to keep certain secrets. He said also that he had no criminal record. In his cross-examination the following occurred without objection:
Q. He had been in custody for some considerable time?
Q. Of course, there were incidents of pressure brought to bear all over the world by members of the Ananda Marga?
Q. There were acts of violence all over the world which were attributed to the Ananda Marga? A. There were some which were attempted to be attributed to Ananda Marga.
Q. There have been acts in Australia which have attempted to be attributed to Ananda Marga? A. Yes.
The two questions last mentioned should not have been put: they were no more than imputations of suspicion, based on hearsay. Anderson was then asked about three men convicted in Bangkok for possession of explosives; he said that they made a plea bargain because they would not get a fair trial, and that they were all members of Ananda Marga. He was then asked: Q. There was an Indian diplomat who was abducted and stabbed in Canberra. Counsel for Dunn objected to the question and (although the transcript before the Court of Criminal Appeal did not reveal it) objected to any line of questioning which involved allegations that the organization or particular members of it approved of or committed acts of violence or unlawful undertakings. The objection was overruled. Anderson was then asked whether he had made press releases to the effect that the person charged, and later convicted, in respect of the stabbing of the Indian diplomat, had been falsely accused, and whether he had issued a press release, after the Hilton bombing, denying that Ananda Marga was responsible. The relevance of those questions, which elicited admissions that Anderson had made such press releases, is far from obvious. Later Anderson was asked: Of course there were other incidents, in Bunbury in Western Australia where the Ananda Marga was wrongly accused again? He replied: "No. I don't think the Ananda Marga was even accused of that." He was then asked: And in New Zealand, a case there where three members of the Ananda Marga were charged with using explosives. He replied, "No." The questioning proceeded: Q. And you agree with me that there seems to be quite a detail of publicity given in your magazine to Worldwide revolutionaries? A. To Worldwide revolutionaries?
Q. And the U.P.R.F. [apparently the Universal Proutist Revolutionary Federation] -
At this point another objection was made and disallowed, and the learned trial judge remarked that "the matter has been opened up by the accused". However, it does not appear that the applicants had opened up any matter of this kind, except possibly by their agreement to allow the evidence as to the Hilton bombing to be brought out in chief, and by Anderson's evidence that the oaths taken by persons joining Ananda Marga were apparently innocuous and that he had no previous convictions.
Thereafter all three applicants were cross-examined, without further objection, to suggest that the aims of Ananda Marga included violent revolution, and that those aims coincided with their own beliefs. In the course of this cross-examination, passages from various books and articles were read to the applicants, and they were asked whether they agreed with them. No objection was taken to these questions. Anderson in effect agreed that he thought that in certain circumstances violent revolution might be necessary. He was cross-examined about notes he had made on sections of the Crimes Act that deal with treason, treachery and sabotage; he said that he had been interested in the law of sedition, and had read the other sections out of general interest. Dunn denied that he believed in armed conflict or violence. Alister said that the revolution in which members of the organization believed was spiritual revolution. He was questioned about the methods of self-defence which he had taught, and it was suggested to him that they might be useful in demonstrations. I have referred only very briefly to the nature of the cross-examination to which objection is now raised - it went on at some length, often inconclusively.
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.
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.
I should add that I do not consider that the cross-examination can be supported on the ground that the applicants had put their character in issue. If the cross-examination had not been relevant in the way I have mentioned, it would have been designed to show no more than that the applicants were the sort of men who would resort to violence because they belonged to an organization which advocated violence; evidence to that effect would clearly have been inadmissible: see Cooper v. The Queen. [(26)] Further, the evidence was obviously not admissible to show the origin, character and objects of the conspiracy alleged to have been made between the applicants, since the other members of Ananda Marga were not parties to that alleged conspiracy.
A third ground, argued only in the application by Alister, relates to his conviction, with Dunn, of the attempted murder of Detective Senior Constable Gilligan and others. The Crown case was that Alister and Dunn had a common purpose, namely, that if the car was stopped by the police they would detonate the bomb with the intention of killing the police as well as themselves. It may be assumed that there was evidence sufficient to convict Dunn of the offence, including evidence that when the car was stopped he tried to detonate the bomb, and evidence that he admitted that he intended to kill the police as well as himself - that admission however was not evidence against Alister. The submission now made on behalf of Alister, that the evidence was not sufficient to entitle the jury to conclude that there was a common purpose to murder anyone, was not made at the trial, but was first raised before the Court of Criminal Appeal.
The evidence of conversations between Alister, Seary and Dunn in the car, if accepted, was sufficient to establish that Alister shared Dunn's intention that the bomb should be detonated if the car was stopped. There is also evidence that Alister was aware of the size and power of the bomb. The evidence may have supported the inference that Alister intended that the three men in the car should be killed if the bomb were exploded, but there was in my opinion no evidence on which the jury could have been satisfied beyond reasonable doubt that Alister intended that the police officers who intercepted the car should also be killed. He requested Seary to close the windows and lock the doors of the car, so that the police could not prevent the occupants of the car from exploding the bomb, and this points in the opposite direction. There is no doubt that the jury could have found that Alister was recklessly indifferent to the possibility, or even the probability, that death would be caused by the explosion of the bomb. That, however, is not enough to make him guilty of attempted murder.
One constituent element of the crime of an attempt is "an intention on the part of the offender to commit the complete offence": Director of Public Prosecutions v. Stonehouse. [(27)] It follows that a person is not guilty of an attempt to murder unless he intends to kill. "Paradoxically, but inevitably, the law's requirements on a charge of attempting to commit a crime are stricter than on a charge of actually committing it; for the concept of attempt necessarily involves the notion of an intended consequence": Smith and Hogan, Criminal Law, 4th ed. (1978), p. 247. Accordingly, a person who attacks another intending to do him grievous bodily harm will be guilty of murder if the victim dies, but not of attempted murder if he does not. In R. v. Wybrow, [(28)] in a passage cited with approval in Reg. v. Grimwood, [(29)] Lord Goddard L.C.J. said:
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.
It may be that, in the present case, Alister might have been convicted of the attempted murder of Seary and Dunn, since there was evidence which might have satisfied the jury that Alister was party to what was in effect a suicide pact. That case, however, was not put to the jury; Alister was charged with the attempted murder of Gilligan and others, and the jury were told that the "others" were police officers. The learned trial judge in his summing up repeatedly told the jury that the Crown case was that Alister and Dunn had a common intention to detonate the bomb so as to kill any police who tried to stop them from carrying out their plan. He told them also that the Crown case was that the applicants intended to kill themselves as well, but he did not tell the jury that that was the subject of the charge. He said: "The fact that the accused would kill themselves if the bomb went off in no way prevents you finding each one guilty of this charge"; and also: "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." It would in my opinion be wrong to uphold the conviction for reasons which the jury were never asked to consider. In any case the conviction could not be sustained in its present form, since there was no evidence that Alister intended to murder Detective Senior Constable Gilligan. The fact that the point was not raised at the trial does not make good the deficiency in the evidence. I would quash Alister's conviction.
(2) Stand over for a time to be specified the appeal by the applicants against their convictions for conspiracy to murder to permit the Director-General of ASIO within that time either - (a) to file an affidavit showing that ASIO has not and never had in its possession any documents which were supplied by Richard John Seary or which relate to any investigation made by him and which refer to the applicants or any of them or to the crimes of which they have been convicted; or (b) if ASIO has or has had in its possession any documents which were supplied by Richard John Seary or which relate to any investigation made by him and which refer to the applicants or any of them or to the crimes of which they have been convicted, to secure the production to this Court for inspection of all such documents, subject, however, to the liberty of the Attorney-General if he should be so advised to raise a further objection (for reasons which must be fully stated) to the production of particular documents on the ground that it would be contrary to the public interest to produce the same for inspection by the court.
Thereupon the matter to be relisted for argument or judgment as the court may direct.
(3) Allow the appeal by Alister against his conviction for attempted murder and quash the conviction and sentence imposed thereon.
The applicants seek special leave to appeal from the dismissal by the Court of Criminal Appeal of New South Wales of appeals by Alister, Anderson and Dunn against convictions for conspiracy to murder and appeals by Alister and Dunn against convictions for attempted murder.
Amongst other grounds, the applicants claim that a miscarriage of justice occurred because the trial judge permitted prejudicial cross-examination about the aims and activities of Ananda Marga and alleged associated organizations which involved accusations of other crimes.
The accused were subjected to heavy pre-trial prejudice because of widespread publicity given to various alleged activities of the Ananda Marga, and to the evidence at the committal proceedings, of the principal Crown witness Richard Seary that the accused had admitted responsibility for the Hilton Hotel bombing. This bombing was one of the most horrifying incidents in modern Australian history and occurred during the Commonwealth Heads of Government Meeting in February 1978. Because of this pre-trial prejudice the duty of the trial judge and the prosecution was to be scrupulous in avoiding further prejudice to the accused.
"Given the pervasiveness of modern communications and the difficulty of effacing prejudicial publicity from the minds of the jurors, the trial courts must take strong measures to ensure that the balance is never weighed against the accused": Sheppard v. Maxwell. [(39)] 1. (1966) 384 U.S. 333, at p. 362 [16 Law. Ed. (2d) 600, at p. 620].
However, the case degenerated into a political trial. The Crown introduced a great deal of material calculated to reflect adversely on the Ananda Marga, its aims and methods and also on the aims and methods of other bodies such as the Vishya Shiva Sena, PROUT and the One World Revolutionary Army, although the accused denied that the Ananda Marga was responsible for those bodies. The Crown also used the occasion of the trial to suggest that the accused were responsible for the Hilton bombing.
"I know of no more serious danger to our legal system than occurs when ideological trials take place behind the facade of legal trials": William O. Douglas, The Court Years 1939-1975 (1980), p. 84.
Political trials have stained the judicial system in many countries: see Spicer, Conspiracy: Law, Class and Society (1981) p. 86; Kirchheimer, Political Justice: The Use of Legal Procedure for Political Ends (1961), p. 419; Becker, Political Trials (1971) and Friedman, "Political Power and Legal Legitimacy: A Short History of Political Trials", Antioch Review, vol. 30 (1970), p. 157.
The record shows that Richard Seary, drug addict, informer and mentally disturbed fantasizer, must be one of the most unreliable persons ever presented as the principal prosecution witness on a charge of serious crime. The accused were entitled to refer to the fact that Seary had accused them of admitting the Hilton bombing. The accusation by Seary was made in circumstances which cast grave doubt upon his credibility. Seary claimed that Alister and Dunn made the admission to him in the car on the way to Cameron's house. However, in Seary's record of interview following the arrest at Yagoona, in which he set out the events, he made no reference to the Hilton bombing. If the admission had been made, Seary's failure to refer to it was extraordinary. The Crown conceded on this appeal that the circumstance raised a valid criticism of Seary's credit. The Crown at the trial should similarly have conceded and left the matter there. Instead it pursued the improper course of attempting to introduce evidence suggesting that the accused were or might have been responsible for the Hilton bombing, which was not the issue for trial. "A trial must be focused upon material issues and must not be permitted to follow collateral issues arising from the evidence": Bakopoulos v. General Motors Holden's Ltd. [(40)] ; see also Piddington v. Bennett and Wood Pty. Ltd. [(41)] . "Although there is often irrelevant cross-examination which is not objected to, no question which is irrelevant to an issue, and also irrelevant as to credit, is strictly admissible in cross-examination, any more than it is in evidence in chief": O'Sullivan v. Rath. [(42)]
A number of questions were asked in cross-examination of Anderson and Alister about their presence before and at the time of the Hilton bombing. Some of the questions to Alister were:
Q. You also protested on the arrival of Mr. Desai in Australia, did you not? A. Me personally?
Q. Were you outside the Hilton on the day before the bomb went off? A. No, I was in Adelaide and I have got witnesses and material evidence to prove that if I have to.
Q. You were at the northern entrance to the Hilton on the 12th, about 3.45 in the afternoon, sitting in a yoga position?
Q. The 12th, yes? A. No, I was in Adelaide then. As I said, I have got proof.
Q. Between 4 p.m. and 4.30 on Sunday afternoon, 12 February 1978, you were near the northern entrance to the Hilton Hotel? A. No, the last time I was in Sydney would have been nearly a week before then. I was in fact at that stage doing a - that was in February, I was doing a tour of Australia. As I said, I had camps I had to set up or conduct. One was in Adelaide, one was in Perth, I tried to conduct one in Melbourne.
and questions to Anderson included: Q. You see, the day before the Hilton was bombed you were driving a taxi? A. No.
Q. You were driving a Sydney radio taxi? A. No, incorrect.
Q. I put it to you you were driving a Sydney radio taxi in the streets of Sydney on 11 February 1978? A. That is correct.
Q. Were you present when there was any demonstration outside the Sydney Hilton in relation to the Commonwealth Heads of Government Regional Meeting? A. Yes.
Q. And there was a demonstration going on against Mr. Muldoon, I think, for the anti-abortionists? A. Yes.
Q. And you were present then. I put it to you that you were driving a taxi on 11-12 February 1978? A. On 11 February I was.
Q. That is 11 February. And you were driving a taxi then? A. Yes. I said that.
Q. You have been asked about that before? A. Yes. By you.
Q. Nobody has ever asked you whether you were driving a taxi then? A. No.
Q. Were you at the Sydney airport when Mr. Desai arrived for the Commonwealth Heads of Government Meeting?
These questions suggested that the Crown considered that these accused were implicated in the Hilton bombing. Further questions about the Hilton were in the following setting of cross-examination of Anderson:
Q. He had been in custody for some considerable time?
Q. Of course, there were incidents of pressure brought to bear all over the world by members of the Ananda Marga?
Q. There were acts of violence all over the world which were attributed to the Ananda Marga? A. There were some which were attempted to be attributed to Ananda Marga.
Q. There have been acts in Australia which have attempted to be attributed to Ananda Marga? A. Yes.
Q. From what you tell us the Ananda Marga has been heavily persecuted in Australia? A. Yes, we have been harassed by police, by ASIO
Q. You mounted a campaign to free the Bangkok three did you not? A. That's right, and they were freed.
Q. They were convicted - they pleaded guilty to possessing explosives? A. They made a plea bargain because they knew they would not get a fair trial in Bangkok.
Q. You know they pleaded guilty? A. They pleaded guilty to a lesser charge so they would not be in gaol for twenty years
Q. They were all members of the Ananda Marga? A. Yes, they were.
Q. There was an Indian diplomat who was abducted and stabbed in Canberra? [objected by Mr. Adams: question allowed]. A. The incident you raised; the person who was charged over that matter was acquitted of the two things alleged against him
Q. Now, in relation to the Hilton Hotel. In relation to the Hilton you issued a press release, did you not? A. Yes.
Q. And you got a press release out in the morning after the bombing? A. No. What has that got to do with this case anyway?
Q. You see, that was a release in which you disclaimed any responsibility for the Ananda Marga did you not? A. Of course
Q. Of course there were other incidents, in Bunbury in Western Australia where the Ananda Marga was wrongly accused again? A. No, I don't think the Ananda Marga was even accused of that.
This last question was a reference to much publicized bombings of a gantry in Bunbury as a result of which two men, who claimed that their actions were justified as a protest against the forestry policy of the Western Australian Government, were charged with causing damage. Apart from the prosecutor's innuendo there was no evidence that the Ananda Marga was in any way connected with the bombings.
This catalogue of insinuation about matters not in evidence represented a grave departure from the traditional duty of prosecuting counsel: see Berger v. United States. [(43)] Such tactics are typical of political trials. The exploration of particular instances of alleged criminality by the Ananda Marga, was highly prejudicial, even in the absence of evidence that the accused participated in or condoned them. "A list of questions which assume the existence of damaging facts, may be put in such a manner, and with such persistency and show of proof, as to impress a jury that there must be something wrong even though the prisoner fully denies it, and there is no other evidence": Gale v. People. [(44)]
This was not a regular cross-examination. It was making suggestions of the most prejudicial kind in the guise of cross-examination: see Wigmore on Evidence, vol. 6 (3rd ed.), par. 1806. The trial judge should have stopped it without waiting for any objection. By the series of questions the prosecutor was suggesting that "the Ananda Marga was responsible for the Bunbury bombings but the accused would, of course, falsely claim that the Ananda Marga was wrongly accused, just as they falsely disclaimed responsibility for the Hilton Hotel bombing". Any answer disclaiming responsibility was confirmation of the prosecutor's suggestion. That is the inference which a juryman could be expected to draw from such a question: see Glinski v. McIver. [(45)] It was designed to "get before the jury a statement, in the guise of a question, that would prejudice them against [the] appellant. If counsel had no reason to believe the truth of the matter insinuated by the question, then the artifice was most flagrant; but if he had any reason to believe in its truth, still he knew that it was a matter which the jury had no right to consider": People v. Wells. [(46)]
In R. v. Baldwin, [(47)] Hewart L.C.J. stringently criticized the improper mode of questions by counsel which "are really of the nature of an invitation to an argument". He described as mischievous questions such as "I suggest to you that " or "Is your evidence to be taken as suggesting that " or "Do you ask the jury then to believe ?" Leaving aside experts, the function of a witness is to answer to questions of fact, not to be invited to argue or speculate, nor to become the vehicle for counsel's assertions of fact or falsity. Questions which infringe in this way should be disallowed.
Apart from the assertions of the prosecutor there was no evidence that the Ananda Marga had been accused of any bombings or was responsible for them or that the accused had been implicated in or condoned any bombing. The questions were calculated to invite the jury to arrive at guilt by association. "There are few things more objectionable in a criminal case than the introduction of matter which has no probative value in relation to any issue, but is calculated to create prejudice in the mind of the tribunal": Cooper v. The Queen. [(48)] Such questions tend not merely "to introduce suspicion as if it were evidence, but they tend to distract the jury from the true issue - namely, whether the prisoner in fact committed the offence on which he [or she] is actually standing his trial": Maxwell v. Director of Public Prosecutions. [(49)] The accused Anderson was also closely cross-examined about having read those parts of the Crimes Act 1914 relating to treason and sedition - again the insinuation was that he was a man planning to commit treason and sedition.
In the eyes of the jury the prosecutor is the State and takes on much of its authority and prestige. "The power and force of the government tend to impart an implicit stamp of believability to what the prosecutor says. The same power and force allow him, with a minimum of words, to impress on the jury that the government's vast investigatory network, apart from the orderly machinery of the trial, knows that the accused is guilty or has non-judicially reached conclusions on relevant facts which tend to show he [or she] is guilty": Hall v. United States. [(50)] Respect for the office of prosecutor reflects confidence in the system of justice and induces the jury to regard the prosecutor as unprejudiced and impartial. Therefore, the prosecutor must refrain from doing anything which might improperly influence the jury and deny the defendant a fair trial. "It is not the duty of prosecuting counsel to secure a conviction [his] duty is to present to the tribunal a precisely formulated case for the Crown against the accused and to call evidence in support of it the prosecutor is fundamentally a minister of justice ": Christmas Humphreys, "The Duties and Responsibilities of Prosecuting Council" [1955] Crim. L.R., pp. 739, 740, 741.
The prosecutor's suggestions going beyond the evidence tended to make him into a witness, an extremely persuasive one, because of the jury's special regard for the prosecutor. In this way the rules of evidence were circumvented: see United States v. Grossman; [(51)] Taylor v. United States; [(52)] Alschuler, "Courtroom Misconduct by Prosecutors - and Trial Judges", Texas Law Review, vol. 50 (1972), p. 629; Singer, "Forensic Misconduct by Federal Prosecutors and How it Grew", Alabama Law Review, vol. 20 (1968), p. 227; note "The Nature and Consequences of Forensic Misconduct in the Prosecution of a Criminal Case", Columbia Law Review, vol. 54 (1954), p. 946; Vess, "Walking A Tightrope: A Survey of Limitations on the Prosecutor's Closing Argument", Journal of Criminal Law and Criminology, vol. 64 (1973) 22, at p. 28. Judge Frank stated that "Government counsel, employing such tactics, are the kind who, eager to win victories, will gladly pay the small price of a ritualistic verbal spanking" and pointed out that the failure of courts to do more than criticize "breeds a deplorably cynical attitude towards the judiciary": United States v. Antonelli Fireworks Co. [(53)] .
I am satisfied that sufficient timely objection was taken to the prejudicial cross-examination, but even if it had not been taken, the unfairness was so gross that the trial judge should have disallowed the questions and cautioned the prosecutor.
I conclude that the highly prejudicial "cross-examination" by the prosecutor and the introduction of inflammatory extraneous material designed to prejudice the accused, caused a substantial miscarriage of justice. On this ground alone all the convictions should be quashed.
I agree with the Chief Justice that the directions were erroneous and that on that ground also the conviction of Alister should be quashed.
The authorities which have been reviewed by the Chief Justice persuade me that the trial judge should have inspected the documents subpoenaed to ascertain if they contained anything which tended to show that the case against the accused was fabricated (or otherwise tended to assist the accused in their defence, either directly, for example, by providing a basis for cross-examination, or indirectly, by pointing to the existence of other material which might assist).
There is a public interest in certain official information remaining secret; but there is also public interest in the proper administration of criminal justice. The processes of criminal justice should not be distorted to prevent an accused from defending himself or herself properly. If the public interest demands that material capable of assisting an accused be withheld, then the proper course may be to abandon the prosecution or for the court to stay proceedings.
Special leave to appeal should be granted. The appeals should be allowed; the convictions should be quashed. If that course does not commend itself to a majority, I would agree with the order proposed by the Chief Justice.
We have had the advantage of reading the reasons for judgment prepared by our brother Brennan. His Honour's outline of the facts of the case and his description of the proceedings at trial relieve us of the necessity of covering that ground. It is possible for us to proceed at once to a consideration of the three distinct matters that call for consideration in dealing with these applications for special leave to appeal.
The applicants complain that the learned trial judge, Lee J., denied them both the opportunity of discovering whether the Australian Security Intelligence Organization ("ASIO") possessed any documents that were relevant to the issues in the trial and the further opportunity, if such material existed and was in its possession, to inspect it so that they could then make such use of it (if any) consistently with the rules of evidence as they thought fit. It is said that the denials caused the trial to miscarry. However, that proposition would not be established in the present proceedings merely by showing that the trial judge was in error in releasing ASIO from the obligation to produce any such documents as described in the subpoena as may be in existence. It would be necessary to go further and establish both that ASIO did possess relevant documents and that the contents were such that had the applicants had the opportunity to use the documents themselves or the information contained therein the result of the trial may have been different. The relevant question is whether, by reason of error on the part of the trial judge, the applicants may have lost a chance of acquittal that was fairly open to them: Mraz v. The Queen. [(54)]
The subpoena called on ASIO to produce "all files, notes and memoranda relating to or supplied by the investigation by Richard John Seary into the Ananda Marga organization and activities from 15 June 1977 to date". ASIO took more than one objection to the effectiveness of the subpoena but the only one that requires present consideration is that by which ASIO sought to be excused from disclosure of the existence of any documents described in the subpoena and, if they existed, from their production. It relies upon what usually has been described as Crown privilege but which in these circumstances is more accurately described as "public interest immunity". The Attorney-General of the Commonwealth was the Minister of State responsible for ASIO and he swore an affidavit in support of ASIO's objection. After referring to the terms of the subpoena and describing certain functions of ASIO, the Attorney-General deposed as follows:
(a) it is in the public interest to establish and maintain an organization whose function it is to obtain, correlate and evaluate intelligence relevant to security and to advise Ministers of State as to matters of security and intelligence insofar as they are relevant to the Departments of State and public authorities of the Commonwealth administered by them;
(b) the disclosure of information that a particular person has or has not been employed by, or carried out an investigation for, the Organization and the disclosure of information as to whether any investigation has or has not been carried out by or for the Organization could, in general, and would certainly, in specific circumstances, be a crucial breach of the security and confidentiality which is required for the effective operation of the Organization: moreover, the disclosure of the identity of an officer of or person employed by the Organization may, in addition, place that person, his family and his property in danger; and
(c) effective security, in relation to the Organization and its activities, can only be maintained if the Organization is able to refuse in all cases, where information or documents are sought, to divulge whether such information or documents are available or do exist.
After hearing argument, in the course of Seary's examination in chief, on a motion to set aside the subpoena, Lee J. stood the matter over until the following day, saying:
Having heard the argument on both sides it seems to me that bearing in mind the three accused are facing a serious charge or charges, that I should not seek to decide this matter merely upon the basis that the witness Seary may have been connected with ASIO and that that connection of itself would be sufficient to require me to refrain from ordering production of the documents.
I think it is a case in which I should examine any documents in private and then form an opinion as to the course to be taken.
That being the case the matter will be stood over until 10.00 a.m. on Wednesday, 18 July 1979.
However, the following day, after indicating that during the adjournment he had had the opportunity of considering closely the decisions in Conway v. Rimmer [(55)] and Sankey v. Whitlam, [(56)] his Honour ruled as follows:
The view I have formed is that the grounds set out in pars. 5(a), (b) and (c) of the affidavit of the Attorney-General assert matters which this Court should without more accept. The matters therein asserted in my opinion do, on examination, justify the assertion made in par. 5(c): "Effective security, in relation to the Organization and its activities, can only be maintained if the Organization is able to refuse in all cases, where information or documents are sought, to divulge whether such information or documents are available or do exist."
This is a case where the document in question is of a class of document which it is not in the public interest to disclose. For these reasons, there is no occasion for the Court to examine further whether such documents exist or not.
In the circumstances, I consider that the appropriate order is that the subpoena be set aside.
The first question to be considered is whether the trial judge fell into error in making the ruling he did. We do not think that the principles which are relevant to a determination of that question are in doubt. Several recent decisions in different jurisdictions have clarified those principles and provided illustrations of their application: Conway v. Rimmer; [(57)] Reg. v. Lewes Justices; Ex parte Home Secretary (Rogers v. Home Secretary); [(58)] Sankey v. Whitlam; [(59)] Burmah Oil Co. Ltd. v. Bank of England; [(60)] Environmental Defence Society Inc. v. South Pacific Aluminium Ltd. [No. 2]; [(61)] Air Canada v. Secretary of State for Trade. [(62)] In Sankey v. Whitlam, [(63)] Gibbs A.C.J., said:
The general rule is that the court will not order the production of a document, although relevant and otherwise admissible, if it would be injurious to the public interest to disclose it. However the public interest has two aspects which may conflict. These were described by Lord Reid in Conway v. Rimmer [(64)] as follows: "There is the public interest that harm shall not be done to the nation or the public service by disclosure of certain documents, and there is the public interest that the administration of justice shall not be frustrated by the withholding of documents which must be produced if justice is to be done." It is in all cases the duty of the court, and not the privilege of the executive government, to decide whether a document will be produced or may be withheld. The court must decide which aspect of the public interest predominates, or in other words whether the public interest which requires that the document should not be produced outweighs the public interest that a court of justice in performing its functions should not be denied access to relevant evidence. In some cases, therefore, the court must weigh the one competing aspect of the public interest against the other, and decide where the balance lies. In other cases, however, as Lord Reid said in Conway v. Rimmer [(64)] , "the nature of the injury which would or might be done to the nation or the public service is of so grave a character that no other interest, public or private, can be allowed to prevail over it". In such cases once the court has decided that "to order production of the document in evidence would put the interest of the state in jeopardy", it must decline to order production. 1. [1968] A.C. 910. 2. [1973] A.C. 388. 3. (1978) 142 C.L.R. 1. 4. [1980] A.C. 1090. 5. [1981] 1 N.Z.L.R. 153. 6. [1983] 2 A.C. 394. 7. (1978) 142 C.L.R., at pp. 38-39. 8. [1968] A.C., at p. 940. 9. [1968] A.C., at p. 940.
It will be appreciated that the questions which confronted Lee J., were at least one step removed from the question whether documents should be admitted in evidence. They were the anterior questions whether the existence or otherwise of the documents sought should be made known and whether if they existed the applicants should be given access to them. This distinction, however, does not render inapplicable the general principles to which we have referred although it may have some effect on the cogency of the arguments which the applicants advance as material to the balancing exercise in which the court may have to engage. There is obviously a significant difference between a situation where an accused person seeks to have adduced in evidence a document which he knows to be in existence and which will go to establish his innocence and a situation where even assuming that documents exist their contents are entirely unknown.
It is necessary now to attempt some evaluation of the competing public interests. The claim to immunity from disclosure rests on the basis of a "class" claim rather than a "contents" claim; that is to say, immunity is sought because the documents sought by the subpoena, if they exist at all, fall within a class of documents the existence and the contents of which should never be disclosed. In many cases a court may find it natural to place greater weight on the claim of a Minister which is based on the particular contents of the documents in question and in circumstances where the Minister has himself inspected them: cf. Sankey v. Whitlam, per Gibbs A.C.J. [(66)] . But that is not necessarily so. There may be cases where a class claim assumes an overriding significance because of the nature of the particular class and the public interest involved. In the present case, the Minister's affidavit gives no indication that he has inspected any documents and of course that is inevitable given that the immunity sought extends to the question whether any documents exist at all.
The outstanding feature of the claim to immunity is the nature of the public interest which the Minister seeks to protect. Questions of national security naturally raise issues of great importance, issues which will seldom be wholly within the competence of a court to evaluate. It goes without saying in these circumstances that very considerable weight must attach to the view of what national security requires as is expressed by the responsible Minister. On the other hand, notwithstanding the importance of matters of national security, the Minister's claim is not conclusive. Although, in Burmah Oil, [(67)] Lord Wilberforce inclined to the view that a claim to immunity shown to be based on public interest of a high, or the highest level, was of itself conclusive against the public interest in the administration of justice, he acknowledged that a "less rigorous proposition" was not without authority and he proceeded to deal with the case on the latter basis. It is conceded by counsel for ASIO that the duty lies with the court to balance the competing aspects of the public interest. No doubt that duty will often be little more than a formality unless in the face of a claim based on security a compelling case is made out for the production of the documents. In Duncan v. Cammell, Laird & Co. [(68)] the House of Lords gave some credence to the view that the Minister's certificate claiming Crown privilege on whatever ground was conclusive, but although that view has now been shown to be erroneous by the decision in Conway v. Rimmer there has never been the slightest suggestion that the actual decision was other than correct. It was to the effect that the secrecy of the details of the construction of a British submarine were of national importance and the public interest in their non-disclosure was paramount to the interests of the parties to the litigation.
National security undoubtedly forms a category of public interest of special importance. In D. v. National Society for the Prevention of Cruelty to Children, [(69)] Lord Simon of Glaisdale referred specifically to this category, saying:
If a society is disrupted or overturned by internal or external enemies, the administration of justice itself will be among the casualties. Silent enim leges inter arma. So the law says that, important as it is to the administration of justice that all relevant evidence should be adduced to the court, such evidence must be withheld if, on the balance of public interest, the peril of its adduction to national security outweighs its benefit to the forensic process - as to which, as regards national security in its strictest sense, a ministerial certificate will almost always be regarded as conclusive: see Lord Parker of Waddington in The Zamora. [(70)] 1. [1978] A.C. 171, at p. 233. 2. [1916] 2 A.C. 77, at p. 107.
It is clear that in making the claim to immunity the Minister does not purport himself to form any view as to the strength of the competing public interest. He cannot be expected to do so. His function is to make a claim in the interests of security, that being the matter which falls within the range of his ministerial responsibility. His duty is to assist the court by expressing the claim that he makes with as much specificity as the circumstances will allow. Unlike the relevant court, he is not seized of the issues in the trial and is not in a position to assess the possible impact which non-disclosure of the documents may have on that trial: cf. Conway v. Rimmer, per Lord Reid. [(71)]
We turn now to examine the grounds which the Minister advances in support of his opinion that "the disclosure whether or not documents meeting the description in the subpoena exist would be prejudicial to the national security" (cl. 5). Paragraph (a) merely asserts the public interest in maintaining an intelligence organization. Paragraph (b) asserts, inter alia, that the disclosure of information that a particular person has carried out an investigation or that an investigation has or has not been carried out by or for ASIO "could, in general, and would certainly, in specific circumstances, be a crucial breach of the security and confidentiality which is required for the effective operation of" ASIO. Paragraph (c) asserts that effective security, in relation to ASIO and its activities, can only be maintained if ASIO "is able to refuse in all cases, where information or documents are available or do exist". Clause 6 then formally takes the objection, on the grounds of danger to the national security, to disclosing whether ASIO has any documents of the type described in the subpoena and to the production of any such documents as may exist.
It seems to us that the Minister's affidavit establishes a strong claim to the public interest against disclosure of any information touching the subject matter of the subpoena. Indeed, we do not think that the trial judge or this Court is in a position to do other than accept that disclosure of the information would endanger national security: cf. Conway v. Rimmer, per Lord Reid. [(72)] To say that is not necessarily to conclude the task of balancing competing public interests. It is simply to evaluate that which goes into the scales on one side. We do not think that any problem of construction is raised by the wording of pars. (b) and (c) of cl. 5. As we read the document, par. (c) is sufficient in itself to establish the claim. It stands quite independently of the assertions contained in par. 9(b). In any event, the recognition in par. (b) that disclosure "could, in general, and would certainly, in specific circumstances, be a crucial breach" of security is, in our opinion, a sufficient basis for a claim to complete immunity from disclosure. The ramifications of security are such that only complete confidentiality is effective. It is for this reason that its character as a class claim is significant.
What, then, is there to place in the scales on the other side? First, there is the fact that we are dealing with the administration of criminal justice. The public interest in ensuring that all relevant and admissible evidence that bears on the guilt or innocence of a person charged with a serious crime must be regarded as of great importance: see Sankey v. Whitlam. [(73)] Second, there is more than a possibility that Seary is an ASIO agent. It is known that he joined the Ananda Marga following the Hilton Hotel bomb incident pursuant to an arrangement with the Special Branch of the New South Wales Police Force in the hope that he might gain information bearing on the involvement of members of that group in that incident or as to its activities generally. It would be surprising if, having regard to the functions of ASIO, that organization was not itself interested in the Ananda Marga. Nevertheless, it cannot be assumed that the notoriety accorded to Seary's undercover role for the Special Branch means that there could be no danger to national security if ASIO were compelled to disclose the existence of reports to it from Seary. No court can profess to know the inferences and implications that may be capable of flowing from such a disclosure.
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.
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.
We have come to the firm conclusion that the case put by the applicants is so lacking in substance that the court is not warranted in itself inspecting the documents. We are not persuaded that Lee J. erred when he declined to require ASIO to disclose the existence or otherwise of documents the subject of the subpoena or to produce for his inspection such of the documents as did exist. On the contrary, we think his Honour's handling of the issue showed a very sensitive and proper regard for the competing interests involved. His decision did not deprive the applicants of a trial according to law.
The substance of this ground of the applications is that the Crown was permitted to cross-examine the accused about the aims and activities of the Ananda Marga and certain bodies said to be associated with it. The associated bodies were referred to as Prout, Prout Universal, Universal Proutist Revolutionary Federation and the V.S.S.
The evident purpose behind this line of questioning was to establish that these organizations were committed to revolutionary activities involving the use of violence. When the accused denied, as they did for the most part, that the Ananda Marga and its associated bodies were of this character, their denials were tested by questions concerning specific incidents in which individuals were alleged to be acting as members of one or other of these bodies. One of these incidents was the explosion of a bomb at the Hilton Hotel, evidence of which had been led by the Crown from its witness, Seary, with the assent of counsel for the accused, who said they intended to ask questions about it in cross-examination in any event. Others concerned the abduction and stabbing of an Indian diplomat in Canberra, an incident at Bunbury in Western Australia and a case in New Zealand in which three members of the Ananda Marga were said to have been charged with using explosives. The involvement of the Ananda Marga or the other bodies in these incidents was denied or not conceded by the accused.
There was an objection by counsel for the accused Dunn at a point where a question concerning the Indian diplomat was asked of the accused Anderson, who was the first of the accused to give evidence. Neither the nature of the objection nor the ruling was recorded but in an affidavit tendered in this Court, counsel for Dunn at the trial swore:
I objected to the question on the ground that it was irrelevant and made it clear that I objected to any line of questioning which involved allegations that the organization or particular members of it approved of or committed acts of violence or unlawful undertakings. The objection to the particular question was not allowed.
A similar objection was subsequently made when a question was asked concerning the United Proutist Revolutionary Federation and the learned trial judge made the following ruling:
As I made the observation a few minutes ago, the matter has been opened up by the accused, and while there are certainly limits I do not think that the limits have been arrived at yet, and I will allow the question. The reference to the earlier observation is, apparently, a reference to an observation made when ruling upon the first objection and the reference to the matter having been opened up by the accused is a reference to the evidence of the bombing at the Hilton Hotel having been led with the assent of the accused. Thereafter, counsel for Dunn and, it may be assumed, counsel for the other accused did not persist with similar objections.
The complaint underlying the submission made on behalf of the applicants is essentially that the Crown attempted by its questions concerning the violent character of the Ananda Marga to establish that the accused, by reason of their membership of it, possessed the same violent character or disposition and were, accordingly, more likely to have been guilty of the crimes with which they were charged. This, it was said, was impermissible.
The difficulties inherent in such a submission are apparent. The accused had opened up their character as an issue by leading evidence of good character. The Crown was entitled to cross-examine them upon that issue: see Crimes Act 1900 NSW, ss 413A, 413B. It is unnecessary, however, to consider whether the actual evidence which the Crown sought to elicit in cross-examination could be said to be admissible for that purpose because the questions were relevant to other issues in the case. For that reason they were questions which might have been asked, regardless of whether they also went to the character of the accused: see Attwood v. The Queen. [(77)]
Putting on one side the charge of attempted murder against two of them, the accused were charged with conspiracy to murder a man named Cameron. The plan to murder Cameron arose, according to the Crown, because of an antipathy between the views of the Ananda Marga, of which each of the accused was a member, and the views which Cameron held as the leader of a political organization known as the National Front. It was the Crown case that the membership of the accused of the Ananda Marga explained their actions on the night in question and established the reason or motive for what each of them did and the common design which they had. The criminal purpose which the Crown alleged the accused held in common was a purpose deriving from their membership of the Ananda Marga and their acceptance of its tenets.
The Crown was, therefore, entitled to cross-examine the accused about the aims of the Ananda Marga and the means which it was prepared to adopt to achieve those aims. Moreover, when the accused denied what was put to them concerning the aims and methods of the Ananda Marga, as by and large they did, the Crown was entitled to test those denials with questions about specific matters or incidents which would tend to show that the Ananda Marga and organizations associated with it were the kind of organizations which the Crown suggested they were. Whether or not questions of the latter sort went to credit only or were admissible also to prove the aims of the Ananda Marga and its acceptance of violence in the attainment of them was something which did not require analysis in order to determine their admissibility; they were clearly admissible upon the issue of credit even if otherwise irrelevant.
No doubt there were, as the trial judge observed, limits to such cross-examination. Evidence of incidents which were too remote or unconnected with the Ananda Marga would not satisfy the ordinary tests of relevance either in relation to credit or facts in issue or, if relevant, might be so prejudicial as to outweigh any probative value. See also Evidence Act 1898 NSW, s 56. But the trial judge was of the view that these limits were not exceeded in this case and we see no reason to disagree with this view.
It is true that the Crown failed for the most part to elicit the response to its questions which it sought. However, this does not mean that the questions were irrelevant or inadmissible. If the Crown prosecutor did not have instructions which warranted his putting the matters which he did, that may have raised a question of propriety. No suggestion of impropriety was made in this case and the question was not raised by the mere fact that the Crown failed to obtain the answers which it sought.
Specific complaint was made in pursuing this ground of the applications that, in the course of the cross-examination, questions were asked about parts of documents which were not in evidence and which were not put in evidence. The parts of the documents which were read suggested, it was said, that the Ananda Marga was revolutionary in its aims. In so far as the accused to whom such a document was put was the author of the document in question, there was no requirement that the document be put in evidence: see Evidence Act 1898 NSW, s 55. In so far as the accused was not the author of the document, it was impermissible to ask questions about its contents without observing the rule in The Queen's Case: [(78)] see Darby v. Ouseley. [(79)] Most, if not all, of the documents of this type upon which the impugned cross-examination was based would appear to have been inadmissible and, in so far as that was so, the proper course under the rule in The Queen's Case was to ask the accused to look at the document without identifying it and to ask whether he adhered to his previous evidence: R. v. Orton; [(80)] Birchall v. Bullough; [(81)] R. v. Seham Yousry. [(82)] If any of the documents of which the witness was not the author were admissible they should have been tendered in evidence under the rule. Neither course was adopted. However, no objection was taken at the trial to this aspect of the cross-examination nor was any direction sought in relation to it. The Crown failed to obtain the answers which it sought and there is no real basis upon which it can be said that the accused suffered any prejudice by reason of the adoption of this improper mode of cross-examination.
Notwithstanding the broad basis upon which evidence concerning the beliefs and practices of the Ananda Marga was relevant and admissible, the learned trial judge ultimately chose narrower limits in directing the jury as to the use which might be made of that evidence, a course which could only have been to the advantage and not to the detriment of the accused.
Much of the cross-examination to which objection is now taken by the applicants was referable to matters which on Seary's evidence were alluded to in conversations which took place in the afternoon and evening of 15 June and to documents which were allegedly found at the headquarters of the Ananda Marga and associated with the applicant Anderson. The first of the conversations occurred at Queen Street and involved all three applicants and Seary. The second occurred in the car on the way to Yagoona and involved Alister and Dunn and Seary. There is no doubt that Seary's evidence of the conversations was admissible; indeed, the most potentially prejudicial part of the latter conversation, namely, the allusion to the Hilton Hotel bombing incident, was, as we have said, retained in the Crown case with the express assent of the applicants. A major issue in the trial was whether these conversations occurred at all. Another was the authenticity and significance of the documents. Any evidence by way of cross-examination of the applicants which fairly went to these issues was relevant and admissible. It was upon this basis that the relevance of the cross-examination was explained to the jury by the learned trial judge. After emphasizing that the Ananda Marga was not on trial he said:
The evidence in the cross-examination in regard to the Ananda Marga is material which may assist you in understanding and explaining aspects of the conduct of the accused as revealed in the evidence.
You see, members of the jury, much of the evidence of the witness Seary, when you hear it for the first time, can only properly be assessed and understood by an explanation as to the understanding by the accused of the aims and belief of the organization to which they belong
Then, referring to the admissions which the Crown alleged that the applicants had each made to police officers, his Honour said: Some of the admissions, or rather alleged admissions, made by them are better understood with a knowledge of the aims of Ananda Marga, and the significance of Prout and the V.S.S., as the accused saw it
I do not propose to go into the details as to what might be said to be revealed here, as to the aims and activities of the Ananda Marga because, as I have said, it is only relevant in so far as it throws light upon and explains the alleged statements of the accused and documents taken from Queen Street on the day of the events we are concerned with here
His Honour then reminded the jury that the applicants denied that violence plays any part at all in any of the aims of Ananda Marga or Prout or the V.S.S. "and in fact they assert that the tenets of the organization are quite opposed to violence and revolution and inconsistent with statements and conduct such as is alleged against them here by Seary and the police", before reiterating by way of conclusion to this part of his direction "but let me stress again, you must remember it is their actions and statements on that day proved in the evidence here in regard to the charges alleged against them which will make them guilty or not guilty of the charges, not their beliefs in revolution or violence or whatever may be the position ".
We do not think that in these circumstances there could be said to be any miscarriage of justice by reason of the cross-examination of the accused.
Like the Court of Criminal Appeal, we entertain some anxiety as to whether there is sufficient evidence against Alister to sustain his conviction on this charge. The evidence of common purpose with Dunn consisted - apart from any inference that could fairly be drawn from the surrounding circumstances - solely of the conversations that took place in the car during the journey to Yagoona. The substance of those conversations can be summarized as follows:
Seary said: "What happens if we are stopped in this?"
Alister replied: "A good Sud Vepra should be prepared to give his life for Baba if necessary."
Seary said: "What happens if this goes off in the car?"
Alister said: "You have got to be prepared to give your life for Baba."
Seary asked again what would happen if they were stopped.
Alister said: "Many Margis died while fighting demons. Prennam (that is Duff, the Margi called Duff in Canberra) was brave because he attacked Singh, the military attache, down there single-handed. We must be equally as brave."
Alister then spoke about "the brave, self-immolated Margis who burnt themselves to death for Baba".
He then 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."
Seary was still very agitated and Alister said to him: "Close your window and lock your door so they can't stop us, they can't prevent us from exploding it."
Alister replied: "You must have more faith. Baba is God, meditate on that."
After reminding the jury of that conversation in the car, Lee J. directed them: If you are satisfied beyond reasonable doubt that Dunn did attempt to explode the bomb at the time of the arrest, you would only convict Alister if you were satisfied beyond reasonable doubt that that conversation did occur and that it in your view establishes that Alister was party to a common purpose with Dunn to kill any police intervening by detonating the bomb. No objection was taken by Alister's counsel to that direction and apparently there was no attempt at the trial to argue Alister's case separately from that of Dunn, notwithstanding that the latter had allegedly made admissions to police officers which strengthened the case against him. There was no application to take the case against Alister from the jury at the conclusion of the Crown case.
The reason for our anxiety is based simply on an objective assessment of the conversation to which we have referred. It seems to us that the evidence of purpose which is to be gleaned from Alister's statements is primarily that of self-destruction. The emphasis is upon giving one's own life for Baba and that if they were intercepted the bomb should be exploded so that there would be nothing to connect the enterprise with Ananda Marga. The instruction to close windows and doors so that they could not be prevented from exploding the bomb again tends to emphasize self-destruction as the objective. On the other hand, the exhortation to be equally as brave as the Margis who died while fighting demons is capable of evidencing the existence of a purpose to kill the intercepting police officers. It may also be that the size of the bomb was such that any plan to detonate the bomb in the car necessarily encompassed the death of any police officer who was in the vicinity of the car at the time of the explosion so that a finding of reckless indifference could have supported a verdict of guilty. But this was not the case presented to the jury. His Honour, consistently with the case presented at trial, focused their attention on the conversation as carrying the burden of the Crown case.
However, notwithstanding these considerations, it is unnecessary to pursue the matter to a conclusion, because we are here concerned not with an appeal but with an application for special leave to appeal. It may be that the Court of Criminal Appeal was correct in the way that it evaluated the competing considerations and came to the conclusion it did. Be that as it may, there is clearly less reason to entertain Alister's claim of a miscarriage as the basis for the grant of special leave to appeal. There was no error of principle involved and having regard to the manner in which the trial was conducted this is not a case for special leave.
We would therefore find against the applicants on each of the three grounds. We do not think that on any ground there is a question of principle involved such as would call for the grant of special leave.
Richard John Seary was an agent for the Special Branch of the New South Wales Police. In 1978 he joined the Ananda Marga sect, simulating an acceptance of the teachings and aims of the sect. He met other members of the Ananda Marga, including the three applicants at whose trials he was to become the principal prosecution witness. There were two trials in the Supreme Court of New South Wales. At the first trial, the jury disagreed; at the second trial, before Lee J. and a jury, each of the applicants was convicted of conspiracy to murder and sentenced to sixteen years penal servitude and, on a second count, the applicants Alister and Dunn were convicted of attempted murder and sentenced to sixteen years penal servitude to be served concurrently. The applicants appealed to the Court of Criminal Appeal but their appeals were dismissed. They seek special leave to appeal from that judgment.
The prosecution case was that Seary was privy to the applicants' plot to kill Robert John Cameron, the leader of an organization known as the National Front Movement, whose ideas were odious to the Ananda Marga. Cameron and his family were to be killed by exploding a bomb at a house at an address in Yagoona near Sydney which Seary supplied to the applicants as Cameron's address. Seary alerted the police and, at about midnight on 15 June 1978, the police intercepted a car driven by Seary, in which Alister and Dunn were travelling, on its way to the address in Yagoona. The police allege that Dunn, who was sitting in the back seat, was holding a bag containing ten sticks of gelignite which could be exploded by joining two wires to the terminals of a battery. The police allege that when Detective Senior Constable Gilligan opened the door to grab Dunn, Dunn's hands were in the bag and he was trying, unsuccessfully, to explode the bomb. That was alleged to be an attempt to murder Gilligan and others, the second count upon which Alister and Dunn were convicted. Shortly after the police intercepted the car, other police found Anderson at the Ananda Marga headquarters in Newtown. Seary says that an arrangement had been made for Anderson to wait there for a telephone call that would convey a message that Cameron's residence had been bombed. Anderson was then to issue press and radio releases claiming that the One World Revolutionary Army was responsible for Cameron's death. The police allege that they found in Anderson's possession letters addressed to two newspapers claiming responsibility for the bombing on behalf of the One World Revolutionary Army and another piece of paper in Anderson's and Seary's handwritings containing the supposed address of Cameron's residence.
Seary was the principal Crown witness, but his evidence did not stand alone. His description of the car journey from Carillon Avenue in Newtown to Yagoona was confirmed by police who had the car and its occupants under observation and who found the bomb in the car. Other police found the letters and the other piece of paper in Anderson's possession when they went to the Ananda Marga headquarters. The police also gave evidence of inculpatory admissions made by each of the applicants. According to the defence, however, the whole prosecution case was "a fabrication and a frame-up" as Lee J. said when he put the defence case to the jury in his summing up. The defence case was that Seary was driving the car to Yagoona to take Alister and Dunn out to Cameron's place to write graffiti on his walls or footpath, that Seary had put the explosives in the back seat of the car, and that he told Alister and Dunn about the explosives on the way to Yagoona saying that he wanted to use them to scare Cameron. Alister, Dunn and Anderson all denied in evidence that there was a plot to murder Cameron. Anderson said that he knew nothing of the letters to the newspapers allegedly found in his possession until they were produced at the committal proceedings. In this conflict of evidence between the prosecution and the defence, Seary's conduct and credibility were questions of importance.
The applicants evidently believed that Seary was or may have been working not only for the Special Branch of the New South Wales Police but also for the Australian Security Intelligence Organization ("ASIO"). Although Seary had not previously been asked and was not asked at the second trial whether he had any connection with ASIO, the applicants caused a subpoena to be issued out of the Supreme Court of New South Wales addressed to the Officer in Charge of the Australian Security Intelligence Organization, commanding him to appear and "to testify of those things which you know on the part of the accused AND TO PRODUCE all files, notes and memoranda relating to or supplied by the investigation by Richard John SEARY into the Ananda Marga organization and activities from 15 June 1977 to date." The terms of the subpoena are not entirely clear, but it may be taken to require the production of documents "relating to the investigation" by Seary and documents "supplied by" Seary in the course of his investigation. The Attorney-General of the Commonwealth, who was the Minister of State responsible for administering the Australian Security Intelligence Organization Act 1956 Cth, swore an affidavit containing the following paragraphs:
(a) it is in the public interest to establish and maintain an organization whose function it is to obtain, correlate and evaluate intelligence relevant to security and to advise Ministers of State as to matters of security and intelligence insofar as they are relevant to the Departments of State and public authorities of the Commonwealth administered by them;
(b) the disclosure of information that a particular person has or has not been employed by, or carried out an investigation for, the Organization and the disclosure of information as to whether any investigation has or has not been carried out by or for the Organization could, in general, and would certainly, in specific circumstances, be a crucial breach of the security and confidentiality which is required for the effective operation of the Organization: moreover, the disclosure of the identity of an officer of or person employed by the Organization may, in addition, place that person, his family and his property in danger; and
(c) effective security, in relation to the Organization and its activities, can only be maintained if the Organization is able to refuse in all cases, where information or documents are sought, to divulge whether such information or documents are available or do exist.
A notice of motion was filed on behalf of the Director-General of ASIO on 6 July 1979 to have the subpoena set aside. On 17 July 1979, before the examination in chief of Seary had been completed, counsel for the Attorney-General and the Director-General moved, in accordance with the notice of motion and on the affidavit of the Attorney-General, to set the subpoena aside. Lee J., having heard argument from counsel for the Attorney-General and the Director-General and counsel for the applicants, said:
Having heard the argument on both sides it seems to me that bearing in mind the three accused are facing a serious charge or charges, that I should not seek to decide this matter merely upon the basis that the witness Seary may have been connected with ASIO and that that connection of itself would be sufficient to require me to refrain from ordering production of the documents.
I think it is a case in which I should examine any documents in private and then form an opinion as to the course to be taken.
That being the case the matter will be stood over until 10.00 a.m. on Wednesday, 18 July 1979.
However, his Honour reconsidered that ruling. The next day, after he had had an opportunity to consider Conway v. Rimmer [(83)] and Sankey v. Whitlam, [(84)] his Honour ruled as follows:
The view I have formed is that the grounds set out in pars. 5(a), (b) and (c) of the affidavit of the Attorney-General assert matters which this Court should without more accept. The matters therein asserted in my opinion do, on examination, justify the assertion made in par. 5(c): "Effective security, in relation to the Organization and its activities, can only be maintained if the Organization is able to refuse in all cases, where information or documents are sought, to divulge whether such information or documents are available or do exist."
This is a case where the document in question is of a class of document which it is not in the public interest to disclose. For those reasons, there is no occasion for the Court to examine further whether such documents exist or not.
In the circumstances, I consider that the appropriate order is that the subpoena be set aside.
The applicants submit that it was wrong to set aside the subpoena and that the error not only warrants the grant of special leave to appeal but requires that the appeal be allowed. Although this is not an appeal from the order made on the notice of motion, that order is relevant to the question whether the applicants were tried and convicted according to law. The Crown, having had no part to play in the proceedings relating to the subpoena, contends that whether the applicants' argument with respect to those proceedings is upheld or not, the applicants cannot show that the subpoena would have yielded any documentary evidence or information to further the defence case and therefore that no grounds for setting aside the conviction can be shown. That contention cannot be sustained once the true ground of the applicants' complaint is identified. If the ground of complaint were the rejection of admissible evidence, it would be necessary for the applicants to show what was the evidence that they had sought to tender. However, the ground of complaint relates not to the use which the applicants sought to make of evidence available to them, but to their loss of an opportunity to obtain evidence.
The right of an accused person to compulsory process to secure the attendance of witnesses is a right of some antiquity. The eighth edition of Hawkins' Pleas of the Crown (Curwood ed.) Book 2, Ch. 46 states the law:
Sect. 165. I take it, that in prosecutions for misdemeanors the defendant may take out subpoenas of course; but that in capital cases he hath no right, by the common law, to any process against his witnesses without a special order of the court
Sect. 167. And it seems, that since the statute of 1 Ann. c. 9. which ordains, "That the witnesses for the prisoner shall be sworn," process may be taken out against them of course in any case whatsoever.
The compulsory process to bring in witnesses in criminal causes is either by subpoena issued in the King's name by the justices where the plea of not guilty is to be tried; or the justices or coroner who take the examination of the person accused, and the information of the witnesses, may at that time (and this is the usual way), or at any time after, and before the trial, bind over the witnesses to appear at the sessions, and if they refuse to be bound over, may commit them for contempt
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.
In the present case, if the applicants were entitled by subpoena to compel ASIO to produce to the court documents answering the description in the subpoena, it could not be said that their trial was according to law. Lee J. denied the applicants the benefit of the subpoena, for he set the subpoena aside. If he did so upon erroneous grounds, the applicants' trial was not according to law. Perhaps the order to set the subpoena aside was wrong in any event, the appropriate order being an order excusing the officer in charge of ASIO from the obligation to state whether ASIO had possession of documents answering the description set out in the subpoena and from the obligation to produce any such documents: Commissioner for Railways v. Small; [(87)] Waind v. Hill & National Employers' Mutual General Association Ltd. [(88)] ; and cf. Refrigerated Express Lines (A/asia) Pty. Ltd. v. Australian Meat and Live-stock Corporation. [(89)] In setting aside the subpoena, however, Lee J. intended merely to give effect to the ruling he had already stated and it is the validity of the ruling rather than the form of the order that is in question.
His Honour found that the matters asserted in par. 5(a) and (b) of the Attorney-General's affidavit justified the assertion in par. 5(c) that effective security in relation to ASIO and its activities could only be maintained by refusing to divulge the existence or availability of any information or documents that may be sought. According to par. 5(b), however, "disclosure of information that a particular person has or has not been employed by the Organization" would breach the security required for the effective operation of ASIO only "in specific circumstances". In other circumstances that security "could" be breached by disclosure. So far as par. 5(a) and (b) went it did not appear that the divulging of information or documents in the instant case would damage effective security in relation to ASIO and its activities. His Honour was in error in holding that those sub-paragraphs justified the assertion in par. 5(c). Paragraph 6 does not advance the matter, for the objection there taken is expressed to be founded on what is said in par. 5. The Attorney-General's affidavit was careful to avoid asserting or expressing the opinion that disclosure of information or documents would breach security in the particular circumstances of the instant case. The claim for immunity on the grounds of danger to the national security was made in much wider terms.
Paragraph 5(c) of the affidavit denied the possibility that, on the balance of public interest in a particular case, the benefit of disclosure to the forensic process will outweigh the peril to national security of compelling disclosure: cf. D. v. National Society for the Prevention of Cruelty to Children, per Lord Simon of Glaisdale. [(90)] In denying that possibility, the claim denies the duty of the court to determine how that balance should be struck in each case. A claim so widely made is insupportable. I would adopt with respect what Stephen J. said in Sankey v. Whitlam: [(91)]
In cases of defence secrets, matters of diplomacy or affairs of government at the highest level, it will often appear readily enough that the balance of public interest is against disclosure. It is in these areas that, even in the absence of any claim to Crown privilege (perhaps because the Crown is not a party and may be unaware of what is afoot), a court, readily recognizing the proffered evidence for what it is, can, as many authorities establish, of its own motion enjoin its disclosure in court. Just as a claim is not essential, neither is it ever conclusive, although, in the areas which I have instanced, the court's acceptance of the claim may often be no more than a matter of form. It is not conclusive because the function of the court, once it becomes aware of the existence of material to which Crown privilege may apply, is always to determine what shall be done in the light of how best the public interest may be served, how least it will be injured. 1. [1978] A.C. 171, at p. 233. 2. (1978) 142 C.L.R., at pp. 58-59.
There is a difference between an acknowledgment that ASIO has the ability to refuse disclosure "in all cases" and an acceptance "readily enough" that the balance of public interest will be against disclosure in a large majority of cases.
In my respectful opinion, Lee J. did not pose for himself the relevant question, namely, would the public interest be best served and least injured in the circumstances of the present case by compelling or by refusing to compel disclosure to the Court of the information and of the documents sought by the subpoena? By accepting the claim made in par. 5(c) of the Attorney-General's affidavit, he foreclosed the performance of the balancing function which he was bound to undertake. But it does not follow that the resulting ruling was wrong.
The applicants submit that the balancing function could not have been performed unless the learned trial judge had inspected such documents (if any) as ASIO may have been able to produce under the subpoena. Indeed, at the close of argument on 17 July, Lee J. had expressed the intention of inspecting such documents. It is frequently necessary for a judge to inspect the documents for which immunity is claimed, in order to perform his function of determining where the greater public interest lies. In Burmah Oil Co. v. Bank of England [(92)] that course was followed. Lord Edmund-Davies said: [(93)]
A judge conducting the balancing exercise needs to know (see per Lord Pearce in Conway v. Rimmer: [(94)] " whether the documents in question are of much or little weight in the litigation, whether their absence will result in a complete or partial denial of justice to one or other of the parties or perhaps to both, and what is the importance of the particular litigation to the parties and the public. All these are matters which should be considered if the court is to decide where the public interest lies."
A judge may well feel that he cannot profitably embark on such a balancing exercise without himself seeing the disputed documents. May he take a peep?
His Lordship thought it right to take a peep in that case, but it is not always necessary, nor even right, to do so.
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.
But how should the balance be struck, if there were a document upon which "the innocence of a person accused might depend", a document which showed that the defence case was right in alleging that the Crown case was a "fabrication and a frame-up"? Should the court inspect the ASIO documents to ascertain whether such a crucial document existed? If there were an ASIO file of documents answering the description in the subpoena and if it contained a document showing the Crown case to be a fabrication and a frame-up, it is impossible to suppose that every consideration - of national security and justice to the accused alike - would not demand its inspection by the accused and, if admissible, its production in evidence. Unless the trial judge inspected the ASIO documents (if there were any), it was impossible to discover whether such a crucial document existed.
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)]
The power of a criminal court to compel the production of government documents on the application of an accused person is a safeguard of individual liberty, but the power must be carefully used. The gravity of the charge, the nature of the issues, the evidence in the case and the terms of the affidavit claiming public interest immunity are relevant factors for the court to consider in deciding whether to inspect the documents. In the present case, the charges against the accused stand high in the calendar of crimes, the central issue was whether the accused had been framed by security forces and the affidavit was unsatisfactory since it claimed a blanket immunity from disclosure. In these circumstances, the learned trial judge ought to have inspected the documents sought by the subpoena (if any documents existed) to ascertain whether one or more documents showed the alleged fabrication and frame-up.
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.
A further affidavit will be required if the Crown seeks to discharge the onus in the first of these ways. Inspection by this Court of the documents will be required if the Crown seeks to discharge the onus in either of the other ways. The purpose of an affidavit or inspection at this stage, however, is different from the purpose which Lee J. would have pursued had he inspected the documents. Now the purpose is to determine whether the proviso should be applied; then the purpose would have been to see whether production of a document to the court with a view to its inspection by the accused should have been ordered. Inspection by this Court of a document produced to it by ASIO would not necessarily lead to an order that the Crown or the applicants be given access to the document. That would depend upon the contents of the document, the way in which the Crown was seeking to discharge the onus resting on it and any objection taken by the Attorney-General of the Commonwealth to the giving of access to the Crown and the applicants. It is not now appropriate to consider the objection taken but not argued before Lee J., namely, that the terms of the subpoena were not sufficiently specific. If that point had been argued at the time, it may have been dealt with by the issuing of a fresh subpoena. However, in deciding whether no substantial miscarriage of justice has occurred, this Court would not have regard to documents that would not have been covered by a properly drawn subpoena. Those documents would, ex hypothesi, be irrelevant to any of the issues which arose for determination at the trial.
In my opinion, the applicants' first ground of appeal warrants the grant of special leave to appeal. The order to be made on appeal on that ground depends upon whether the Crown discharges in one of the ways stated the onus of showing that there has been no substantial miscarriage of justice. Further affidavits may be filed and documents may be produced for this purpose.
The second ground is concerned with the propriety of permitting the cross-examination of each of the applicants about the aims and tenets of the Ananda Marga and some associated organizations (Proutist Universal and the V.S.S.) and about the alleged willingness of members of those organizations to commit acts of violence. The applicants submit that those subjects were irrelevant to any issue which the jury had to try and to any question of credibility. To permit the prosecutor to cross-examine on those subjects, it is submitted, is to infringe the principle stated by Viscount Sankey L.C. in Maxwell v. Director of Public Prosecutions: [(1)]
Such questions must, therefore, be excluded on the principle which is fundamental in the law of evidence as conceived in this country, especially in criminal cases, because, if allowed, they are likely to lead the minds of the jury astray into false issues; not merely do they tend to introduce suspicion as if it were evidence, but they tend to distract the jury from the true issue - namely, whether the prisoner in fact committed the offence on which he is actually standing his trial. It is of the utmost importance for a fair trial that the evidence should be prima facie limited to matters relating to the transaction which forms the subject of the indictment and that any departure from these matters should be strictly confined. 1. [1935] A.C. 309, at p. 320.
The precise objection to the cross-examination does not appear in the transcript of the trial. Indeed, the Court of Criminal Appeal proceeded on the footing that no objection had been taken; but an affidavit was read on the application for special leave to establish that counsel for Dunn had objected to the cross-examination of Anderson when the cross-examination appeared to be calculated to show "that Ananda Marga as an organization approved of violence and that all members of Ananda Marga were, as a class, persons who approved of and were prepared to commit acts of violence". The grounds of the objection which the accused took may be deduced from this affidavit and thus the question for present determination may be stated. Counsel for Dunn objected, and the objection may be taken to have been on behalf of Alister and Anderson as well, that it would be irrelevant to the facts in issue to show that the Ananda Marga was an organization that approved of violence or that members of the Ananda Marga were, as a class, persons who approved of and were prepared to commit acts of violence.
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.
The police attributed to the respective accused the following statements, among others -
Anderson: "What was going to happen tonight was the only justice that Cameron and his kind deserve."
Alister: "Nazi racists do not belong here. You have prevented us from doing this, but others will follow He is a Nazi racist and he and his type will infect others. You think you have done well by preventing us, but you have not."
Dunn: "He is a racist pig, he doesn't deserve to live in our world. We are humanitarians doing a service to humanity. We will never be stopped. Ananda Marga will cleanse this earth."
The motive assigned by the prosecution for each of the crimes charged in the indictment was perfectly clear: the tenets of the Ananda Marga, accepted by each accused, warranted and justified the violence of bombing Cameron's residence in order to kill him. The bombing would gain publicity for the One World Revolutionary Army. In the event of the bombing party being stopped, it would be in the interests of the Ananda Marga and virtuous as an act of self-immolation to explode the bomb. On the Crown case the aims and tenets of the Ananda Marga and its associated organizations were the key to understanding why the conspiracy to murder Cameron was entered into and why Dunn attempted to explode the bomb in circumstances where he would kill himself and others. The motive assigned by the prosecution for the commission of these crimes was an important issue in the trial. Although motive is not an element in either of the crimes charged, evidence of motive was relevant and admissible. As Griffith C.J. said in Mutual Life Insurance Co. of New York v. Moss: [(2)]
Evidence of motive is of itself, of course, in the nature of circumstantial evidence as to the main question in issue. In considering the conduct of a man, regard is had by Judges and juries to the ordinary conduct of human affairs. When a man does an extraordinary or a wicked thing, there is probably some cause inducing or impelling him to do so, and the more heinous the act is the more important becomes the question of motive. 1. (1906) 4 C.L.R. 311, at p. 317.
Evidence of motive was relevant not merely to provide a setting for the acts alleged against the respective accused but also as evidence probative of the crimes charged against them: Plomp v. The Queen, [(3)] especially per Menzies J. [(4)] .
On Seary's evidence, the motive alleged against each accused was the acquitting of what he accepted to be a moral obligation, and the fulfilling of the expectations of other committed members of the Ananda Marga. There could be no objection to cross-examination tending to show the existence and content of the accepted obligation or of the expectations. As the obligation and the expectations were attributed, by Seary's evidence, to membership of the Ananda Marga, evidence was admissible to show how membership gave rise to the obligation or expectations. Without that evidence the crime might appear inexplicable, to have been committed without motive: see Wigmore on Evidence, 3rd ed. (1940), vol. II, par. 390, p. 337, and the Pennsylvanian cases he cites: Hester v. Commonwealth; [(5)] and McManus v. Commonwealth. [(6)] In the present case, there was a live issue whether membership of the Ananda Marga gave rise to an obligation or an expectation that the respective accused would engage in violence in the cause of Ananda Marga ideals, even to the extent of committing murder and, in the cases of Alister and Dunn, sacrificing his own life in the attempt. Cross-examination was permissible to show that committed members of the Ananda Marga held it to be a moral obligation to engage in violence to advance Ananda Marga ideals and even to sacrifice one's own life in order to advance those ideals or in order to attack opponents of those ideals.
Lee J. gave the jury a specific direction upon the use which might be made of evidence of this kind obtained in cross-examination. He directed the jury that they were entitled to have regard to each accused person's understanding of the aims and beliefs of the Ananda Marga and its associated organizations to assist "in understanding and explaining aspects of the conduct of the accused as revealed in the evidence" and in assessing and understanding Seary's evidence and the admissions allegedly made by the accused after their arrest. That direction is unexceptionable once it is seen that each accused person's understanding of the aims and beliefs of the Ananda Marga is relevant to his alleged motive and thus relevant to the facts in issue. The objection recorded in the affidavit supplementing the transcript was not valid.
However, the cross-examination needed to be carefully framed. While it was legitimate to cross-examine in an attempt to show that the tenet of violence was generally accepted by the members or by the committed members of the Ananda Marga, it was not legitimate to cross-examine to show merely that some other members of the Ananda Marga had committed violent acts. Proof of the commission of violent acts by some few members of the Ananda Marga could not be used by itself to prove a general acceptance of a tenet of violence. Unfortunately, the cross-examination was not carefully framed, and some parts of it ought not to have been allowed. To appreciate what was objectionable and what was not, the cross-examination must be considered in the context of the evidence given by each of the accused.
Anderson, Dunn and Alister each elected to give evidence; they went into the witness box in that order. Each denied the substance of the conversations and activities Seary had attributed to him. Each denied that he espoused a tenet of violence. Anderson stated that the joining oaths of the Ananda Marga included an oath not to cause harm to others; Dunn denied that he accepted terrorism or that he would bring about his own death, though he said that he would not compromise his ideology under any circumstances; Alister denied that the Ananda Marga ideology, as he understood it, encompassed murder or self-destruction. Each was cross-examined extensively. Anderson and Alister were asked questions relating to acts of violence committed by other persons. Anderson's cross-examination included the following passage:
Q. Of course there were other incidents, in Bunbury in Western Australia where the Ananda Marga was wrongly accused again? A. No. I don't think the Ananda Marga was even accused of that.
Q. Was there not a member connected with that? A. There was a member connected with someone else who was not a member, who was convicted of that.
Q. And in New Zealand, a case there where three members of the Ananda Marga were charged with using explosives? A. No.
Alister's cross-examination included this passage with respect to certain incidents in Air India offices throughout the world: Q. You didn't know about those? A. Well, I don't know what goes on in Air India offices.
Q. You know an Air India officeman was stabbed in Melbourne, for example? A. Yes, there was something in the paper about it.
Q. And there was a claim of responsibility by the Universal Proutist Liberation Federation? A. I don't know who was claiming for it.
If the Crown had had evidence of the events referred to by the cross-examiner and if proof of those events were relevant to any issue in the trial, it would not have been proper for the Crown to abstain from tendering that evidence in chief and to raise it for the first time in cross-examination of the accused: Jones v. Director of Public Prosecutions; [(7)] Reg. v. Gillespie and Simpson; [(8)] Reg. v. Kane [(9)] and cf. Lawrence v. The Queen. [(10)] However, it is tolerably clear that the Crown was unable to prove the truth of the suggestions made by the cross-examiner against particular members of the Ananda Marga or its associated organizations, and it was unlikely that either Anderson or Alister could have given evidence as to the events upon which they were respectively questioned. Moreover, no attempt was made to use the suggested particular acts of violence to prove a general acceptance of a tenet of violence. The questions above recited were unlikely to advance and did not advance the proof of the guilt of any of the accused, yet they tended improperly to create prejudice against them. They ought not to have been asked. What could have been asked of each accused was whether the alleged tenet of violence was, in his understanding, the reason for an act of violence of which he had knowledge.
Other parts of the cross-examination of the accused were based upon documents in the possession of the Crown. The contents of these documents were improperly read in cross-examination without the slightest attempt being made to make the documents admissible, much less to tender them. Examples may be cited from the cross-examination of each accused. In Anderson's cross-examination, this passage appears:
Q. In the issue of Dhama [an Ananda Marga publication] dated 8th December 1977 there was mention about R. v. John Duff, the whole context of the case, was there not? A. That is right.
Q. And was it not you who said, "We are not setting aside the real possibility of the existence of a group called the Proutist Revolutionary Federation, nor even that it may be composed of fringe followers of the Ananda Marga"? A. I don't know about that.
Q. It is quoted there? A. It is in quotes there, is it, attaching my name to it. I don't think so.
Q. And it went on to say, "What we are saying is, he was framed. And who was framing John Duff?"? A. I don't know about that.
Q. You told me you read that book beforehand? A. Which book is that?
Q. The J. Hartman book, Recipe for Revolution; that includes in it the seven stages of revolution which you have just been looking at. It deals also with terrorism as a tactic to achieve publicity. You wanted to achieve publicity by running up the Prout flag on Capitol Hill? A. I did. I do not think that book in fact says you should use terrorism as a tactic to get publicity. I have not read it for quite a while, but I do not recall it saying such a thing.
Q. In the book Recipe for Revolution, you know in that appears, "One World Revolutionary Army was formerly Universal Proutist Revolutionary Federation"? A. No, the Universal Proutist Revolutionary Federation, as I understood it, was a - just a name put on some letters or something.
The impropriety of putting the content of a document before a jury merely by quoting it in cross-examination has been undoubted since the judges gave their answers to the House of Lords in The Queen's Case [(11)] and although the strictness of the original rule has been partially relaxed by statute where the cross-examination is founded on previous statements "made in writing" by the witness (s 55(1) of the Evidence Act 1898 NSW), the general rule remains as Maule J. stated it to be in Macdonnell v. Evans [(12)] namely "that, if you want to get at the contents of a written document, the proper way is, to produce it, if you can. That is a rule in which the common sense of mankind concurs. If the paper is in the possession of the party who seeks to have the jury infer something from its contents, he should let them see it. That is the general and ordinary rule: the contents can only be proved by the writing itself."
If an appropriate objection had been taken at the time, the learned and experienced trial judge might well have disallowed questions as to acts of violence by persons other than the accused and he might well have prevented the introduction of inadmissible material in the framing of questions; it would have been wrong to allow the questions to be asked over the objection of counsel for the defence. The cross-examination of an accused in a criminal case is an important, oftentimes central, aspect of the modern criminal trial. It is oftentimes vigorous and searching, and necessarily so. But it must be conducted in accordance with the rules of evidence. As Hewart L.C.J. observed in R. v. Cohen: [(13)]
One of the mischiefs of excessive zeal or lack of sufficient care on the part of counsel in cross-examining a prisoner in a criminal case consists precisely in the fact that the consequences of what is done may lead to the necessary quashing of a conviction which might be sustainable on other grounds. Too great care cannot be exercised. 1. (1938) 26 Cr.App.R. 190, at p. 199.
However, I do not think that the improprieties in the cross-examination occasioned a miscarriage of justice in the present case. Each accused forcefully repelled the cross-examiner's suggestions, and the absence of an appropriate objection may well have been a deliberate tactic by the defence. The defence alleged that groundless suspicion of the Ananda Marga had induced Seary and the police to fabricate the evidence against the accused, and the unsubstantiated suggestions in the cross-examination gave verisimilitude to the defence case. The form of the cross-examination was, in this sense, grist to the defence mill, and it cannot be relied on now to show a miscarriage of justice. The applicants' second ground fails.
The third ground relates to the conviction of Alister upon the charge of attempted murder of Gilligan and others. It was not alleged that Alister did anything actively to assist Dunn in his attempt to explode the bomb when Gilligan opened the car door. He was present, of course, but his criminal responsibility for the crime of attempted murder depended upon an alleged common purpose derived from Alister's instruction to Dunn given during the journey to Yagoona. In his summing up, Lee J. recited the relevant conversation from Seary's evidence and directed the jury as follows:
Unless you are satisfied beyond reasonable doubt that Dunn did do an act which constituted an attempt, in the way I have explained, then Alister cannot be found guilty. But if you are satisfied beyond reasonable doubt that Dunn did do that act which constituted an attempt to murder, and did do it with an intention to kill whoever else was there, then Alister will become liable if the Crown satisfies you, again beyond reasonable doubt, that that act of Dunn was done pursuant to a common purpose between Alister and Dunn that that bomb should be detonated to try to kill any person who tried to intervene.
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." "
Now that evidence, which is evidence against Dunn and Alister in respect to this matter, is the only evidence against the accused Alister of a common purpose with Dunn to have the bomb exploded if they were stopped, and it follows that, if you are satisfied beyond reasonable doubt that Dunn did attempt to explode the bomb at the time of the arrest, you would only convict Alister if you are satisfied beyond reasonable doubt that that conversation did occur and that it in your view establishes that Alister was party to a common purpose with Dunn to kill any police intervening by detonating the bomb.
The submission now made is that what Alister said was not sufficient to establish an intention to kill anyone but the accused, whereas the indictment charged an attempted murder of the police who stopped them. Whether Alister's responsibility is said to rest upon his counselling of Dunn or upon the formation of a common purpose (Johns v. The Queen [(14)] ), it was essential for the Crown to prove against Alister that the counselling or the common purpose extended not only to explosion of the bomb (and that embraces an attempt to explode it) but also to the killing of other persons in the vicinity. An intention to cause their death or a reckless indifference to whether their death would be caused had to be proved. Reckless indifference in this context is to be understood in the sense explained in Pemble v. The Queen. [(15)] It was essential to the guilt of each of Alister and Dunn of the crime of attempted murder that he foresaw that the probable consequence of exploding the bomb was the death of other persons in the vicinity: foresight of the probability of their suffering grievous bodily harm does not suffice: R. v. Whybrow. [(16)]
Thus the true question for the jury's determination in Alister's case was whether he had counselled Dunn or had formed a common purpose with him that if the car was stopped Dunn should explode the bomb or whether he had formed a common purpose with Dunn that Dunn would or might, in those circumstances, explode the bomb, and whether Alister either intended that others who were in the vicinity should be killed by the explosion or was recklessly indifferent to the probability of killing them. It was not necessary for the jury to be satisfied that Alister contemplated that Dunn would explode or attempt to explode the bomb; it was sufficient if they were satisfied, having regard to all the proven circumstances, that Alister contemplated that Dunn might explode or attempt to explode the bomb: Miller v. The Queen. [(17)] The phrases emphasized in the passage cited from the summing up conveyed to the jury that they had to be satisfied that Alister and Dunn had a common purpose to detonate the bomb in order to kill the police who intervened. That direction was not unfavourable to Alister. It did not permit the jury to convict Alister of attempted murder on findings which did not establish that crime. The jury must have accepted Seary's evidence of the conversation in the car. In the circumstances in which that conversation occurred - the journey to Yagoona, the possession of a powerful bomb, the plot to murder Cameron, the serving of Ananda Marga ideals, the apprehension of intervention to stop the conspirators - it was open to the jury to be satisfied that the common purpose of Alister and Dunn was to destroy any person who intervened to stop them from fulfilling the mission to murder Cameron. No question was raised as to the sufficiency of the evidence against Alister to prove that Dunn actually attempted to explode the bomb when Gilligan opened the car door. It follows that I would not allow the appeal on the third ground.
In my opinion special leave to appeal should be granted, and the appeal on the counts of conspiracy to murder and attempted murder stood over to permit the Crown, if it should be so advised, to attempt to satisfy this Court that no substantial miscarriage of justice occurred by the trial judge's setting aside of the subpoena to the Director-General of ASIO. I agree in that part of the order proposed by the Chief Justice which sets out the steps which the Crown may take in that respect.
Feb. 13 1984 Gibbs C.J., Wilson, Brennan and Dawson JJ.
The judgment I am about to read is the judgment of my brother Wilson, my brother Brennan, my brother Dawson and myself.
Prior to today's sittings the court had carefully examined the material furnished by ASIO in response to the court's direction. We have formed the clear view that none of the documents is relevant to the issues at the trial or could have been used for the purpose of cross-examining the Crown witnesses. When we say that, we do not discount the significance of the argument that the parties may be more able than the members of the court to discern the possible relevance of material in a trial of this kind, but we remain satisfied that the material would not assist the appellants.
We are satisfied that had this material been produced to the trial judge, under an affidavit such as the Attorney-General has now sworn, the trial judge, after performing the balancing process described in the judgments of the court, would properly have upheld the claim to privilege.
We are further satisfied that the appellants have not lost the chance of an acquittal by the failure to produce the material.
The disposal of any point in litigation, without the fullest argument on behalf of the parties, is a course to which every court reacts adversely, however untenable the point in issue may first appear, and however unlikely it is that argument will assist it. The present case evokes the same reaction. But it is the inevitable result when privilege is rightly claimed on grounds of national security.
In par. four of his affidavit, the Attorney-General says:
In the event that, following such preliminary assessment of the documents the Court is in doubt as to the possible relevance of the documents to the trial of the applicants herein, I have no objection to disclosure of the documents to counsel for the parties upon appropriate undertakings being given. As we have indicated, we do not have any doubt, on inspection of the documents, that they would not have been relevant to the trial of the appellants. It follows that we ought not to order their disclosure. The appeal should, therefore, be dismissed. Murphy J .
A good deal of material has been produced to the Court by the Australian Security Intelligence Organization in response to the Court's direction. We have now reached the stage where the onus is on the Crown to show that production of the material to the defence would not have affected the outcome of the trial. Counsel for both the accused and the Solicitor-General for the State wish to assist the Court by examining the material and making submissions on whether or not its production would have assisted the defence. The Attorney-General of Australia does not object; he says, "In the event that, following such preliminary assessment of the documents the Court is in doubt as to the possible relevance of the documents to the trial of the applicants herein, I have no objection to disclosure of the documents to counsel for the parties upon appropriate undertakings being given."
I have examined the documents and without the assistance of counsel for the parties, I am in such doubt. If the defence, or both parties, could assist the Court to a conclusion that the material would have been of assistance to the defence, it is a grave injustice to preclude them from doing so. If, however, the documents would not have assisted the defence, then it would be more satisfactory and more just if such a conclusion were to be reached after having the assistance of both parties.
In my opinion, it is an injustice to both the Crown and the accused and casts a further shadow over this case that the Court makes a decision without the proffered assistance of both prosecution and defence. I find it a strange and disturbing case. I adhere to the view which I expressed in the first disposition of special leave to appeal, that in all cases there has been a substantial miscarriage of justice and that the appeal should be granted and the convictions set aside.
Alister
The Queen