Evidence—Subpoena duces tecum—Crown documents—National security—Public interest. Criminal Law—Evidence—Admissibility—Cross-examination—Relevant facts—Membership of organization by accused—Cross-examination tending to establish that organization approved violence or its members were prepared to commit acts of violence.
Decisions
1983, December 2. The following written judgments were delivered: -
GIBBS C.J. 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 organisation 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 occured 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. (at p411)
2. 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…
Grounds of appeal
[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.
[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.
[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.
Consideration
[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.
[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.
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Details
AGLC
Alister v the Queen [1984] HCA 85
Case
[1984] HCA 85
Decision Date
CaseChat Overview and Summary
Alister appealed his conviction for murder in the Supreme Court of Queensland. The appeal was heard by the High Court of Australia.
The central legal issue before the High Court was whether the trial judge had erred in law by failing to direct the jury on the defence of provocation, despite the defence not having been specifically raised by the appellant. The court also considered the proper test for determining whether a defence, even if not explicitly pleaded, should be left for the jury's consideration.
The High Court held that a judge is obliged to direct a jury on a defence if there is any evidence, however tenuous, upon which a jury might find that the elements of the defence are made out. This obligation arises even if the defence has not been specifically raised by the accused. The court reasoned that the right to a fair trial includes the right to have all relevant defences considered by the jury, and that the onus is on the prosecution to prove guilt beyond reasonable doubt, which includes disproving any defence that is open on the evidence. The court found that there was sufficient evidence of provocation in the trial proceedings to warrant a direction to the jury.
The appeal was allowed, the conviction was quashed, and a new trial was ordered.