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16 Legal Service Bull. 126 (1991)
The Time Anderson Decision - The Chief Justice Sited the System

handle is hein.journals/alterlj16 and id is 132 raw text is: 126 The Tim Anderson decision The Chief Justice cites the system Steve Bolt Jane Mussett Prosecution cases based on the dubious evidence of informers plus some form of 'optional preferential' guilt scenarios forjuries seem to be out offavour with the NSW Court of AppeaL OnThursday,6June 1991,theNSWCourt of Criminal Appeal (CCA), presided over by Chief Justice Murray Gleeson, finally put an end to 13 years of overt harassment and victimisation of one of New South Wales' most effective political activists. The CCA quashed Tim Anderson's con- viction and entered verdicts of acquittal on all charges arising out of the 1978 Hilton Hotel bombing, compelled by what it de- scribed as 'an inappropriate and unfair attempt by the Crown to persuade thejury to draw inferences of fact, and accept argumentative suggestions, that were not properly open on the evidence and that were in some respects contrary to the evi- dence' (R v Anderson, unreported, NSW CCA, 6 June 1991, p.74). The Chief Justice's judgment and rea- sons fordecision (with whichJusticeFinlay and Acting Justice Slattery agreed) were noteworthy for several reasons: he described as 'fragile' (p.6) the case as it existed against Anderson when he was arrested and charged on 30 May 1989, consisting as it did merely of some alleged confessions to prisoner Steve Bolt and Jane Mussett hold law degrees and are members of the Campaign Exposing the Frame-up of Tim Anderson. informer Ray Denning in 1979 and 1984, and uncontested evidence that Tim Anderson had been seen driving a taxi near the Hilton in theearly hours of Sunday, 12 February 1978 - the day before the bomb exploded; he appeared to accept the proposition putby counsel for Anderson, Ian Barker, QC, that, in relation to Crown evidence the defence had positively disproved, the Crown Prosecutor, rather than ac- cepting that he bore the onus of proof, was engaged in a 'search ... for some hypothesis consistent with guilt' (pp. 56 and 63); he clearly acknowledged that the police and prosecution had failed to undertake the investigation required of them or to deal fairly with the accused in both the presentation of evidence with which they sought to establish Anderson's guilt, and the withholding of evidence that undermined the case against him. Three Crown cases The prosecution case depended primarily on the evidence of two witnesses - Ray Denning and Evan Pederick. It was Denning's allegations of prison confes- sions that led to Anderson's arrest. But when ex-Ananda Marga member Evan Pederick appeared, claiming that he had planted the bomb under Anderson's in. structions, the prosecution relied almost entirely on his testimony to convict Anderson. Pederick's evidence 'constituted a dif- ficulty for the Crown from beginning to end' (p.7). In fact there were three differ- ent versions of Pederick's story argued by the Crown, first to convict Evan Pederick and then to convict Tim Anderson. The initial story had Pederick attempt- ing to kill Indian Prime Minister Morarji Desai as he arrived at the George Street entrance of the Hilton Hotel between 2 and 3 p.m. But Desai actually arrived at the Pitt Street entrance. In the search for an alter- native, the police and the DPP lighted on Sri Lankan PresidentJuniusJayewardene. Pederick was convicted t his own trial on the basis that he had mistaken Jayewardene's arrival for Desai's arrival. This version was also run by the Crown throughout most of Tun Anderson's trial, until it was conclusively established that Jayewardene had arrived shortly after 8 a.m. This version, too, had to be aban- doned. In his closing address Crown Prosecu- tor Mark Tedeschi, QC, invited thejury to conclude that Pederick had mistaken Desai's departure from the Hilton at 5.20 p.m. for his arrival some time between 2 and3p.m., and that he and the police were responsible for Pederick's 'error'. Desai had been the target after all, but in the act of leaving, not arriving.' An 'unfair' prosecution Tim Anderson's appeal was upheld pri- marily on the grounds that the conduct of the prosecution case was unfair. TheCrown should not have been allowed to run the 'Desai departure theory' in its closing ad- dress without having recalled Pederick to question him on the factual basis for the theory. By not recalling Pederick, the Crown was able to promote the departure theory 'unencumbered by anything Pederick might have to say aboutit' (p.40). This permitted theprosecution to 'put upon their case a far better complexion than it ever deserved' (p.4 1). Recalling Pederick would have been disadvantageous to the Crown. Not only was there no evidence to support the Desai departure theory, the Crown Prosecutor had in his possession information which suggested his chief witness positively dis- owned it. In his final address the prosecutor relied on a photograph, taken at about 5.20 p.m., showing a figure standing opposite the George Street entrance of the hotel. He invited the jury to conclude that this figure was Pederick at the moment of attempted detonation, arguing that the stance of the figure was 'consistent' with Pederick's testimony concerning his stance at that moment. Gleeson CJ found that this con- clusion was contrary to the evidence; the figure had shoulder length hair while it was undisputed that Pederick's hair was short at the time (p.37). This photograph was the subject of an embarrassing concession by the Crown Prosecutor on the final day of the appeal hearing. A note from a DPP file - leaked to Anderson's lawyers - recorded Pederick as saying that the figure's stance 'was not one of his poses'. The submission LEGAL SERVICE BULLETIN

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