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
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-
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


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