Communist Party of Australia 1949
Source: Current Books pamphlet, Sydney, April 1949
Transcription, mark-up: Steve Painter
On March 28, 1949, the General Secretary of the Australian Communist Party, Mr Lance (Lawrence Louis) Sharkey, appeared at the Special Federal Court, Sydney, to answer charges of having uttered and published seditious words in violation of the Crimes Act. The words alleged to have been uttered and published were:
“If Soviet forces in pursuit of aggressors entered Australia, Australian workers would welcome them.
“Australian workers would welcome Soviet forces pursuing aggressors as the workers welcomed them throughout Europe when the Red troops liberated the people from the power of the Nazis.
“I support the statements made by the French Communist leader Maurice Thorez.
“Invasion of Australia by forces of the Soviet Union seems very remote and hypothetical to me.
“I believe the Soviet Union will go to war only if she is attacked, and if she is attacked I cannot see Australia being invaded by Soviet troops.
“The job of Communists is to struggle to prevent war and to educate the mass of people against the idea of war.
“The Communist Party also wants to bring the working class to power, but if fascists in Australia use force to prevent the workers gaining that power, Communists will advise the workers to meet force with force.”
The Crown prosecutor, Mr Dovey, KC, in opening the case, said it was a “notorious fact” that “the one potential enemy at the time is Soviet Russia”.
This fact, he said, had been made “notorious” “by reason of the fact made known to all the world: that the western powers have formed a Western Union, and very recently those western powers, together with Canada and America, have formed what is known as the Atlantic Pact as a bulwark against Soviet aggression”.
Mr Dovey contended that the alleged words of Mr Sharkey were seditious under Section 24A of the Crimes Act.
Mr JD McGarry of the Sydney Daily Telegraph and two Daily Mirror reporters gave evidence for the Crown.
After his cross-examination counsel for the defence, Mr FW Paterson, Queensland Communist MLA, Rhodes Scholar and returned soldier from the first world war, delivered the speech set down below.
After Mr Dovey had replied, Mr Isles, stipendiary magistrate, dismissed the charge of publishing seditious words, but held that a prima facie case had been made out on the charge of uttering. He committed Mr Sharkey for trial at the Central Criminal Court, Sydney.
The case made front-page news in all newspapers for several days. It was featured in the foreign press, especially in France, the USA and the Soviet Union.
Following is a transcript of Mr Paterson’s speech for the defence. It has been transcribed in full except for deletion of some repetitive passages which, while they made points clearer to listeners, are not necessary to the printed report.
Paterson: If your worship pleases, I am asking that you dismiss the two informations on the grounds: (1) The evidence does not disclose that the defendant uttered the words set out in the information, nor published those words. (2) That the words are not expressive of any intention whatsoever. (3) That even if they are expressive of any intention, that intention is not a seditious intention as defined by Section 24A of the Crimes Act.
Now, if your worship pleases, whilst speaking in support of that I propose to direct my remarks first of all to each separate information in dealing with the uttering and the publishing, but my remarks will apply to both informations when I deal with the question of intention or suggested intention.
I will deal first with the information alleging the uttering of seditious words.
Now, to establish even a prima facie case the Crown must produce before you, first of all, evidence by one witness that the defendant did utter the words alleged and, secondly, they must produce evidence which corroborates this.
Now I am submitting that in the act the word “utter” means speech, that he actually made certain movements with his tongue which caused certain sounds to be uttered or issued from his mouth.
Mr Dovey: I am agreeing with that; that is the uttering we had in mind in formulating the information.
Mr Paterson: Now I cannot find any evidence, your worship, any statement by a witness that the defendant uttered those words. Mr McGarry’s evidence was to the effect that he had certain conversations with the defendant. Apart from what he told us here this morning he could neither remember the exact words nor the effect of any of the other words of the conversation.
Nowhere in the evidence, for instance, did McGarry suggest that the defendant actually uttered these words “the job of Communists is to struggle to prevent war, to educate the mass of people against the idea of war. The Communist Party also wants to bring the working class to power, but if fascists in Australia use force to prevent the workers gaining that power, Communists will advise the workers to meet force with force.” And other parts of that allegation. Nowhere does McGarry even attempt to suggest that. The most his evidence can support is: as a result of conversations, the exact words or the effect of which he cannot recollect, he typed certain things down. Take this for instance, your worship.
I might say to Mr X, “Are you married?” Mr X says, “Yes.” If I were a journalist and reported that to a newspaper, the paper would say “Mr X said he was married.” That does not mean, and there is no evidence here to suggest, that Mr X uttered the words “I am married”. He merely uttered the word “yes” — that is the utterance.
We do not know what was uttered. We do not know the words that the defendant uttered in answer. We do not know the words that McGarry uttered in questions which caused him to type down certain statements, which he admitted originally amounted to some 20 paragraphs.
I do not know whether your worship wants me to turn to the pages of the evidence on this. I think your worship will remember that was why I insisted this morning that he should give the evidence in direct speech: either the exact words or the effect of them.
Then Mr McGarry’s evidence says that after he had typed down the 20-odd paragraphs, he rang and had certain conversations with him in which the defendant deleted paragraphs and altered several paragraphs. But he did not state the words the defendant used in asking for the alterations. He retyped the statement — still no evidence of what the defendant said. He read it back; the defendant made more alterations — still no evidence of the words the defendant used in making the alterations, no evidence of what McGarry read out.
I fact, there is no evidence in the case of what McGarry read; that is, of what McGarry read when he read out the whole of the typed statement, either in its original form or its amended form until it reached its final form; he did say he read that out.
And it is the Crown’s duty to produce evidence of what the defendant said, the words he used — the words he used, not the effect that the words had on McGarry’s mind, which led him to type certain things — and it is not there.
He did tell us that the defendant said: “I support the statements made by the French Communist leader Maurice Thorez,” and “invasion of Australia by the forces of the Soviet Union seemed very hypothetical”. He did tell us that. I think that came at the every commencement of the phone conversation.
Well, your worship, I do not want to pursue this much further because I am trying to prove a negative, you could go on forever. It is the Crown’s duty to show, and point out to you clear1y, the exact words, or the words the witness was able to say in effect, and not only must they do that, your worship, not only must they be able to show you one witness swore to it, but another witness corroborated it; corroborated the words uttered. That is the point.
All that the two witnesses from the Daily Mirror do is prove the fact that the witness admitted that he had been correctly reported, not that he had actually himself uttered words.
In fact I think one of the witnesses frankly admitted that reports are made on the basis of question and answer and then the reporter writes down and says: “So and so said” — and then he summarises the substance of what he thinks arose from the question and answer. And, of course, McGarry made it perfectly clear that that is how he arrived at the matter which he typed.
And if, your worship, the Crown fails on that first point, then that charge must go. There is no need to deal with anything else.
As I have said, I will deal with the others because they cover both informations.
Before dealing now with the rest of the information I propose to deal with the matter of publishing, so that, when I deal with the question of sedition and seditious intention, I am covering both.
On the question of publication, I take it that the Crown relies on the principle that if you authorise a statement for publication in a paper, then you can be said to have published it. That is the line I take it that the Crown is following.
So the important question arises, your worship, what statement did the defendant authorise? What statement did he authorise, not ‘was he reported correctly’? I might make a statement authorising no one to publish it; someone gets hold of it and publishes it. Somebody comes to me and says: “is that statement correctly reported?” I say, yes, but that is not a statement authorising publication; it is only a statement that it is what I said.
In fact, your worship, the court can in Queensland forbid the publication of certain types of cases. A newspaper might, despite the Court’s order, publish it and then question the judge or magistrate and he might say, “Yes, that is a correct publication, that is a correct report,” but that is not an admission that he authorised publication of it.
So the important point is not “is the report correct” but, what statement did he authorise for publication? That is the important point.
McGarry is very clear on that point. He said the agreement was that the whole statement, and nothing but the whole statement, could be published. That is the authority, and McGarry admitted that the whole statement was not published.
He admitted that one specific paragraph was left out that he could actually recall, and there were two or three others that he could not recall that were not in the article. In other words, seven paragraphs appear in the information.
Mr Isles: You say in effect he authorised publication of a statement “all or nothing”.
Mr Paterson: That is right. That is clearly admitted. No denial of that at all; clearly admitted by Mr McGarry yesterday. Furthermore, your worship, it is clear that the authority was an authority to publish the statement in the order as set out in the typewritten pages, corrected in pencil.
Mr Isles: Does that matter much to you?
Mr Paterson: It does, your worship, because frequently the order of a statement can affect the meaning.
Mr Isles: There is nothing specific.
Mr Paterson: I will admit it is not as strong as the first one I made; I will admit that.
Now, your worship, we will assume, for the sake of argument, that the defendant did utter and did publish the whole allegation as set out in the information.
The Crown must show that those seven paragraphs are expressive of an intention. That is the first thing they must show. If they do not express an intention there is no need to worry about whether it is a seditious intention or any other intention. It cannot express a seditious intention if it does not express any intention.
Now I ask your worship to read carefully the second paragraph in the light of what has been submitted. Take the first paragraph: “If the Soviet forces in pursuit of aggressors entered Australia, Australian workers would welcome them.”
The question is not whether the defendant has ever said: “I intend to urge the workers of Australia to welcome Soviet forces if in pursuit of aggressors they ever enter Australia.” The question is: do the words, as alleged in the information, express an intention?
Again, your worship I am trying to prove a negative. I am submitting that there is no intention expressed there. He merely said in effect “my knowledge of the political situation in this country leads me to believe that will happen”. Just as if, for instance, someone were to say: if Germany is rebuilt and fascism gains control in Germany again and German forces under a Fascist government enter Australia, Australian fascists will welcome them. That does not say that the person intends that; he is merely saying: my knowledge of the political situation leads me to say this.
Similarly the next paragraph: “Australian workers would welcome Soviet forces pursuing aggressors as the workers welcomed them throughout Europe when the Red troops liberated the people from the power of the Nazis.” No intention expressed; that is a mere statement of a proposition, a statement of the position as it apparently appeared to the defendant, assuming that he made this statement. That is only a statement of a proposition. There may be statements of intention; there may be statements of fact without any intention at all.
The information continues: “I support the statements made by the French Communist leader (Maurice Thorez)”.
Now, your worship, that is not a statement of intention. Incidentally we have not been told what Thorez’s statement was, other than that it was a statement on the international position.
Mr Isles: There is something printed here.
Mr Paterson: That is not in evidence as being read out to the defendant.
No witness at any stage identified that and said: “I read that to the defendant”; that is in evidence merely to show that that is the final material that went before the editor or chief of staff. That statement could have been Thorez’s statement on marriage, divorce or birth control or anything else. I am dealing now with the evidence before this court.
The fourth paragraph “invasion of Australia by forces of the Soviet Union seems very remote and hypothetical to me.” No intention there; a mere statement of fact. I might say, your worship, if we meet outside and I might say to you, “do you think it will rain tomorrow?” and you will say “judging by the way it has been raining lately I think it will”. That is not a statement of intention but merely your view. Or you may say: “it is very hypothetical whether it will rain or whether it will be dry”. It is not a statement of intention; it does not express that you intend to do anything, unless you said “if it rains tomorrow all the magistrates in Sydney will stop home”. Seeing that you are one magistrate, that obviously would imply that you are intending to stop home, and then only could you read intention into it.
Take the next: “I believe the Soviet Union will go to war only if she is attacked. I cannot see Australia being invaded by Soviet troops.” Where is the intention there?
Merely a statement that he believes the Soviet Union will do certain things.
The sixth is, “The object of Communists is to struggle to prevent war and to educate the masses of the people against the idea of war.” Well, you could read into that this intention expressed the defendant’s intention to struggle to prevent war and to educate the masses against the idea of war. I will deal with that — as to whether that can be brought within a seditious intention.
The last paragraph could be read to mean the defendant intends to do everything he can to bring the working class to power and that, if fascists in Australia use force to prevent the workers gaining that power, then he will advise the workers to meet force with force. So that, apart from these, there can be only two paragraphs which can be said to be expressive of an intention; and while I am on the last paragraph I would like to point out that, apart from my previous statements on uttering and publishing (I assume there was evidence of the uttering of that last paragraph), there is no corroboration of the first four because, of the Daily Mirror representatives, one said he showed him Exhibit 3, the second was not certain whether it was a copy similar to Exhibit 3 or 4, but no copy contains that particular clause.
So, apart from anything else, there is no corroboration of evidence on this.
That brings me, your worship, to the all-important question. First, assuming that there is a prima facie case that the defendant did utter or publish the second paragraph and the first paragraphs are expressive of an intention, it has to be shown that the intention they express is a seditious intention within the meaning of Section 24A.
Well, your worship, I do not intend to take up the time of the court in dealing with every aspect, nevertheless I do want to stress this point again because I feel the Crown will make some effort to meet my suggestion now, when I point out the difficulty that would be involved, and the enormous time that would have to be spent if I went into every aspect as set out under Section 24A to show that not one single intention as set out there was expressed in that statement.
Just take, for instance, your worship, 24A(l)(f). Supposing I set out now to prove that the statement is not expressive of this intention: “intention to incite his Majesty’s subjects to attempt to procure the alteration other than by lawful means of any matter — any matter — in the Commonwealth established by law”.
To do my job I would be compelled to quote every law that exists in the Commonwealth of Australia, because that is a matter lawfully established by the Commonwealth; I would have to quote every regulation, every High Court judgment, every arbitration court judgment; I would be here till doomsday. Your worship, that shows you the impossibility — the embarrassment the defendant is placed in when he is charged without the particular intention being specific. I may refer to 999,999 things and the Crown will then get up and refer to the millionth case which I have omitted; and I stress this, your worship, with all the feeling at my command when I say that is the position we would be placed in, apart from the others.
Mr Isles: What about (g)?
Mr Paterson: Before saying whether that has any reference, I am dealing with this point to excuse me being placed in the position where I should deal with every aspect, because the Crown can get up and say “He omitted this one,” and I do not care who the person is — he cannot think of every possible case.
Your worship, I propose therefore to just deal with certain portions of these intentions as set out in 24A(1), and I will take, if your worship pleases (g), the one to which you refer — “to promote feeling of ill-will and hostility between different classes of his Majesty’s subjects so as to endanger the peace, order or good government of the Commonwealth”.
And I will deal with that in relation to the whole of the paragraphs first, though I stress that there is no evidence in relation to uttering or publishing.
Now, your worship, in order that I make my points clear I am going to take a statement which would be more or less opposite to the statement alleged because it is not a notorious fact that the Soviet Union is the potential enemy, but many people who have been misled by the lies of newspapers do think it is a notorious fact.
Supposing someone had said: “if Soviet forces in pursuit of aggressors entered Australia, Australian workers would shoot them”. Supposing that was said — that is the exact opposite. That would undoubtedly promote feelings of ill-will and hostility between those who thought it was right and those who thought it was wrong. Surely, your worship, that section does not mean the person who made that statement could be guilty of sedition and the person who made exactly the opposite statement could also be guilty of sedition? Otherwise it would mean you could make no statement, because there is no statement that I know of that you can make which does not promote feelings of ill-will and hostility.
Surely every statement that the president of the British Medical Association has made in relation to the free medicine scheme has promoted ill-will between those who want free medicine and those who do not want it, and every time anybody attacks — we will say — the present Labor government, it promotes feelings of ill-will between those who are opposed to the Labor government and those who are loyal supporters. It would mean that, in political matters, freedom of speech would cease to exist absolutely for all sections.
Mr Isles: It has to go further; it has to endanger the government.
Mr Paterson: Even these matters to which I have referred could be treated in that way. I submit, your worship, this prosecution has been brought — I am not suggesting that either of my learned friends here are concerned, as they only appear as counsel, the same way as I do — but I submit this prosecution has been brought because of the bias that has been caused, whether conscious or unconscious, or a combination of both, by the repeated hostile propaganda being launched against the Soviet Union.
I give, your worship, one illustration. This is a notorious fact. This is not just newspaper talk. It is a notorious fact that there was war between the Soviet Union and Finland in 1939-40, and if anybody had founded his facts on the basis of press reports he would have thought Finland was a white little lamb and the Soviet Union was a very, very nasty devil. But, when the facts became known, it became a notorious fact that Finland was not a white little lamb, that she was not one of our potential allies, but that she was working hand in glove with our arch enemy, Nazi Germany.
I mention this, your worship, to show how dangerous it is that any prosecution should at any time be launched on the basis of what my learned friend said yesterday were notorious facts in his opening address. I agree, your worship can take judicial notice of notorious facts; as he said, it is a notorious fact that Australia is an island; it does not matter what any newspaper says or what any politician says; Australia is still an island unless they change the definition of the word “island.” He mentioned it was a notorious fact that the United States was a republic and that the head was a president. Nothing anybody says can change that; it is a fact so well-known as to be classed as a notorious fact; but when we come to the rest, that is where I join issue with my learned friend.
He said it was a notorious fact that the Soviet Union has frustrated every attempt of the western powers in their efforts to succour Germany. How is that a notorious fact? Only to those who read nothing else but the lies of the newspapers, the press, but to nobody else. If, your worship, I was to tell you what is my opinion based upon my reading, not only of the capitalist press, but other sources of information which I have tested in the light of experience over the last 20 years and found reliable, I would say it is a notorious lie, not a notorious fact. I am not suggesting that my learned friend was trying to mislead you yesterday; I am quite satisfied that was his honest belief at the time. But I do say he made a mistake as to what are notorious facts of which judicial notice can be taken.
Mr Isles: There are some disagreements.
Mr Paterson: Certainly, your worship, just as I agree it is a fact there was disagreement as to who was the white lamb and the nasty devil in the Finnish war. There were disagreements, your worship, all right.
I say, your worship, that before the Crown can argue, or anybody else determine, whether those words can have a seditious intention the onus is on the Crown to produce very satisfactory evidence as to the relations between the Commonwealth government on the one hand and the Soviet Union on the other. And if the Crown wants you to believe or to conclude that, for instance, the first paragraph expresses a seditious intention, assuming it expresses an intention, they would have to produce very reliable evidence that the relations between the Soviet Union and the Commonwealth government are such that the odds are that Australia will be an aggressor against the Soviet Union and that the Soviet Union then entered Australia in pursuit of that aggressor.
But there is no evidence before your worship, not one single bit — we have no evidence here whatsoever — as to the relations between the Commonwealth government and the Soviet Union.
The Crown certainly does not expect you to make a decision on the basis of your reading of the newspapers, and I make this suggestion quite impersonally, your honour. It would mean this, that supposing your reading led you to the belief that the feelings were so bitter between the two that it was likely Australia would be the aggressor, then you would come to one conclusion on the seditious intention; but on the other hand, if you were reading it the opposite way, then you would come to exactly the opposite conclusion.
The law would reach a very low level if it came to that stage, and I am sure the Crown will not ask you or any other man to make a decision on that basis.
If your worship is asked to take judicial notice of any fact on this question, then I ask you to take judicial notice of this fact: Australia and the Soviet Union are both members of the United Nations, and there is a non-aggression pact between the Soviet Union and Great Britain, strictly called the Anglo-Soviet Treaty, headed “Treaty Between the USSR and United Kingdom of Great Britain and Northern Ireland,” and it is to last for 20 years from 1942, I think it was.
That is not just a matter of newspaper information; that is part of the treaties of alliance or agreements entered into by the various countries and it is in the light of those facts, your worship, that you must interpret the meanings of these paragraphs.
It may be that the Crown intends to suggest that the relations between the two countries are so bitter that either Britain or Australia would support a war of aggression against the Soviet Union; but I doubt very much whether they will. But to succeed in their proof that these paragraphs, or any of them, amount to a seditious intention, they would have to be prepared to do that.
Just, your worship, look at the first two paragraphs, which deal more or less with the same subject and therefore could be read together. Supposing, for the sake of argument, we omit the words “Soviet forces” and say “United States forces” — “If United States forces entered Australia … ” and then the second paragraph. Would anyone suggest that that is seditious?
Mr Isles: You are overlooking the fact of disagreement.
Mr Paterson: No, your worship; there is disagreement between Australia and America, between Britain and America. Take the position of Palestine. The only reason there is a tendency to headline disagreement between the Soviet Union and Australia and Britain is because the newspapers tend to stress the disagreements between the Soviet Union and Britain or America or Australia, but put away into some small corner the disagreements with the USA.
Mr Isles: Do you agree it is notorious that many people would violently disagree with the first two statements?
Mr Paterson: That is notorious, but it is not a notorious fact.
Mr Isles: You do not agree that that is a notorious fact?
Mr Paterson; No, because you can have notorious lies, as well as notorious truths.
Mr Dovey: It depends on the point of view.
Mr Paterson: Of course it does, but you cannot be asked, your worship, to give a decision on a point of view.
Mr Isles: Would you say it was common knowledge? Is it not common knowledge that a great many people would disagree with the first two statements?
Mr Paterson: I do not know whether a great many.
Mr Isles: You will not agree it is common knowledge?
Mr Paterson: No, I would not. You remember, your worship, Dr Gallup said it was not only common knowledge, but it was proved by his whole method, that President Truman would be defeated in the last presidential elections — and he was not.
Look how weak “common knowledge” is. Ten people have a different conception of what common sense is; one says it is common sense to eat all the vitamins and another says it is not. It is a dangerous practice or a dangerous basis for a court decision. You may be able to base an estimate, but not a court decision, not a decision in law. You might be able to base a decision, if you met a friend out in the street, on the question of whether you would go to Manly or Bondi, or somewhere else, because not much harm would be done, but you could not base a court decision on that, unless you were certain the “common knowledge” amounted to the truth. I say in these matters you must have the evidence before you.
Supposing a case came before your worship in January 1940, when Russia was black in the eyes of the world …
Mr Isles: I agree with you, but we must deal with the circumstances which exist today.
Mr Paterson: Not only the circumstances, your worship, but the truth which exists today; that is the point, the truth which exists today. In fact your worship can take judicial notice of the fact that the prime minister of Australia has indicated from time to time that Australia would not be an aggressor against the Soviet Union. If you follow all his statements on international affairs you would draw that conclusion from it. He does not suggest at any time Australia would be an aggressor. It does not matter what newspapers say — if someone said “but the Soviet Union might be the aggressor” then the first paragraph does not apply, because you cannot be in pursuit of yourself, you cannot be chasing yourself.
That first paragraph does not say: “if Soviet forces entered Australia as aggressors”; it says: “in pursuit of aggressors”. And, your worship, it is a notorious fact that Japan is being built up as an industrial nation and, while I cannot say it is a notorious fact, nevertheless a number of people, including prominent people, have expressed fears that Japan might turn on us again as she did in 1941. Then the possible aggressor is Japan, and, supposing that happened (it cannot be ruled out), does your worship, or rather, would the Crown suggest that, if Soviet forces entered Australia in pursuit of Japan, there would be anything wrong in welcoming Soviet troops? I do not think the Crown would suggest that.
But I am not going to press that; it is not my place to produce the evidence, it is the Crown’s job to produce the evidence as to the external relations of the country, and they have not done it. There are cases when that does not arise, but I think the Crown will agree with me here that this case stands or falls on the external relations of the commonwealth.
Mr Isles: You will agree these statements are capable of effecting dissatisfaction, or they will?
Mr Paterson: Yes, just as I said, a statement by the president of the BMA causes dissatisfaction amongst those who want free medicine.
Mr Isles: I am going further than that — as between nations?
Mr Paterson: No, your worship, unless the particular nations are satisfied they are going to be the aggressor, then it will. Supposing for the sake of argument the persons in charge of the United States are planning for war, are planning for a war of aggression, then obviously they will be worried about the statement. But is the Crown going to produce evidence that the United States is planning a war of aggression? I would be very pleased to hear the evidence, but they have not done it.
Mr Isles: What about this cold war, is not that a notorious fact?
Mr Paterson: Of course it is, your worship, but the causes of the cold war are not notorious facts.
As a matter of fact there is a cold war going on all the time in regard to the struggle for oil in the Middle East between Great Britain and the United States, and surely to goodness if somebody gets up and says “if the British oil monopolists win the cold war the American monopolists won’t like it”, that will cause dissatisfaction all right, but we are not going to kill free speech to the extent of preventing a person saying that. Furthermore, your worship, the very statements …
Mr Isles: I am referring to cold war between the Soviet …
Mr Paterson: I know, but I am saying that is not the only cold war; it is before our minds only because the friends of the monopolists put the cold war on the Soviet Union at the head and all the other cold wars they keep out or down in some small hidden paragraph — that is the reason.
But, your worship must read the whole statement, not just one paragraph, and is not it clear, even assuming the defendant uttered these words or published them, that he said, “I believe the Soviet Union would go to war only if she is attacked and if she is attacked I cannot see Australia being invaded by Soviet troops.” That negatives the whole idea, your worship, that the Crown is trying to suggest.
I will take a very extreme case, your worship; it might sound absurd, but extreme examples frequently are necessary in order to bring clearly before the public the points we are trying to make. Supposing one man met another, and he said to the man: “what would you do if you saw your wife trying to strangle your baby?” And the other man said, “Oh rot, ridiculous, remote, hypothetical.” But the first insisted: “Well, what would you do?” He would repeat, “Don’t talk rot; you’re mad,” and probably use other language; but, at any rate, supposing he finally was to say what he would do in that hypothetical case, he would say, “I am satisfied my wife will not strangle our baby, but if she does, well, naturally I will have to be aggressive and grab her, and if necessary I might have to strike her in order to stop her going on with that foul deed.” Would anyone suggest that was the man’s intention?
I have only to state it nevertheless, your worship, to show you the absurdity of the case, the absurdity of this whole prosecution.
Mr Dovey: Interjected.
Mr Paterson: Admittedly, but it is a hypothetical case. The Crown admits the defendant did not want to give any statement; was told how they would read it back. He started right off at the very start with: “Invasion seemed hypothetical ….” Does the word intention, as used in Section 241A, refer to a present intention or intention in the immediate future which you intend to carry out or can it refer to an intention abased on a hypothetical set of circumstances?
First, your worship, I am submitting that it cannot include that second meaning, and secondly it am submitting that, if it can, then the section is ultra vires the Constitution.
Because the Commonwealth’s powers in relation to criminal acts is very limited; it has not got the all-embracing powers in relation to crime that our states or state parliaments have. It only has those powers in relation to criminal matters to enable it to carry out those powers which are allotted to it under the Constitution, and I am submitting, your worship, that by no stretch of imagination could you stretch that to give the Commonwealth power to pass a law relating to crime making it a criminal offence to form an intention based on a hypothetical set of circumstances.
And I do not think the Crown will deny, your worship, that whatever intention — even if they can prove intention — they can prove is based on a hypothetical set of circumstances and that is based on the fifth paragraph out their own allegation.
Take the sixth paragraph: “the job of Communists is to struggle against war, etc”. I could omit the word communists and substitute United Nations. “The job of the United Nations …,” and the Commonwealth attorney-general is at present president of the General Assembly of the United Nations.
Does the Crown seriously suggest that, when anybody suggests that it is the job of the Communists to do what the United Nations is trying to do, that that is seditious? If they do, and the Commonwealth is trying to prosecute everybody who is trying to do that, there would not be enough jails in the country to contain the possible recruits.
“The Communist Party also wants to bring the working class to power and if fascists in Australia use force to prevent the workers gaining that power Communists will advise the workers to meet force with force.”
As I have already said, that is not even corroborated, but I will deal with it because I want to deal with every part.
If it said this: “The Communist Party also wants to bring the workers to power by destroying the Australian Constitution, the laws of the land, or to bring the workers to power by illegal means,” then I would admit quite frankly that that an intention could amount to sedition. But it does not say that.
It is obvious, your worship, that where a statement, or where words, can be given an innocent meaning, the Crown must satisfy you that there is no other meaning but an illegal meaning, to put it very shortly.
And then the latter part: “If fascist forces ….” It is important, your worship, to notice how in the original report the wording was “violence” and the defendant ruled that out. It had to be crossed out, so apparently the word “force” is not synonymous with “violence” or otherwise the word violence would be there.
Therefore, there is nothing to suggest what force the workers would have to use, and in any case, your worship, even if it had been “violence” there are occasions in the law when violence is legal; violence in self-defence, to protect your home, family and other things; under certain circumstances, the right to prevent other people interfering with your lawful rights, and so on.
That brings me, your worship, to the end of the paragraph, but I want to stress this submission again: that those words there, assuming they amount to an intention, and the words were uttered and published, must be given their plain ordinary meaning in the light, not of what is alleged by newspapers, but in the light of facts brought before this court by evidence, or of facts which are notoriously true; not just notorious, but notoriously true. A thing can be a fact because it is notorious, and yet it can be a lie; and the present situation is such that, although there are many disagreements between the various nations, you sometimes find Australia on the side of the Soviet Union as against, we will say, Britain or America. But to establish the matter before your worship, evidence would have to be brought before you.
There is one further point I want to make.
The Crown may say that, even though the paragraphs set out do not themselves express any explicit intention to do certain things, the words contain an implicit intention on the basis of the principle of law which says that a man is deemed to intend the natural consequences of his act.
I want to deal first with the case of utterance along those lines, and I would like to refer your worship while I am dealing with this to a passage in the case of Regina v Burns, quoted in Russell on Crime, Vol 1, page 90.
Mr Justice Cave made these remarks: ”I should rather prefer to say that the intention to promote feelings of ill will and hostility between different classes of Her Majesty’s subjects may be a seditious intention according to circumstances, and of those circumstances the jury are the judges; and I put this question to the Attorney-General in the course of the case: ‘Suppose a man were to write a letter to the papers attacking bakers and butchers generally with reference to the high prices of bread or meat, and imputing to them that they were in a conspiracy to keep up high prices — would that be a seditious libel, being written and not spoken?’ To which the Attorney General gave the only answer which it was clearly possible to give under the circumstances: ‘That must depend upon the circumstances.’ ‘I, sitting here, cannot go nearer than that’.”
In other words, we have to deal with the circumstances. Now in the case of the uttering there will be no dispute that the uttering of whatever words were uttered was to one man and one man alone; whatever words were uttered, it was to one man and one man alone, and it was over a telephone and it was under the circumstances that Mr McGarry, as representative of the Daily Telegraph, was trying to obtain a statement from Mr Sharkey on certain matters so that the statement could be published as news in the Daily Telegraph.
And I am submitting, your worship, that under those circumstances it is the height of absurdity to suggest that the utterance of those words to Mr McGarry could engender feelings of “ill will”, etc. There were no classes there to hear him; the fact that it was published comes under a different charge; this is a charge of uttering; it is not uttering some words to 1000 people at a mass meeting, or 100 people at a mass meeting, or 10 people at a committee meeting; it is uttering words over a telephone to a reporter of a newspaper who was seeking news for his paper.
If the Crown is going to suggest that, they would have to suggest that it is time Mr McGarry was put in chains. It is a most peculiar position and I would not suggest it myself — would not suggest it, nor that the Crown would suggest it. I am submitting, your worship, the words are not even capable of a seditious intention in that sense.
Furthermore, on the question of publication, assuming there is a publication. Again, your worship, the circumstances have to be taken into consideration. Surely to goodness Australia has not reached the state of affairs where a man cannot express his views calmly and dispassionately to a newspaper reporter and have them published in the newspaper without it being alleged that it is going to create feelings of “ill will and hostility between different classes, etc.”
I mean, everyone would have to shut up; that is all about it. We cannot talk of anything worthwhile; we cannot talk of any controversial matter; free speech would be completely obliterated as between all people who disagree. The only people who could talk would be those in the same party.
It would be a different matter if these words had been published to an audience and you could deduce — even if you could not see the explicit intention, you could deduce the implicit intention that there was a possibility of those men who were being addressed doing something which would endanger the peace, order or good government of the Commonwealth.
And I make this final statement, that if the defendant is guilty of publishing words of a seditious intention the Daily Telegraph reporter, editor and proprietors should be in the dock with him, or rather instead of him.
They deliberately sought it; the witness admitted Sharkey did not volunteer this statement, that it had to be got from him by questions. They sought it for whatever motive I do not know, whether in order to get news or whether because it was a deliberate conspiracy to trap him, I do not know; there is no evidence of that. But, your worship, the fact is plain to you that the Daily Telegraph, through its employees, deliberately sought this; they calmly published it after they had it in front of them and if the publication by Sharkey, through the authority, of them was likely to promote feelings of “il1 will, etc ….” then obviously the publication by the paper itself was likely to do the same. They were the persons finally responsible, they published it and it is obvious that the Crown has not sought to prosecute the Daily Telegraph or anybody connected with it.
The only conclusion one can come to, then, is that it is a political prosecution, aimed at the defendant because he is general secretary of the Australian Communist Party.