The Story of the Sharkey Trial
By Harold Rich (Solicitor For L. L. Sharkey)
The Charge Against L. L. Sharkey
On 30th May, 1949, George Albert Watson, the Deputy, Crown Solicitor for the Commonwealth, filed an indictment against the General Secretary of the Australian Communist Party, Laurence Louis Sharkey, charging that on or about the 4th of March, 1949, he uttered the following seditious words:
“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 statement 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 reader should constantly refer back to these words when considering the arguments of counsel and comments of the judge during the course of the proceedings.
On July 20, 1949, Mr. Sharkey was tried before His Honour Mr. justice Dwyer and a jury of twelve. The Crown retained Mr. W. R. Dovey, K.C., and Mr. H.J. Henchman as prosecutors, and Mr. F. W. Paterson, Communist M.L.A. in the Queensland Parliament, appeared with Mr. J. B. Sweeney, instructed by Mr. Harold Rich, for the accused.
Sharkey pleaded not guilty!
The evidence for the prosecution was given by John McGarry, a reporter on the “Daily Telegraph” newspaper and Eric Shackle, a journalist on the “Daily Mirror.” McGarry gave evidence that he sought a statement from Sharkey as to Communist policy in Australia in the event of invasion of Australia by Communist forces. Sharkey immediately replied that the question seemed to be very hypothetical and that there was no point in answering it. However, on the insistence of McGarry , he agreed to give a statement and there followed several telephone conversations between the reporter and the General Secretary of the Australian Communist Party. After each conversation the reporter typed what he considered to be a summary of the General Secretary’s views. Finally a statement read by the reporter was agreed to by Sharkey.
McGarry admitted in ‘cross examination that he did not remember which part of the statement represented the actual words used by Sharkey and also that the latter was reluctant to make a statement. McGarry further admitted that at no time did Sharkey read the statement to him. The conversation between the reporter and the General Secretary took the form of question and answer.
McGarry’s evidence was corroborated by Shackle of the Daily Mirror newspaper, who gave evidence that on the 5th March, 1949, he showed to the General Secretary an article in the Daily Telegraph which the latter agreed was a correct report. In cross examination, however, Shackle was not sure which edition of the Daily Telegraph was shown to Sharkey, whose statement was reported differently in different editions.
Apart from the technicalities of whether Sharkey actually spoke the words charged and whether they were corroborated, defending counsel, Mr. F. W. Paterson, both at the trial in the Criminal Court before judge Dwyer and in the later appeal to the High Court, based the defence mainly on the contention that the words, even if spoken by Sharkey, were not and could not be seditious in the minds of reasonable, unbiased men.
The indictment was laid under Section 24D of, the Commonwealth Crimes Act 1914-1946, an act which has been bitterly condemned for its anti-working class provisions, not only by leftists but by an overwhelming number of staid Labor politicians. Section 24D makes it an indictable offence for a person to write, print, utter or publish any seditious words, the penalty for which is imprisonment for three years. Section 24B of the same act states that seditious words are “words expressive of a seditious intention.”
But the explanation of what is a seditious intention appears in Section 24A of this act which makes any of the following intentions seditious:
(a) to bring the Sovereign into hatred or contempt;
(b) to excite disaffection against the Sovereign or the Government or Constitution of the United Kingdom or against either House of the Parliament of the United Kingdom;
(c) to excite disaffection against the Government or Constitution of any of the King’s Dominions;
(d) to excite disaffection against the Government or Constitution of the Commonwealth or against either House of the Parliament of the Commonwealth;
(e) to excite disaffection against the connexion of King’s Dominions under the Crown;
(f) to excite His Majesty’s subjects to attempt to procure the alteration otherwise than by lawful means, of any matter in the Commonwealth established by law of the Commonwealth; or
“(g) to promote feelings 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,”
It is important, however, to note that this same section, 24A, goes on to say that it shall be lawful for any person:
“(a) to endeavour in good faith to show that the Sovereign has been mistaken in any of his counsels;
“(b) to point out in good faith errors or defects in the Government or Constitution of the United Kingdom or any of the King’s Dominions or of the Commonwealth as by law established, or in legislation, or in the administration of justice. with a view to the reformation of such errors or defects;
“(c) to excite in good faith His Majesty’s subjects to attempt to procure by lawful means the alteration of any matter in the Commonwealth as by law established; or
“(d) to point out in good faith in order to their removal any matters which are producing or have a tendency to produce feelings of ill-will and hostility between different classes of His Majesty’s subjects.”
Therefore if Sharkey’s words were “to point out in good faith errors or defects in the Government of the Commonwealth or in the administration of justice with a view to their reformation of such errors or defects” he should not have been convicted under the Crimes Act.
At the conclusion of the case for the prosecution, Mr. Paterson, Sharkey’s Counsel, submitted that there was no case to go to the jury, that the words were not actually uttered, that there was no corroboration as required by the Crimes Act and that Sections 24A and 24D of the act were invalid and ultra vires. He further submitted that the words, even if they were uttered by Sharkey, were not capable of expressing a seditious intention within the meaning of Section 24A. During the course of these -submissions, Mr. Paterson pointed out that McGarry admitted in evidence that he promised to publish the whole of the statement or nothing, but that he did not honour that promise. judge Dwyer then said: “How would the subsequent breach of some undertaking by McGarry affect the intention in the mind of the prisoner” (referring to Sharkey). Mr. Paterson replied: “He (Sharkey) agreed to , do it under pressure and under that particular promise. How can it be said that mere utterances of ones views over the telephone to one man who has asked for your views and has almost pressed you to give them-can amount to a seditious intention.Mr. Paterson then said to judge Dwyer: “In what way can it be construed as an intention to incite disaffection against the Sovereign or the Governments mentioned in the Act? How could it be construed as meaning to incite disaffection against the Constitution of the King’s Dominions under the Crown or incite His Majesty’s subjects to procure the alteration otherwise than by lawful means of any matter in the Commonwealth established by law or that he was going to promote feelings of ill-will so as to endanger the peace, order or good government of the Commonwealth?”
“How could it possibly endanger the peace, order and good government of the Commonwealth to reply to a man’s question over the telephone?
After lengthy argument by Mr. Paterson on the submissions, Judge Dwyer said: “You will have the benefit of your submissions, Mr. Paterson, I shall overrule them.” At this stage the Court adjourned and on resuming after lunch, Mr. Paterson addressed the jury.
Fred Paterson, M.L.A., Addresses the Jury
After drawing their attention to the words in the indictment, Mr. Paterson said to the jury: “You must be satisfied beyond a reasonable doubt that the words uttered are expressive of a seditious intention. That means, gentlemen, in terms of the Crimes Act, Section 24A, you must be satisfied beyond a reasonable doubt that the words uttered are expressive of an intention to excite disaffection against the Sovereign or to excite disaffection against the Government or the Constitution of the United Kingdom or to excite disaffection against either Houses of the Parliament of the United Kingdom – that is either the House of Commons or the House of Lords – or you must be satisfied beyond reasonable doubt that the words are expressive of an intention to excite disaffection against the Government or Constitution of any of the King’s Dominions.
Counsel then directed his attention to the 2nd Paragraph, which the Crown alleged was seditious:
“Australian workers would welcome Soviet forces pursuing aggressors as the workers welcomed them throughout Europe when the Allied troops liberated the people from the power of the Nazis.”
On this 2nd paragraph Mr. Paterson said to the Jury:
“It is a notorious fact that it was the Nazi Armies of Germany which waged a war of aggression against Poland, a war of aggression against Hungary, a war of aggression against Czechoslovakia, a war of aggression against France and a war of aggression against Yugo Slavia. It was the Nazis who waged that war of aggression, and while it was the Forces of the United States and Britain which came in from the West on the Atlantic Coast, it was the, Forces of the Soviet Union which came in from the East in order to meet the Nazi Armies which had waged a war of aggression against Poland and those other countries. So. gentlemen, it is a notorious fact that, while it was the Armies of United States, which liberated France, as far as the actual fighting was concerned, from the Nazi aggressors, so it was the Armies of the Soviet Union, which liberated Poland from the Nazi aggressors, which liberated Yugo Slavia from the Nazi aggressors, which liberated Czechoslovakia from the Nazi aggressors, and so forth. Each of the Allies had its allotted function to perform and, gentlemen, I think we can take it that there would be no disagreement if I suggested that that was in accordance with the policy of the High Military Command, that each of the Allies had its task to perform.
“Very well, now read that paragraph in the light of facts which, I submit, my friend will not attempt to dispute. A fact which is notorious and which will not be disputed is that it was the Soviet Forces which liberated these Eastern European countries from the Nazi aggressor. And take it that he then says, referring to a statement about the European workers welcoming the Soviet Forces when they liberated them from the Nazi aggressors, that the Australian workers would so welcome them. Very well, this statement then means that, just as these European workers welcomed the Forces of the Soviet Armies when they liberated them from the Nazi aggressor, so Australian workers would welcome the Soviet Armies if they came in to liberate us in a similar manner from a similar aggressor. Is not that the plain meaning of the English?
“I ask you to wipe out all personal or political prejudice. Suppose that is completely removed from any citizen’s mind, supposing that were given to a school child, free from all political bias, how would the school child interpret it, in the light of those notorious facts? Would he not say that it means that Australian workers would welcome Soviet Forces pursuing aggressors in Australia, just as the workers of Europe did, when the Soviet Forces, pursuing the Nazi aggressors, drove them out of those European countries? Is making that statement a reason for being on a charge for sedition, or rather is it not a reason for being praised? The mere fact that it was a Communist who made the statement, or that he referred to the Soviet Forces, should not influence your mind in determining his guilt or otherwise, any more than if he had said with regard to the Pacific, ‘Just as the Australian people welcomed the Americans’ – just as we welcomed the Americans when they came here to assist us to liberate the Pacific, including Australia, from, the Japanese aggressors, just as I say that anyone who made that statement should be praised, so I say that anyone who made a similar statement with regard to Europe should also be praised and should not be put on charge with sedition.
“Gentlemen, I ask you from the depth of my heart to consider seriously those paragraphs, and I submit you will come to the conclusion that they could not possibly be, or could not be construed as seditious, but that you would even, if you had occasion, be prepared to say that you are satisfied beyond a reasonable doubt that they are not.”
It was pointed out that Mr. Sharkey had stated that the invasion of Australia by forces of the Soviet Union seemed very remote and hypothetical to him and that both the Prime Minister, Mr. Chifley, and the Attorney General, Dr. Evatt, had stated that there was no danger of war with Russia.
Proceeding with his address to the Jury, Mr. Paterson pointed out the words in the statement “The job of Communists is to struggle to prevent war and to educate the minds of the people against the idea of war.” Was that expressive of a seditious intention? he asked.
“It is a notorious fact,” said Mr. Paterson, “ that one of the jobs of the United Nations Assembly is to try to prevent war and to educate the minds of the people against war.” Our own representative, Dr. Evatt, was President of the United Nations General Assembly and it is part of his function and part of the function or duty of every delegate to the United Nations to educate the minds of the people against war.
“There are some people who think you cannot abolish war, but that is not the question at issue here. The question is riot whether we can have permanent peace or not. The question is solely do the words express a ‘seditious intention’ if they say the job of Communists is to struggle to prevent war and to educate the minds of the people against the idea of war? If that is seditious, then almost every clergyman or priest in Australia from time to time would be guilty of sedition. Jesus Christ is referred to by all the Christian Churches as the Prince of Peace and, not only that, but you cannot, read the Bible whether you read the Old Testament or the New Testament, without finding numerous exhortations to peace. “I bring you tidings of great joy; I bring you tidings of peace.” And it is suggested, gentlemen, that because a man uttered the words, “The task of the Communists is to educate the people against war,” that that is seditious.
“It does make me feel, and I cannot help expressing my personal feelings, that there is something more behind this prosecution than appears when a man has been charged with sedition and some of the words alleged to be seditious are, ‘The job of Communists is to struggle to prevent war and to educate the people against the idea of war.’ “
With regard to the last paragraph, “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,” Mr. Paterson said to the jury: “If that is seditious, gentlemen, then the Prime Minister should have been in the dock on many occasions and every member of the Labor Party also for using seditious words because whether they mean it or whether they do not mean it, they have frequently said “the Australian Labor Party wants to bring the working class to power.”
“It would be lawful,” he continued, “to use force against fascists if the fascists were themselves using force to prevent the working class lawfully becoming the constituted government.”
Mr. Paterson pointed out that it was very dangerous to accept certain facts as “notorious facts” in a Court of Law. He reminded the jury that in late 1939 and early 1940 Australian, newspapers led us to believe that Finland was our gallant little ally and yet the truth of the matter later established beyond all doubt was that Finland was our potential enemy and working hand-in-hand with Nazi Germany.
So much for “notorious facts” based on the propaganda of the Daily Press.
Later the Crown Prosecutor addressed the jury and said that they were not trying the question a& to whether the press has a good or bad influence in its propaganda. “The press was not on trial,” said Mr. Dovey. He then referred to what he described the “realities of the day” and to the Berlin Air Lift. Mr. Dovey went on to say: “Gentlemen, if Soviet forces in pursuit of aggressors entered Australia – who are the aggressors, ask yourself, in reality, who they would be? What is meant there? Where is there in the world today any potential aggressor against Australia or against the western powers other than the Soviet Union? Ask yourself, apply your commonsense to it, gentlemen, and you will find the answer.” This most amazing submission by the Crown Prosecutor directly implied something that is contradicted by the elected leaders of the Australian Government and has been contradicted from time to time by responsible statesmen all over the world. The Crown Prosecutor in the passage quoted practically said that the Soviet was a potential aggressor against Australia. Such a statement is entirely contrary to statements made by Mr. Chifley and Dr. Evatt on many occasions, the latter in his capacity as President of the United Nations General Assembly. There is no doubt that this statement of the Crown Prosecutor and many statements of a similar nature could have had a big. influence on the Jury and there is also no doubt that if the Crown wanted to endeavour to prove the truth of such statements it should have brought the Minister for External Affairs, Dr. Evatt, to give evidence, but this was not done nor was any expert or qualified person on Australia’s external affairs subpoenaed by the crown to give evidence.
Summing Up By Mr. Justice Dwyer To The Jury
After the Crown Prosecutor concluded his address Mr. justice Dwyer summed up to the jury. Although the judge pointed out to the jury that it was for them alone to I judge the facts, nevertheless in the course of his summing up he made certain remarks with which many people will violently disagree. For instance, he directed the Jury to “bear in mind in considering the charge the realities of the present time, what have been referred to by Counsel notorious facts.’” Here the judge appear ed to be referring to what Mr. Dovey claimed to be “notorious facts” that is, facts which are sufficiently accepted by everyone to require no further proof in a Court of Law. If the jury took this to refer to the Crown Prosecutor’s statement that the Soviet was a potential aggressor against Australia, then such facts are not “notorious facts” but they are notorious lies. As has been pointed out, the leaders of the Australian Government have themselves stated the exact opposite; that is, that the Soviet wants peace and that she is not a potential aggressor. Then again the judge said to the jury: “Whether it (meaning the words charged) was spoken on a telephone or whether it was spoken face to face you might think does not matter very much.” But it appears, how ever, that this direction would not be approved by many ordinary citizens. Is there not a tremendous difference between a man inciting a large crowd at a public meeting and a man calmly giving his views over the telephone to a reporter who requests such views? Furthermore, judge Dwyer introduced an idea that neither the Crown Prosecutor nor the Counsel for Sharkey had even mentioned throughout the trial. The judge suggested to the jury that Sharkey may have cunningly endeavoured to escape the legal consequences of his act. Throughout the case there was not a tittle of evidence to support his statement but apparently the Judge considered that he was entitled to throw it up to the jury for consideration.
In due course the jury retired and returned a verdict of guilty. On the application of Sharkey’s Counsel, Dwyer, J. reserved certain questions for the consideration of the High Court of Australia and in the meantime released the General Secretary on bail on his own recognissance of £l,000 and two sureties of £500 each.
The High Court of Australia
The questions reserved for the High Court of Australia were:
1. Whether Sections 24A, 24B and 24D of the Crimes Act, 1914-1946 were invalid and ultra vires the constitution of the Commonwealth of Australia.
2. Whether there was evidence that the accused uttered the words.
3. Whether there was corroboration.
4. Whether the words were capable of being expressive or seditious intention.
The Chief Justice of the High Court Sir John Latham called the Solicitor for Sharkey and the Crown Solicitor before him for the purpose of hastening the hearing of the case stated before the High Court. It came on for hearing on the 15th and 16th August, 1949, in Sydney, before the Full Court of the High Court of Australia consisting of the Chief Justice, Sir John Latham, Mr. Justice Rich, Mr. Justice Dixon, Mr. Justice McTiernan, Mr. Justice Williams and Mr. Justice Webb. These gentlemen, in pursuance of the enormous powers vested in them by the Australian Constitution, decide some of the most important questions affecting the people of Australia. They are called upon, amongst other things, to interpret the Constitution.
In 1948 in the case of Rex v. Foster; ex parte, Rural Bank of N.S.W., the High Court decided that the Women’s Employment Regulations were invalid on the ground that they were not connected with the prosecution of the war and were not incidental to any winding up process or to any endeavour to restore conditions which might be regarded as the peace-time organisation of industry. It was under these regulations that women throughout Australia had achieved a substantial increase in rates of pay.
In 1948 also the High Court, for a variety of reasons, declared that the Banking Act 1947 was invalid. This Act was an attempt by the Commonwealth Government to take away the overriding financial powers of a few individuals who control the private banks and to place that power in the hands of the Government elected by the people.
In 1946 the Australian people voting at a Referendum approved of an amendment to the Constitution now known as the Constitution Alteration (Social Services) Act No. 81 of 1946, which gave the Commonwealth Government power to legislate in respect of the provision of certain specific social services including “ medical and dental services (but not so as to authorise any form of civil conscription).” Under this alteration to the Constitution the Commonwealth Government passed the Pharmaceutical Benefits Act No. 33 of 1947. The purpose of this Act was to enable Australians to receive free medicine for which they had already been paying social service tax for some time. The British Medical Association refused to comply with the provisions of this Act and ultimately the question of the validity of the Act came before the High Court. Once again the Act was declared invalid and the will of the people as expressed in the 1946 Referendum and the Pharmaceutical Benefits Act 1947 has been frustrated. The National Emergency (Coal Strike) Act 1949, however, under which prominent trade union leaders were gaoled was declared valid by the High Court. The Chief Justice of the High Court, Sir John Latham, was for a long time a leading member of an anti-working class political party. While Attorney-General in the Commonwealth Parliament, Sir John Latham was himself responsible for certain anti-working class amendments to the Crimes Act, the very Act which he was called upon to interpret in Sharkey’s Case Stated.
The Argument Before the High Court on the Case Stated by Dwyer, J.
Mr. A. Bennett, K.C., and Mr. H. J. Henchman appeared for the Commonwealth Crown Solicitor to argue the case before the High Court. Mr. F. W. Paterson and Mr. J. B. Sweeney, who appeared for L. L. Sharkey in the trial before judge Dwyer, also appeared for him in the High Court. Mr. Bennett had previously appeared as Crown Prosecutor in the prosecution of Gilbert Burns before a Brisbane Magistrate for sedition. In his argument, Mr. Paterson concentrated mainly on the contentions that Sections 24A, B and D of the Crimes Act were invalid and outside the powers of the Commonwealth Parliament and that the words charged were not capable of amounting to sedition. Mr. Paterson pointed out that the main intention relied upon by the Crown under the Crimes Act was that Section 24A (1) (g) “to promote feelings 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.”
During the course of the argument, Mr. Bennett, for the Crown, conceded that Sharkey’s words could not have amounted to sedition under at least one of the paragraphs in Section 24A (1) (to excite disaffection against the Parliament of the United Kingdom). An amazing fact is that the judgments of the High Court which answered the questions submitted to them against Sharkey by majority of 5 to I did not, except in the case of Mr. Justice Webb, take this admission into consideration. In the ordinary course, a Court of Law might have quashed the conviction and ordered a new trial on the ground that the Crown had admitted that one of the intentions with which the accused was charged and found guilty was not capable of being expressed by the words used. However, it was only Mr. Justice Webb who made mention of this aspect and instead of giving it greater importance, he was apparently still able to come to a decision upholding the conviction. During the hearing before the High Court, Mr. Justice McTiernan said to Mr. Bennett, K.C.: “Upon which one of (b), (c), (d) or (g) (of Section 24A (1)) did you say the jury convicted the accused?” Mr. Bennett: “I submit on all. But as far as the Parliament itself is concerned, I submit as a practical question that was no doubt left out of their consideration. One must assume that the jury acted reasonably and as far as the Parliament of the United Kingdom is concerned, although that in terms was left to them that raised the difficulty,” and later, “I cannot sustain the one in regard to the Parliament of the United Kingdom. It is hard to see any nexus between the statement and the Parliament of the United Kingdom.” It appears here that the Crown conceded that Sharkey’s words could not “excite disaffection against the Parliament of the United Kingdom,” yet this was one of the intentions which judge Dwyer left for the consideration of the jury which returned a verdict of guilty.
In another part of the argument, Mr. Justice Dixon asked: “What is the peace of the Commonwealth?” Mr. Bennett: “I submit it really gets down to the general welfare of that community of people.” One might ask,. therefore, whether the B.M.A. has acted contrary to the general welfare of the community of people by denying the people free medicine. Would they be guilty of sedition? Have they aroused feelings of enmity between different classes within Australia? It is to be noted that the Chief Justice of the High Court raised the same point as judge Dwyer when he said: “Would it be open to the jury to say that there was a carefully constructed statement designed to go as far as possible without running into the law against sedition. That is it is trying to get the benefit of seditious incitement and to keep just outside the law? “ Here again the same comments apply as those made with regard to Judge Dwyer’s thoughts along these lines. No evidence whatsoever existed that either Sharkey or the newspaper reporters ever considered whether the words amounted to sedition. They certainly could not have appeared seditious to the newspaper reporters. If they had appeared so, one might reasonably expect the reporters to have had nothing further to do with the statement. One might even have expected them to mention their fears to Sharkey. One might also have expected the newspaper proprietors to have hastily dropped the whole matter or at least the editor responsible for the insertion of the statement in the press.
The Decision of the High Court
On 7th October, 1949, the High Court delivered its judgment on the Case Stated and decided by five to one majority to confirm the conviction of the General Secretary of the Australian Communist Party and to answer the questions as follows:
1. Sections 24A, 24B and 24D of the Crimes Act 1914-1946 were valid and were within the powers of the Commonwealth Parliament.
2. There was evidence that the accused uttered the words alleged in the indictment.
3. There was corroborating testimony in accordance with the provisions of the Crimes Act.
4. The words in the circumstances in which they were uttered were capable of being expressive of a seditious intention within the meaning of the Crimes Act.
Thus the High Court decided against Sharkey on all questions submitted to it by Dwyer, J., although question (3) was not argued by Sharkey’s Counsel.
Mr. Justice Dixon, however, whose reputation as a jurist stands very high, decided that Section 24A, sub-section (1), Par. (g) was invalid and outside the powers of the Commonwealth Parliament. This paragraph is the one which makes it seditious to utter words promoting feelings 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. This was the paragraph upon which the Crown mainly relied. Mr. Justice Dixon also decided that Sharkey’s words were not capable, when considered by reasonable men, of expressing a seditious intention except perhaps under one or two only of the paragraphs in Section 24A, sub-section (1), but he pointed out that although the Jury might have convicted under these paragraphs he did not say that they should have so convicted.
He also said: “I think that it is impossible to treat the utterances set forth in the indictment as expressive of an. intention to affect the purpose of causing disaffection against those Constitutions or institutions (meaning the United Kingdom and other Dominions) and the jury could not reasonably find that such intention was disclosed by the words.” However, Mr. Justice Dixon was in the minority and his judgment can afford little satisfaction to the General Secretary.
Historic Statement of L. L. Sharkey Before Dwyer, J.
The High Court remitted its answers to the Case Stated to Mr Justice Dwyer who called Sharkey up for sentence at the Central Criminal Court, Darlinghurst, on the morning of Monday, the 17th October, 1949. Before sentence the Crown Prosecutor (Mr. W. R. Dovey, K.C.), called a witness, Detective-Sergeant Sabine, to give evidence as to Sharkey’s antecedents. Detective Sabine began to give evidence on Sharkey’s visits to other countries as a delegate from the Australian Communist Party. Mr. Harold Rich, solicitor, who appeared for Sharkey at the sentence, objected and asked Judge Dwyer for the reason underlying the evidence, given by Sabine. Mr. Dovey claimed that it was normal procedure in all criminal cases to investigate the antecedents of the accused and to acquaint the Court with them. In cross-examination, Sabine stated that he violently disagreed with Sharkey’s parties but that otherwise he believed him to be a normal respectable citizen. Judge Dwyer then asked the General Secretary if he had anything to say, and in reply Sharkey made a statement, which will certainly become of historic significance in the struggles of the Australian Communist Party and all progressive peoples in the cause of peace. The statement was uttered by Sharkey in a crowded courtroom from the dock, enclosed by iron railings and guarded by officers of the police; on his left were seated, in tiers, a large number of senior members of the police force and some whose main function is to hound progressive peoples. Immediately before and below him seated at the table were the barristers who had prosecuted him, including W. R. Dovey, K.C., who had maintained that the Soviet was a potential aggressor; on his right hand side were the reporters of the Sydney daily press which had been utilised by the Crown in the course of the prosecution. Behind him the Court was crowded with spectators, sympathisers and Communists who came to share Sharkey’s burden and to see what sentence would be meted out to the man who spoke in the cause of peace.
Laurence Louis Sharkey, the General Secretary of the Australian Communist Party, a man who had known depression and dole and one of Australia’s greatest fighters for the downtrodden, faced Judge Dwyer, the man who was later responsible for a sentence of unprecedented severity in respect of similar matters before Australian Courts.
In this tense atmosphere, Sharkey, with great simplicity, made this historic statement:
‘Your Honor, in connection with the charge against myself I understand that there have not been a great number of such charges in Australian history. I understand that possibly the first one was against Peter Lalor, of the Eureka Stockade, another one was against Hugh McMahon, the Federal Labour Party member of the Federal House, who made some statements in connection with the Irish War of Independence, and the late Percy Brookfield. I am the fourth so far as my knowledge goes.
“The second thing about it is that of the large number of Communist Party spokesmen throughout the world who made statements at that particular time or around that time somewhat similar to my own, I am the only one who was prosecuted.
“In relation to some of the points of the case I would like Your Honour to let me comment upon the first one concerned – the conversation that I had over the telephone with Mr. McGarry, of the Daily Telegraph. There were comments in that conversation about the apparent carefulness which I exercised on that occasion. With all due respect to Mr. McGarry who endeavoured to do his best the thing is that he is not very practised, I would say, Your Honour, in writing statements on behalf of the Central Committee of the Communist Party and consequently I found some difficulty in getting the point exactly – in the exact shade of meaning – that I desired and so we had a number of conversations; I do not think as many as Mr. McGarry said, a dozen; I would say five or six at the most on these points. That is why in the first place I wanted to write it out myself because I wanted the statement to be clear and express what I had in mind.
“The next question is the one about the fascist movement, the reference I made. It is true that today there are no open fascist movements in Australia but such things can develop and I have that development in mind and I certainly believe that it would be much better for the German people and the world if they themselves had suppressed the Nazi movement in its earliest stages. I had such developments as possibilities in mind.
“The second part of the charge which I take it influenced the Court was in reference to Soviet Russia.
“If you would permit me, Your Honor, I would like to make it very clear that it is no part of the outlook, policy nor the programme of the Communist Party to expect Soviet troops to come to Australia to establish Communism. That has been dealt with by the great founders of the Communist movement – such men as Marx, Engels and Lenin – and they are very clear and definite. They said that one nation where the socialists were victorious should not impose by force socialism on another nation, that in endeavouring to do so they would create such conditions that they would undermine their own position – their victory. They were the words.
“So, so far as I am concerned – and I think Your Honor will recall the evidence of Mr. McGarry – I said it was a hypothetical question and I did not see a great deal of point in discussing it in this manner, and I did so on the basis of those principles of the Communist Party – that we see any social change which may or may not take place in this country as the work of the Australian people themselves. I want to make my position very clear in that respect.
“They would have no policy or programme that calls for the coming to Australia of Russian troops.
“In that statement which I made the important thing to me was the fact that there I defined the task of the Communist Party in relation to the present international conditions as taking a leading part in fighting for the preservation of international peace. That, to me, is the all-important part of the statement. I say that here today – that it is an all-important thing so far as the policy of the Communist Party is concerned, that we should do everything in our power to prevent the outbreak of any further internationalist wars. It did seem to me on that occasion that as the Communist Party today gets very few opportunities indeed of presenting its views in any one of the large daily newspapers that if I could get that part of the message over, that would satisfy me.
“So, all those are the points, to make it clear if I can my position in relation to the proceedings, and I have no feeling of guilt or anything like that. I am quite satisfied: to the future developments – that they will justify me. In conclusion I would say, Your Honor, long live international peace.”
It appeared to many in the crowded Court room that Sharkey’s statement could not have been more simple and genuine. However, the subsequent remarks made by judge Dwyer in passing sentence showed violent personal antipathy towards Communists and Communism.
Judge Dwyer’s Attack On Communism And Maximum Sentence On L. L. Sharkey
There are probably few instances in Courts of Law of such a sentence being given by a judge who took no trouble to hide his intense antagonism to the politics of the accused.
After referring to the jury’s finding of guilty and to the High Court’s decision upholding the validity of Section 24A of the Crimes Act, Dwyer, J., then proceeded to say “Every man is free to speak as he thinks fit but he is responsible to the law for what he does speak. Statements of a political or party nature when confined within proper limits are in no way punishable by the law, but rather are protected for the public good, and such statements – whether spoken or written are to be regarded in a free and liberal spirit. Furthermore, the Commonwealth Crimes Act itself gives statutory recognition to the widest right of criticism, discussion, propaganda and reform.”
At this stage of the judge’s remarks it appeared that he intended, on the basis of what he himself had said, to impose as light a sentence as it was in his power to impose. If statements of a political or party nature were not punishable by law and were to be regarded in a free and liberal spirit, it seemed that Sharkey’s statement should never have been the subject’ of a prosecution. Then the judge further heightened this impression by stating that “the Act itself gave the widest right of criticism, discussion, propaganda and reform.” However, the subsequent remarks of His Honor were in an entirely different tone. After stating that the words were calculated to excite disaffection, judge Dwyer claimed that they were spoken under conditions apt to create the greatest possible mischief. He went on to say that the words were the “result of a revised, careful and deliberate predetermination to effect a malign and traitorous purpose involving disloyalty to Australia.”
If one examines Sharkey’s statement the words of judge Dwyer appear to be wholly wrong. How could the words “the job of Communists is to struggle to prevent war and to educate the mass of the people against the idea of war” support the denunciation of the judge? He apparently also took no notice whatsoever of the statement made by Sharkey before his sentence. But further than that, His Honor claimed that the accused exercised an “evil disproportionate influence over the life of this country.” This remark appeared to be quite outside the scope of the trial and there was certainly no evidence heard by the judge to support it. It reflected the personal attitude of judge Dwyer towards Communism. Judge Dwyer again brought in matter reflecting his own personal attitude to Communism when he accused the Communist Party of “seditious or treasonable conspiracies” and called for the “appropriate authorities to safeguard the community in that regard.” This statement had nothing whatsoever to do with the case under consideration and judge Dwyer was again taking advantage of his, position as a member of the judiciary to indulge in anti-Communist propaganda knowing full well that he could not be challenged by Sharkey, while he, Judge Dwyer, was sitting on the bench.
Capping these remarks, judge Dwyer said “I impose the maximum penalty allowed by law and sentence you to be imprisoned-for a period of three years. Remove the, prisoner.
There had been considerable interest among barristers in Sydney as to what sentence would be imposed upon Sharkey, but there were few even among the most anti-Communist barristers who considered that the sentence would exceed two years. Most of them thought that the sentence would not exceed 12 months’ imprisonment and many non-party barristers thought that Sharkey should have been released on it bond. Section 12 of the Criminal Appeal Act 1912, states specifically: “In no case shall any sentence be increased by reason of or in consideration of any evidence that was not given at the trial.” Yet Judge Dwyer alleged that the Communist Party was guilty of “seditious or treasonable conspiracies.” He also alleged that the words Sharkey spoke were “a careful and deliberate predetermination to affect it malign and traitorous purpose.” Neither of those allegations were supported by any testimony.
When it is also remembered that Sharkey’s statement was given to a newspaper reporter on the latter’s insistence, that it was in respect of it remote and hypothetical question and that Sharkey himself said it was remote and hypothetical, the full severity of the sentence of three years imprisonment with hard labour becomes evident.
Judge Dwyer, in the course of his sentence, said that he left the task of adequately safeguarding the community to the appropriate authorities. The statement of L. L. Sharkey will be accepted in due course by the people of Australia for its true worth; in Sharkey’s own words: “for the preservation of international peace.”
The whole proceedings and sentence are a danger signal to all Australians who value the right to speak their mind. Three years gaol for Sharkey for supporting international peace and favourable press reports for Menzies and General Sturdee for advocating war or its inevitability – that is the pattern today.
It is only the people of Australia and especially the little people, who can, by their support of worthy organisations, force the government to repeal the offending sections of the Crimes Act and open the way to a mighty movement against war and for the preservation of peace.