R v Sharkey
(1949) 79 CLR 121(Decision by: WEBB J)
Between: THE KING
And: SHARKEY
Judges:
Latham CJ
Rich J
Dixon J
McTiernan J
Williams J
Webb J
Subject References:
Constitutional Law (Cth.)
Judgment date: 7 October 1949
Melbourne
Decision by:
WEBB J
These are questions reserved under s. 72 of the Judiciary Act. The defendant Sharkey was indicted under s. 24D of the Commonwealth Crimes Act for uttering seditious words. He was tried in the Supreme Court of New South Wales before Dwyer J. and a jury and convicted, but judgment and sentence were postponed pending the determination of the questions reserved. The uncontradicted evidence for the prosecution disclosed that on 4th March 1949 a Crown witness named McGarry, a newspaper reporter employed by the Sydney "Daily Telegraph" newspaper, received instructions from the editor to endeavour to communicate with some representative of the Communist Party in Sydney in order to obtain a statement of the policy to be followed by local communists in the event of the invasion of Australia, following statements that had been made by Communist leaders in other parts of the world, and more particularly by the French Communist leader, Maurice Thorez, who had in the previous week made the statement that "If the Red Army came to France in pursuit of aggressors, the French workers would behave towards it as did the workers of Poland and Rumania." In pursuance of these instructions McGarry telephoned the defendant Sharkey, who was the general secretary of the Communist Party in Australia, and said "I would like to discuss Communist policy in Australia in the event of the invasion of Australia by Communist forces. Would you make a statement for publication?" Sharkey replied that it seemed to him that the invasion of Australia by Communist or other forces was a very hypothetical question and that there was no point in answering such a question. He added, however, that he preferred McGarry to call on him on the following day, that is, on 5th March 1949, when he would give a prepared statement. McGarry said that his newspaper had a policy of requiring its reporters to read back statements made by public men and that he would be prepared to read back any statement Sharkey might make as many times as Sharkey wished in order that Sharkey might make corrections. Sharkey said he would be prepared to make a statement on that understanding. McGarry then read to Sharkey the statement already referred to as having been made by Thorez, and then asked Sharkey whether he would agree to make a statement about the action or policy of local communists in the event of the invasion of Australia. Sharkey and McGarry conversed over the telephone for about fifteen minutes and McGarry took shorthand notes of the conversation. McGarry then said to Sharkey: "I will type a precis of this and read it back to you later."
In a further telephone conversation McGarry read to Sharkey a precis of the statement. As he did so Sharkey altered some paragraphs and deleted others. McGarry re-typed the amended statement and in the last telephone conversation read the corrected statement to Sharkey ten or eleven times at Sharkey's request. Sharkey made slight alterations and, after it was read to him for the last time, said he was satisfied with it. In reply to a question by McGarry, Sharkey said he could speak for the other members of the Communist Party. The statement with which Sharkey said he was satisfied was as alleged in the indictment, omitting immaterial parts. The evidence for the prosecution also disclosed that an article appeared in the "Daily Telegraph" on 5th March 1949 headed "'Welcome' for Red Troops" and contained the substance of Sharkey's statement as alleged in the indictment, and that Sharkey admitted to a "Daily Mirror" reporter, Schackle, that he was correctly reported in the "Daily Telegraph" article. No evidence was called for the defence. The Crown Prosecutor submitted, and the learned judge in his summing up put to the jury for their consideration, that the words charged were "uttered" by Sharkey within the meaning of s. 24D and were expressive of an intention of the kinds specified in pars. (b), (c), (d) and (g) of s. 24A (1). He added: "These words expressive of an intention of promoting ill-will and hostility between different classes of His Majesty's subjects so as to endanger the peace, order and good government of the Commonwealth may be expressive of a seditious intention."
Later in his summing up he asked the jury whether they considered that ill-will and hostility endangering the peace, order or good government of the Commonwealth were apt to be stirred up. Apart from asking them to bear in mind the arguments of counsel he made no further reference to the application of pars. (b), (c) or (d) of s. 24A (1): he gave the jury no indication of the reason why Sharkey's words might be regarded as being capable of being held to be expressive of an intention to excite disaffection of the kinds referred to in those paragraphs. He instructed the jury that the corroboration was required to be in a material particular and that Schackle's evidence could be regarded as such corroboration. Before us it was conceded by Mr. Paterson, counsel for Sharkey, that there was evidence of corroboration, as I too think was the case, and so this question need not be further considered. At the conclusion of his summing up the learned judge asked counsel whether they desired him to add anything, but neither counsel asked for any further direction or re-direction. However Mr. Paterson, as reported, had before the summing up submitted, "in view of the evidence and the circumstances under which they were uttered, if they were uttered, the words are not capable of being expressive of a seditious intention within the meaning of s. 24A." If the learned judge thought the words were not capable of being found to be expressive of a seditious intention within any of the pars. (b), (c), (d) or (g) it was his duty so to direct the jury and he was not relieved of that duty by the failure of counsel for Sharkey to ask for a further direction or re-direction after the summing up. (at p163)
2. As to the validity of ss. 24A, 24B and 24D: there is, I think, much to be said for the view that there is a common law of Australia, including the provisions relating to sedition as they existed in English law when the first settlers came to this country (cf. R. v. Kidman (1915) 20 CLR 425 ). However, for the reasons given by the Chief Justice, I think the Commonwealth Parliament had power under paragraphs (xxix.) and (xxxix.) of s. 51 of the Commonwealth Constitution, to enact all three sections. Mr. Bennett, counsel for the Commonwealth, submitted that par. (vi.) of s. 51 also conferred power to do so; but I find it unnecessary to rely on the defence power, although that power may be wide enough to protect Australia against attacks in peace as in war, from within as well as from without, and against incitement to such attacks. If the defence power extends in time of war to the internment of any "dis-affected or disloyal" person without trial, as Lloyd v. Wallach (1915) 20 CLR 299 decided, it may appear reasonable to hold that the power authorizes the creation of an offence of sedition for the commission of which an offender may be tried and imprisoned on conviction after trial. In the course of the argument Mr. Bennett stressed the necessity for a power to nip in the bud the tendency to undermine the State, and the Chief Justice suggested that in order to protect the Government against violent overthrow it might be necessary to prevent the incitement of feelings that may lead to that. I agree. At all events it is for the Parliament to select the means of achieving legitimate ends and in so doing to be guided if it sees fit by the experience of centuries in creating an offence of sedition with changes to meet the existing legal and political organization of Australia, both internally and externally.
The part of the Imperial Parliament in this organization plainly appears from the Act of Settlement and other legislation regulating the succession to the Crown of the United Kingdom under which Australia is associated with the United Kingdom and the other Dominions, as well as from the Commonwealth of Australia Constitution Act, and the Statute of Westminster and the Australian legislation adopting it. Pending lawful changes, the House of Lords and the House of Commons are essential parts of the political and legal organization of Australia. The power reserved to the Imperial Parliament to legislate for Australia, if so desired by Australia, is a sufficient indication of this. No one can say when it will be necessary to resort to this power. I emphasize more fully the position of the Imperial Houses of Parliament because Mr. Bennett, without assigning any reason for his attitude, would not press that the words uttered by Sharkey could be held to be expressive of any intention to excite disaffection against either House of the Parliament of the United Kingdom within par. (b) of s. 24A (1), although he submitted that otherwise pars. (b), (c) and (d) applied to these words, as well as par. (g). (at p164)
3. Then as to the facts that the jury could find on the evidence: it was open to them to find that Sharkey was the general secretary of the Communist Party in Australia and spoke for its members; that he was asked whether he would make for publication in the "Daily Telegraph" a statement on Communist policy in Australia in the event of an invasion of Australia by Communist forces; that after consideration he agreed to do so, and then, after much deliberation, made the statement set out in the indictment, and that this was compiled from shorthand notes of what he said. I think the jury could find on this evidence that the statement contained words uttered by Sharkey. As to whether these words were, in the circumstances, expressive of a seditious intention, seeing they were used in reply to a request for a statement on Communist policy in the event of an invasion of Australia by Communist forces, the whole of the reply could be taken to bear on that policy, including the sentence, "If the Fascists in Australia use force to prevent the workers gaining that power Communists will advise the workers to meet force with force." This could be taken to reveal that the so-called Fascists were a numerous and powerful class of Australians and were identical with the aggressors, or some of the aggressors, referred to earlier in the reply, whom the Soviet forces would pursue. The repeated reference to "invasion" in this careful reply could be regarded as an intimation that the Soviet forces would come as enemies, and that if invasion occurred Australians would be the aggressors.
The jury could also find that nothing had happened, or was likely to happen, in Australia, that warranted such a reply, but on the other hand they could attribute it to happenings in Europe in and about March 1949, including the Berlin blockade and the airlift to counter it, and the joint operations and activities of the nations opposing Russia in Germany, including those of the British Commonwealth, and to the association of Australia with that opposition, stigmatized as aggression against the Soviet. I think the jury could find that this reply was uttered with the intention of promoting feelings of ill-will and hostility of the kind specified in par. (g) of s. 24A (1), and, although the reply does not mention the Sovereign, or any House of Parliament, or Constitution, or Government, I think the jury could also find that a welcome to Soviet troops invading any part of the British Commonwealth in any contingency would be calculated to excite disaffection to the full extent set out in pars. (b), (c) and (d) and was so intended. (at p165)
4. I would answer the questions as proposed by the Chief Justice and remit the case to the Supreme Court with those answers. (at p165)