Sutch jury ‘asked to use fertile imagination’

Press, Volume CXV, Issue 33775, 22 February 1975, Page 2

Sutch jury ‘asked to use fertile imagination’

(New Zealand Press Association)

WELLINGTON, February 21.

Circumstantial evidence showed that William Ball Sutch was guilty under the Official Secrets Act, said the Solicitor-General (Mr R. C. Savage, Q.C.) in the Supreme Court at Wellington today.

But counsel for the defence, Mr M. A. Bungay, submitted that the Crown was asking the jury to use “a vivid and fertile imagination."

The jury acquitted Sutch. Sutch, aged 67, an economic consultant, was charged that between April 18 and September 26, 1974, for a purpose prejudicial to the safety or interests of the State, he obtained information which was calculated to be, or might be, or was intended to be directly or indirectly useful to an enemy.

The trial was before Mr Justice Beattie. With Mr Savage was Mr D. P. Neazor; and with Mr Bungay, Mr 1. A. Greig appeared for Sutch. In his summing up, Mr Justice Beattie said he understood the case might be the first of its kind to be considered by a New Zealand jury. It involved an allegation of spying against a man who was a former public servant and who had held a high position.

His Honour said the onus of proof rested on the Crown, and there was no onus on the accused at any stage to prove his innocence. He did not need to give evidence.

Refering to the wording of the act, his Honour said it was up to the jury to decide whether Mr Razgovorov was a foreign agent But he directed it to take the normal and ordinary meanings of the two words — an “agent”

being one who acted for another, a representative, or an emissary; and "foreign” meaning from another country. The jury might think that foreign agent was quite a general term, said his Honour.

He said that if the jury found that Mr Razgovorov was not a foreign agent.

■ then the Crown had failed [in its case. J His Honour also directed I the jury that the Crown did not have to provide any direct evidence of what information it was that the accused had obtained. This was not necessary. Disloyalty Mr Savage told the jury that the case was gravely important to Sutch, who was accused of disloyalty to his country and to his own community. Few things could be more damaging to anyone. The Solicitor-General said this was a serious crime. It was important too, to the State, to New Zealand as a whole. The country was entitled to expect, indeed demanded, loyalty from its subjects. The country expected its citizens to abide by its laws and if they disagreed, the laws could be changed by constitutional means. Mr Savage said spies and spying had a slightly unnatural sound in this "apparently secure part of the world in which we live. ‘Other forms’ "But as commonsense will tell, the kind of information prejudicial to the country is not just information about battleships, aircraft and guns. It includes al) kinds of information, including trade deals and industrial developments. “The very capacity of the country to survive depends on its capacity to survive economically,” Mr Savage said. As well, he said, this was

i a criminal trial and in all criminal trials the obligation of proof that the accused was guilty rested upon the Crown, which had to prove beyond all reasonable doubt.

Mr Savage told the jury it might have thought Sutch guilty more of communicating than obtaining information, but section four of the Official Secrets Act said, in effect, that communication with a foreign agent shall be evidence of obtaining information which might be useful to an enemy. Foreign accent If it were shown there had been communication with a foreign agent, then that fact was evidence of a crime being committed. Mr Dmitri Razgovorov was first secretary of the Soviet Embassy — plainly a foreign agent in the terms of those words, Mr Savage said. It seemed clear from the meetings between the Russian and Sutch that there was communication. But, Mr Savage said, the section of the act did not say this was proof beyond reasonable doubt. Mr Savage said that in this case the circumstances were vital. There was nothing wrong with a New Zealander and a diplomat meeting together for coffee or dinner, in fact life would be intolerable for the diplomats if this was not able to be so. ‘Clandestine’ But on the other hand, the circumstances were such that these meetings were of a clandestine and surreptitious nature. “The very fact that it is clandestine arid surreptitious makes it a matter of suspicion. “The section of the act says, depending on the circumstances, communication

with a foreign agent may be sufficient evidence to establish the offence of spying.” Mr Savage said the Crown contended that the circumstances surrounding this particular case, the meetings between Sutch and Mr Razgovorov, could only be explained by saying they were done for a purpose that was prejudicial to the State. ‘No real help’ Mr Savage said character references might help in some trials but a spy would be expected to set up a cover of honesty for dishonesty. That sort of evidence in this case was no real help, no matter how distinguished, well-meaning and sincere the witnesses might be. “Where does a spy get information from?” Mr Savage asked. They got information from all sorts of sources. Accused was in an economic position and was a former Secretary of Industries and Commerce and “might have had access rather more readily than most of us to information which might have been useful to the Russians.” The Crown contended that guilt was proved beyond reasonable doubt, by surrounding circumstances—the ■meetings, the lies to the police, and the letter accused wrote to the AttorneyGeneral.

The four meetings with the Russian at Lewer Street, Glen Road, Hopper Street and Holloway Road, were of a clandestine and surreptitious nature. They were just not compatible with an innocent explanation. The times of the meetings were after dark, all in different all on the footpath. Why would the first secretary of the embassy of a great country and a prominent citizen wait to meet like that? They would have had plenty of opportunity to meet openly if they had wanted to, said Mr Savage.

Car’s actions The actions of the Soviet car including its manoeuvre in Karori and its tush through the red light were plainly intended to check whether anyone was following Sutch, to throw off a follower.

Concerning the Glen Road episode, Mr Savage said that accused and the Russian must have passed on the footpath in Kelbum but they did not stop and talk then, they moved into Glen Road. If the discussion was innocent, why did they not talk when they first met, Mr Savage asked. It was rather an odd thing to have a little talk to the driver of the embassy car, and then go back and talk, and then go back to the car and go away. “If you have unlawful information you arrange to have it taken away in safety,” Mr Savage said; From entries in Sutch’s diary it was pretty obvious some meetings ' were arranged. Mr Savage asked why these did not take place if they were innocent. If they were not innocent the parties could have suspected they were being followed and had not shaken off their pursuers. ‘Weeks later’ Mr Savage said that accused had lied to the police. He lied in Aro Street and said he did not know Mr Razgovorov. He lied about the Hopper Street, Glen Road and Karori meetings. He used the word “preposterous.” Accused was at the police station for some time nd had a rest at his house. Not until about 3 a.m. was he formally arrested, yet never once did he admit meetings with the Russian. Mr Savage said one would have thought accused had had time to get over the embarrassment and confusion he mentioned in his letter. But not until three weeks later did Sutch write to the Attorney-General and give his explanation. If he was an innocent man — “why the lies?” Mr Savage asked. If he was a man taken aback after his apprehension, why, when he realised the matter was very serious, did he not pour out the whole story. "Is not that what you’d expect an innocent man to do? Instead of which, we’re left with some monumental lies.” Meeting dates The letter contained further deceits and distortions and offered an explanation that the Crown said was so improbable as to be unbelievable. Accused said in the letter he would endeavour to answer detailed allegations conveyed to his solicitor and was prepared to answer any further allegations. Mr Savage said Sutch was saying: “Here’s my explanation for what is said to be held against me. If there are any more thing I’ll give an explanation.” “Wouldn’t an innocent

man say ‘whatever they say, here is the story of all my dealings with the Russians’?” Mr Savage asked. Concerning Sutch’s professed confusion over dates of alleged meetings, Mr Savage said that "just won’t hold water.”

Though Sutch said he went to the Karori Post Office in April and did not see the Russian again until July, there was evidence of visits in May and again in June. Mr Savage suggested that part of the letter was based on a falsehood. Speaking of the second meeting, in July, when Sutch said in a letter to the Attorney-General he was asked who the Zionist leaders were in New Zealand, Mr Savage said that a witness yesterday, Mr Stafford, had said this information was already available publicly. Sutch said he changed the subject and asked about censorship in Russia. “Scarcely a tactful request to gain the Russian’s confidence if he wanted to get something which might be useful to New Zealand,” said Mr Savage.

For Sutch, Mr Bungay said there was no proof the Russian and Sutch met in Aro Street.

Talking of what the Crown called “lies” by accused, Mr Bungay suggested this was an overstatement. At no time had the police invited accused to make a written statement. If accused did obtain information, where was that evidence, what was the information, where did he get it from? “How can ’"vone say it is prejudicial to ie State when it is not known what the information was? “Doesn’t the trial stop there, really for the practical sense?” he asked. He reminded the jury that the burden of proof was on the Crown, and a high standard was called for. The act said that the act of anyone communicating with a foreign agent was some evidence. But so also was having the name and address of a foreign agent — and anyone with a telephone directory was guilty in this way as it contained the names and addresses of many foreign agents. ‘Blaze of light’ Not by the wildest stretch of the imagination did the circumstantial evidence prove the offence, Mr Bungay said. What was surreptitious and clandestine about the meetings, like Hopper Street where the two allegedly met in a blaze of light in a doorway, in the Karori shopping area on a late shopping night, and by a garage where a witness had agreed Sutch was not trying to hide? Mr Bungay asked why, if Sutch wanted to meet the Russian, did he not use his position on the Arts Council? Of why not meet in a more private place, like his home? One witness for the defence said he saw the Russians regularly and went to the embassy. “Really the meetings were not as sinister as the Crown leads you to believe,” Mr Bungay said. ‘Weaknesses’

The jury might think the Solicitor-General had acknowledged weaknesses of the Crown case — Mr Savage had invited it to make deductions from the limited sworn evidence the Crown had supplied. Counsel contended that the Solicitor-General was inviting the jury to use a vivid and fertile imagination to supplement deficiencies of the Crown case. The Solicitor-General had concluded his address by saying clearly there was a meeting between Sutch and Mr Razgovorov in Aro Street and that at least 12 people were stationed in position watching them. “No-one comes here to say they met,” Mr Bungay said. “The Crown didn’t say in its opening address they met.”