It is not only Ralph that has made admissions that could constitute evidence.
Normally any statement made which is to be used as proof of what it asserts is hearsay.
However Admissions and Confessions are admissible as evidence of their truth and may constitute the sole and sufficient proof for a conviction.
R V Sullivan (1887) 16 Cox CC 347. An Irish case in which the English authorities are reviewed.
Admissions by words may be made in any form and in any circumstance.
What a party himself admits to be true, may reasonably be presumed to be so. Slatterie v Pooley 151 ER 579.
Certain factors can affect this such as whether the admission was made under threats or other pressures (ie whether it is regarded as voluntary) however the general point remains.
The only conditions of admissibility, when the statement emanates from the party himself, concern the capacity in which he is acting and the reception of the entirety of the statement.
If he has personal knowledge of the facts stated the admission is evidence in proof of those facts.
With this in mind Bob Smith has testified that Wilson made the following admission.
- In mid-July 1995 Mr Smith had been concerned that the monies in the Account were union monies. By mid-August 1995 he had changed his mind. His explanation for this change of heart was as follows:
Well, I’d formed the view that it was money inappropriately obtained by Wilson who was –let’s call a spade a spade. It was “go away money”. It was “keep the peace money”. It was bribe money by the companies and Wilson admitted that to us at the Executive. He said yes, we were naïve if we didn’t understand that’s the way it worked in construction. Well, I plead guilty. We were naïve.
Smith was talking about the money in the Welfare account. Included in that money was a cheque from Theiss to the WRA.
Theiss received part of this money back in the course of the machinations to prevent the AWU claiming it had any interest in the funds.
The factors that promoted this action apply to the WRA money as much as the funds obtained in relation to the National Rail project.
- Wilson and Secret Commissions
We can look at Gallaghers case (R v Gallagher  VR 219 to determine what would have to be proved if Wilson were to be charged in Victoria.
"Whosoever being an agent corruptly receives or solicits from any person for himself or for any other person any valuable consideration-- ...
(b) the receipt or any expectation of which would in any way tend to influence him to show or to forbear to show favour or disfavour to any person in relation to his principal's affairs or business; or
shall be guilty of an indictable offence."
The case made by the Crown was very broadly that at all relevant times the applicant was the secretary of the Builders Labourers' Federation (a body incorporated pursuant to the Commonwealth Conciliation and Arbitration Act and which we shall refer to as the "BLF") and, to quote the learned Crown prosecutor's opening to the jury, "thus he was an agent of its members".
A similar situation applies with Wilson.
The rules of the BLF provided that its members were bound by Industrial agreements entered into by the secretary.
The AWU would be similar.
The applicant made an unsworn statement from the dock. In it he said that he would not have acted contrary to the interests of the members of the BLF in any way. He did not deny receiving the labour and materials alleged, but said that he had made some payments towards some of them and intended to pay for them all. They had all been received in the course of commercial transactions and they would all be paid for in due course. The principal issue for the determination of the jury was whether the Crown had established that the labour and materials had been received as corrupt gifts and not in the course of commercial transactions.
This has relevance to the false invoices provided by the WRA in an attempt to give the payments a commercial cloak.
There is no reason why a person should not be at the same time an agent both for a corporation for some purposes and for its members for other purposes
In doing what was alleged by the Crown to have been done by the applicant, the jury would have been entitled to find that the applicant was an "agent" within s175(1)if they found that he was "intending to act for or on behalf of other persons". In effect the Crown alleged that he was intending to act for and on behalf of the members of the union.
Similarly with Wilson when a site agreement was negotiated at Dawesville.
It is sufficient that the recipient is an agent and that the receipt has the requisite tendency. The words "in relation to his principal's affairs or business" are to be widely construed: Morgan's Case
It was unnecessary for the Crown to prove that the applicant was acting at any one time on behalf of "all" the members of the BLF.
This ground arises out of two passages of his Honour's charge to the jury. When first directing the jury as to the elements of the crime charged his Honour said: "The fourth and final element of the crime alleged in each of the counts is that the agent corruptly received a valuable consideration. This looks to the state of mind of the agent at the time he received the valuable consideration. He acted corruptly if he then believed that the person giving him the valuable consideration intended that it should influence him to show favour or to forbear to show disfavour to some person in relation to his principal's affairs or business. It is irrelevant whether the agent himself intended by the receipt of the valuable consideration to show favour or forbear to show disfavour or not. Indeed, it is irrelevant as to whether or not he did show favour or forbear to show disfavour. If he believed that the person giving him the valuable consideration so intended to influence him, that is enough, because by accepting it he thereby had his loyalty divided."
Wilson has according to Smith admitted it was “go away money” , “keep the peace money”, “bribe money”.
By so doing he has admitted that he believed that Theiss, by providing the funds, intended that it should influence him to show favour or forbear to show disfavour to it in relation to the AWU members on the Dawesville site.
A benefit is corruptly received if it is received with the belief nominated.
Notions of dishonesty are not relevant and consequently so are any intentions on the part of the recipient as to future actions.
"In my view, an agent does act corruptly if he receives a benefit in the belief that the giver intends that it should influence him to show favour in relation to the principal's affairs. If he accepts the benefit which he believes is being given to him because the donor hopes for an act of favouritism in return, even though he does not intend to perform that act, he is, by the mere act of receiving the benefit with his belief as to the intention with which it is given, knowingly encouraging the donor in an act of bribery or attempted bribery, knowingly profiting from his position of agent by reason of his supposed ability and willingness, in return for some reward, to show favouritism in his principal's affairs and knowingly putting himself in a position of temptation as regards the impartial discharge of his duties in consequence of the acceptance of a benefit."
- Theiss and Secret Commissions
Theiss also has a problem.
2) Whosoever corruptly gives or offers to any agent any valuable consideration—
(a) as an inducement or reward for or otherwise on account of doing or forbearing to do or having done or forborne to do any act in relation to his principal's affairs or business; or
(b) the receipt or any expectation of which would in any way tend to influence him to show or to forbear to show favour or disfavour to any person in relation to his principal's affairs or business—
shall be guilty of an indictable offence
The same considerations as set out above would apply to the payment.
In the case of Theiss there has been no admission but there have been a number of inconsistent statements and many factors which point to the same conclusion.
a) The evidence of the Sydney meeting with Albrecht, Jukes, Ludwig and Wilson.
b) Their obvious help in achieving incorporation Eg through the MOU.
c) The fixed price nature of the contact entered into; something which could not have been contemplated without some guarantee of Industrial peace.
d) The unsatisfactory and vague nature of the services specified by Theiss in the Jukes letter.
e) The complete lack of interest in whether any services had been provided when invoices were paid.
f) The history of the accounting for the payments by Theiss (alternating between the AWU and WRA) and the manual direction of the payments to the Northbridge PO Box.
g) The lack of co operation with the Police investigations and the history of their responses to the enquiries of Cambridge.
There are probably other factors as well but over time they have all been set out comprehensively.
Theiss (and Leighton) also has a history of being involved in these arrangements. Some of these were the subject of other studies by the RC.
- It follows from what we have said that the jury should decide whether they accept the evidence of a particular fact, not by considering the evidence directly relating to that fact in isolation, but in the light of the whole evidence, and that they can draw an inference of guilt from a combination of facts, none of which viewed alone would support that inference. Nevertheless the jury cannot view a fact as a basis for an inference of guilt unless at the end of the day they are satisfied of the existence of that fact beyond reasonable doubt. When the evidence is circumstantial, the jury, whether in a civil or in a criminal case, are required to draw an inference from the circumstances of the case; in a civil case the circumstances must raise a more probable inference in favour of what is alleged, and in a criminal case the circumstances must exclude any reasonable hypothesis consistent with innocence
When looked at in total it is strongly arguable that the circumstances exclude any reasonable hypothesis inconsistent with an offence under S176(2).
- Gillard’s involvement
From what has been said above there are actually 2 offences she could have been involved in.
She could have helped Theiss make a payment with the proscribed intention or she could have helped Wilson (and Blewitt) receive it.
To be involved she must have known either what Theiss believed would be the effect of its payments or what Wilson believed was the intention of Theiss in making the payments.
It is her knowledge at the time that is relevant.
Events subsequent to the implementation of the arrangement may assist in indicating a continuous knowledge of what was taking place ie the Kerr St purchase; the home renovations; the cover ups in the exit interview but the primary evidence must consist of the facts surrounding the Incorporation of the WRA.
Again adopting the approach in Chamberlain’s case there are many factors that lead to questions about what happened.
These include the choice of structure, the objects adopted, the apparent lack of interest in administrative detail for the WRA, the lengths which were gone to achieve incorporation compared to the benefits, and others that again have been comprehensively covered over time.
However to me two factors are of primary importance to the offences.
- The choice of name and
- The actual process by which incorporation was achieved
The name is important in relation to the secret commission offences as it provides Theiss with an argument that they believed the WRA was associated with the AWU and that its objects were consistent with the supposed activities for which payments were made. (I leave aside questions of its power to trade under the AIAct).
That is that the payments were not intended to influence any official of the AWU but for its general use for the benefit of its members and as part of a commercial arrangement.
The process by which Incorporation was achieved (Ministerial appeal) is important because those that advised on the process could not have been unaware that the WRA was intended to be used in conjunction with the Dawesville project and this must have involved a source of funds completely at odds with a normal election fund.
Wilson did not need the name; Theiss did. Theiss did not need an entity incorporated under the AIAct ; Wilson did; any incorporated body would have served their purposes.
Gillard wrote the name on the application form.
There were numerous problems with using that name and therefore it is natural to assume that it was used for reasons which overrode those problems.
It is also natural to assume that (irrespective of who actually came up with the name) the reasons for its use were fully canvassed with the advisor(s).
This provides a link to the offence committed by Theiss.
Incorporation was achieved by engineering a rejection that gave a right to Ministerial Appeal.
The numbers on the application form give a reasonably clear indication of this.
The assistance of Theiss and the AWU in this process through the MOU is obvious.
The Neal letter and Blewitt Memo can only have been an attempt to cover the process by which incorporation was achieved and irrespective of who produced them Gillards failure to acknowledge the actual process at the RC can only be described at the least as misleading and an indication that there is something she did not want disclosed.
It is difficult to imagine that she was not involved in the Ministerial appeal. If not her then who?
Whoever it was had enough knowledge to arrange for the second application to be accepted and then rejected on a basis that gave rise to the appeal.
Whoever it was had enough smarts to organise the involvement of both the AWU and Theiss in getting it accepted.
Whoever it was had the political connections to help it succeed.
It is a jarring thought that Wilson would inform the AWU executive of the nature of the WRA activities (through the welfare account admission) but never mention it to Gillard.
It is natural to assume that at the least in discussing the need for the name that its intended use would have been fully canvassed.
- Admissability of Wilson’s evidence against Gillard
Normally Wilson’s admission could not be used against Gillard.
However the position may be different where a conspiracy charge is involved.
The admissions of one conspirator are receivable against the other if they relate to an act done in furtherance of the conspiracy.
The conspiracy involved here was a continuing one. Its scope extended to the negotiations surrounding Wilsons departure and arguably subsequent to that.
It would seem that reasonable evidence of pre concert must be adduced before evidence of acts and words becomes admissible against the other or others.
There must be some evidence which reasonably suggests the existence of an unlawful understanding between conspirators .... at first instance the Crown does not need to have a prima facie case nor even that it should in the first instance prove its case on the balance of probabilities; Tripodi’s case (1961) 104 CLR
In the case of Gillard reasonable evidence of a conspiracy would rely on an assessment of all the factors referred to above.
If it was accepted that a conspiracy existed the acts of the other conspirators become admissible; R v Frost 173 ER 771 at 781.