A matter involving a union secretary and his trial on charges of corruptly receiving secret commissions for himself and for his son - R v Gallagher  VicRp 25;  VR 219 (7 October 1985)
Norm Gallagher was charged with 43 counts of receiving secret commissions totalling about $130,000 from building companies in Victoria in his role as state secretary of the BLF and Federal Secretary of the BLF.
After successfully appealing his conviction upon his first trial, he was retried and convicted on 17 charges on 3 September, 1986. He appealed the conviction and the appeal was dismissed by the Court of Criminal Appeal on 27 August, 1987.
The law he was found to have broken is still on the books in Victoria. I have reprinted here excerpts from the first trial(s) which broadly sets out the facts before the jury and a little of the judgement of the Court of Criminal Appeal in dismissing Gallagher's final appeal against his conviction.
R v GALLAGHER
SUPREME COURT OF VICTORIA FULL COURT
YOUNG CJ (1), KAYE (1) and GRAY (1) JJ
4-6, 9-11 September, 07 October 1985
The FULL COURT (Young CJ, Kaye and Gray JJ) delivered the following judgment: The applicant Norman Leslie Gallagher was charged in the County Court with 43 counts of receiving secret commissions contrary to s176(1)(b) of the Crimes Act. He was convicted on 20 counts and sentenced to a total effective sentence of four years and three months imprisonment. A minimum term of three years was fixed before he should be eligible to be released on parole. He now applies for leave to appeal against the convictions recorded against him and against the sentence imposed.
It will be as well at the outset to quote the relevant part of the section of the Crimes Act under which the charges were laid. S176(1)(b) reads:--
"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."
Next it is useful to set out one of the counts charged. Count 8 may be taken as an example, it being the first count upon which the applicant was convicted. It reads:--
"8TH COUNT: AND The Director of Public Prosecutions further presents that the said NORMAN LESLIE GALLAGHER at Melbourne and divers other places in the said State between the 1st day of June, 1976 and the 30th day of September, 1976 being an agent of the members of the Australian Building Construction Employees and Builders Labourers' Federation corruptly received from FOREST HILL HEIGHTS PTY LTD and EROBIN NOMINEES PTY LTD for himself or another person a valuable consideration to wit the provision of bricks by BRICK AND PIPE INDUSTRIES PTY LTD to the approximate value of $905.52 at premises at Mcloughlin's Beach in the Shire of Alberton in the said State owned or partly owned by the said NORMAN LESLIE GALLAGHER the provision of the said bricks being authorised and paid for by the said FOREST HILL HEIGHTS PTY LTD and EROBIN NOMINEES PTY LTD the receipt or any expectation of which would in any way tend to influence him to show favour or to forbear to show disfavour to any person in relation to his principal's affairs or business."
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". It was alleged that between the years 1975 and 1980 the applicant built two houses at McLoughlin's Beach, one for himself and one for his son. Wayne, and that the houses were substantially built with corrupt gifts of labour and materials from various big building companies. It was alleged that the total value of the gifts so received was over $130,000.
It was common ground that the applicant was at all material times the federal secretary and the Victorian State secretary of the BLF.
The rules of the BLF were in evidence. R11 sets out the duties of the general secretary which are largely of an administrative character, but it also confers upon him substantial authority to act on behalf of the BLF and in certain circumstances on behalf of the federal management committee. R19 is entitled "Industrial Agreements" and should be set out in full. It reads:--
"(a) Industrial Agreements may be made, entered into and executed, and may from time to time be altered, varied, modified or cancelled by or on behalf of the Federation by the General Secretary or, where such agreement operates in only State, by the Branch Secretary in that State. "Any Industrial Agreement within the meaning of Conciliation and Arbitration Acts, 1904-1974, or any statutory modification or amendment thereof made, entered into or executed, or any alteration, variation or cancellation thereof, shall be signed by the President and General Secretary.
"(9) Every member of the Federation shall be directly, jointly and severally bound by each and every Industrial Agreement, and every alteration, variation, modification or cancellation thereof made by them on behalf of the Federation, and all and every such members shall be deemed to be a party or parties thereto, as the case may be. Each member shall be supplied with a copy of such Industrial Agreement on application to the General Secretary."
There was evidence that early in 1978 a company named Montvale Developments Pty. Ltd. was engaged as project and site manager for a building at 180 Flinders Street, Melbourne. There was a strike at that site to secure better pay and conditions. One Lewis, who was Managing Director of Montvale, began negotiations with the applicant over the strike, but the negotiations were unsuccessful. They were taken over by one George Herscu who with one Maurice Alter had operated a development company named Hanover Holdings Pty. Ltd. The dispute was settled when Herscu agreed with the applicant to pay the members of the BLF a site allowance of $15 per week. That allowance was an over-award payment and replaced a collection of smaller allowances such as "dirt money" and "danger money" which had been paid in the past. According to Lewis, after Herscu had carried out the negotiations, he told Lewis that the site allowance was $15 and "that we were to arrange some plumbing work for N Gallagher". Further Lewis gave evidence that during the period 1977 to 1981 he was regularly involved in discussions with the applicant on industrial matters involving the members of the BLF.
Herscu gave evidence that he was a property developer and that he employed both Lewis and another witness named Grey. Herscu said that he had been introduced to the applicant by Lewis in about 1977 and that he had negotiated industrial matters with the applicant from that time onwards.
One Maurice Alter who was also a property developer gave evidence. He delegated a good deal of the day to day running of projects to Lewis. He said that he met the applicant in about 1978. He was introduced to the applicant by Lewis and knew that the applicant was secretary of the BLF. He agreed to provide gifts to the applicant as a matter of goodwill and thought it would probably be for the good of his companies if Lewis had a good relationship with the applicant.
There was evidence that in a newsletter issued in 1981 to the members of the BLF the applicant had told a branch meeting of the BLF that he had built the house at McLoughlin's Beach himself. There was also evidence that on a television broadcast over the ABC on 18 September 1981 the applicant had said about allegations that property developers had done work on his and his son's houses that that was a matter they would have to prove. He also said that he had had nothing but support from the whole membership of the BLF.
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.
In his summing up to the jury the learned trial Judge said that the Crown had submitted that the jury should be satisfied that the applicant was an agent of the members of the BLF for the making of industrial agreements. The Crown also said that not only was the accused an agent of the members to make industrial agreements which bound the members, that is agreements which were recognized and approved by the Conciliation and Arbitration Commission, but also that the applicant's making of agreements for the benefit of some of the members of the BLF who were working on particular sites was evidence from which the jury might infer that the applicant was an agent of the members of the BLF. Further, counsel for the applicant at the trial, although contending that the Crown had not proved its case, did not really advance to the jury any argument against the proposition that the jury might infer that the applicant was an agent for the members of the BLF.
I'm sure you get the sense of the matters that brought Gallagher before a jury in the County Court.
The controversial matters argued at trial and appeal centred on Mr Gallagher's duty as agent of the members of the BLF - his duty was to them and their benefit, not to enriching himself.
There was considerable argument about the meaning of corruptly receiving the gifts or commissions. Ultimately if Gallagher believed that the gifts or commissions were secretly given to cause him to be favourably disposed towards the building companies - that was corrupt.
Finally on appeal much was made of publicity of the matters in the trials and that publicity affecting the jury's ability to ponder only the evidence it heard in court. The court of appeal held that the jurors in the final trial were properly instructed, and were of sufficient intelligence to act only on the Judge's instructions.