You know that we are very fortunate in having some of the nation's great intellects in legal, financial, police, judicial, medical and so many callings who visit this site and share their wisdom (hello to author who was in Singapore over the weekend!)

StephenJ is one such contributor.   The fact of so many of these opinions being delivered here without complete attribution of the author's details makes, I think, for an even more thoughtful analysis by you as you read it.   There's all to often a response in matters like this that's ad  hominen.   That can't happen when you don't know who's contributing, it makes you simply read and analyse the thoughts in front of you.

I've recently seen quite a few comments about the role of the BCITF in the AWU Scandal - this first paper from Stephen J builds on work from JohnL and Val M and addresses the source of the AWU WRA's money and some of the timing in its activities.

StephenJ says:

In looking at the involvement of the BCITF with Theiss and the Dawesville Cut project it is important to keep in mind the dates on which events occurred.

Many of these facts come from a paper prepared by John Lourens.

1.Construction commenced in 1990.

Around the same time the BCITF was established.

The project was worth about $34m therefore a contribution by Theiss to the fund of about $70,000 would have been required (.002* 34m).

The project was completed in 1994.

There was plenty of time to recompense those helping Theiss acquire the project once the establishment costs had been covered.

2.Sometime in late 1991 Wilson apparently entered into an agreement with Theiss for the provision of a workplace reform representative on site at an agreed hourly rate. The first purchase order issued in the name of the AWU WRA in April 92 referred to this agreement and claimed payment for the 3 months commencing January 92.

It was in March 92 that the public notice for the incorporation of the AWU WRA was provided. It was eventually incorporated in June 92.

3.All payments made by Theiss were coded in its accounts to the AWU.

The company undoubtedly was already making substantial remittances to the Union and would continue to do so into the future.

The first 18 cheques(to Oct 93) were made payable to the AWU. It was only subsequently that cheques were made out to the AWU WRA.

4.The Memorandum of Understanding between Theiss and the AWU(on workplace reform) which was subsequently referred to in the BCITF submission for funding was executed on June 11,1992. We do not know the signatories to this document.

5.The submission for funding to the BCITF was made on October 10, 1992.

Payments of $92,000 were made at some time during the remainder of 92/93 after project approval by the fund.

A further $442,000 was paid in 93/94.

6. No services were ever provided by the AWU WRA in return for the payments by Theiss.

From these facts and other information it is possible to draw a number of conclusions

1. If any fraud occurred in relation to the BCITF it can only be because funds were not expended by Theiss in accordance with the approved project.

It is impossible to know what expenses Theiss used to report on the project but unless it used the payments to the AWU WRA to acquit this expenditure no loss has occurred to the BCITF.

I say this recognising the ephemeral nature of the purposes for which  the BCITF provided the funds.

2.Theiss (or someone approving the payments) must be taken to know what it in fact it was paying for.

Whatever it was it was not for a workplace reform representative.

Whatever it was paying for it was not defrauded unless those approving the payment were acting outside the policy of the company or their ostensible authority.

Theiss must be taken to know that the AWU WRA was a facade for Wilson (see point 7 below).

3.On the assumption that the conditions of point 2 are not met there are only 2 possible reasons for the payments.

a) Wilson was being paid for assuring industrial peace.

b) Wilson was being paid for helping Theiss gain the contract in the first place.

According to Blewitt  Wilson was able through Taylor(the member for Kalgoorlie) to ensure this happened and in fact did so.

4.Trio and Jupes have made public statements and therefore it must be assumed that the Board of Theiss is aware of what transpired and as far as Theiss is concerned and in accordance with the advice of Trio to the WA Police investigation, Theiss got what it paid for.

5.The payments to the AWU WRA occurred in relation to periods up to 12 months prior to the funding becoming available from the BCITF.

For the year ended June 92, their justification must have relied on the “agreement” in late’ 91 with Wilson and the memorandum of understanding conveniently executed in June ’92.

At this stage there was no BCITF programme to justify the expenditure.

The cheques were made payable to the AWU and accounted for as part of the total expenses attributable to that organisation.

The payments could not have been justified on any other basis until the BCITF approved the project sometime after October ’92 when the proposal was made.

6.Wilson and Theiss may have been aware of the possibility of receiving a grant from the BCITF but this must be viewed in the light of the timings set out above as not the driving force behind the whole arrangement but as merely the icing on the cake.

7. Theiss were not paying for workplace reform services although Wilson was using this as the justification for the payments and had attempted to incorporate the AWU WRA in order to provide a vehicle that those involved with the arrangement at Theiss could pass off as the AWU.

According to the evidence of Blewitt it was Theiss that insisted on the need for an incorporated entity.

8.The end result is that the original investigation of the WA Police was misdirected.

There was no fraud involved.

However there may well have been offences involving the corruption of tender processes; extortion; secret commissions and tax evasion amongst others.

9. Finally it beggars belief that Gillard could have been involved with Wilson to the extent that she was and not known at least some of this.

The whole arrangement depended for its effectiveness on the pulling of appropriate strings to get the association incorporated and secrecy from the AWU.

Gillard was at the least instrumental in this.

ENDS

StephenJ finds here no fraud rather the heart of the offences relate to obtaining secret commissions. Whether the illegality is covered by fraud provisions in the criminal law or secret commissoin offences - or extortion for that matter - is an issue that investigators and prosecutors will turn their minds to and a court will determine.   For the lay person, we can see it was wrong, it was secret, it was covered up and until now they've gotten away with it.  It makes us all uneasy to think that if you have friends in the right places you can do what you want.

StephenJ was also asked about the offences of aiding and abetting criminal conduct.

In that regard we have made much of McHughJ's published work in advising young legal practitioners about the dangers of helping crooked clients.  McHugh said, 

"When the lawyer goes beyond advice and draws documents for the purpose of enabling a client to achieve an objective, it is, I think, almost impossible to contend that the adviser does not aid the commission of any offence which results."

StephenJ said:

Sections 7 and 8 would appear to be the relevant sections of the Queensland code.

I believe WA is identical.

These provisions are discussed in turn below.

 

 

1.   Section 7- Principal offenders

(1) When an offence is committed, each of the following persons

is deemed to have taken part in committing the offence and to

be guilty of the offence, and may be charged with actually

committing it, that is to say—

(a) every person who actually does the act or makes the

omission which constitutes the offence;

(b) every person who does or omits to do any act for the

purpose of enabling or aiding another person to commit

the offence;

(c) every person who aids another person in committing the

offence;

(d) any person who counsels or procures any other person to

commit the offence.

(2) Under subsection (1)(d) the person may be charged either

with committing the offence or with counselling or procuring

its commission.

(3) A conviction of counselling or procuring the commission of

an offence entails the same consequences in all respects as a

conviction of committing the offence.

(4) Any person who procures another to do or omit to do any act

of such a nature that, if the person had done the act or made

the omission, the act or omission would have constituted an

offence on the person’s part, is guilty of an offence of the

same kind, and is liable to the same punishment, as if the

person had done the act or made the omission; and the person

may be charged with doing the act or making the omission.

 

An outline of the steps I see as necessary to the commission of the offence are set out in my comments under Section 8 below.

 

It would appear that (1) (a) (c) and (d) cover the cases of “principal in the first degree” “principal in the second degree” and “accessory before the fact”.

R v Saliba [1973] Qd R 142.

 

However as pointed out in Brennan v R

 

it forms part of a code intended to replace the common law, and its language should be construed according to its natural meaning and without any presumption that it was intended to do no more than restate the existing law. It is not the proper course to begin by finding how the law stood before the Code, and then to see if the Code will bear an interpretation which will leave the law unaltered (Cf., per Lord Herschell, Bank of England v. Vagliano Brothers

 

Para (a) covers all persons who do one or more in a series of acts which constitute the offence.

As the offence of Receipt or Solicitation of secret commission by an agent involves corruptly receiving consideration as a reward for forbearing to do any act in relation to their principals business it may be possible to argue that Gillard is actually covered by para(a).

This would require proof that she benefitted from the AWU WRA.

As the AWU was Gillard’s client the relationship falls within the definition of Principal/ Agent for the purposes of the offence.

 

Under s7 an accessory should not be held liable for anything that they have not realised may be involved in the project agreed upon. Brennan v R (1936) 55 CLR 253.

In that case

“It was established that the two other prisoners who were convicted had broken into a jeweller's shop, and, in the course of committing that crime, had brought about the death of the caretaker. The case made against the present applicant was that he aided and abetted by remaining outside the shop on watch.”

Section 7 had application if

it was established that the plan on which his confederates acted included some physical interference with the caretaker amounting to an assault, that in fact death resulted from such an assault, and that he remained on watch for the purpose of aiding them in carrying out that plan and so commit the assault, or that he counselled them to do so.

 

However deliberately refraining from making enquiries places that person in the same position as knowing the facts.

To show Gillard aided in the commission of the offence we must show she knew the plans Wilson had for the use of the association(or should have made enquiries and refrained from doing so)and that her assistance in securing incorporation and providing advice was for the purpose of aiding him in that plan.

Some active steps must be taken by word or action.

Such active steps were of course taken in the assistance with the incorporation process.

Para (c) requires the aider to know what offence is being committed( in the sense of an understanding of the steps encompassed in the plan) or at least what offence might be committed by the person being aided.

An intimation of encouragement or acquiescence sufficient to constitute aiding and abetting may exist where an indication is given that some duty owed to a party affected by the proposed act is not to be performed. Re Brotherson [1957] SR (NSW) 326.

This may have relevance to Gillards duty towards her client, the AWU.

She had a duty to prevent the unauthorised use of the name AWU.

She had a duty to enquire into why the Association was seeking to use that name.

This constitutes an act of aiding in addition to the actions on incorporation and lends support to the assertion that she must have been aware, at the least, that some improper purpose was intended for the Association.

If appropriate questions were not asked it can only be because Gillard deliberately refrained from asking them.

The question of whether someone has counselled another to commit an offence requires a consideration of what the former has urged or advised the later to do.

Bernard Murphy may have some useful information on this aspect.

There may be more than one offence that Gillard has had a role in counselling.

This has obvious relevance to the advice to Ralph concerning the lodgement of the application for incorporation. Given Wilsons involvement at the relevant meeting he would also be included in this.

A person cannot counsel or procure unless they know or intend what is to be done.

Similar considerations to those outlined above would apply here.

 

1.1Course of action and Inferences;  Section 7

Here we know who committed the offence, (Wilson). However see comment above under point1  relation to para 7(a).

We need to show a joint enterprise and what has been agreed as part of that enterprise.

Not asking the obvious questions will not help her and the duty she owed to the AWU will be relevant to this and any lack of appropriate action.

The joint enterprise consisted of putting in place the structures needed to allow Theiss to pay amounts to the benefit of Wilson and pass those amounts off as legitimate expenses relating to Workplace Reform. It also consisted of negotiating these arrangements with Theiss and the invoicing and collection of funds.

The disbursal of the funds is not part of the offence but it may be instructive as to who was actually involved in the joint enterprise. However see comments in relation to S7(a) above.

Gillard helped with the structure. She may also have been involved in the disbursements.

Ralph allowed his name to be used in the setting up of the structure and assisted in the  invoicing and collection.

Wilson was involved in the Theiss negotiations and assisted with the structure.

Wilson benefitted from the cash and it appears to be highly likely that Gillard did as well.

The evidence of Ralph and Bill the builder will be relevant.

To me the name AWU WRA has always been the key.

Gillard drafted the rules for the association to be consistent with the objects of promoting workplace reform.

She said she understood that it was actually to be used as the “Bruce Wilson and mates re election fund”. It was to receive funds from payroll deductions and raffles.

If this was the case why wasn’t the Association named as such.

Her justification is risible.

Therefore her real understanding of the purposes of the fund and what it was to be used for and how it was to acquire funds must have been something else.

Why disguise a re-election fund as an Association for workplace reform bearing the name AWU if there was no knowledge of the proposed source of funds.

In the absence of an explanation for the emphasis on Workplace Reform and the use of the name AWU the only and obvious reason for the name is that which is consistent with Wilson providing a cover for the extraction of funds from Employers.

Any Solicitor should have asked questions about the proposed source of funds for the association. If she turned a blind eye this is no defence.

Her duty to the AWU required her not to acquiesce in this arrangement let alone actively facilitate it. She therefore aided it.

Her counselling was instrumental in allowing the incorporation and in the absence of some other explanation for the choice of name she highly likely to have known the intended source of funds.

Her relationship with Wilson provides the motivation.

Under S7 Gillard and Ralph were both involved in aiding the commission of the offence.

Gillard was also involved in counselling it.

It goes without saying that Wilson was a principal offender (see also comments on S7(a) above).

 

 

 

2.   Section 8 Offences committed in prosecution of common purpose

When 2 or more persons form a common intention to

prosecute an unlawful purpose in conjunction with one

another, and in the prosecution of such purpose an offence is

committed of such a nature that its commission was a

probable consequence of the prosecution of such purpose,

each of them is deemed to have committed the offence

2.1 Secret commission

My assertion is that Wilson corruptly solicited and/or received from Theiss valuable consideration either as an inducement or reward for ensuring industrial peace or as a reward for ensuring Theiss got the contract.

In so far as the consideration related to industrial peace this was a matter relating to the affairs of his Principal as defined, the AWU.

2.2 Probable Consequences

In Brennan it was observed By Dixon and Evatt  JJ

“Sec. 8 provides that when two or more persons form a common intention to prosecute an unlawful purpose in conjunction with one another, and in the prosecution of such purpose an offence is committed of such a nature that its commission was a probable consequence of the prosecution of such purpose, each of them is deemed to have committed the offence. The section appears to be based in some respects upon the often cited statement of Sir Michael Foster in reference to accessories before the fact, viz.: "So where the principal goeth beyond the terms of the solicitation, if in the event the felony committed was a probable consequence of what was ordered or advised, the person giving such orders or advice will be accessory to that felony" (Foster, Crown Law (1809), p. 370; Halsbury's Laws of England, 2nd ed., vol. 9, p. 36).”

The intention is obviously to cover acts outside the agreed plan but which can be seen as a probable consequence of its implementation.

S 8 extends the criminal responsibility of persons who have made a concert to commit an offence.

They are responsible not only for the concerted or willed offence, but also for such offences as are objectively the probable consequence of the prosecution of the concert.

 We need to show that Gillard contemplated and foresaw that the primary offenders act was a possible incident of the planned joint enterprise. Chan Wing-Siu v R [1985]AC 168.

“Probable” does not mean an event which is more likely than not to occur.

It merely denotes an event that could well happen R v Gush[1980] 2 NZLR 92

This would cover a situation where the plan that was agreed to did not include the actual intention of receiving moneys as a secret commission (although extraction by some other means may have been considered) but it could be foreseen that a probable consequence of putting in place the Association would be that its fundraising activities would encompass such a result.

In this aspect the knowledge of the “normal” activities engaged in by Union officials that an industrial lawyer would possess would be relevant as far as questions concerning Gillards foresight were concerned.

However, if for example the plan to which Gillard is to be regarded as a participant is restricted to merely the incorporation it would never the less appear that S8 could be applied.

In distinguishing her activities from that which would normally be involved in a Solicitor merely providing advice it is important to note;

a) Her duty to her existing client, the AWU, to protect the use of its name.

b) Her stated justification for the existence of the Association (a slush fund) being at odds with the main purpose disclosed in its application and objects and

c) Her representations about its status as a trade union under WA law which she must have known to be highly dubious.

The incorporation of the AWU WRA by itself was the prosecution of an unlawful purpose. It was not entitled to be incorporated. The Commissioner was provided with misleading information as to its main purpose.

The application of S8 in these circumstances was explained in Brennan as follows

“The expression "offence ... of such a nature that its commission was a probable consequence of the prosecution of such purpose" fixes on the purpose which there is a common intention to prosecute. It then takes the nature of the offence actually committed. It makes guilty complicity in that offence depend upon the connection between the prosecution of the purpose and the nature of the offence. The required connection is that the nature of the offence must be such that its commission is a probable consequence of the prosecution of the purpose”

As argued above the elaborate efforts to obtain incorporation of an Association with the name AWU WRA can only be explained in the context of providing a front for the extraction of funds from employers.

The extraction of those funds in the guise of payments relating to Workplace reform can only have been as a reward for doing or forbearing to do some act in relation to the affairs of the AWU which was the employer of Wilson and Blewitt and the client of Gillard and hence was a principal in relation to each of them under the definitions relevant to the offence of Receipt or solicitation of secret commission by an agent.

The offence of receiving secret commissions was a probable consequence of such prosecution.

The fund was set up with the name it had to facilitate this.

The lengths to which Gillard went to conceal this activity demonstrates that she well understood the issues involved.