Christopher Cain, Western Australia branch secretary of the Maritime Union of Australia is in the box
Michael Smith morning editorial after the Royal Commission's MUA hearing - plus new material on the AWU WRA Inc

Any practitioners care to take a swing at the law on incitement in Victoria's Crimes Act?

In 2003 Victoria's Supreme Court (sitting as the Court of Appeal) dismissed an appeal made by Zhan Yu Zhong who had been charged with inciting someone to commit a criminal offence - in his case murder.  The murder did not go ahead, but Zhong's incitement charge did and he was convicted.The Supreme Court held:

Section 321G(1) of the Crimes Act 1958 provides that where a person incites any other person "to pursue a course of conduct which will involve the commission of an offence ... if acted on in accordance with the inciter's intention", the inciter is guilty of the indictable offence of incitement.

Sub-section (2) provides that for a person to be guilty of incitement the person "must intend that the offence the subject matter of the incitement be committed".

The actus reus of the crime is incitement to commit an offence. Section 2A of the Act provides:

"'incite' includes command, request, propose, advise, encourage or authorize, ..."

The section does not require that the person incited form the mens rea for the crime to be committed. It appears that the incitement need not have any effect upon the person incited, other than to come to the latter's knowledge.

Findlaw.com.au says this about the offence in Victoria:

In R v Massie [1999] 1 VR 542 at 554; (1998) 103 A Crim R 551 at 563, Brooking JA, with whom Winneke P and Butt JA agreed, said of “incite”, “common forms of behaviour covered by the word are ‘command’, ‘request’. ‘propose’, ‘advise’, ‘encourage’ or ‘authorise’”. Whether in a particular case what was said amounts to incitement depends upon the context in which the words were used, and the circumstances.”

If we turn to statutory instruments such as s 2A(1) of the Crimes Act 1958 (Vic) the meaning of incite can include; “command, request, propose, advise, encourage, or authorise.”

One of the interesting aspects of incitement is that it’s generally considered as a substantive offence; meaning, an element of the offence is that it’s not necessary to prove that the person incited, acted upon the incitement. However, it is necessary to prove that the course of conduct urged if acted upon, would amount to the commission of an offence, as the trial judge noted in R v Dimozantis (1991) 56 A Crim R 345 (Vic CCA), and approved by the Victorian Court of Criminal Appeal.

I'd appreciate any advice or guidance from practitioners on the offence of incitement to commit an offence as it might relate to the following circumstances.

The AWU WRA Inc did not exist until 24 June 1992 when the Commissioner's delegate signed the certificate of incorporation.

Incorporation certificate

Prior to incorporation it would have been illegal to create and use documents like invoices with the AWU WRA Inc name, letterheads, receipts, cheques with the name printed on them and that sort of thing.   There'd be no problem with creating paperwork in anticipation of incorporation, but creating documents with the intention of using them as if the incorporated association already existed would be against the law.

So the date for use of the AWU WRA Inc lawfully was clear - 24 June, 1992.   But was there a predecessor unincorporated Association operating prior to that date?

On 10 September 2014 Julia Gillard gave important evidence about whether an unincorporated predecessor association existed prior to June, 1992.   Here she is answering questions at the Royal Commmision relating to the circumstances in the lead up to the application for incorporation, line 26 page 789, Mr Stoljar asking the questions except where The Commissioner steps in:


Q. At that point there was no association; correct?
A. Not to my knowledge, no.


Q. I know you say --


THE COMMISSIONER: Q. Just at that point, there was no
association to your knowledge, in that answer were you
thinking of the Association as the pre-incorporation entity
or the incorporated entity?
A. I'm --


Q. It is just a question of clarity. Do you follow my
query?
A. Yes. Commissioner, my understanding of my
instructions at the time was not that there was a
pre-existing unincorporated association, but that there was
a desire to form and create an association, and I gave
advice on its incorporation.

 

MR STOLJAR: Q. But you agree with me that on your
understanding at the time, as at March 1992 when this
advertisement appeared, there was no unincorporated
association?
A. My understanding at the time was that there was no
unincorporated association, that's correct.

 

It was clearly not accidental that the Commissioner himself intervened to make certain that Ms Gillard knew what she was saying and that her evidence was clear and defined.  There was no pre-existing association and she knew it.

On 15 May, 1992 the Assistant Director of WA's Corporate Affairs Office wrote to Ms Gillard.

What she did next might create a few headaches for her.

On 21 May, 1992 Ms Gillard sent this memo telling Ralph Blewitt to do certain things.

The memo to ralph

"You need to write, on Association letterhead."   She knew there was no Association.   She was a lawyer and should have known that a document that pretends to come from something that it doesn't come from is a forgery or false document.  

But Ms Gillard is clear and specific.  She crafts Blewitt's signature block styling him as Secretary of an Association that she knew did not exist.

She is displaying some familiarity about shared details like the availability of stationary (this was 1992, prior to widespread laser printing).   She didn't tell Ralph to create letterhead, she said to use letterhead. 

Who would have known about letterhead for an Association that did not exist?  We know that Ralph and Bruce had been issuing invoices since April using "Association letterhead" on the top of the invoices like this:

Letterhead like this

You can't wish an incorporated body into being - it either has a certificate of incorporation and can call itself the AWU WRA Inc or it doesn't.   The AWU WRA Inc didn't exist and so documents that pretended to be from it were forgeries.

There is no protection in changing the story now to pretend that there was an unincorporated association that predated the AWU WRA Inc.   Both Mr Stoljar and the Commissioner himself pressed Ms Gillard on the point - she was clear, she knew at the time there was no Association.   So did Ralph Blewitt.

As a lawyer Ms Gillard would have known that it's a crime to create and use a false document.   That includes creating a document from a non-existent person or corporate entity.

It's also a specific, substantive offence to incite someone else to create and use a false document.  

People rely on documents like that.   

And lawyers should know a whole lot better.

 

 

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