Did Shorten conspire with Cesar Melham or does Cesar have Yuri Gellar powers to read his boss's mind?

Saturday, 07 November 2015

Bad-Boy Billie and his mate decide to stick-up the Holland Bank JV.

"I'll leave it up to Seizure to decide whether to use shotties or 9 mils, but we'll hit the Holland JV Eastlink Branch for $300 grand next month, all agreed?"

That's not a conspiracy. Bad luck Seizure, you should have had more lawyers.

Ralph Blewitt didn't have much legal firepower either.

Here is the Commissioner's Interim Report recommending Blewitt and Wilson for prosecution on conspiracy charges, including over the false documents prepared by their co-conspirator and accomplice before and after the fact, guilt-free Gillard.

Conspiracy - from Commissioner Heydon

..............provides that any person who conspires with another to commit an indictable offence is guilty of a crime. In the present case the indictable offence is the crime set out above. In other words, may Ralph Blewitt have conspired with Bruce Wilson, with intent to defraud by deceit or any fraudulent means to gain a benefit, pecuniary or otherwise, for himself, Bruce Wilson or the Association?

The essential aspect of conspiracy is the agreement between the person accused and at least one other. The conspiracy is complete when the agreement is made. There need not be any overt acts.

There has been some suggestion in the authorities that an accused should not be charged both with the crime of conspiracy and with the substantive offence. In some cases, by reason of the complexity of the underlying facts, a charge of conspiracy has been seen as a more practical and expeditious way to proceed than a charge of the substantive offence. In R v Symonds, Fenton Atkinson J held:

As a preliminary it is to be noted that the ever-mounting intricacy of the legislation imposing taxes has been followed by ever-increasing ingenuity on the part of numbers of persons conspiring together fraudulently to evade the taxation. Such are the complexities of these fraudulent schemes and the devices used in them that only too often the only way that the interests of justice can be served is by presenting to a jury with the aid of schedules an overall picture of the scheme and charging a conspiracy to cheat and defraud. Obviously every effort should be made to present instead to the jury a relatively small series of substantive offences – but that cannot always be done and this case is one of those where only a conspiracy charge can provide for the protection of the interests of the community when once the legislature produces intricate laws.

In the present instance the agreement – the conspiracy – relates to the agreement between Ralph Blewitt and Bruce Wilson to establish the Association and, thereafter, to issue invoices to Thiess for work that was never carried out.

The only direct evidence of the agreement is contained in the testimony of Ralph Blewitt. His testimony is generally problematic, for reasons discussed above. However, Bruce Wilson accepted that he was the driving force behind the establishment of the Association. It is reasonable to infer from the facts relating to the setting up of the Association and the means by which it procured payments from Thiess that a conversation along the lines of the one deposed to by Ralph Blewitt in fact took place and that is what led to the establishment of the Association. In that event it may be possible to find the conspiracy.

It is recommended that this Interim Report and any other relevant materials be referred, pursuant to s 6P of the Royal Commissions Act 1902 (Cth) and every other enabling power, to the Western Australian Director of Public Prosecutions in order that consideration may be given to whether each of Ralph Blewitt and Bruce Wilson should be charged with and prosecuted for conspiracy to commit an indictable offence contrary to s 558 of the Criminal Code (WA).

It is also recommended that this Interim Report be referred to the Western Australian regulatory authorities in order that consideration may be given to the prosecution of Ralph Blewitt and Bruce Wilson for conspiracy to submit a false document.

ENDS

ROYAL COMMISSION ON SHORTEN

As I write only a favoured few in the Royal Commission's good books have access to Senior Counsel Assisting's AWU submissions. Mr Stoljar SC writes Bill Shorten out of complicity in relation to his plan to extract $300K from the Eastlink JV. Here is part of the AFR's report, quoting Counsel Assisting's Shorten-friendly submission.

In relation to a controversial deal between Thiess John Holland and the AWU over the Eastlink project, Mr Stoljar said the commission should find there was an agreement that the joint venture pay $100,000 plus GST to the union each year for the duration of the project.

He said the genesis of the agreement was a proposal by Mr Shorten to Stephen Sasse in late 2004 that the joint venture provide financial support to the AWU in relation to the dedication of an organiser or organisers to the project.

He said the proposal was not the subject of a concluded agreement at the time the contract was let and Mr Rzesniowiecki and Mr Melhem assumed primary conduct of the negotiations.

''At some point, most likely shortly after the 2005 EBA was finalised, Julian Rzesniowiecki and Cesar Melhem agreed on a sum of $100,000 per year,'' he said.

''Shortly thereafter, Julian Rzesniowiecki and Cesar Melhem determined that the payments pursuant to the agreement would be effected by the AWU issuing invoices to TJH described as services that the AWU might provide to the joint venture.

''The commissioner should find that an agreement in these terms was implemented by payment of invoices issued by the AWU, many of which were false invoices.''

Mr Stoljar said Mr Shorten did not deny discussions regarding the arrangement, but said he did not recall any such discussion.

"Mr Shorten says that there were discussions during the course of negotiations with Mr Sasse about dedicating organisers to the site and providing various services,'' he said.

''Thirdly, Mr Shorten's understanding of the benefits of the above exercise was that it would play a role in achieving industrial stability on a site that might otherwise be at risk of problems caused by more militant unions.''

Stephen Sasse is the senior Thiess/John Holland executive who initially received Shorten's proposal that the JV pay the AWU $100K per annum, or $300 over the life of the project. He gave extensive evidence to the Trade Union Royal Commission in two private hearings and in the stand where Shorten's legal team (the dreams of a Division One Lotto Win for most of us) cross examined him.

He was not shaken in his essential evidence, summarised in this paper he adopted under oath.

Here is his position on the $100K per annum, $300K in total agreement Shorten put to him (which agreement Shorten's successor Cesar Melhem saw through to fruition).

So in all the circumstances, was the idea to hit the JV up for $300K Shorten's idea? Did Bad Boy Billie likely discuss the deal with Seizure Melon? Was there likely an agreement that Seizure would carry on Bad Boy's plan?

No, that's not possible says scaredy-cat-Stoljar.

Here are some of the things Stollie may have had on his mind.

Arnold Bloch Leibler MFI#2—Private hearing transcript of Mr Rzesniowiecki of 30 June 2015 pages 8 and 9 [PDF 44KB]

Arnold Bloch Leibler MFI#3—Email from the Commission to Mr Zwier of 9.05am of 12 October 2015 [PDF 273KB]

Australians all let us ring Joyce,

And tell her justice is not free.

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