Gallagher v The Queen

[1988] HCATrans 90

IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Melbourne No M66 of 1987

B e t w e e n -

NORJ,1.AN LESLIE GALLAGHER

Applicant

and

THE QUEEN

Respondent

Application for special

leave to appeal

1:-'IASON CJ

WILSON J

DEANE J
DAWSON J

GAUDRON J

Gallagher

TRANSCRIPT OF PROCEEDINGS

AT CANBERRA ON WEDNESDAY, 11 ~·IAY 1988, AT 12. 27 PM

Copyright in the High Court of Australia

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MR M. STRONG: If the Court pleases, in this matter I appear

on behalf of the applicant. (instructed by

Holding Redlich)

MR F. G. FITZGERALD, QC: If the Court pleases, I appear with

my learned, MR P. COGHLAN, for the respondent in this

matter. (instructed by the Director of Public

Prosecutions for the State of Victoria.

MR STRONG: It would appear, Your Honours, that the correct

presentment from the first trial. With the Court's leave, I will now hand up seven copies of the correct

presentment was not included in the application book.

presentment together with my outline of submissions.

MASON CJ:	Thank you.
MR STRONG:	If the Court pleases, the question raised by this application is the meaning of the word "corruptly"
in section 176 of the Victorian CRIMES ACT. The
trial judge directed the jury in accordance with
REG V GALLAGHER, (1986) VR 219, which had affirmed
a ruling by Mr Justice Brooking in DILLON AND RIACH,
(1982) VR 434. I will refer to the 1986 decision
as "GALLAGHER's case".

WILSON J:  Mr Strong, can I just clarify something that is

confusing me?	You handed up an amended indictment;
did you say the	one in the book was the original
trial?

(Continued on page 3)

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MR STRONG:	Yes, there were two trials, Your Honour.

WILSON J: Yes, but there were 43 counts in the original trial.

Our appeal book only has the indictment containing
22 counts, and I find that indistinguishable from

the one you have just handed up.

MR STRONG:  I must confess, Your Honour, I was told that there

had been an error, and I simply assumed that there

had been.

WILSON J:	Well, do not waste time.
MR STRONG:	I am told by my learned friend that what I have now handed up is the final amendment.
WILSON J:	I see.
MASON CJ:	That is probably right because they do not seem

to correspond when you look at the pages.

MR STRONG:  Yes, thank you, Your Honour. First of all, it is

submitted that the meaning attributed to "corruptly"

in GALLAGHER's case and in DILLON AND RIACH is

fundamentally wrong. May I take the Court to

section 176. As the Court will observe, the section

is found in a subdivision of the CRIMES ACT which

is headed Secret Commissions Prohibition, which

appears before section 175. There are marginal

notes dotted throughout the subdivision which refer

to secret gifts or secret commissions, yet secrecy is

not an element of the offence created by section 176

as interpreted in GALLAGHER's case. The Crown does

not have to show, as the law presently stands, that

the gift or consideration was received without the

knowledge of the agent's principal, nor is it a

defence to show that the principal did,. in fact,

consent.

The result is rather startling, in my submission.

It appears to be an indictable offence in Victoria and,

for that matter, in any State in which GALLAGHER were

to be followed, to tip a waiter in a restaurant,

or indeed to tip any employed person. The reason

is that section 176(2)(a) makes it an offence to corruptly give an agent a valuable consideration

as a reward for having done any act in relation to

his principal's business.

In GALLAGHER's case, the Court of Criminal Appeal

said, following COOPER V SLADE that "corruptly"

simply means "deliberating doing what the statute

forbids" and that it has no connotation of moral

inequity, secrecy or dishonesty, as had been contended.

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MR STRONG (continuing):  A tip to an employee waiter is a reward

for having done an act in relation to his principal's

business. It is no defence for the waiter to say

that it was not a secret commission, that his employer

knew and did not mind. Nor is it an answer for

the waiter to say that the receipt of tips is
customary in the restaurant business because
section 186(1) specifically rules out such a defence.

That subsection says:

In any prosecution under this.subdivision

it shall not amount to a defence to show that

any such valuable consideration as is mentioned

in this subdivision is customary in any trade

or calling.

There are many other examples of gifts and

gratuities given in business which would seem,
also~ to be caught by this section as currently

interpreted; a bottle of whisky to the bank manager

in gratitude for a sympathetic approach to one's

overdraft; a tip to the hairdresser if he is an

employee and so forth. Indeed, if the person giving

the gratuity obtained the express permission of

the principal, even if that were so, it would still

be an offence, so it appears. As the section is

currently interpreted it is no defence to have

the principal's consent. More alarming still,

in my submission, it seems that most business

entertainment in Victoria and elsewhere is illegal.

Take,~for example, the so-ca11ed super boxes at

sporting venues.

MASON CJ:	Super what?
MR STRONG:	Supe~ boxes, Your Honour. There are super boxes

at which businessmen entertain other businessmen.

They are fitted with plush furnishings and so forth

and those who are taken there are plied with wine

and food and free tickets and mementos and other

things and that is done, of course, in order to induce the guests to look with a kindly eye upon their hosts in subsequent business dealings.

Now, I do not suggest that those who provide

such hospitality are attempting to influence the

agents to do less ~han their best for their principals

but it would seem that it is illegal if it is provided

simply in the hope that it will, in some way, give
the host more ready access - and they are important
words in the context of this case - more ready

access to the agent or to the agent's principal

in commercial dealings. At page 31 of the application

book, the learned trial judge said, in the course
of his charge - and this is five lines from the

bottom of page 31:

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MR STRONG:

If you come to the conclusion that the receipt did tend to influence him to

afford these developers or project managers

more ready access to him, it would be a

question of fact for you to say whether

or not you were satisfied that by affording

them ready access to himself, that that was

showing favour to them in relation to his

principal's affairs or business. That would

depend on whether or not you concluded that
by affording them more ready access, that that
amounted to favouring these developers by

enabling them to deal and negotiate with him

as to the wages and conditions of the BLF

members on their sites, thus enabling them to

resolve more quickly any dispute or trouble

which might arise on their sites as against

other builders.

If you were satisified beyond reasonable

doubt that the receipt by Gallagher of the

gifts had precisely that tendency -

and looking back, that means a tendency to influence

him to afford the developers more ready access -

to influence him to show favour in that way,

it would be open to you to be satisfied that

the receipt of the gifts would tend to
influence him to show favour to the developers
or project managers in relation to his
principal's affairs or business. Whether or

not you would take that view is a matter for

you.

But, I interpolate, the learned judge said that it

would be open to them on the law to do so.

There was some evidence from Gray -

and Gray was an employee of one of the developers -

that Mr Gallagher was equally available to

everyone in the industry. However, what you have to focus your attention on is would the

receipt of a gift in any way tend to have that

influence?

I think His Honour meant "tendency". In other words,

it could be an illegal payment if it might have a

tendency to give the donors more ready access to the

applicant to enable the developers and the applicant
to negotiate wages and conditions and thereby

resolve industrial disputes, albiet that the

C2T36/l/JM	5	11/5/88
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negotiations might be perfectly legitimate
negotations; albeit that no one might suggest

that Gallagher was being influenced to do less

than his best.

If one of the developers had entertained

Mr Gallagher in a super box at VFL Park, or at

the races, or at the tennis centre, it might

be said to have that very tendency. All sorts

of things might have that tendency.

(Continued on page 7)

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Gallagher
MR STRONG (continuing): Elsewhere in the charge, His Honour

said, correctly, in my respectful submission,

that it does not matter whether the agent in fact

intends to favour the giver. If he receives the

gift knowing that the donor intends it to influence

him in the prohibited way, he is guilty. Thus,

even if the company executive who is entertained

in the super box has no intention of giving his

host more ready access to his company, indeed

even if he has made up his mind to have nothing

further to do with his host, he commits a crime

if he accepts the hospitality believing that it

is being extended to him in the hope that it will,

in some way, have that tendency, even if it is

no more than a case of ready access.

There are many other examples: exployees of travel agents often accept trips abroad from

airlines who are seeking the travel agent's patronage.

If such a trip were to be accepted without the

permission of the employer, one might very well

regard it as corrupt but if permission is given,

and the airline knows that permission has been

given, it is difficult to see why the acceptance

of the trip should be regarded as corrupt.

Yet, as the law presently stands, it would, it

seems and that would be so in all Australian States

because the legislation is almost identical in

each State. That is, if GALLAGHER's case is right.

In GALLAGHER's case it was submitted, and

I am reading form page 227 line 9 of the report -

DEANE J:	How does that fit in with the charge at pages 34
and 35?

MR STRONG: Is Your Honour referring to the reversed onus?'

DEANE J:	For this section to operate you must
be satisfied beyond reasonable doubt
his receiving these gifts.  that the members of the B.L.F., that is his principal, did not assent to

Then, over the page it goes on to say in this

trial there was no issue about that.

MR .STRONG:Yes. His Honour was there referring to the section

which in some circumstances places an onus on to

the accused. That section, Your Honour, is - - -

DEANE J:  I had not appreciated that that was the context.

MR STRONG: Yes. It is not an element of the offence but if the

Crown is, in fact, able to show that there was no consent then the defendant has the onus on

the balance of probabilities in showing that he did

not receive the gift in contravention of the section.

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DAWSON J: What section is that, Mr Strong?

MR STRONG: Section 186(2):

For the purposes of this subdivision where

it is proved that any valuable consideration

has been received or solicited by an agent from
or given or offered to an agent by any person
having business relations with the principal
without the assert of the principal the burden
of proving that such v•luable consideration
was not received solicited given or offered
in contravention of any of the provisions of

this subdivision shall be on the accused.

But the Crown does not have to prove that, as the

law presently stands, in order to make out a case.

In GALLAGHER's case, it was submitted:

That the word "corrupt" in the context of

s. 176(1) has a connotation of moral iniquity,

secrecy, or dishonesty, being consistent with

its ordinary dictionary meaning of debased in

character, depraved or perverted.

And that appears at page 227 of the judgment at

(1986) VR 219. That was the submission made on the

applicant's behalf to the Court of Criminal Appeal. That was not, of course, in this case. That was in the earlier GALLAGHER case but in this case, of

course, the trial judge was bound to follow the
decision of the Court of Criminal Appeal in

GALLAGHER's case as, indeed, was the Court of

Criminal Appeal in this particular case so it is

really the decision of the Court of Criminal

Appeal in the first GALLAGHER case that I challenge.

Now, that submission, the submission that

"corruptly" had that meaning, was rejected by the

Court of Criminal Appeal.	The secrecy component of
that submission that was made on the applicant's

behalf provides, perhaps, the clearest illustration
of my argument. The ordinary citizen would not
regard any of the examples that I have given to
the Court today as cases of corruption because the
gifts ~ere not secret, let alone dishonest, debased

or anything of that sort.

(Continued on page 9)

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MR STRONG (continuing): If one looks at the subdivisional

heading in the CRIMES ACT, Secret Connnissions

Prohibition, to which I have already referre~ and

I bring to the Court's attention that section 36

of the INTERPRETATION OF LEGISLATION ACT in

Victoria provides that the subdivisional heading forms part of the Act, and if the Court also looks at the marginal notes which also refer to secret

gifts and secret connnissions and I should draw to

the Court's attention that, pursuant to the same

section of the INTERPRETATION OF LEGISLATION ACT,

those marginal notes do not form part of the Act

but may be considered in the interpretation of

provisions of the Act. I have given the Court

a reference - - -

DAWSON J:  I do not see any marginal notes, Mr Strong. Well,

not with anything other than references to the

earlier Act.

MR STRONG:  Yes, there is one alongside section 176:

Receipt or solicitationcf secret connnission

by an agent

or misdemeanour.

DAWSON J:  I am sorry. Marginal notes are now not in the

margins.

MR STRONG:	I am sorry, Your Honour?
DAWSON J:	I have a reprint as at 27 May 1987 and the marginal

notes have been transposed from the margin and form

headings in black type.

MR STRONG: Oh, I see. Your Honour, I must confess I have

the Act in front of me which was in force at the

time but I can indicate that they were marginal

notes then.	I am not sure what they are now but
I will look at that over lunch time, though,

Your Honour.

WILSON J:	They are headings.
MASON CJ: Well, perhaps we might adjourn now, Mr Strong, and	we will resume at 2.15 pm.

MR STRONG: If the Court pleases.

AT 12.46 FM LUNCHEON ADJOURNMENT

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Gallagher
UPON RESUMING AT 2.21 PM:

MR STRONG: If the Court pleases. If one looks at the

subdivisional heading in the CRIMES ACT, Secret

Commissions Prohibitions, to which I referred the

Court before lunch whic~ as I indicated, forms part of the Act in accordance with the

INTERPRETATION OF LEGISLATION ACT and if one also

looks at the marginal notes which may be considered

in the interpretation of provisions of the Act

it is plain, in my submission, that the legislation

is primarily aimed at secret payments made to agents.

The provisions are designed to penalize bribery.

It may be that the word "corruptly" was used rather than the word II secretly", or some other words, because

• agent of a secret payment would not be a bribe

there are some cases in which the receipt by an would be corrupt - a bribe - even if his employer

consented to it.

A simple example of the former would be if

a waiter in a club accepted a tip even though he
had been forbidden by the club to do so; that would
be a secret payment and the waiter would be under

a duty to account to his employer but a court might

not regard his acceptance of the tip as a bribe -

as corrupt. An example of the latter would be

if an agent was offered a bribe and told his principal

about it and he and the principal agreed to accept

the bribe and divide it between them; that would
be corrupt even though it was not secret, assuming

it was truly a bribe.

In REG V WELLBURN, (1979) 69 Cr App R 254,

Lord Justice Lawton said, at page 265, in the course of rejecting a submission such as I am now making:

Nothing is to be gained by using variations

for statutory words in ordinary usage unless

the context so requires and it does not do

so in the 1906 Act.

The Act to which His Lordship referred was a similar

English Act.

(Continued on page 11)

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MR STRONG (continuing): His Honour continued:

A jury will have no difficulty in deciding

whether an accused has corruptly accepted

or obtained a gift.

With great respect, I agree with His Lordship's remarks. But GALLAGHER's case, and the cases upon

which it relies, have strangled, in my submission,

the word and have prevented it from being given

its ordinary meaning. I should mention in passing

that the Court of Appeal in WELLBURN's case disapproved

directions to juries given by Mr Justice Pearce, as

he then was, in LINDLEY, (1959) Crim LR 321, and a

direction given to a jury by Mr Justice Veale,

following Mr Justice Pearce's direction, in CALLAND

( 196 T)	c-rim · LR	236.	The reports are very
short.

In each case the trial judge equated the

word "corruptly" with dishonesty, and I rely on

those decisions. They are not on my list. I think

they are on Mr Fitzgerald's list.	They are covered
in WELLBURN.	The reports, as I say, are very
short.

DAWSON J: What is the effect of WELLBURN in the end, then?

MR STRONG: Well, in the end, WELLBURN is against me, but

I rely on that passage from His Lordship's judgment and I contend that what the authorities have done - GALLAGHER's case and the case on which it relies -

is that they have really prevented the word being

given its - - -

DAWSON J: If you leave it to the jury and say, well,

"Corruptly is an English word and you understand

what it means and it is up to you to decide
whether what was done was corrupt or not."

MR STRONG: Yes, Your Honour.

DAWSON J: Well, I can understand that.

MR STRONG: That is not done at the moment, Your Honour.

DAWSON J: And WELLBURN says you cannot do that?

MR STRONG: Well, I may have taken His Lordship's remarks

out of context. Certainly, in the end,

His Lordship disapproved LINDLEY and GALLAND. But,

I have taken that passage from His Lordship's

judgment, I think really to illustrate what, in

my submission, is the correct proposition, that

the word ought to be given its natural and ordinary

meaning and that juries should be permitted to give

it that meaning. But what is now occurring is that

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juries are simply being told that the word means

that the giver, or the receiver, as the case may be,

must not do what it is that the statute prohibits

and that if they do that, it is corrupt, in all

cases, in all circumstances.

(Continued on page 13)

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MR STRONG (continuing): My contention, of course, is that the

word means more than that; that its natural and

ordinary meaning is more than that. It is interesting

to note, in my submission, that most of the key cases
on this subject, and certainly the key case is against
me, were cases in which one of the parties held or

aspired to public office - GALLAGHER's case is not

such a case, but GALLAGHER's case affirmed

bILIDN AND RIACH - and in that case Riach was an

employee of the housing commission. Wellburn bribed

an army officer in connection with the purchase of

military equipment, and it was in that case that

LINDLEY anq CALl..AND were .

SMITH, another case, attempted to bribe the

mayor of the Borough of Castleford, a person holding

a public office. In another case, CARR, which is on the list - Carr was an army officer. COOPER V SLADE

is an election case. This may, in my submission,

explain why the courts have leaned to the view that the mere receipt of an inducement or reward by such

people is corrupt because of the public office that

they hold, and I have given a reference to a section

in the Commonwealth CRIMES ACT which deals with

persons who are employed by the Commonwealth.

There is an interesting comment by Mr Justice Cussen

in WORTHINGTON's case, to which I would like to refer.

That case is reported at (1921) VR 660 and the very

short passage which I wish to read is at page 682,
six or seven lines from the bottom, where His Honour said:

We pass on to consider the meaning of the word "corruptly" -

then I will omit the next four lines.

(Continued on page 14)

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MR STRONG (continuing):  His Honour referred to BRADFORD's

case, and the words of Baron Martin, two lines from

the bottom:

"What is the exact meaning of the word

'corruptly'? I am satisfied that it means

a thing done with an evil mind and intention,

and unless there be an evil mind and an evil

intention accompanying the act, it is not

corruptly done. 'Corruptly' means an act

done by a man knowing that he is doing what

is wrong, and doing it with an evil object ... There must be some evil motive in it."

This may be compared with what was said by

Mr Justice Blackburn in BEWDLEY ELECTION:-

"As to this word 'corruptly', the true

construction of the Act is that given by

Mr Justice Willes ... that 'corruptly' there

does not mean wickedly or criminally or

dishonestly, or anything of that sort, but

(it refers to an act done) with the object
and intention of doing that which the

Legislature plainly means to forbid."

Then there is an interesting quote, in my submission,

from Mr Justice Lush in HARWICK:

In IN RE HARWICK Mr Justice Lush draws

a distinction between the use of the

word "corruptly" in connection with the doing

of an act which is corrupt in itself and its

use in connection with an act which is

prima facie or which may be innocent. It

is the latter case which is of importance

here.

Now, what has occurred is that many of the critical

cases have been cases where one of the parties held or aspired to public office and in such cases it might be

said that the acceptance of a reward is, in itself,

corrupt, because the law has always taken a stricter

view about persons holding public office receiving

rewards than it has perhaps about persons who do not

hold any public office. Now, that may be part of

the explanation for the trend in the authorities.

I want to say something at this stage about

section 183 of the CRIMES ACT.	Section 183 is in
these terms:

Upon the trial of a person for any offence tmder this subdivision if it appears to the court that the offence charged is in the particular case of a

trifling or m:rely technical nature or that in the

particular circumstances it is inexpedient to proceed

to a conviction, the court may, in its discretion and for reasons stated on the application of the accused,

withdraw the case from the jury and this shall have the

sama force and effect as if the jury had returned a

verdict of not guilty -

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DEANE J:  I am sorry. What are you reading?

MR STRONG: Section 183 of the CRIMES ACT, Your Honour.

DEANE J: Section 183?

GAUDRON J: It has been repealed at some stage - - -

MASON CJ: Yes, it is not in my copy of the CRIMES ACT.

GAUDRON J:	- - - by number 10260, section 114.
MR STRONG:	I think I can say that it was in force at the

another Act, section 102 of the PENALTIES AND	time of this offence and has been re-enacted in force at the time that this applicant was tried.
Mr Coghlan informs me that that was so.

MASON CJ:  I see. Yes, it does appear in the 1984

consolidation of the CRIMES ACT, as Justice Wilson

points out to me.

MR STRONG: Yes, Your Honour. Perhaps I will read it again - - -

MASON CJ: If you would. If you read it so that it goes on

to the notes.

MR STRONG:  - - - for the benefit of the members of the -

Yes.

If on the trial of a person for an offence

under this subdivision ..... it appears to the

court that the offence charged is in the

particular case of a trifling or merely

technical nature or that in the particular

circumstances it is inexpedient to proceed

to a conviction, the court may -

in its discretion and	for reasons stated on the application of the	accused, withdraw the case from the jury and
this has the same force and effect as if the
jury had returned a verdict of not guilty

except that the court may, if it thinks fit -

make an order to the effect mentioned in the last
preceding section which is a restitution order. It
appears still to be in the same form in the PENALTIES

AND SENTENCES ACT, Q985), section 102.

Now, it might be said that that section provides

an answer to the anomalies which I have suggested

exist. It is true,in my submissio~ that the section

does provide a safeguard of sorts but the section

C2T45/l/SH	15	11/5/88
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does not explain why the subdivision is headed

"Secret C01mnissions Prohibition". It does not

clarify the status of a payment made with the

principal's consent. Given too wide an application,

in my submission, section 183 is quite a pernicious

section. As the law presently stands, practically

all gifts to agents, even with the approval of the

principal, are illegal. Is it to be up to the trial

judge to decide who is to be convicted and who is

not? As things presently stand, in my submission,
no one can determine the true ambit of the law.

It is a matter of luck of which judge hears one's case. An accused might have to go half-way through

a jury trial to get a result. Indeed, the function

•	of the jury would be usurped if this sections were
given too wide an application. All gifts to agents are illegal so the jury has to convict if the decision

is left to them. It is up to the judge, not the jury,

to determine guilt or innocence.

Now, there is no need, in my submission, for section 183 to be given this rather alarming ambit.

It is far better to delineate the ambit of the

legislation by giving "corruptly" its natural

meaning and by reserving section 183 for cases where

the trial judge determines that there is a prima facie

case in the sense for which I contend but that, because

of the trifling nature of the gift, a miniscule gift,
or the technical nature of the offence, perhaps
because the case comes within one of the very wide

definitions in section 175 but only just and only

in some technical way, the judge thinks it inexpedient

to go on. It should be reserved for those rare cases

and should not be used as a means by which the ambit

of this whole subdivision is determined.

DEANE J: Mr Strong, can I divert you for just a moment? If

you go to page 36 of the appeal book where

His Honur put the issue in this case on "corruptly"

to the jury, why would you say that what is suggested

in the second paragraph on page 36 is not corrupt or

''corruptly''?

(Continued on page 17)

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MR STRONG: If, Your Honour, the jury was satisfied that

he knew that the payments were given to him to moderate his demands on behalf of BLF members, the jury would have to convict him. The learned

trial judge, at that point, was simply outlining

a basis or one of the bases upon which the Crown

case was put. But it was put on a much more

refined basis at other parts of the charge,

Your Honour.

DEANE J: Except that is where His Honour has identified

the four elements and that is where he comes, in

his direction of law, to what is involved in

"corruptly" in a context where he also says at
that place I directed to you earlier today that

there was no dispute about it having been done

secretly in the sense that the members of the union

did not know about it.

MR STRONG:  Your Honour, yes, with great respect, it 1s true

that at that point he certainly did put it in a way that

I could not challenge but what is of concern

to me is that there are other parts of the charge,

one of which I have made reference to, and others

which I will refer to, where it is put on a

different basis in a way that leads to the conclusion,

in my submission, that the jury may very well have

accepted it on that different basis and that is

the basis on which I make this application today.

DEANE J:	But even if it were put on a different basis, in
a context where it was common ground throughout
the whole trial that the members did not know that
he was obtaining these payments for doing favours,
that would be corrupt, even on your approach.

MR STRONG: If I may, Your Honour, I will come to that very

issue. Would Your Honour permit me to do that.

DEANE J:  I thought you had passed beyond it.

MR STRONG:  No, I have not, Your Honour.

DEANE J: In that case deal with it in your own way.

DAWSON J: Just while you are interrupted, Mr Strong, could

you not say that the applicant was either in a

public office or the equivalent of a public office?

(Continued on page 18)

C2T46/l/ND	17	11/5/88
Gallagher

MR STRONG:  No, Your Honour, I would not, with great respect,

concede that.

DAWSON J:	Yes.
MR STRONG:	It is submitted that the point - that is, the

meaning of the word "corruptly" - is an important one .

As ~ill be apparent from the: legislation, to

which reference has been given on my list, each

of the States has very similar legislative schemes

and in each scheme the word "corruptly" is found.

I should add that the penalty for the offence in

Victoria has, I think, recently been increased to

a maximum term of 10 years - I think that is right. If my submission is correct, the word "corruptly"

is as important a word in prosecutions for this

offence as is the word "dishonestly" in prosecutions

for theft. There are only two reported decisions

of State appellate courts directly in point. One is

GALLAGHER's case, of course; the other is

CV JOHNSON,(1967) SASR 279, which, in my submission,

is in conflict with GALLAGHER's case.

If I may refer briefly to the judgment of the Chief Justice in that case, where His Honour

said, at page 291 - this is the first complete

paragraph on that page:

I cannot say that my mind has not wavered

on this question. On the whole, however, I

think that in relation to the SECRET COMMISSIONS

PROHIBITION ACT 1920, the narrower meaning

of the word 'corruptly' is to be preferred.

On normal legal principles one would expect that

word to add something to the meaning of the

section. If it were not there, for example,

it might be an offence for an agent to solicit

a commission from a party with whom the principal

was dealing or expected to deal, even with the

consent and approval of the principal.

Which is the point that I have, of course, made.

His Honour, a few lines further down, gives

a dictionary definition of the word "dishonest"

which, in my submission, approximates the meaning

that the word "corrupt" has in the minds of most

people:

"discreditable, as being at variance with

straightforward or honourable dealing,

underhand".

To which I would add, perhaps, the word "dishonest".

C2T47/l/JM	18	11/5/88
Gallagher

Now, it might seem that my submission has

very little to do with the case of a man who was found to have received free gifts to the tune of

approximately $90,000 over a period of three years,

but, if the interpretation of "corruptly" for which

I contend, is the correct one, I submit that this

applicant suffered a substantial injustice at his

trial for the following reasons.	The applicant
took a number of defences.	The first defence, and

certainly the main defence, was that he intended to

pay for the goods and services he received.	In other
words, he said they were not gifts at all.	The jury

was told that if they were not satisfied that the

goods and services were gifts, they should acquit the

applicant. Obviously the jury was satisifed that

the goods and services were received by the applicant

as free gifts. There can be no doubt about that.

It will be said, correctly, that this was the principal

issue at the trial, but it was by no means the only

issue and, of course, the applicant was entitled to

a fair trial on all issues and to proper directions on

all issues.

Well, now, the next plank of the applicant's

defence was that he did not receive the goods and

services - however his receipt of them might be
characterized -believing that the giver intended
that the receipt of them should influence him,
the applicant, to show favour, or forebear to show
favour. This was an important issue in the trial,

albeit not the main issue. But, of course, there

was not much that could be done with that defence

on the law as it stood. If they were gifts, as

the jury found that they were, they were obviously

intended to influence him in some way, even if

only to afford 'better access to hirn'',as His Honour

put at one point in the charge.

( Continued on page 20 )

C2T47/2/JM	19	11/5/88
Gallagher

MR STRONG (continuing): There really was not much that could

be said by a defence counsel on the law as it

stood. If the law had been as I contend it should
be,it may very well have been a major issue in

the trial. It is very important, in my submission,
to note that the jury was not invited to decide
the case on the basis that the givers or the companies
they represented were, in fact, favoured by the

applicant or by the BLF. There was no evidence

that the givers were in fact able to negotiate

more favourable rates with the BLF than any other

construction company.

The case went to the jury on the basis that the receipt of the goods and services would have a tendency in some way to influence the applicant

to show favour or forebear to show disfavour and
that he believed that the goods and services were

being given to him in the hope that they might

so influence him. So it did not go to the jury

on the basis that he had, in fact, given any favours

at all.

If I could go briefly to some aspects of the defence on this issue. May I refer, first

of all, to page 70 of the application book, at the foot of the page. In his statement to the

jury, his stjtement .not .on oath, :from the •dock,

the applicant said~

I think it is utterly beyond belief

to me that anyone would think that I would

believe that Alter or Herscu -

who were developers -

or Lewis or Gray -

who were employees of developers -

me anything, or give me anything, with the

or anyone else in this industry would pay

idea that I would go easy on things which

affect my members in this industry. I just

can't believe it. These people knew me.

I did not ever conceive that I was getting

anything to bribe me.

(Continued on page 21)

C2T48/l/SDL	20	11/5/88
Gallagher

MR STRONG(continuing):  Now, the applicant incorporated in

his unsworn statement the unsworn statement - I think I have mistated that - the unsworn statement that the applicant made at the first trial was tendered as

part of the material at the second trial, and His Honour

read part of the first statement during the charge

and it appears at page 74 of the application book, two

lines from the top. The applicant said:

Being an organiser of a union you have to

be able to talk to the bosses and you try

to remain relatively friendly, but the

interests of the workers always come

first. If there is a conflict friendships

go overboard. This was well understood in

the industry.	No one expected industrial
favours.	He and other unions often got

co-operation from employers in some projects

and nobody expects you to compromise your

members. This is particularly so with the

B.L.F. and all developers here were

pressurised.

And at page 77 of the application book, again from

the applicant's statement at the first trial,

half-way down the page:

There is no way in this world that

anyone could bribe me and anyone that knows

me knows that ..... If for one moment I believed

that by getting one scrap through these people
they thought I would sacrifice my members I

would not have touched it with a barge pole.

In the end the jury was invited to consider the case

on a basis which, in my submission, stretched even

the current interpretation of the section to its

absolute limit. I have referred already to a passage

from the charge at page 31 in which His Honour makes

reference to:

more ready access.

I also refer in this connection to a passage in the charge at page 22:

(Continued on page 22)

C2T49/l/VH	21	11/5/88
Gallagher

MR STRONG (continuing): Just to give - and this is at the

first complete paragraph:

I mentioned that to give you some idea of the evils that this crime is designed to guard against.

And His Honour had just read to the jury

Mr Justice Brooking's ruling in DILLON AND RIACH

which was affirmed in GALLAGHER

You see, an agent is not allowed to let any favouritism enter into the conduct of his

r.rincipal's affairs. It might be said,

'Well, just to give someone ready access,

or easier access, to you is not showing

favouritism in any relevant sense and

couldn't hurt the principal's affairs".	But
we do not know, do we? An agent's duty is
to get the best result he can for his

principal. Well, supposing there is trouble

on the site and he prefers to speak to, or

he allows one developer or employer to have

easier access to him than someone else and

he settles with him who is to say what the

other employer might have offered? He might

have made a better offer but by showing

favouritism he might lose the chance of getting

the better offer. So that he is not allowed

to let irrelevancies enter into the conduct

of his principal's affairs.

The jurywere told at page 31 that it did not matter -

and I am referring to the end of the second paragraph,

that it did not matter that the applicant would

never:

betray the members of the BLF.

That did not matter if the gifts have the prohibited

tendency.	And the result of all that was this
and this, I think, is the nub of my submission

on this issue: the jury was left with an instruction

the effect of which was as follows:  even if they

were satisfied that the applicant was incorruptible,

even if they were satisfied that in no way, shape

or form would be, in fact, compromise his members,

and even if they were satisfied that all that the

developers ever wanted was more ready access to

him for the purpose of legitimate negotiations

and the applicant knew that that was what they
wanted that would, in law, be enough to convict

him.

C2T5O/l/ND	22	11/5/88
Gallagher

MR STRONG (continuing):  Now, on the law as it now stands

I do not contend that the trial judge erred in so charging them, on the law as it now stands, but if

the word "corruptly" has the meaning which I urge

upon the Court, the jury's verdict may very well have

been different. I concede that,at first blush, the

man in the street would probably consider it corrupt

by any standard for a union official to receive gifts

of this magnitude from employers of union members and

may I just interpolate this, that although the
magnitude of the gifts were somewhere in the order of

$90,000, the trial judge said at page 65, or the

trial judge made the comment that, "some of the bills

were a bit 'hot'", and told the jury that they did

not have to be satisfied about the true value;
but on any view the gifts were large, but, in my

submission, of course, criminal responsibility is not

determined by first blush impressions.

The case went to the jury on this particular issue

on a fairly slender basis, in my opinion, that the

jury could convict if they were satisfied that the gifts

would, in some way, influence the applicant to

afford the givers more ready access to the applicant,

even for the purpose of perfectly legitimate negotiations,

and that the applicant, even though he may have had

no intention of giving such access, knew that the

gifts were given with that in mind. Now, of course,

judges often explain to juries the threshold that

the Crown case must reach before they can convict
in cases where the jury could readily conclude that the
case had gone well beyond that threshold, but this,

in my submission, was not such a case.

The case was not put on the basis of any favour

actually given, or any specific favour sought. There

was no evidence upon which it could be given on the

basis that the givers wanted better rates than other

employers in the industry. There was no suggestion,

as I perceive the evidence, that they did get better

rates. Indeed, I have a recollection that they paid

the BLF members more than a lot of other employers,

but the case is put on the basis of this tendency to

show favour by giving them readier access, or at all

events, that was one of the important bases on which

it was put.

Now, in my submission, the jury should have been

directed that, as well as being satisfied that the
applicant knew or believed that the gifts were given
to him for a prohibited purpose, they had to be

satisfied that he received them corruptly. They should have been given one or other of the following directions,

in my submission; first, that "corruptly" is to be

given its ordinary meaning and that in deciding

whether the receipt was or was not corrupt, the jury

should apply the current standards of ordinary decent

C2T51/l/HS	23	11/5/88
Gallagher

people, in other words, a direction of the same

kind as is given every day of the week - I should not

say that any more - that is often given in cases of

dishonesty. Of course, under the THEFT ACT there is

a different test now of dishonesty, but the test that

I have just postulated is the connnon law test of

dishonesty and I can give the Court a reference to the

case of RV GLENISTER, (1982) NSWLR 559, at page 603.

In my submission, that is the preferable direction.

The alternative direction is that the jury could be

given a definition of "corrupt", including words such as 'tlishones t", "underhand", "evil", "rotten", "dis loyal",

"an attempt to undermine", "a bribe" and, of course, these provisions are often referred to as "bribery provisions", or, if I may use a slang word, "bent".

In my submission, the word has those sorts of

connotations. In my submission, if the jury - - -

GAUDRON J:	You do not include any element of secrecy in that?
MR STRONG:	Your Honour, secrecy will often be the mark of a

corrupt gift, but the fact that a gift is secret

will not prove that it is corrupt.

GAUDRON J:	Thank you.
MR STRONG:	In my submission, if the jury had been so directed,

there is a very real possibility that they would in

the end have concluded that the applicant's conduct

fell short of corrupt conduct.

(Continued on page 25)

C2T51/2/HS 24 11/5/88

Gallagher
MR STRONG (continuing): It is not a criminal offence, as

such, for an agent to profit unlawfully from his

position as agent.	The sanctions of the civil
law are available against such an agent.	He can

be compelled to account for his unjust profit.

If the definition of corrupt for which I contend

is correct there was a very fine line between the

unlawful receipt by the applicant of these gifts

and the illegal receipt by the applicant of these

gifts having regard to the narrow basis on which

the case went to the jury on this issue.

It is for this reason, I submit, that a Jury

properly directed might have cone 1 uded: "We a re

satisfied that he had no right to profit in this

way but we have a reasonable doubt whether his

behaviour was actually corrupt", or applying the

reverse onus:  "We think that what he did was wrong

but it was probably not corrupt in the sense that

His Honour explained" - if His Honour had given

the direction of the sort that I submit ought to

be given.

Now, there is a further circumstance wnich

must be mentioned in this connnection. In presenting
the applicant's case at this trial, and indeed

at the earlier trial, the applicant's legal advisors

were, of course, constrained by the interpretation

that had been placed on "corruptly" firstly by

Mr Justice Brooking and later by the Full Court

in GALLAGHER's case. Evidence directed to the

question of corruption in the sense that I am

submitting was simply irrelevant as were submissions

directed to that issue. It would be rather like
conducting a theft case where the word "dishonestly"

had been interpreted to mean merely "deliberately"

so that all the Crown had to prove was that the
accused deliberately appropriated property belonging

to another.

for anyone to say, that the defence case would, It is really impossible for me to say, or	in fact, have been conducted in the same way or
in a different way but as the law then stood it was really irrelevant for the defence to show,
for example, that the accused had never ever favoured an employer, if that was the evidence; that he
was as tough with the givers as he was with any
other employers; that he had never let his members
down or been accused of letting them down and that
his behaviour should not be construed as dishonest
or evil or taking a bribe or rotten or lacking in loyalty or anything of that sort. Now they
were all potentially major factual issues but,
of course, counsel was constrained in the conduct of his case in putting material directed to questions

C2T52/l/AC	25	11/5/88
Gallagher

of that sort. So I would urge the Court to put

that into the balance in determining whether, as

I submit, there was a substantial miscarriage of

justice, having regard to the fact, as I contend,
that the trial judge misdirected the jury

fundamentally on the meaning of this very important

word.

The applicant has endured a long trial; in fact two, in which there has been a critical

misdirection of law. As appears from page 92 of

the application book the jury, in .this case, after
a day of deliberation, asked for a copy of the

section so that they could be reminded of the elements

of the offence.

Now, they are my submissions and I am not

sure whether I have answered the question

Your Honour Mr Justice Deane put to me, or not.

DEANE J:	I think you have dealt with what I raised with
you.
MR STRONG:	If the Court pleases.

(Continued on page 27)

C2T52/2/AC	26	11/5/88
Gallagher

MASON CJ:	Yes, Mr Fitzgerald.
MR FITZGERALD:	If the Court pleases, perhaps I should first

hand up the respondent's outline of argument. The

learned trial judge's direction to the jury as to
the meaning of the word "corruptly" in section 176 (1) (b)

of the CRIMES ACT 1958, quoted verbatim what

Mr Justice Brooking had said in REG V DILLON AND RIACH,

(1982) VR 434 at page 436. That ruling was affirmed
by the Full Court in REG V GALLAGHERt(l986) VR 219,

and we submit that that is correct. I might just

refer briefly to what Mr Justice Brooking said:

In my view, an agent does act corruptly if

he receives~ a benefit in the belief that the giver intends that it shall influence him to show favour in relation to the

principal's affairs. If he accepts a

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.

And we would submit that that statement correctly

states the law and we would submit indeed the

authorities consistently support that contention.

COOPER V SLADE is usually taken as the starting

point of this subject. Mr Justice Willes said -

the reference is (1858) 6 HLC 746 at page 773 - concerning

the meaning of the word "corruptly" appearing in

the CORRUPT PRACTICES PREVENTION ACT of 1854: I think the word "corruptly" in this statute

means not "dishonestly", but in purposely

doing ~n act which the law forbids as tending

to corrupt voters.

Later on he says:

The word "corruptly" seems to be used as

as a designation of the act of rewarding a

man for having voted in a particular way as

being corrupt, rather than as part of the

definition of the offence.

C2T53/l/VH	27
Gallagher

DAWSON J: That means that the word, "corrupt" is really

superfluous in that context.

MR FITZGERALD:  It is submitted it is not, Your Honour. It

means

DAWSON J:  I notice he says:

"corruptly" in this statute -

well this statute was to stamp out certain practices;

that may be the explanation. But is not it superfluous?

MR FITZGERALD:	Why is it what, sir?
DAWSON J:	Why is not the word, "corruptly", superfluous, if

that is correct?

MR FITZGERALD:  It may be in that section it does not add very

much, but here, Your Honour, in the interpretation,

certainly Mr Justice Brooking gave, it means

"intentionally and receiving or accepting the gift"

knowing or believing that the giver intends it as a

bribe, and that, we would submit, certainly adds

meaning to the - the addition of the word, "corruptly"

certainly adds to the meaning of section 176(l)(b).

First of all, it has got to be deliberate, knowing what is going on, intending to or believing that the

giver is proffering a bribe, and getting the valuable

consideration and keeping it.	We would submit that if
it is interpreted	that way, it certainly has a very

definite meaning and that is, in our submission, is

exactly what His Honour Mr Justice Brooking said was

the meaning of that word in the context of section 176.

DAWSON J:  Yes. Well, once you say that what the section is

directed is bribes then, of course, I suppose you can

say, "Well, you have only have to do what the section

is aimed at to be corrupt!' because bribery is of itself

corrupt.

MR FITZGERALD:  It is a section aimed at bribery and if somebody

gets a valuable consideration knowing or believing it

is a bribe, well, what Mr Justice Brooking is saying,

in effect, that is corrupt.

DAWSON J: Yes, I follow.

MR FITZGERALD:  We would submit that is consistent with all

the authorities. Again, it is an election case, the

BEWDLEY ELECTION PETITION. Mr Justice Blackburn adopts

what Mr Justice Willes had said in COOPER V SLADE:

The interpretation of this word, as explained, and rightly explained, by Mr Justice Willes, is

not "wickedly," "bnorally," or anything of the

sort, but embraces such conduct as it was

evidently the intention of the Legislature to

discountenance.

C2T53/2/VH	28
Gallagher
MR FITZGERALD (continuing):	The intention of the legislature,

we would submit, when you are dealing with

section 176 of the CRIMES ACT is to discountenance
bribery; to discountenance people receiving gifts,

believing that they are proffered as gifts or

as far as the giver goes, giving a gift to somebody

with the belief or intention or hope that it should

be accepted as a gift.

We would submit that SCOTT's case

Mr Justice Cussen, although he does not say a

great deal about it, seems to be approving of

BEWDLEY ELECTION PETITION where he quotes the

words of Mr Justice Blackburn and, in the later

case of WORTHINGTON, he is, in effect, also affirming,

we would submit, what he had said in SCOTT's case.

The Full Court in WORTHINGTON's case was concerned

with section 184 of the CRIMES ACT 1915 and that

was receiving money for the delivery or the return

of stolen property. It was held there that "corruptly"

has a very different meaning than "corruptly"

in the Secret Commission provisions and 1t there

meant:

wrong and doing it with an evil intent~

If the object or one of the objects of the accused is to afford facilities to offenders

for the disposal of the stolen property whilst

screening them from prosecution, and so enabling

them to obtain the profit from the crime

in safety, or if his object or one of his
objects is to share in such profits, he has

acted corruptly within the section.

That is a very different meaning, and at page 673

the Full Court, which was Mr Justice Cussen,

Mr Justice Mann and Mr Justice McArthur -it was

said this:

there may be many cases in which a person

may take a reward even for himself for aiding	to recover stolen property, etc., property,	in which no one would dream of imputing any
criminality in the ordinary sense of the
word, and this no doubt led to the
introduction of the word "corruptly".

But then he says:

There have been cases, chiefly under laws

relating to elections, in which the word

"corruptly" has been used merely to indicate

that the act forbidden by the Statute has

been done intentionally, but in this case

something more is clearly intended: Cf.

RV SCOTT (1907).

C2T54/l/SDL	29	11/5/88
Gallagher

What he is saying is that section 184 is a different

provision with different objects and "corruptly"

has a very different meaning but, in cases of

elections and similar cases, "corruptly" means,

in effect, "intentionally, deliberately".

DAWSON J: If that is so, how do you differentiate the sort

of cases, the examples that Mr Strong gave, such

as tipping a waiter?

MR FITZGERALD:  A tip to a waiter, Your Honour: that seems

to, in our submission, assume that "corruptly"

does not have any meaning. I would concede that

you can envisage cases where giving a tip to a

waiter would be corrupt.

•

DAWSON J:	But if falls squarely and fairly within the definition
that Mr Justice Brooking gave.
MR FITZGERALD:	Knowing that the person giving you the

tip is intending it to bribe you.

DAWSON J: It is given because the donor has some

act. of favouritism in return.

MR FITZGERALD:  But that, we would submit, may or may not

be corrupt. It may be what the waiter is employed

to do, to accept tips from people who -

DAWSON J: That is giving the word "corrupt" some meaning

in addition to "deliberately"?

(Continued on page 31)

C2T54/2/SDL	30	11/5/88
Gallagher

MR FITZGERALD: It is deliberately, knowing that the person

giving it intends to bribe him.

DAWSON J:  You use the word "bribe'! but Mr Justice Brooking

says that if the donor gives money with the intention

of receiving favouritism and that is known to the

donee then that is bribery, he says. And I just

want to know how you differentiate with the tip

to the waiter?

MR FITZGERALD: If the giving creates a conflict between the

duty of che waiter to his employer,. the owner of

the hotel or whatever it is, and his interest then

it would be corrupt but if he is just doing what

waiters do and with the sanction and encouragement

• of his employer one would say that it is not corrupt

at all.

DAWSON J:  You are giving "corrupt" then some meaning in

addition to "deliberately" and the meaning you

are giving sounds something like "dishonest" or

"evil" or "wrong".

MR FITZGERALD: It may be corrupt, Your Honour. Supposing

the waiter was given a bribe to leave the customer

and his friends in a large part of the restaurant

taking up room that the owner of the restaurant

would prefer to make available to other people,

then that could be corrupt.

DAWSON J:  Because it is wrong for some reason.

MR FITZGERALD: It is wrong. It is corrupt because, on

what Mr Justice Brooking said, the person getting

it knows that it is being given to him as a bribe

or, in other words, to forego his duty to his

principal. That does not necessarily follow with

gifts; in fact, it usually would not follow with

gifts. ·

DAWSON J:  But .what Mr Justice Brooking says is not that

it has to be a bribe. He forms the conclusion

that it is a bribe merely because it is given with

a hope of favouritism and that is known to the

donee. What he says is:

If he accepts a 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 -

C2T55/1/ND	31 .
Gallagher
MR FITZGERALD:	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

That is part of what Mr Justice Brooking said and

that is the difference between - I do not dispute

that a waiter may be acting corruptly but normally

a waiter accepting a gift is not:

putting himself in a position of temptation

as regards the impartial discharge of his

duties in consequence of the acceptance of -

the gift. It may be, perhaps, a recognized proper

procedure for waiters to - I know custom is no

defence but it may be quite proper for a waiter

to receive tips, it may be part of his salary even

but is he knowingly putting himself in a position

of conflict between his duty and his interest?

One has to read the whole paragraph in its

entirety. I do not dispute that the strict

interpretation of these secret provision sections

may, in some cases, have a fairly.Draconian

effect, they are fairly Draconian provisions

and are meant to be and any possible harshness,

we would submit, is mitigated by section 183 of

the Act to which reference has been made. The

sections do recognize that in some cases the offence

may be trifling or of a merely technical nature

~nd, in that case, they can be withdrawn from the

Jury.

These are Draconian provisions and the Act

says, in effect, that in cases where they are of a

trifling or merely technical nature they can be

withdrawn from the jury and, indeed, the maximum

provision was a relatively small one of two years.

(Continued on page 33j

C2T55/2/ND	32
Gallagher

DAWSON J: Incidentally, Mr Strong's client has served

his sentence, has he?

MR FITZGERALD:  Yes. He still has to pay a fine, Your Honour.

DAWSON J:  I see.

MR FITZGERALD: That has not been paid. As far as the

receipt of a gift where the principal consents, it

may be difficult in most cases to interpret that

as being corrupt. But if the agent and the principal
are in collusion to receive secret cotmnissions,

if the donor intends them as bribes, well then,

quite clearly the agent, and his principal too,

is encouraging acting corruptly in that he is

encouraging the giving of bribes.

WILSON J: What is a bribe, Mr Fitgerald, as Mr Justice Brooking

uses the expression?

MR FITZGERALD: It is a bribe paid -in the case of a

receiver - given to a person with the intention or

hope that it will weaken his loyalty to his principal,
place him in a position where his interest conflicts

with his duty. We submit that that is the crux of the matter and indeed, the cases show that that is so. And if that is so, it is corrupt and we would

submit that quite clearly it is the intention, in

the case of a receiver, of belief of the receiver
that is important. In the case of a giver who is

charged, again, it is the purpose or belief with

which he gives the bribe and, of course, the cases

show that you can have a corrupt giver, and an

innocent receiver, and vice versa.

But, we submit that all the cases show

it is the intention of the giver or the receiver to

place the corrupt person in a position of

conflict that is struck at and we would submit

Mr Justice Brooking makes that clear.

In the case of REG V STEVENSON,(1907) VLR 475,

at,ipa:ge 4 77, Mr Justice Hood says:

Are you satisfied that the prisoner gave

the money to Martin -

that is the person who got it -

and that the giving of the money had a

tendency to influence Martin in the

prisoner's favour in relation to the

Hospital business, and that the prisoner

gave it with the intention of influencing

Martin in relation to such business, or

did he give it without any intention of so

influencing Martin?

C2T56/l/JM	33
Gallagher

In other words, it is the - that was a case, not of a receiver of a secret commission, but of the

giver.

What is stressed in all of these cases is:

what is his intention? Is it his intention to

enter into conduct which these provisions are

intended to discountenance, namely the giving or

receiving of bribes in the sense that I have

mentioned to His Honour, Mr Justice Wilson?

WILSON J: In many cases, tipping in a restaurant would

encourage the waiter, or waitress, to give better

service and that is in the interests of duty

as well as interest, is it not?

MR FITZGERALD:  Yes, Your Honour, it would be in many

cases.	I am not saying one cannot envisage
cases where that would not be so.	But if there

is a coincidence of duty and interest, well

then, it is not corrupt, or certainly not corrupt

as far as the receiver goes.

DAWSON J: You must ask the question: why is not corrupt?

And the answer is: because it is not wrong.

MR FITZGERALD: Well, Your Honour, I propose to say

something further about "wrong". We do not dispute

that if somebody does what Mr Justice Brooking

defines as "corruptly", then one might characterize

that sort of conduct as wrong, or dishonest, or

rotten, or all those sort of things, but that does

not mean that that is an element in the offence.

(Continued on page 35)

C2T56/2/JM	34	11/5/88
Gallagher
MR FITZGERALD (continuing):	And, indeed, the Full Court

of Victoria when dealing with, I think it

is the first GALLAGHER case, made that point 1n

relation to CV JOHNSON. The reference is

(1986) VR 219 at page 230. It says:

Thus Brooking J. 's ruling is consistent

with the weight of authority founded upon

COOPER V SLADE. We do not consider that

Bray C.J. 's conclusion in C. V JOHNSON was

contrary to that accepted line of authority.

The Chief Justice was concerned with the nature

or quality of the conduct upon which a person

was convicted of an offence under secret

commission legislation. Chamberlain J., at

pp. 300-1, expressed the same conclusion.

Although it is not necessary for present

purposes to do so, we would readily share

their Honours' conclusion that, a statute

importing mala fide or wrongful intention
of a person convicted thereunder, the relevant

conduct giving rise to the conviction, involves

dishonesty. However, the quality of the act

does not ipso facto determine the elements

necessary to constitute the criminal offence.

Moreover dishonesty is a concept about which

different minds in some societies might not

agree. What is struck at by the statutory

provision is the intention on the part of

the giver or receiver of a gift or consideration

to show favour or to forbear from showing

disfavour to another in relation to his

principal's affairs or business.

And in JOHNSON's case - the point there was whether

the conviction under the South Australian provision

of SECRET COMMISSIONS PROHIBITIONS ACT 1922 was

an offence involving dishonesty and it was held

that it was; we do not dispute that. Once one

looks at what Mr Justice Brooking defined as "corruptly"

well, we say, it does involve dishonesty;

all of those sort of epithets could properly be

applied to it but it does not assist anybody applying

a lot of epithets which are not there when the

word used is "corruptly". To say it means wrongfully

or all the words Mr Strong mentioned as bent, and

all that sort of thing does not really assist at

a 11. The word used is "corruptly" and there is

no point, as is mentioned in one of the English

cases to which I will refer, in adding other epithets.

What Mr Justice Chamberlain says at page 301:

The corrupt or wrongful intention contemplated
by the provision is to my mind the intention
of an agent to take advantage of his relationship

with his principal to secure some benefit

C2T57/l/AC	35
Gallagher

to himself or some other person, without
the knowledge of his pricipal. This as I
think, and as I believe most people would

think, involves dishonesty.

We respectfully say, that is so but that does not

mean that in defininR "corruptly" to a jury one

should use the term 'dishonestly" - whatever that

might mean, and it has caused a lot of difficulty

to the Victorian Supreme Court in relation to
the use of that word in the theft cases like

SALVO and BONOLLO and BROW and those sort of cases.

Now, in WELLBURN's case the Court of Appeal

applied the dictum of Lord Justice Parker in

SMITH's case and approved the statement of Willes

in COOPER V SLADE and the court appears to have

approved the recorder's direction to the jury

which was as follows:

(Continued on page 37)

C2T57/2/AC	36
Gallagher

MR FITZGERALD (continuing):

"Corruptly is a simple English adverb
and I am not going to explain it to you

except to say it does not mean dishonestly.

It is a different word. It means

purposefully doing an act which the law

forbids as tending to corrupt."

And that case disapproved of the two cases which

Mr Strong referred to, LINDLEY and GALLAND which, in

effect, said to act corruptly the defendant must have

in WELLBURN's case and SMITH's case, that the mischief aimed at the modern statutes dealing with corruption is to prevent agents and public servants

dishonestly intended to weaken the loyalty of servants both

to their master and transfer their loyalty to him.

being put in positions of temptation, and we would

submit that is the crux of it. You create a

temptation that the agent might prefer his interest or

benefit to his duty. That, itself, is the essence

in our submission, of the word "corruptly".

Of course, it is well established, we would

submit, that the fact that an agent who receives a

corrupt payment does not intend to carry out the

service for which he is corrupted or for which he is

paid affords him no defence whatever. As the

Court of Appeal in England has said, if he intends to

double-cross the person giving him the bribe, or

offering the bribe, then that cannot afford him any
defence, and authorities for that areREl;V CARR, (1956)
3 All ·ER 979, which is an appeal to the

Courts-Martial Appeal Cour,t, Chief Justice Lord Goddard,

Mr Justice Hilbery and Mr Justice Ormerod state

that emphaticall½ and also statedin the case of

REG V MILLS.

MASON CJ:  Mr Fitzgerald, I have one difficulty with

the formulation in DILLON AND RIACH, and that is
the emphasis that is given to the donor's intention

that the gift will influence the recipient to an act
of favouritism.	Why is the emphasis on an act of

favouritism? It seems to be something significantly

less than an intention to influence the recipient in

a way that would cause him to depart from the faithful

pursuit of the principal's interests, whatever they

may be.

MR FITZGERALD:	Yes.
MASON CJ:	Why this emphasis on favouritism which may be entirely

consistent with the faithful pursuit of the principal's

business interests?

C2T58/l/HS	37	11/5/88
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MR FITZGERALD:  That he would favour one - well his duty,

Your Honour - take the case of Gallagher in this case -

is to pursue the interests of his members, the members

of the BLF, and that is his only duty, and if some

people that have got dealings; business relations

with the BLF, these developers, Grollo, and all
these people, are offering him very large sums

of money to build his house, well then - - -

MASON CJ:  That may be so in relation to this particular case,

but I am concerned with the emphasis of favouritism as a general proposition of law. I mean, take the cases with which you have been assailed, the cases

of tips. They do not necessarily involve an

intention to induce the recipient to depart from the

pursuit of the principal's business interests.

MR FITZGERALD:  That is so, Your Honour. One may - - -

MASON CJ:  Well, why is one concerned with enunciating a

proposition in relation to favouritism in that context?

(Continued on page 39)

C2T58/2/HS	38
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MR FITZGERALD: Well, Your Honour, in this situation, here

you have a member of a very powerful union being paid

large sums of money by various people having

business relations. That is, in our submission, creating

in this case inevitably a conflict between his duty to

do the best he can for the members of the BLF and his

interests in favouring the people who are offering

him these huge sums.

GAUDRON J:  Favouring them over whom? You see, in one context

it may be that he is favouring - indeed, this is would

what you would get from the charge, I think - that he

is favouring them over other employers in terms of

access.

MR FITZGERALD:	Yes.
GAUDRON J:	Now, it may very well be that in the course of the

flow-on effect of negotiated wage rises that it is

quite in the interests of his membership to favour

large developers in terms of access, than small

developers. Indeed, by favouring those large

developers with such access, he may be doing them a

very considerable disfavour in the ordinary plan of

wage negotiations.

MR FITZGERALD:  That, with respect, may well be so, but the

favouring here is not brought about by the very fact

whether they are big or small developers, but the

temptation is in relation to the people that are

paying the money, the particular developers, whoever

they might be, that are, in effect, bribing him.

GAUDRON J:	Temptation, though, to do what?
MR FITZGERALD:	The temptation to not favour his members,

his principal, who are the members of the BLF, in the

case of their dealings with the particular bribing

developers.

GAUDRON J:  You limit it, then, to favouring these particular

developers over the interests of the members.

MR FITZGERALD:  Favouring or disfavouring, of course 1 - he may,

in the hope of getting further bribes, be oppressing the people who are not bribing and, in this context,

although one can see you may get a situation where

favourtism, as in the case of the waiter.as corrupt. But in this case, that cannot be the

situation because you have got very big developments

involving millions of dollars and if he is getting

all these gifts, how can one say that he is not

placed in a temptation in relation to those particular

developers?

GAUDRON J:  Well, it is not really a question of what you

can and cannot say, in that situation. It is a

C2T59/l/VH	39
Gallagher

question of his knowledge or belief of the purpose of

the gift.

MR FITZGERALD:  Oh yes, Your Honour, of course. He must believe

that that is given to him to favour the developers

bribing -

GAUDRON J: Favour the developers over whom?

MR FITZGERALD:  At the expense of the members, because if

he is getting bribed by some developers, does not that

create a conflict or tend to prevent him doing his

best or getting the greatest benefits for those

developers who are paying the bribes, if I might put it

that way?

GAUDRON J: But is not the charge to the effect that it is

sufficient if he believed it was being given to him to

favour the developers access to him over the access

of other employers in the industry, and that

being, regardless of whether that access puts him

in a position of conflict with his members?

MR FITZGERALD:  Access, as I read His Honour's charge,

Your Honour, is only a small aspect of the potential

conflict that is being created. That is one matter

His Honour mentions, but it is only, as I read

the charge as whole, a small matter in relation to

that whole aspect of the case.

GAUDRON J: Page 22, Mr Fitzgerald, in the middle of the page,

the first whole paragraph stating - - -

MR FITZGERALD: "In discussing" - - -

GAUDRON J:	Yes, he -
is not ailowed to let any favouritism
enter into the conduct of his principal's
affairs.

Now, that is not favourtism of the donor as against

the principal. That is favourtism as between the

principal's business contacts or perhaps we will say

would-be suppliers, if you like.

(Continued on page 41)

C2T59/2/VH	40
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MR FITZGERALD: Favouritism between the developers and the

members of the BLF.

GAUDRON J: Well, he does not say that. Suppose he says:

It might be said, "Well, just to give someone ready access, or easier access to

you is not showing favouritism in any relevant

sense and couldn't hurt the principal's affairs".

But we do not know, do we?

What His Honour is there suggesting is it is

irrelevant whether there is or might be any possibility

of conflict between the interests of the donor
and the principal's interests.

MR FITZGERALD:  Then he goes on, Your Honour:

An agent's duty is to get the best result

he can for his principal.

GAUDRON J: He is speculating. His Honour then moves very

precisely into the field of speculation. He says

favouritism is the crux irrespective of the interests

of the principal because we do not know how those

interests might be advanced. Then he makes this:

he is not allowed to let irrelevancies enter

into the conduct of his principal's affairs.

That takes it well beyond any suggestion of favouritism

of the donor over and above the interests of his

principal.

MR FITZGERALD: 

Perhaps if one looks further, Your Honour,

one has to, of course, read His Honour's charge
as a whole. If one looks at page 31:

The next thing you must be satisfied

of is that the receipt of the gift would

favour or to forbear to show disfavour in	in any way tend to influence him to show
relation to his principal's affairs or
business.

GAUDRON J:  Yes, but that is the other part of the offence

is it not?

MR FITZGERALD: You do not need to be satisfied that offence

it did influence the accused -

and so on?

GAUDRON J:  Yes.

C2T60/l/SDL	41	11/5/88
Gallagher

MR FITZGERALD:  At pages 21 and 22, Your Honour, when he 1s

discussing "corruptly" :

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 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.

Now, if the jury could be satisfied on the facts

here, and we submit they could hardly be otherwise,

then that sort of conduct described there is corrupt.

I am reminded, Your Honours, that what Judge O'Shea

is doing, at pages 21, 22, 23 and 24, he is really

dealing with the general scheme of the Act and

then he goes on to relate to the facts of the

situation.

(Continued on page 43)

C2T60/2/SDL	42	11/5/88
Gallagher

MR FITZGERALD (continuing):  Then he states the elements

of the offence- the statute, and then he deals

with the facts.	We submit that the dealing with
each of the ·elements is correct.	Then at page 36

he, in effect, recapitulates what he says in

relation to "corruptly" and what the Crown's

contention about that is. He is receiving these

gifts, knowing or believing that the developers

intend to influence him to show favour, or forebear

to show disfavour. We submit that if that is the

position, if those contentions are made out, then

the charge is proved.

It is a corollary to that that is shown

by ANDREWS WEATHERFOIL LTD AND OTHERS, that in

cases of corruption it is possible to envisage

a bribe being corruptly offered and innocently

accepted, and possibly even the other way round.

One person can be convicted and the other can

be acquitted at the same trial.

If one has, we submit, the corrupt intention,

or what His Honour designated as corrupt, well,

the offence is made out. Alternatively, we submit

that even if the learned judge's direction to the

jury as to the meaning of the word "corruptly" was

incorrect, no substantial miscarriage of justice

has actually occurred.

At the trial the applicant's defence was

that the goods and services in question were received

by him in the course of what he believed were

ordinary commercial transactions in that he intended

to pay for them. The learned trial judge directed

the jury that unless they were satisfied beyond reasonable doubt that the applicant had received the goods and services as gifts, they should acquit

him. Now, we submit that that direction was a very

favourable direction indeed to the applicant. And

that is so, particularly in view of the provisions

of section 186(2):  For the purposes of this subdivision

where it is proved that any valuable consideration

has been received or solicited by an agent

from or given or offered to an agent by any

person having business relations with the

principal without the assent of the principal

the burden of proving that such valuable
consideration was not received solicited given
or offered in contravention of any of the

provisions of this subdivision shall be on the

accused.

Now, His Honour directed the jury that unless

they were satisifed beyond reasonable doubt that the

C2T61/l/JM	43	11/5/88
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applicant received all these goods and services as

free gifts, they were to acquit him. That was

putting the oms on the Crown to prove that beyond reasonable doubt, whereas the burden of proof on

section 186(2) could have been invoked.

Now, and it follows, of course, from that direction that the jury were satisfied that the

applicant did receive the goods and services as
gifts. His defence was that he had received them

in the course of what he believed were ordinary

commercial transactions and that he intended to

pay for them. His Honour said, unless they were

satisifed they were gifts, they should acquit

him. It therefore follows that the jury was

satisfied that the applicant did receive the goods

and services as gifts.

(Continued on page 45)

C2T61/2/JM	44	11/5/88
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GAUDRON J: Does section 186(2) really have anything to do

with the case as it was conducted?

'MR FITZGERALD:  Yes, it did, Your Honour?

GAUDRON J: Well, was it proved that it was given or offered

without the assent of the principal?

'MR FITZGERALD:  Yes, Your Honour. That was proved, indeed. That was not an issue at all in the case.

GAUDRON J: Well, I know it was not an issue. Was it admitted

that it was given without the assent of the principal?

'MR FITZGERALD:	In substance, it was because what the - - -
GAUDRON J:	I do not think you can have "in substance" submissions

in criminal trials, can you, Mr Fitzgerald?

'MR FITZGERALD: Well, Your Honour, what His Honour said is that

in this case there was no issue and the defence did
not suggest there was; that this was without the
assent of the principal because what the applicant

was saying is not that, " I received free gifts" but

with the assent of the principa!', he is saying,	"I
did not receive any free gifts at all".	In other

words, there was no issue that if he did receive

free gifts, that was without the assent of the

principal. Certainly, he did not claim - - -

GAUDRON J: Well, there was no issue in the way in which the

trial was conducted.

'MR FITZGERALD: That is right.

GAUDRON J:  It is often the case in the conduct of a trial

that the taking of one defence effectively precludes

the taking of any other defence. The defence of alibi,
for example, or the defence of "It was not I who did

it", for practical purposes means that the issue of

consent is not an issue in sexual assault matters.

That does not mean that the consent is therby proved.

'MR FITZGERALD:  Certainly in the case Your Honour

mentioned, that would be so but - - -

GAUDRON J: Well, why would it be that the fact that the question

of 'without assent'was not an issue would constitute proof that it was without assent in this particular

case?

'MR FITZGERALD:  Well, the j.iry must have been - first of . ··

aU,they believed that they were free gifts - they

were satisfied about that beyond reasonable doubt - - -

GAUDRON J: Then what?

C2T62/l/SH	45	11/5/88
Gallagher

MR FITZGERALD:  How could the issue be raised or how could

with the assent of the principal? the jury find otherwise than that these gifts were not

GAUDRON J: Well, I am just wondering whether they ever had

to ask that. I do not understand that that ever

became a question of any relevance to the jury in

this case. If the Crown had proved, as I read section 186(2), that there had been a valuable consideration received and received without the
assent of the principal, then certain consequences

would have followed. If it merely proved that

a valuable consideration had been received then,

it seems to me, it had to prove affirmatively and

on the traditional onus, all the other elements

of section 176(1) .

MR FITZGERALD:	The assent of the principal is only referred to, of course, in 186(2) but the only way that could
be proved, I suppose, would be to call all the members of - - -

GAUDRON J: Well, I was just wondering whether 186 ever had

any relevance or operation in this particular case.

MR FITZGERALD: Well, it did not have very much, Your Honour,

because the jury was directed that unless they were
satisfied beyond reasonable doubt that they were
gifts, they were to acquit him and what 176(2) says,
well, if an agent receives anything without the assent
of his principalfrom someone having business relations

with the principal, well, then, the onus is thrown on

him and we submit that one must look at the issues in

the case and there really was no issue as to whether,

if he received free gifts, that was with the assent

of the principal. His Honour told them that they had

_to be satisfied about that but if nobody suggested the contrary, the whole case was conducted on some other basis, how could the jury, we would submit, be

otherwise than satisfied that these gifts, if they

were gifts as the jury found, were without the assent

of the principal.

(Continued on page 47)

C2T62/2/SH	46	11/5/88
Gallagher

GAUDRON J:	But why was that relevant?
MR FITZGERALD:	Pardon?

GAUDRON J:  Why was that relevant? Why is it relevant now

that they were without an incentive to principal?

MR FITZGERALD: Well, except that if he received free gifts,

the way His Honour put it, then the same four

elements existed and if they were received without

the assent of the principal then the onus was on

him. But in any criminal trial one must look at

what issues are fairly raised and when a person's

case is that he was receiving gifts as ordinary

commercial transactions and intended to pay for

them it is completely inconsistent with any assent

being given by the members of the BLF.

MASON CJ:  But 186 is on the fringes of this case, is it

not?

MR FITZGERALD: It is, Your Honour, I entirely agree with

that. The way the issues were developed in the

case it really was of no real significance whatever. Indeed, the real issu~ which was put very favourably

to the applicant, was were these free gifts. Now,

if they were nobody said, or could possibly say,

that giving a secretary of a powerful union $90,000

worth of gifts was not corrupt on- any definition

of the word "corruptly".

MASON CJ:  But on the point that has been the subject of

major debate here; you rel½ do you not, on the

passage in the charge to the jury on page 36 to

which Justice Deane directed attention earlier.

MR FITZGERALD:  That is the main passage yes, Your Honour,

and we submit that His Honours - what he said to

the jury about that puts the matter impeccably;

it is a model charge on that aspect of it. Yes,

Your Honour, we do.

submit, could have put the matter more succinctly Nobody, we would respectfully

or clearer than is put by His Honour at page 36

and also at other pages as well but particularly

MASON CJ: It does not have to reach that standard of

perfection - as long as it puts it accurately.

MR FITZGERALD:  I do not have to go that far, Your Honour,

of course but it would be idle to contend - this

is really a proviso point - that if the jury, as

they must have been, were satisfied that he got
this $90,000 worth of benefits as gifts, it is

common ground, even on his own story, he wielded

enormous power in the affairs of his members - how could one possibly say on any definition or

C2T63/l/AC	47
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explanation of the word "corruptly" that that was

not corrupt. If the Court pleases, those are

our submissions.

MASON CJ:  Yes, thank you Mr Fitzgerald. Yes, Mr Strong.

MR STRONG: If the Court pleases, Your Honour the Chief Justice

asked my learned friend whether my learned friend

would rely on the directions which the trial judge

gave the jury at page 36 where His Honour was dealing

specifically with the meaning of the word "corruptly". the jury would have firmly in their minds the

discussion of "corruptly" which had occurred a

few pages earlier and, indeed, at a critical part

of the charge, where at page 31 - at the foot

of the page - His Honour had said:

(Continued on page 49)

C2T63/2/AC	48	11/5/88
Gallagher

MR STRONG (continued):

If youcome to the conclusion that the receipt did tend to influence him to

afford these developers or project managers

more ready access to him, it would be a

question of fact for you to say whether or

not you were satisfied that by affording

them ready access to himself, that that

was showing favour to them in relation to

his principal's affairs or business. That

would depend on whether you concluded that
by affording them more ready access, that that

amounted to favouring these developers by

enabling them to deal and negotiate with

him as to wages and conditions -

not illegitimately, not contrary to the interests

of the members, legitimately, to simply enable them

to negotiate with him -

thus enabling them to resolve more quickly

any dispute or trouble which might arise on

their sites -

which one would have thought is a highly desirable

thing. So that, when the jury are receiving

His Honour's formal direction on the meaning of the word "corruptly" at page 36, they have been given a

context in which they might consider that. So that.

when they went into their jury rooms, they might say

one to the other, "All that we have to be satisfied

about is that he knew that they were looking for

better access to him,·and we can convict him."

MASON CJ:  But if they had listened carefully, they would

not accept it that way, would they, Mr Strong?

Because if you look at the introduction at page 31,

His Honour is dealing with that as a separate

element in the charge. He is looking at .

section 176(1)(b) in so far as it refers to "favour"

and he is dealing with that. Then, at 36, he comes

to what he is putting as the final element in the

charge: 

Finally, you have to be satisfied that he

receivea them corruptly.

And then he goes on to say there that, of course,

the offer must be made and it must be received with

this. view to, as it were, inducing the recipient to

depart from his duty to his principal.

MR STRONG:	Yes, Your Honour.
MASON CJ:	So that they are two separate matters.

MR S'I'R!EG: 'Ihey are indeed, Your Honour. But they operate together. The first

defines what favour is or is capable of being; the second says that

if the receiver knows that that favour is sought and accepts the gift

knowing that, he cOOIDits a crime:  -~-- · -

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MR STRONG (continuing):  So what His Honour at first does is

that he says to the jury, "It is open to you to find

that merely to give access is favour and if you find

that, and if you find that he acted corruptly in

the sense that he knew that that is what they were

seeking and took the money knowing that, then that is

the crime."	The two must be read, with great
respect, together.	My learned friend said that

the real issue was, in this trial, were these free

gifts, and that was certainly the main issue, but

one of the reasons, in my submission, it was the main

issue was that defence counsel had his hands, to a

large extent, tied behind his back by the meaning that

the Court of Criminal Appeal had given to "corruptly'

in GALLAGHER's case, and I have made submissions in

that regard already.

They are the only matters I wish to put in reply.

I ask the Court's leave to answer a question that

His Honour Justice Dawson asked me when I was making

my submissions.

MASON CJ:	Yes.
MR STRONG:	Your Honour asked me whether a union official

might not be regarded as being in a position similar

to that of a person holding public office. In my

respectful submission, a union official is in very

much the same position as a director of a public

company who represents a number of members of that

company. A director of a public company, in my

submission, does not hold public office in the sense

that the various parties in the cases to which

reference has been given held public office.

If Your Honour pleases.

MASON CJ:  You do not have to say anything about that, do you,

Mr Fitzgerald'?

MR FITZGERALD:  No, Your Honour.

MASON CJ:  The Court will adjourn for a short period of time

in order to consider what course it will take in

relation to the matter.

AT 4. 02 PM SHORT ADJOURNMENT

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UPON RESUMING AT 4.11 PM:

MASON CJ:	The meaning of the word "corruptly", in its context in section 176(1) of the CRIMES ACT is a question of
some importance and difficulty, but when the charge
of the trial judge is read in its entirety we are not persuaded that the directions given to the jury in this case were erroneous. The application for
special leave is, therefore, refused.
The Court will now adjourn.

AT 4.12 PM THE MATTER WAS ADJOURNED SINE DIE

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