Tuesday, February 5, 2013

A legal eagle has kindly contributed these thoughts about aiding, abetting, procuring, counselling and acting in concert in criminal enterprise: @mpsmithnews

Michael Smith:

Steve J has been very generous to us with his time and his expertise.   In this article, Steve looks at the Criminal Code and its provisions about principal offenders and those who help them out.

Steve J said:
These would appear to be the relevant sections of the Queensland code.  I believe WA is identical.
7 Principal offenders
(1) When an offence is committed, each of the following persons
is deemed to have taken part in committing the offence and to
be guilty of the offence, and may be charged with actually
committing it, that is to say—
(a) every person who actually does the act or makes the
omission which constitutes the offence;
(b) every person who does or omits to do any act for the
purpose of enabling or aiding another person to commit
the offence;
(c) every person who aids another person in committing the
(d) any person who counsels or procures any other person to
commit the offence.
(2) Under subsection (1)(d) the person may be charged either
with committing the offence or with counselling or procuring
its commission.
(3) A conviction of counselling or procuring the commission of
an offence entails the same consequences in all respects as a
conviction of committing the offence.
(4) Any person who procures another to do or omit to do any act
of such a nature that, if the person had done the act or made
the omission, the act or omission would have constituted an
offence on the person’s part, is guilty of an offence of the
same kind, and is liable to the same punishment, as if the
person had done the act or made the omission; and the person
may be charged with doing the act or making the omission.

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

It would appear that (1) (a) (c) and (d) cover the cases of “principal in the first degree” “principal in the second degree” and “accessory before the fact”.
R v Saliba [1973] Qd R 142.
Para (a) covers all persons who do one or more in a series of acts which constitute the offence.
An accessory should not be held liable for anything that they have not realised may be involved in the project agreed upon. Brennan v R (1936) 55 CLR 253.
However deliberately refraining from making enquiries places that person in the same position as knowing the facts.
To show Gillard aided in the commission of the offence we must show she knew what the association was to be used for, or should have made enquiries and refrained from doing so.
Some active steps must be taken by word or action.
Para (c) requires the aider to know what offence is being committed or at least what offence might be committed by the person being aided.
An intimation of encouragement or acquiescence sufficient to constitute aiding and abetting may exist where an indication is given that some duty owed to a party affected by the proposed act is not to be performed. Re Brotherson [1957] SR (NSW) 326.
This may have relevance to Gillards duty towards her client, the AWU.
She had a duty to prevent the unauthorised use of the name AWU.
She had a duty to enquire into why the Association was seeking to use that name.
This is a strong example of where actual knowledge should be implied.
If appropriate questions were not asked it can only be because Gillard deliberately refrained from asking them.
The question of whether someone has counselled another to commit an offence requires a consideration of what the former has urged or advised the later to do.
There may be more than one offence that Gillard has had a role in counselling.
This has obvious relevance to the advice to Ralph concerning the lodgement of the application for incorporation. Given Wilsons involvement at the relevant meeting he would also be included in this.
A person cannot counsel or procure unless they know or intend what is to be done.
Similar considerations to those outlined above would apply here.

8 Offences committed in prosecution of common purpose
When 2 or more persons form a common intention to
prosecute an unlawful purpose in conjunction with one
another, and in the prosecution of such purpose an offence is
committed of such a nature that its commission was a
probable consequence of the prosecution of such purpose,
each of them is deemed to have committed the offence
My assertion is that Wilson corruptly solicited and/or received from Theiss valuable consideration either as an inducement or reward for ensuring industrial peace or as a reward for ensuring Theiss got the contract.
In so far as the consideration related to industrial peace this was a matter relating to the affairs of his Principal as defined, the AWU.

Both Section7 and 8 can be used in situations where the actual perpetrator is unknown.
S 8 extends the criminal responsibility of persons who have made a concert to commit an offence.
They are responsible not only for the concerted or willed offence, but also for such offences as are objectively the probable consequence of the prosecution of the concert.
Here we know who committed the offence, (Wilson).
We need to show a joint enterprise and what has been agreed as part of that enterprise.
We only need to show that Gillard contemplated and foresaw that the primary offenders act was a possible incident of the planned joint enterprise. Chang Wing-Siu v R [1985]AC 168.
Not asking the obvious questions will not help her and the duty she owed to the AWU will be relevant to this and any lack of appropriate action.
The joint enterprise consisted of putting in place the structures needed to allow Theiss to pay amounts to the benefit of Wilson and pass those amounts off as legitimate expenses relating to Workplace Reform. It also consisted of negotiating these arrangements with Theiss and the invoicing and collection of funds.
The disbursal of the funds is not part of the offence but it may be instructive as to who was actually involved in the joint enterprise..
Gillard helped with the structure. She may also have been involved in the disbursements.
Ralph allowed his name to be used in the setting up of the structure and assisted in the  invoicing and collection.
Wilson was involved in the Theiss negotiations and assisted with the structure.
Wilson benefitted from the cash and it appears to be highly likely that Gillard did as well.
The evidence of Ralph and Bill the builder will be relevant.
To me the name AWU WRA has always been the key.
Gillard drafted the rules for the association to be consistent with the objects of promoting workplace reform.
She said she understood that it was actually to be used as the “Bruce Wilson and mates re election fund”. It was to receive funds from payroll deductions and raffles.
If this was the case why wasn’t the Association named as such.
Her justification is risible.
Therefore her real understanding of the purposes of the fund and what it was to be used for and how it was to acquire funds must have been something else.
Why disguise a re-election fund as an Association for workplace reform bearing the name AWU if there was no knowledge of the proposed source of funds.
In the absence of an explanation for the emphasis on Workplace Reform and the use of the name AWU the only and obvious reason for the name is that which is consistent with Wilson providing a cover for the extraction of funds from Employers.
Any Solicitor should have asked questions about the proposed source of funds for the association. If she turned a blind eye this is no defence.
Her duty to the AWU required her not to acquiesce in this arrangement let alone actively facilitate it. She therefore aided it.
Her counselling was instrumental in allowing the incorporation and in the absence of some other explanation for the choice of name she must be taken to know the intended source of funds.
Her relationship with Wilson provides the motivation.
Gillard and Ralph were both involved in aiding the commission of the offence.
Gillard was also involved in counselling it.
It goes without saying that Wilson was a principal offender.
It may also be possible to regard the incorporation of the AWU WRA alone as the prosecution of an unlawful purpose. It was not entitled to be incorporated. The Commissioner was provided with misleading information as to its main purpose.
The offence of receiving secret commissions was a probable consequence of such prosecution.
The fund was set up with the name it had to facilitate only this.
The lengths to which Gillard went to conceal this activity demonstrates that she well understood the issues involved. 

A legal eagle has kindly contributed these thoughts about aiding, abetting, procuring, counselling and acting in concert in criminal enterprise


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