Federal Court of Australia|1991-04-17|Before: Gray J

Re John Charles Newbury v Robert Smith [1991] FCA 146; 101 ALR 54 29 FCR 246; (1991) 36 IR 314 (17 April 1991)

Industrial Law - registered organisation - election - offences of threatening, suggesting or causing disadvantage or causing loss because of promise of support - alleged threat, suggestion or causing before calling for nominations - whether "in relation to" elections - whether threat, suggestion or causing conditioned on lack of support of A was because of promise of support of B.

Practice and Procedure - information and summons - whether more than one offence can be charged in one information.

Evidence - similar fact - system - whether sufficient instances to establish system - whether similar - whether alternative rational explanation of conduct.

Counsel for the defendant: Mr. M. Dowling QC, Mr. P. Burchardt

This proceeding was commenced by information and summons, alleging four separate offences against s.315(2) of the Industrial Relations Act 1988 ("the Act"). The proceeding came on for trial at the same time as matter no. VI 30 of 1990, in which the same prosecutor was prosecutor and Arthur Harper was defendant. Mr. Harper was also charged under s.315 of the Act. The two proceedings were heard together by consent.

2. At the outset of the trial, Mr. Borenstein of counsel for the prosecutor sought leave to amend the information and summons. Mr. Dowling QC, who appeared with Mr. Burchardt of counsel for the defendant, did not object to the amendment of the charges, but objected to the four charges being contained within a single information. I overruled that objection, and granted leave to amend. The defendant then pleaded not guilty to all four of the charges in the amended information. The unusual course was then taken whereby counsel for the prosecutor opened his case and tendered certain exhibits, before argument was heard on a preliminary point, concerning whether the amended information disclosed charges that were known to the law. After hearing that argument, I ruled in favour of the prosecutor. Further evidence was then led on behalf of the prosecutor. After the close of the prosecution case, counsel for the defendant made a submission that there was no case to answer. Mr. Marshall of counsel, who appeared for the defendant Harper in matter no. VI 30 of 1990, also made a similar submission. In that case, I ruled in favour of the defendant, there being no evidence before the Court upon which a conviction of Mr. Harper for any of the offences with which he was charged could have been justified. In the present case, I ruled in favour of the prosecutor. Counsel for the defendant then elected not to call evidence, and I heard argument on whether I should be satisfied beyond reasonable doubt that the defendant was guilty of any of the offences with which he was charged. At the conclusion of the argument, I ruled in favour of the defendant and dismissed the charges. I then indicated that I would publish my reasons at a later date. These are the reasons for judgment which I now publish.

3. It is convenient to deal with the various issues which arose at the trial under separate headings.

4. The submission on behalf of the defendant that each charge was required to be the subject of a separate information was founded primarily on a passage in Dillon v. Chin (1988) 84 ALR 457, at pp 458-459, which is as follows:

"The rules relating specifically to prosecutions are in O 49. They

require that a prosecution for an offence be commenced by summons

upon information (r 1), that the summons state the offence with

which the defendant is charged (r 2(1)(a)) and that the summons be

divided into paragraphs: r 3(1). Then 0 49, r 3(2) says: "So far

as convenient, each paragraph shall deal only with one matter." In

my view that does not imply that an information or a summons may

relate to more than one offence; nor do the forms of summons and

information (Nos 51 and 52) do so. When these rules were made, the

practice was, as to criminal charges other than those brought by

indictment, that only one charge could be the subject of a single

proceeding. The rules appear to be drawn on the assumption that

there will be one summons for each charge. The summons and

information in the charge I have mentioned (G57 of 1987) are also

drawn on that basis, but the problem is that the charge has been

particularised and evidence has been led in such a way as to suggest

that in reality more than one offence is charged in the summons."

After quoting this passage in Steele v. Mayne Nickless Ltd. (trading as IPEC Aviation) (Federal Court of Australia, Gray J., 20th August 1990, unreported), I said at pp 4-5:

"I confess to having some considerable difficulty with the passage

which I have just read. Insofar as it is based on the proposition

that the provisions of the rules do not imply that an information or

a summons may relate to more than one offence, it is curious that no

reference is made to the provisions of s. 23(b) of the Acts

Interpretation Act 1901, under which the singular includes the

plural. As I read the provisions of order 49 of the Federal Court

Rules and the forms referred to in the schedule to those rules,

there appears to me to be no difficulty about the inclusion in an

information or a summons of reference to more than one offence. To

the extent to which the Court in Dillon v. Chin made reference to

the existence of a practice, whereby only one charge could be the

subject of a single proceeding, my experience as to a practice in

relation to the bringing of criminal proceedings in this Court

differs substantially from that statement. Indeed, I am fortified

in my understanding of the practice which has always existed by

reference to the form of information for an offence and the form of

summons which were filed and dealt with in matter V. No. 16 of 1981,

Childs v. Metropolitan Transport Trust, Tasmania. Copies of those

documents were handed to the Court today by the prosecutor. For

these reasons, I find that I am in substantial disagreement with the

view expressed by the Court in Dillon v. Chin in the passage that

I have quoted. My disagreement is such that I regard the statements

there as fundamentally wrong and therefore feel that I should not

follow them. For those reasons, I do not propose to disallow the

amendments sought in the present case on the ground that they are

made to require the Court to deal with three charges in the one

information and the one summons."

5. Since making those remarks in Steele's case, my conviction that what was said in Dillon v. Chin is wrong has been fortified. In Evans v. Federated Ironworkers Association of Australia (1968) 11 FLR 437, the Commonwealth Industrial Court deplored the practice of making each separate charge the subject of a separate information and summons. In Linehan v. Australian Public Service Association (Fourth Division Officers) [1982] FCA 198; (1982) 66 FLR 90, at p 107, Fitzgerald J. said:

"One minor complication which has intruded when the dispute has

concerned the process of inferior courts has been that, in such

cases, statutes have required not merely that each charge or count

relate to only one offence but that each information or summons be

similarly confined. The basis for the additional restriction seems

to have been to ensure a separate hearing for each separate offence,

perhaps to avoid embarrassment to magistrates: see R. v.

Mollison; Ex parte Borough of Sandridge (1876) 2 VLR 51, at p

53. The current practice of commencing separate proceedings in this

Court even in respect of what are plainly connected activities, as

in the present matters, presumably stems from a misconception that

separate process for each separate offence is a general aspect of

duplicity and uncertainty, and is in my view unwarranted. I do not

consider that such a course is required by the use of the singular

number in O. 49, r. 1(1) and r. 2(1) of the court's rules. Compare

Bowling v. General Motors-Holden's Pty. Ltd. (1975) 8 ALR 197,

at p 219 from which it appears that the Australian Industrial Court

was prepared to permit three alleged offences to be tried on a

single information provided that they were separately charged."

It is clear that these authorities were not drawn to the attention of the Court in Dillon v. Chin. Nor does it appear that the Court in that case was aware of the provisions of s.4K of the Crimes Act 1914, sub-s. (3) of which provides:

"Charges against the same person for any number of offences against

the same provision of a law of the Commonwealth may be joined in the

same information, complaint or summons if those charges are founded

on the same facts, or form, or are part of, a series of offences of

the same or a similar character."

A similar provision was found in s.45B of the Acts Interpretation Act 1901, until the enactment of s.4K of the Crimes Act 1914 by the Crimes Legislation Amendment Act 1987. This provision puts the question beyond any doubt.

6. I am further fortified as to the correctness of my conclusion in Steele's case by the fact that the Full Court refused leave to appeal from that judgment, and by the rejection of Dillon v. Chin by the Court in Trades Practices Commission v. Farrow (1990) 95 ALR 53, at p 55, where the Court quoted the passage which I have quoted above from Dillon v. Chin and said:

"In so far as that passage supports the view that it is not open to

include two or more counts each charging a separate offence in the

one summons and information, I respectfully differ from his Honour.

Whilst the rules and the forms as drawn assume that a summons will

be in respect of a single charge, this may be explained as a style

of drafting to avoid the expression of the singular and the plural

on each occasion. The forms, by O 1, r 7, may be varied as the

nature of the case requires. I do not think there is anything in

the wording of O 49 inconsistent with the notion that a summons and

information may include two or more counts. His Honour refers to a

practice as to criminal charges. That was not a uniform practice as

at least in South Australia it was, and is, common to include more

than one count in a single proceeding commenced by summons upon

information."

7. These authorities make it clear that the proper course was to reject the defendant's argument based on Dillon v. Chin and to hold that the four amended charges could be included properly in one information.

8. It is convenient to set out in full s.315(2) of the Act:

"A person shall not, without lawful authority or excuse, in relation

to an election for an office in, or in a branch of, an organisation

threaten, offer or suggest, or use, cause, inflict or procure, any

violence, injury, punishment, damage, loss or disadvantage because

of, or to induce:

(a) any candidature or withdrawal of candidature;

(b) any vote or omission to vote;

(c) any support or opposition to any candidate; or

(d) any promise of any vote, omission, support or opposition."

Following the amendments made during the trial, the charges and the particulars of the charges as contained in the amended summons are as follows:

"1. That on 12 September, 1990 at Melbourne in the State of

Victoria you did commit a breach of Section 315(2) of the

Industrial Relations Act 1988 in that you did without lawful

authority or excuse, in relation to the elections ("the

elections") in the Victorian Branch ("the branch") of the

Federated Ironworkers' Association of Australia ("the union")

for all offices in the branch threaten disadvantage to the

Prosecutor because of his promise of support for candidates

opposing you in the elections.

2. That on 12 September, 1990 at Melbourne in the State of

Victoria you did commit a breach of Section 315(2) of the

Industrial Relations Act 1988 in that you did, without lawful

authority or excuse, in relation to the elections ("the

elections") in the Victorian Branch ("the branch") of the

Federated Ironworkers' Association of Australia ("the union")

for all offices in the branch, suggest disadvantage to the

Prosecutor because of his promise of support for candidates

opposing you in the elections.

3. That on 13 September, 1990 at Melbourne in the State of

Victoria you did commit a breach of Section 315(2) of the

Industrial Relations Act 1988 in that you did, without lawful

authority or excuse, in relation to the elections ("the

elections") in the Victorian Branch ("the branch") of the

Federated Ironworkers' Association of Australia ("the union")

for all offices in the branch, cause disadvantage to the

Prosecutor because of his promise of support for candidates

opposing you in the elections.

4. That on 13 September, 1990 at Melbourne in the State of

Victoria you did commit a breach of Section 315(2) of the

Industrial Relations Act 1988 in that you did, without lawful

authority or excuse, in relation to the elections ("the

elections") in the Victorian Branch ("the branch") of the

Federated Ironworkers' Association of Australia ("the union")

for all offices in the branch, cause loss to the Prosecutor

because of his promise of support for candidates opposing you

in the elections.

Particulars of the charges are -

1. Of charge No. 1: On 12 September, 1990 at approximately

2.00pm the Defendant spoke by telephone to the Prosecutor and

sought the Prosecutor's support in the elections. The

Prosecutor indicated that he would not do so as he had

promised to support the opposing group of candidates. The

Prosecutor was at that time a paid employee of the branch and

the Defendant was the Secretary of the branch. The Defendant

threatened disadvantage to the Prosecutor in that he

threatened that he would dismiss the Prosecutor from his paid

position, if the Prosecutor maintained his promise of support

for the group of candidates opposed to the Defendant in the

elections.

2. Of charge No.2: During the telephone call referred to in the

preceding paragraph, the Defendant told the Prosecutor that he

would not have persons who were not going to support him in

the elections working for the branch, thereby suggesting

disadvantage to the Prosecutor namely, that the Prosecutor's

paid position with the branch would be terminated if the

Prosecutor maintained his promise of support for the group of

candidates opposed to the Defendant in the elections.

3. Of charge No. 3: The Prosecutor met with the Defendant at the

Defendant's office at 685-691 Spencer Street, Melbourne on 13

September, 1990 at approximately 12.00 noon and the Defendant

once again asked the Prosecutor whether he would support the

Defendant in the elections. The Prosecutor once again refused

and said that he had promised his support to the opposing

group of candidates. The Defendant thereupon told the

Prosecutor that he was dismissed from his paid position with

the branch effective immediately and that he should hand in

his car keys. The Defendant thereby caused the Prosecutor

disadvantage because of his promise of support to the group of

candidates opposing the Defendant in the elections.

The disadvantage to the Prosecutor comprised of:

(a) a loss of employment;

(b) a lessening of his standing in the eyes of members;

(c) the Prosecutor was, to the Defendant's knowledge,

proposing to contest the elections for the position of

Branch Organiser, and the dismissal prevented him from

becoming better known to members and from continuing to

demonstrate to members his abilities to perform the

functions of an organiser, so as to enhance his chances

of election.

4. Of charge No. 4: As a result of the dismissal of the

Prosecutor by the Defendant referred to in the preceding

paragraph, the Defendant has caused the Prosecutor loss as a

result of the Prosecutor's promise of support to the group of

candidates opposing the Defendant in the elections. The loss

comprises of loss of wages from his full-time employment with

the branch."

9. The preliminary point taken by counsel for the defendant was that, having regard to the date of each of the alleged offences, none could have been committed "in relation to" the elections alleged. For the purpose of determining this point, it was necessary to know some facts about the elections alleged. The Federated Ironworkers' Association of Australia ("the association") is an organisation, registered pursuant to the Act. It has a branch in Victoria, known as the Victorian branch ("the branch"). On 19th July 1990, the secretary of the Victorian branch was Royce Bird. On that date, Mr. Bird wrote to the Industrial Registrar, advising that, in accordance with the rules of the association, elections for all offices in the branch were required to be conducted in 1990. His letter suggested that nominations should open on 14th September and close on 14th October. By letter dated 27th August 1990, Mr. Michael Small of the Australian Electoral Commission notified Mr. Bird that the Deputy Industrial Registrar had made arrangements with the Australian Electoral Commission for Mr. Small to conduct the elections. By letter dated 11th September 1990, Mr. Small advised Mr. Bird of the proposed time table for the elections. This involved the opening of nominations on 2nd October 1990 and their closing on 15th October 1990 at 12.00 noon. The dates fixed for any ballot were 21st November to 10th December 1990. It was intended to publish notices calling for nominations on 2nd October 1990.

10. Mr. Dowling argued that no election could be regarded as taking place until the returning officer called for nominations, and that it was therefore impossible for any act performed on 12th or 13th September 1990 to be an act "in relation to" the elections in the branch, nominations for which would not be called until 2nd October. Several authorities were cited, indicating that the process of calling for nominations is part of an election. See Hodge v. The King [1907] HCA 68; (1907) 5 CLR 373, at p 379 in the judgment of Griffith C.J., p 383 in the judgment of Barton J. and pp 387-388 in the judgment of Isaacs J., Scott v. Jess [1984] FCA 289; (1984) 3 FCR 263, at p 272 in the joint judgment of Evatt and Northrop JJ. and Anderson v. Johnson (1990) 33 IR 40, at p 52. These authorities do not establish that the starting point of an election is the call for nominations; they merely show that that event is part of the process of an election. It may be that the making of a decision by a returning officer as to the date on which he or she will call for nominations is part of an election. If that were the case, then it is clear that that decision in relation to the elections in the branch was made on or before 11th September 1990, and the defendant's argument would fail on that point. It is unnecessary to reach a final conclusion on that issue, however, as the defendant's argument is bound to fail in any event.

11. The premise that an event which occurs before an election begins cannot be "in relation to" that election is wrong. It is obviously possible to do an act "in relation to" an event, before that event takes place. Acts preparatory to an event will usually be regarded as being performed "in relation to" that event. Even such a thing as the purchase of a ticket for a football match could be regarded as an act performed "in relation to" that football match, although the match has not yet begun. It was contended on behalf of the defendant that a proposed event may never take place; it may be postponed or cancelled, for whatever reason. This is true, but it does not mean that the event must have begun before any act can be said to be "in relation to" the event. The postponement of a football match does not make the prior purchase of a ticket for it any less "in relation to" the football match than it would have been if the football match had proceeded.

12. The phrase "in relation to an election" occurs frequently in the Act, not only in s.315, which creates a number of offences. That phrase is found throughout divisions 4 and 5 of Part IX of the Act, which deal respectively with the conduct of elections for office and enquiries into elections. In Re Collins; Ex Parte Hockings (1989) 87 ALR 656, the High Court of Australia dealt with the similar phrase "in or in connection with an election", which was used in the now repealed Conciliation and Arbitration Act 1904. Unfortunately, the reasoning of the Court does not assist in resolving the present question whether a temporal connection is required between an act and an event, in order to make the former "in relation to" the latter. It is clear, however, from an examination of some of the provisions in which the phrase is used that a precise temporal connection is unnecessary.

13. Section 215(1) and (2) deal with elections conducted by the Australian Electoral Commission. Sub-s. (1) begins with the words "Where an electoral official is conducting an election, or taking a step in relation to an election...". Sub-s. (2) begins with the words "An election conducted by an electoral official, or step taken in relation to such an election...". The wording of each of these provisions suggests strongly that the taking of a step in relation to an election is a concept broader than conducting the election. It must therefore be possible to take a step in relation to an election outside the time when the election is being conducted. The duty of the Court under s. 223(1) of the Act, in conducting an inquiry into an election, to "inquire into and determine the question whether an irregularity has happened in relation to the election" would be hampered severely if it were restricted to irregularities occurring only during the period of the conduct of the election.

14. There are clear indications, therefore, that the phrase "in relation to an election", when used in the Act is intended to encompass matters occurring outside the time when the election is being conducted. Counsel for the defendant contended that, even if this were so, the phrase should be given a more restricted meaning in s.315 of the Act, which is a provision creating criminal offences. That section creates criminal offences for the purpose of protecting the electoral process, which is of vital importance to the conduct of the affairs of organisations registered under the Act, and, in turn, to the participation of those organisations in the system of conciliation and arbitration set up by the Act for the resolution of industrial disputes. This is a case of the kind referred to in Waugh v. Kippen [1986] HCA 12; (1986) 160 CLR 156, at pp 164-165, in which a statutory provision creating criminal liability would lose much of its protective element if construed strictly. To construe s.315(2) in the manner for which the defendant contended would produce absurd results. A threat of violence to induce candidature is nonetheless in relation to an election if it occurs before the actual call for nominations than if it occurs after that time. Similarly, a threat of violence to induce a promise of a vote, or to induce support or opposition, may be in relation to an election even if the process of electing has not begun. To exclude such threats from the ambit of s.315, by confining artificially the meaning of the phrase "in relation to" would be contrary to the obvious object of the provision.

15. For those reasons, I rejected the preliminary point taken by counsel for the defendant, and directed that the trial proceed.

16. In late 1986, the prosecutor was elected unopposed as vice president of the branch. The person he replaced in that office had been employed as a full time organiser. The prosecutor was offered employment as a full time organiser, operating in the Latrobe Valley, where he had previously been an on site organiser at Loy Yang A Power Station. The prosecutor took up his new position as organiser in January 1987. There were further elections scheduled for the branch in late 1990. In or about October 1989, all full time officials of the branch met in Melbourne to discuss those forthcoming elections. The purpose of the meeting seems to have been to endeavour to reach agreement as to who should stand for which position, so as to avoid contested elections. At the meeting in October 1989, Mr. Bird indicated that he would not wish to stand again for the position of branch secretary. It was agreed that Danny Gardiner, who was then an organiser, would be a candidate for secretary. The meeting worked out a "ticket", on which the prosecutor was to stand as vice president.

17. In or about August 1990, the prosecutor was told by the president of the branch and Mr. Bird that Mr. Bird had been offered a salaried position in the federal office of the association and that he might stand down before the 1990 elections and allow Mr. Gardiner to be appointed to fill a casual vacancy in the office of branch secretary. The prosecutor then indicated that he would prefer to be allowed to stand for one of the full time organiser positions, instead of being re-elected to the honorary position of vice president and having a job as an employed organiser. The suggestion was made that the prosecutor and one Barry Wandel, who had been chosen to stand as a full time organiser, could swap positions on the ticket.

18. Early in August, a meeting of branch officials took place, at which Mr. Bird announced his change of plan. There was discussion about the composition of the ticket, with some officials refusing to accept any change unless national officials were involved. Among those dissenting officials was the defendant, who was employed as a restructuring officer.

19. On 21st August 1990, there was a further meeting at which national officials attended. The result of this meeting was a split of the officials into two groups, one of which supported Mr. Gardiner to be the branch secretary. The prosecutor aligned himself with this group, which was supported by the majority of the branch officials. The other group supported the defendant for branch secretary. The meeting was adjourned until the following Tuesday, in the hope that a decision could be reached on a ticket, but the resumed meeting never occurred. At that stage, it became obvious that the two groups would contest the branch elections.

20. On Tuesday 11th September, there was a scheduled meeting of the branch committee of management in Melbourne. The prosecutor travelled to Melbourne, arriving approximately three quarters of an hour before the starting time of the meeting. He was then informed by Mr. Gardiner and other Gardiner supporters that there were moves afoot to put the defendant in as branch secretary that evening. In the course of the meeting of the committee of management, a letter of resignation was received from Mr. Bird. The committee of management then passed by majority a resolution appointing the defendant as branch secretary. The prosecutor, along with Mr. Gardiner and other Gardiner supporters, asked to have his name recorded in the minutes as having dissented from the motion.

21. On the following day, the prosecutor returned a telephone call from the Latrobe Valley office of the association to the defendant in Melbourne. The defendant indicated that he had been going through the minutes of the committee of management meeting on the previous evening and was uncertain whether the prosecutor had voted, and whether he wanted his name recorded in the minutes as one who had voted against the defendant. The prosecutor confirmed that he did want his name so recorded. The defendant asked why the prosecutor had taken this position. The prosecutor declared his loyalty to Mr. Gardiner for the purposes of the election, but said that he would follow the defendant's instructions. The defendant said that he was trying to put together a team to run the branch and was not very happy to have people as paid employees who were not going to support that team. The prosecutor said that he would follow the instructions of the defendant, as he had with previous secretaries, during working hours. When it came to the election, he would support Mr. Gardiner in his own time. The defendant said that he was not happy with that and wanted to see the prosecutor in Melbourne to talk face to face. There was then an exchange, which was the subject of the first two charges against the defendant, and which will be examined in greater detail later in these reasons for judgment.

22. On the following day, the prosecutor went to Melbourne. He had a conversation in the branch office with the defendant and Arthur Harper, who was a national official of the Association. The evidence as to the terms of that conversation will also be reviewed later in these reasons for judgment, as the conversation is the foundation of the third and fourth charges against the defendant. It was not disputed that the prosecutor was dismissed from his employment with the association in the course of that conversation. The dismissal constituted the substance of the disadvantage and the loss alleged as part of those charges.

23. Before dealing with the detailed evidence led in support of the charges, it is desirable to dispose of one other issue that arose during the trial.

24. In the course of the prosecution case, counsel for the prosecutor proposed to lead evidence of conversations which the defendant was alleged to have had with two other employees of the association, working in the branch. The first was Barry Wandel, an employed organiser, who was allegedly interviewed immediately after the prosecutor and was asked whether he would support the defendant in the elections. He equivocated about that. He was asked whether he would support Mr. Gardiner and refused to commit himself. He was allegedly told that if he at least remained neutral in the election he could continue in his job, but that if he did not the defendant would have to think about his position. Mr. Wandel asked for time to consider the position. Some days later, he told the defendant and Mr. Harper that he would not remain neutral and that he would be supporting Mr. Gardiner. He was then told that the defendant and Mr. Harper would have to review his position. Subsequently it is alleged that an attempt was made by the defendant to remove Mr. Wandel from the duties that he was accustomed to performing, and to send him to the country to recruit members. The other employee was Ms. Monica Peers, who was also said to be a supporter of Mr. Gardiner and a member of the Gardiner ticket, then holding the position of trustee. She was allegedly given a change of duties by the defendant on the day before the meeting between the prosecutor, the defendant and Mr. Harper. It was not alleged that anything was said about her support for Mr. Gardiner or lack of support for the defendant.

25. The contention of counsel for the prosecutor that this evidence was admissible was based on the proposition that the law with respect to the admissibility of "similar fact" or "propensity" evidence had been made more liberal by the decision of the High Court of Australia in Harriman v. R. [1989] HCA 50; (1989) 167 CLR 590. A close reading of the judgments in that case makes it clear that the High Court was not intending to change the law with respect to the admissibility in criminal cases of evidence of the conduct of the accused on occasions other than the occurrence of the offence with which the accused is charged, or of wrongdoing by the accused other than that with which he or she is charged. Indeed, their honours relied heavily on the earlier High Court decisions of Markby v. R. [1978] HCA 29; (1978) 140 CLR 108 and Hoch v. R. [1988] HCA 50; (1988) 165 CLR 292. The fundamental principle is that the evidence must show more than the mere commission of another offence or predisposition to commit an offence, and it must be otherwise probative of the offence charged or of a fact in issue, in order to be admissible.

26. Evidence of this nature is sometimes, but by no means always, brought by means of establishing the previous convictions of an accused person, sometimes with evidence of the circumstances in which the previous offences were committed. In such cases, the convictions themselves are proved relatively easily by reference to court records. Where no previous conviction is alleged, a difficulty may arise in establishing acts by the accused on other occasions which are said to be probative of the offence charged. Because of the way in which "similar fact" evidence is used in the chain of reasoning leading to the conclusion that an accused person has committed the offence charged, it is necessary that the court first be satisfied that the accused did the acts or committed the offences relied on as similar facts, and then that their character justifies giving them a place in the chain of reasoning.

27. In the present case, counsel for the prosecutor argued that the evidence he proposed to lead about Mr. Wandel and Ms. Peers would lead to the conclusion that the defendant embarked on a "system" of disadvantaging employees of the association in the branch who professed their loyalty to Mr. Gardiner. In fact, the only three such employees were the prosecutor, Mr. Wandel and Ms. Peers.

28. There can be no doubt that evidence of the conduct of an accused person on occasions other than that of the offence charged may be used to establish a system, of which the alleged offence is part, and that the existence of the system may be relied on as evidence that the accused committed the offence charged. There are some well known examples of this mode of reasoning. In Martin v. Osborne [1936] HCA 23; (1936) 55 CLR 367, a charge of driving a commercial passenger vehicle without being licensed, on a particular day, was proved by establishing that the person charged repeatedly carried passengers between Ballarat and Melbourne by a regular daily service. Had it been proved that he carried passengers from Ballarat to Melbourne on one day, this would have been consistent either with the receipt of money for the carriage, or with gratuitous carriage. The number of occasions on which carriage took place justified the conclusion that the operation was for reward. In Makin v. Attorney-General for New South Wales (1894) AC 57, the accused were charged with taking in babies for reward and then murdering them. The fact that the remains of a very large number of babies were found buried in the garden of the premises of the accused led irresistibly to the conclusion that the babies in respect of whom they were charged had not died by accident. Thus, if an act is repeated on a sufficient number of occasions, so that the conduct concerned is shown to be systematic, the existence of the system may provide strong evidence of the commission of the offence with which an accused person is charged, even if there be no direct evidence of the commission of that offence.

29. If the conduct concerned has taken place only on a small number of occasions, it may still be possible to prove the existence of a system. Harriman's case is an example. The issue in that case was whether a visit of the accused to Chiang Mai in Thailand with another person was for the purpose of collecting heroin to import into Australia. Evidence that the accused had engaged with the other person in previous joint ventures to deal in heroin was held to be admissible, for the purpose of explaining the purpose of the journey to Chiang Mai. Nevertheless, it must be true as a matter of logic that the smaller the number of occasions on which an act is committed, the greater is the difficulty of proving an act to be part of a system.

30. One further element must be mentioned. As Dawson J. said in Harriman's case, at p 602, "...the evidence ought not to be admitted at all if the trial judge is of the opinion that there is a rational view of it which is inconsistent with the guilt of the accused". In other words, if the acts of the accused on other occasions may or may not have been criminal, they will be inadmissible to establish a criminal system.

31. In the present case, the number of acts relied on as similar facts was small; in essence, it amounted to two, if the various interviews with Mr. Wandel were seen as one act. The degree of similarity between those acts and the alleged offences is not high. The evidence with respect to the prosecutor is that he was threatened with dismissal and then dismissed. Mr. Wandel was required to work in the country, instead of the metropolitan area. Ms. Peers had her duties changed. Only in the case of Mr. Wandel was it alleged that anything was said by the defendant about the forthcoming elections; what the defendant was alleged to have said to Mr. Wandel might have been taken to amount to a threat or threats that he would be dismissed from his employment if he supported Mr. Gardiner. In the event, Mr. Wandel was not dismissed, so it could not be said that the threat was carried out.

32. These are not the only obstacles to the prosecutor establishing a system on the part of the defendant. Most importantly, there was another rational explanation for what was done to Ms. Peers and Mr. Wandel. The defendant had only just become secretary of the branch. It is natural that an incoming secretary might wish to reorganise the duties of employees, and even to dismiss some, on his accession to the position. Indeed, there is evidence that the defendant announced to the meeting which appointed him his intention to do some "reallocation of shops", which the prosecutor interpreted as meaning allocating organisers to different areas or responsibilities. Counsel for the prosecutor was unable to offer any evidence as to whether or not the defendant had allocated to other duties all or any of the elected organisers who supported Mr. Gardiner. Nor was he able to offer any evidence as to whether the defendant had reorganised the duties of any of his supporters. Contrary to the submission of counsel for the prosecutor, it was not for the defendant to be forced to lead evidence such as this to rebut the effect of "similar fact" evidence. It was for the prosecutor to make such evidence admissible, if he could.

33. What the prosecutor invited the Court to do was to use the evidence of what had occurred in relation to the prosecutor, in conjunction with the evidence of what had happened to Mr. Wandel and Ms. Peers, for the purpose of finding that the defendant engaged in systematically disadvantaging supporters of Mr. Gardiner. It would be dangerous to adopt this mode of reasoning, because it would involve assuming the guilt of the defendant with respect to the very offence with which he was charged. It is illegitimate to assume that the defendant dismissed the prosecutor because he supported Mr. Gardiner, and use that conclusion to find that the defendant changed the duties of Ms. Peers and Mr. Wandel for the same reason, so that their cases may be used to strengthen the conclusion that the defendant was guilty in relation to the prosecutor. The fact is that there were insufficient instances of similar acts on the part of the defendant to require the conclusion that he engaged in a system. There is no evidence that what the defendant did in relation to Ms. Peers was conditioned on her support of Mr. Gardiner. The evidence with respect to Mr. Wandel is equivocal. In each case, there existed another rational explanation for the defendant's act. In those circumstances, the evidence which counsel for the prosecutor proposed to lead was inadmissible. I so ruled in the course of the trial.

34. It will be seen that each of the charges is conditioned on the proposition that the act concerned was because of the prosecutor's "promise of support for candidates opposing" the defendant in the elections. To threaten disadvantage, suggest disadvantage, cause disadvantage or cause loss because of a promise of support is an offence under s. 315(2)(d) of the Act. Similarly any of those acts will be an offence if it is committed because of a promise of opposition. Because of the way in which each of the offences in the present case was framed, it was necessary for the prosecutor to establish beyond reasonable doubt that he had made a promise of support for a candidate or candidates opposing the defendant, and the defendant had threatened disadvantage, suggested disadvantage, caused disadvantage and caused loss to the prosecutor because of that promise.

35. On the evidence, it is established beyond reasonable doubt that the prosecutor had promised his support to Mr. Gardiner and to Mr. Gardiner's team. There is also no doubt that he told the defendant in the telephone conversation on 12th September that he intended to support Mr. Gardiner. The prosecutor did not give evidence in chief that he told the defendant that he had promised his support to Mr. Gardiner, but his statements of intention were capable of conveying that he had done so.

36. In his evidence in chief, the prosecutor purported to use the actual words of that part of the telephone conversation on 12th September which was alleged to constitute the threat or threats by the defendant. According to him, the prosecutor asked the defendant, "What are you saying to me, Bob, if I am not supporting you at the election I have got to come to Melbourne because I have not got a job?" and the defendant replied, "That is about it but I want to talk to you face to face". It will be noted that any threat which is conveyed in this part of the conversation is conditioned, not on the fact of the prosecutor having promised support for Mr. Gardiner, but on the fact of the prosecutor failing to support the defendant.

37. The prosecutor was cross-examined on the latter part of the first day of the trial, the whole of the second day and the early part of the third day. He was pressed closely and at length about the precise terms of the conversation by telephone with the defendant on 12th September. On each occasion in cross-examination when he was asked about the crucial part of the conversation, his answer was given in the same form as was his evidence in chief. There were some variations in the precise words he used in recounting that element of the conversation. Each time he referred to it, however, he gave clear evidence that his question to the defendant was a suggestion that if the prosecutor did not support the defendant he would not have a job. At no time during cross-examination did the prosecutor say anything to the effect that his question to the defendant had been along the lines that if the prosecutor supported, or promised to support, Mr. Gardiner, he would not have a job. On the third day of the trial, the prosecutor was re-examined by his own counsel. It was at that stage that he produced notes which he had made immediately after the completion of the telephone conversation. In reliance on those notes, he gave evidence that the question he asked was along the lines of, "Are you saying to me that if I support Danny Gardiner, I have not got a job". The prosecutor also said in re-examination that he told the defendant during the telephone conversation, and before the crucial question and answer, that he had committed himself to Mr. Gardiner and could not go back on that commitment.

38. It would only be by reference to this reformulation of the evidence in re-examination that the prosecutor could hope to support each of the first two charges. His counsel submitted strongly that I should find the facts in accordance with the prosecutor's evidence in re-examination. It must be remembered that the onus rests on the prosecutor to prove each element of each offence charged beyond reasonable doubt. The existence of such a stark conflict between the evidence of the prosecutor in chief and in cross-examination on the one hand and his evidence in re-examination on the other makes it impossible to be so satisfied. I do not doubt the honesty of the prosecutor. It may well be that, if he had had the benefit of his notes in evidence in chief, his evidence would have been given in a different form. That is speculation. He did not claim at any stage to have any lack of recollection about what was said. Indeed, it is plain from the way in which he gave his evidence that he had the strongest recollection that the conversation was in the form in which he gave it. He said in re-examination that his notes were not word for word. It was his very honesty and the apparent strength of his recollection that made it impossible for me to be satisfied beyond reasonable doubt that the form of the question which the prosecutor asked the defendant in the telephone conversation on 12th September was a form in any way appropriate to the two charges laid in respect of that conversation.

39. It is also necessary to examine in some detail the evidence as to the interview which the prosecutor had with the defendant and Mr. Harper on 13th September, during which the prosecutor was dismissed. In contrast with the evidence of the telephone conversation, there was very little cross-examination, or re-examination, of the prosecutor about this conversation. The prosecutor's evidence was more concerned with substance than with actual words. It was to the effect that there was a discussion about the fact of the forthcoming elections, and a question whether the prosecutor had considered his position. The prosecutor referred to an undertaking of four years' work which the national secretary had given to him. The defendant said he had discussed the question with the national secretary, who was aware of what was going on. The prosecutor recounted his history with the association and the fact that he had received support from Mr. Gardiner. He repeated the proposition that he would obey the instructions of the defendant while he was secretary, but at elections and in his own time he would continue to support Mr. Gardiner. The defendant said that he was not going to have a paid official in the branch to campaign against him. The prosecutor said that this was not his intention. Mr. Harper told him that there were no problems with the prosecutor as an official, that he had done a good job and that national officials, including the national secretary, spoke highly of him. He said, "You should support Bob", meaning the defendant. The defendant offered the prosecutor a position on his ticket. The prosecutor said that he had given a commitment to Mr. Gardiner and would stand by the commitment. After these aspects of the conversation had concluded, Mr. Harper spoke what appears to have been a crucial sentence, which had three elements. The first element was to the effect, "If you are not going to support Bob", the second element was to the effect that it was the defendant's decision, and the third element was an expression of the opinion of Mr. Harper that the prosecutor should no longer be employed. The defendant then asked the prosecutor for his car keys and his office keys. The prosecutor took the keys off his key ring and handed them over. There was then further discussion about how the prosecutor would return to the Latrobe Valley, about the removal of his personal items from the office there and about his termination pay. At the very beginning of his cross-examination, the prosecutor stated that the reason given for his dismissal was his support of Mr. Gardiner.

40. It is clear on this evidence that, prior to the dismissal, the prosecutor had told the defendant and Mr. Harper that he had given a commitment to Mr. Gardiner and would not go back on it. This evidence is sufficient to establish that the prosecutor had given a promise of support, within the meaning of s. 315(2)(d) of the Act, and that the fact of this promise, and of his intention to adhere to it, was known to the defendant. The evidence is not at all clear, however, that it was this promise which led to the dismissal of the prosecutor. On the prosecutor's evidence in chief, the defendant did not say anything to suggest that he was dismissing the prosecutor because of his promise of support for Mr. Gardiner. Rather, Mr. Harper was suggesting that he should be dismissed for his failure to support the defendant. It is not clear whether the defendant was assenting to this proposition of Mr. Harper's. Nor is it clear from the prosecutor's answer in cross-examination when he alleges that the defendant said he was being dismissed for his support of Mr. Gardiner.

41. The prosecutor attempted to lead evidence from other witnesses as to admissions made by the defendant. Mr. Wandel gave evidence, producing a transcript of a tape recording of a conversation he had with the defendant, in which the defendant said:

"...I think you're a good type of bloke and I

don't want to say...he's not with me, he's

out..., I mean if that's what people are

interpreting with Newbury that (sic.) fine but

that's not what, why it was done. That's part

of it, but not entirely. But you understand I

couldn't possibly sit here and think that while

you're going to be out campaigning for Tommy and

Danny and we do nothing about it."

Three witnesses gave evidence of a meeting of shop stewards in the Latrobe Valley, which the defendant attended, and at which he was asked why the prosecutor had been dismissed. The evidence of all three witnesses is consistent that the defendant said that the dismissal was because the prosecutor would not support him. All of this evidence is consistent with the proposition that the defendant dismissed the prosecutor because the prosecutor would not support the defendant, rather than because the prosecutor supported, or promised to support, Mr. Gardiner.

42. Counsel for the prosecutor attempted to argue that lack of support for the defendant, and support for Mr. Gardiner, were one and the same thing; there were only two groups contesting the elections, and opposition to one amounted to support for the other. As a matter of logic, this argument cannot be accepted. The third possibility of neutrality always existed. Even if the dichotomy advanced by the prosecutor were accepted there would still be a difference between support for Mr. Gardiner and a promise of support for Mr. Gardiner. Section 315(2) plainly intends that such a difference should exist; actual support is dealt with in para. (c), and a promise of support in para. (d). Even if the evidence did satisfy me beyond reasonable doubt that the defendant dismissed the prosecutor because of his support for Mr. Gardiner, it would still not establish the charge as framed.

43. No question was raised of amendment of any of the charges, pursuant to s.15C of the Crimes Act 1914. The prosecutor having closed his case, and the defendant having elected not to call evidence, no amendment could be made without injustice to the defendant.

44. The prosecutor therefore failed to prove any of the charges beyond reasonable doubt. Accordingly, each of the charges was dismissed.

Interpretation Act 1901

Legislation Amendment Act 1987

Conciliation and Arbitration Act 1904

Interpretation Act 1901

Legislation Amendment Act 1987

Conciliation and Arbitration Act 1904

Interpretation Act 1901

Legislation Amendment Act 1987

Conciliation and Arbitration Act 1904

Re John Charles Newbury v Robert Smith [1991] FCA 146; 101 ALR 54 29 FCR 246;

At a glance

Court

Decision date

Before

Source

Judgment (69 paragraphs)

Re John Charles Newbury v Robert Smith [1991] FCA 146; 101 ALR 54 29 FCR 246; (1991) 36 IR 314 (17 April 1991)

Parties

Legislation Cited (12)

Cases Cited (15)