Thursday 22 November 2012

ABC Radio 774 & A Shock-Jock

Here is a repost of Andrew Bolt's brilliant put-down of 774's morning presenter, Jon Faine.  Faine made a classic jerk of himself today.  Clearly, he was not fully across the subject of Prime Minister Gillard's involvement as a partnered solicitor in the AWU fiasco.  As such, he should not have opened his mouth.  What happens to his radio career as a result is entirely of his own doing.  I certainly will be watching with keen interest.  Faine has form for being obnoxious, not only to guests he disagrees with but also to callers.

The ABC has been dragged kicking and screaming to the point where they are right now, having to recognise there is a story which is actually in the public interest - not some non-event as they have portrayed this scandal for many months.

The 7.30 Report's Leigh Sales is to interview Nick Styant-Browne, one of the ex Slater & Gordon partners, tonight, Thursday, 22nd November, 2012.  I wonder if Leigh will try and shout him down?

I will have more to say on this in another post.

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ABC presenter makes hash of defending Gillard
Andrew Bolt
NOVEMBER
22
2012
(11:45am)
Melbourne ABC host Jon Faine was vehement today in defence of the Prime Minister, yet has not based his faith on facts. Let’s check his editorial:


…it’s to do with the slush fund that she was helping to establish for people who were acting as a group within the AWU at the time.

Fudge. Well, less than a group, Jon. It essentially operated just for Bruce Wilson and, to some extent, for his bagman, Ralph Blewett. And it was set up for their benefit as individuals, not AWU officials.

Well, at that stage, I do remember laughing out loud on air and saying since when should a client not act for someone because they might be breaking the law?

Red herring. No one to my knowledge has ever suggested Gillard should not have taken as a client someone who “might be breaking the law”.


Then Julia Gillard was criticised for not dobbing in her clients when it became apparent that they might have broken the law.  Well, since when does a lawyer dob in their own clients to the police when someone is making a complaint about them? It’s alleged that she should herself have gone to the police, which is preposterous and would’ve been an unethical act, if not a breach of duty to her client and a breach of confidentiality.

Gross oversimplication. Misleading. Porbably false. Gillard actually had two clients here - her boyfriend, Wilson., and the AWU itself, which was her firm’s primary client. When she found out Wilson’s slush fund had fraudently taken funds ostensibly paid to what donors believed was the AWU for workplace safety for its members, she had a duty to at the very least notify the AWU. She did not.  She arguably could have also notifed police of the frauds when told about them without breaching anything told her her in confidence by Wilson, since they were brought to her attention not by Wilson himself but others. On this point, here is the opinion of former High Court judge Michael Kirby:


Question from audience: Look, there are plenty of people in the legal profession that seem to have moral compass deficit disorder. If a lawyer naively helps a friend to set up a slush fund, and then subsequently finds that the friend has used it to misappropriate half a million dollars, is there a legal or moral obligation for the lawyer to report that to the police, the knowledge of that matter?
Kirby: It sounds as though it’s getting a little bit close to a real live problem and I know it could be presented as hypothetical, but I sort of have got very, very strong antennae and I can sniff out a real live problem pretty well. (Audience laughter). And I’ve gone out of the business of giving legal advice, but generally speaking, in our sort of society, if a person is aware of a serious crime and doesn’t report it to the police, that is what we call misprision of a felony; if there is a felony, you have to report it, it is a citizen’s duty. Now that law might have been modified in Victoria and other states, you’d have to look that up, but that’s the way the law generally operates.”

Here is High Court justice William Deane in Baker v Campbell, 1983:

Deane: Moreover, if the (doctrine of legal professional) privilege were confined to disclosure in judicial (or quasi-judicial) proceedings, it is difficult to explain why, logically, the lawyer who fails voluntarily to disclose the wrongdoing of his client to the appropriate administrative officer does not, in the absence of some particular justification, stand guilty of the offence of misprision of felony.

Doug Meagher QC has discussed this at length:



Meagher: Bankes LJ at page 526 when considering an allegation that the accountant had breached an implied term of confidentiality, said:

“ ... There may no doubt be cases to which the rule laid down by the learned judge may be applied, as for instance confidential communications to a professional adviser as to the proposed commission of a crime, or as to the proposed commission of a civil wrong upon an individual.  A contract to keep such a communication secret may well be considered an illegal contract, and the duty to the public to disclose the criminal or illegal intention may properly be held to override the private duty to respect and protect the client’s confidence.”..
Wood VC put it in vivid phrase: ‘There is no confidence as to the disclosure of iniquity.’

In Weld-Blundell v Stephens Bankes LJ rather suggested that the exception was limited to the proposed or contemplated commission of as crime or civil wrong; but I should have thought that was too limited.  The exception should extend to crimes frauds and misdeeds, both those actually committed as well as those in contemplation, provided always - and this is essential - that the disclosure is justified in the public interest.  The reason is because no private obligations can dispense with that universal one which lies on every member of the society to discover every design which may be formed, contrary to the laws of the society, to destroy the public welfare…

The disclosure must, I should think, be to one who has a proper interest to receive the information.  Thus it would be proper to disclose a crime to the police…

The existence of the exception to the privilege was firmly established in Australia following the obiter dictum in Varawa v Howard Smith & Co (1910) 10 CLR 382. At page 385 Griffith CJ said:

“The rule was laid down very distinctly by Lord Halsbury LC in Bullivant v The Attorney General for Victoria:

‘I think the broad propositions may be very simply stated:  for the perfect administration of justice, and for the protection of confidence which exists between a solicitor and his client, it has been established as a principle of public policy that those confidential communications shall not be subject to production.  But to that, of course, this limitation has been put, and justly put, that no Court can be called upon to protect communications which are in themselves parts of a criminal or unlawful proceeding.’

The rule is very well illustrated in the case of R. v Cox & Railton in which the communication stated and put in evidence was a communication made by a solicitor to his client for the purpose of enabling him to carry out an unlawful enterprise.”
This says nothing about the duty to report; but once the privilege is removed, the shield vanishes and the ordinary duty cast on all citizens to report a threatened crime applies to the lawyer as well.

Moreover, Gillard, in explaining why she did not contact authorities about the frauds did not cite client confidentiality as an excuse. The reason she gave was that inquiries were already under way when she found out. There is reason to doubt the factual basis for this claim.



It’s alleged that at one stage she was party to a fraud, which has been met with stern letters from Julia Gillard’s lawyers, and you might notice a prominent apology published in The Age today, saying whoops, we might have gone too far.



False. Straw man. There was no such apology and no such admission by The Age. The item referred to is here. Check for yourself. Faine also oversimplifies in referring to allegations that Gillard “was party to a fraud” and then claiming this was false. In fact, the allegation has consistently been that Gillard created a slush fund used by her boyfriend to commit fraud, and that she insists she had no idea those frauds were intended or committed.


Then it was alleged that there were files that are missing and those files it seems now are turning up in the registrars of the Federal Court and elsewhere. Then it was alleged that files were missing at Slater and Gordon and it was pointed out that files get destroyed after seven or eight or so years because it’s actually just impossible to keep them all and on and on and on the allegations go.

Misleading. In fact, four files were alleged to have gone missing - two in the Federal Court, one in Slater & Gordon and one in the WA Corporate Affairs Commission. Only one of the files, in the Federal Court, has since been located. Slater & Gordon is unable to confirm what Faine implies - that it’s own missing file was destroyed as a matter of routine after seven or eight years. Indeed, it claims not to be sure the file even existed, although Gillard is recorded being questioned about it in a taped record of interview with her partners in 1995.


Today as you’ve already heard on AM, one of the key witnesses in inverted commas to all of this has arrived back in Australia. His name is Ralph Blewitt...

Smear. Blewitt is indeed a key witness, without inverted commas. Correspondence demonstrates he was one of the two people for whom Gillard helped to create the slush fund, and placed the notification of it in the press. Gillard also claims to have witnessed his donation of power of attorney to Wilson to buy a house in his name.


However, on arrival [Blewett has] already said that he knows nothing about events in Victoria, but he may be able to shed some insight into what was alleged to have gone on eighteen years ago in Western Australia. Of course Victoria Police don’t investigate things that happen in West Australia. The West Australia Police do, but that’s for Mr Blewitt, his lawyers and the Victoria Police to sort out between them.

Red herring. Misleading. The complaint Victoria Police are investigating relates to the power of attorney Gillard says she witnessed as a solicitor in Victoria, donated by Blewitt in favor of her boyfriend, Wilson. Blewitt alleges Gillard was not present when he made it out in Perth, and the document was backdated. Blewett claims it was misused by Wilson to purchase a property in Victoria in his name, using stolen funds. Blewett is also expected to discuss renovations to Julia Gillard’s Abbottsford house. All this is well within the scope of Victoria Police to investigate. Blewett’s reference to not knowing about events in Victoria refers to the creation and operation of a second slush fund created in Victoria by Wilson. Faine should know all this.

How could Faine be so sure Gillard has no questions to answer if he himself does not understand what’s been alleged or demonstrated?

It seems to me that Faine instinctively wants to clear Gillard without even knowing what the case against her is.

(Note: Gillard says she did not know of Wilson’s frauds and did not benefit from them. She did not know the house was brought with stolen funds. She says paid for all her own renovations.)

UPDATE

Michael Smith rang Faine for a right of reply, but was not given one.

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