John Elliott’s campaign against the National Crime Authority back-fired this week and in doing so did not put either Elliott or the courts in a good light.
Elliott has accused the NCA of running a political smear campaign and a witchhunt against him; that it was an arm of the then Labor Government out to discredit him because he was federal president of the Liberal Party.
The basis of his assertion is his acquittal in August last year of charges of fraud over a foreign-exchange deal in December 1993. That prosecution arose after a NCA inquiry into a takeover bid for Elders IXL by Elliott’s company Harlin.
The acquittal came on the orders of a judge after a magistrate had committed him for trial in 1994. At the committal the prosecution alleged that $66 million was stolen from Elders by Elliott and others in 1987 and 1988 and used to pay a fee to New Zealand businessman Allan Hawkins. The fee, allegedly paid through a series of sham foreign-exchange transactions was a reward for Hawkins’s help in frustrating a takeover bid for BHP by Robert Holmes a Court. Hawkins was jailed in New Zealand for fraud in relation to his companies there.
However, the Supreme Court ruled in May 1996 that the NCA exceeded its terms of reference in investigating the foreign-exchange deals. In August, the court ruled that any evidence arising from that investigation was tainted. It was inadmissible in court because it had been illegally obtained. Without that evidence the case against Elliott collapsed. It never went to a jury.
So did the case against his co-accused Peter Scanlon, a director of Elders.
Earlier, Ken Jarrett, the managing director of Elders Finance and also a director of Elders, admitted involvement in the foreign-exchange deal, turned Crown witness and served six months.
In July 1995 Elliott was charged with giving misleading evidence to the NCA and was also acquitted on much the same ground as for the other charge.
Usually when someone is acquitted by a court, on whatever basis, no-one questions the acquittal or dares impugn it in any way, particularly when it involves someone with the legal resources of John Elliott.
However, Elliott’s continued attack on the NCA and his continued assertion that the whole base of the charge was political and therefore utterly unfounded so irked Victorian Labor Senator Steven Conroy that he took up the case in Parliament.
After the acquittal, Elliott and Scanlon asserted that they knew nothing of the foreign-exchange deal. They said, “”Jarrett implemented a contrived foreign-exchange transaction to discharge a legal obligation of Elders to ensure that a bad debt to Elders Finance was repaid. None of Messrs Elliott, Scanlon and Biggins were privy to what had been planned.”
On Wednesday, Senator Conroy read to Parliament what he said were transcripts of the inadmissible evidence given by Peter Scanlon in answers on oath to the NCA. He also read evidence from an independent auditor of IXL, Jane Yuile from Price Waterhouse.
Senator Conroy asserted that Scanlon’s evidence reveals he knew a lot about the foreign exchange deal with Hawkins. He quoted slabs of evidence with Scanlon admitting to two conversations with Hawkins about setting up a foreign-exchange deal and passing information to Jarrett.
He quoted evidence from auditor Yuile that a foreign-exchange contract that lost $39 million had been authorised by Elliott and it was acknowledged to the auditors “”that the paperwork was weak”.
The auditor noted a unusual lack of documentation with respect to the transaction.
Senator Conroy’s full statement of several thousand words can be read in Hansard. Hansard is also available on the internet.
Senator Conroy said that how Elliott and Scanlon account for their statements to the NCA on oath and their public statements is now a matter for public debate.
It might have been better for Elliott if he had just shut up after the judge ordered an acquittal. In launching his attack on the NCA he provoked Senator Conroy into reading the inadmissible evidence. That evidence may be inadmissible in a court, but it is now on the public record in Parliament. From my reading of it, it seems Elliott was very fortunate indeed that the judge ruled it inadmissible on the technical ground that it was illegally obtained.
It also puts the courts in a bad light. The public position of the two defendants is that they had nothing to do with the foreign-exchange transaction. Yet here is evidence — in recorded interviews with qualified lawyers — that they did. One piece of evidence is out of the mouth of one of the defendants and the other from an independent auditor. The courts then exclude that evidence.
It seems that the rules of evidence are too strict. Why exclude evidence altogether. Why not include as much evidence as can be obtained, but discount the weight to be given various bits of evidence according to how it was obtained; whether it was hearsay or opinion and so on?
With the all-or-nothing rule in our system too much rides on admissibility of evidence. Small wonder defence lawyers are set off to attack as much of it as possible, so the leftover bits do not leave a coherent picture.
The example read into Hansard by Senator Conroy makes me not have a great deal of confidence that the court got the right result. And that makes me wonder whether courts are delivering justice to the wider community.
Conversely, from the view of Elliott and his fellow defendants it would have been a more satisfactory acquittal if they had obtained it after having the chance to meet all the evidence full on in the face of a jury.
As it is, with Senator Conroy’s statement, it invites people to conclude that Elliott got off on a technicality; that the substance of the charges have not been met and that his attacks on the NCA are ill-founded bluster and a diversionary tactic.