1
(Unrevised)
2
(Her Honour Judge Douglas)
3
R U L I N G
4
HER HONOUR:
5
6
I will now move to the offences themselves of
theft.
The prosecution rely on inferences to be drawn by
7
relying on individual pieces of evidence as a
8
circumstantial case in relation to proving the elements
9
of the offence of theft as to the offences on the charge
10
11
sheet.
The prosecution case, as I stated, relied on the
12
document, "Statement of undisputed facts".
13
witnesses called.
14
each of which contained documents relevant to each
15
charge.
16
air travel of the appellant, taxis, car hire,
17
accommodation, meals, telephone calls and other
18
incidentals in relation to each charge, as well as call
19
charge records and relevant entries in bank statements of
20
the HSU, the appellant and his wife.
21
There were no
In addition two folders were tendered,
By that I mean receipts paid for by the HSU for
In my reasons, which I will set out, when I refer
22
to cash being withdrawn, unless otherwise stated, I am
23
referring to, by use of the Hospital Services Union
24
Commonwealth Bank of Australia MasterCard.
25
As to Charge 9, I will read the charge and then I
26
will refer to my reasons.
27
Sydney between 9 October and 10 October 2003 did steal
28
cash being property of the HSU valued at $200."
29
already set out the elements that have to be proved and I
30
will not go over that.
31
to now.
.TJ:SS 15/12/14
Thomson
CC 3-2R
"Charge 9.
Craig Thomson at
I have
The evidence I am going to refer
60
RULING
1
On 9 October 2003 the appellant withdrew $200 cash
2
at Canberra Airport in the Australian Capital Territory.
3
He then flew to Sydney where he stayed overnight.
4
11.33 he rang his wife, who was in Melbourne, and the
5
call lasted 20 minutes.
6
service, Club 121, and made a booking for an escort to
7
attend his room.
8
in cash.
9
card transaction on the account of the appellant or the
At 11.59 he rang an escort
The charge was $240.
That sum was paid
Bank records do not reveal any relevant credit
10
HSU.
11
MYOB on 9 October 2003 was travel expense.
12
At
The explanation entered by the appellant on the
On behalf of the appellant it was submitted that as
13
the fee charged by the escort agency was $240 the
14
appellant must have had access to other funds to pay for
15
the services.
16
cannot prove its case.
17
I accept on the evidence that the only reasonable
18
explanation is that he used the $200 as well as $40 from
19
another source to pay for the escort.
20
reasonable doubt he used the $200 to pay, as I have
21
stated, for the escort, which is an unauthorised expense,
22
regardless of whether the remainder of that fee was from
23
another source, he has committed theft, so I am satisfied
24
beyond reasonable doubt that he is guilty.
25
As he withdrew only $200, the prosecution
I disagree with that submission.
As I accept beyond
It is implicit in each of these offences to which I
26
am referring, or to each of these charges that there is
27
no issue that - perhaps I will put it this way - that I
28
have found that he was not authorised to use funds from
29
the HSU for any expense other than the carrying out of
30
the business of the HSU.
31
personal expenses, and sexual service from an escort
.TJ:SS 15/12/14
Thomson
CC 3-2R
Consequently, any payment of
61
RULING
1
comes into that category, are a non-authorised expense,
2
and I will not repeat that in each offence.
3
Charge 47.
"Craig Thomson at Sydney" - that has
4
now been amended as I have stated, that will be
5
Melbourne, as will Charge 9, I omitted to say that, that
6
is now amended - "Craig Thomson at Melbourne between 12
7
June 2007 and 13 June 2007 did steal cash, property
8
belonging to the HSU valued at $500."
9
On or about 12 June 2007 the appellant drew $500
10
cash in Bateau Bay in New South Wales where he lived.
11
then drove to Sydney.
12
Chandalay Massage in Roseville.
13
another call on his phone near Roseville, and then an
14
hour later another call in Chatswood, which is near where
15
the brothel is.
16
sexual services and later drove home.
17
he attended at the brothel.
18
At 12.31 he called a brothel,
At 1.55 pm he made
He attended at that brothel to receive
There is no issue
The last occasion he withdrew cash was from a
19
personal account on 7 May 2007 which was $400.
20
same period he withdrew $3,000 by use of the HSU CBA
21
MasterCard.
22
only reasonable inference open is that he paid for that
23
sexual service when he attended at the brothel by cash,
24
as there is no credit card record for that.
25
withdrawal of $500 cash was entered on 12 June in the
26
MYOB as, "Meetings, national office."
27
He
In the
I accept beyond reasonable doubt that the
The
As he withdrew $500 on the same day, he left and
28
attended at the brothel and he withdrew the cash where he
29
lived.
30
used that cash to pay for sexual services, as he had
31
intended to attend at that brothel.
I am satisfied beyond reasonable doubt that he
.TJ:AF 15/12/14
Thomson
CC 3-2S
62
RULING
1
There is no evidence as to the amount he paid for
2
the sexual services.
3
number of other offences where there is no evidence as to
4
what he paid for sexual services, or other unauthorised
5
expenses.
6
However, and this also relates to a
The amount stolen is only a particular in a charge,
7
it is not an element of an offence.
Thus, as I am
8
satisfied beyond reasonable doubt that he stole cash,
9
namely he appropriated the cash dishonestly.
Such cash
10
being property belonging to the HSU as alleged, I find he
11
is guilty.
12
much he did steal.
13
reasonable doubt that he is guilty, and I will add that
14
there may well be submissions made as to what inference I
15
can draw as to the amount he used in relation to penalty.
16
However, I am unable to say precisely how
Therefore I am satisfied beyond
Charge 22, Craig Thomson at Melbourne on 22
17
November 2005 did steal cashing belonging to the HSU
18
valued at $200.
19
from Melbourne to Sydney to attend an ACTU meeting the
20
following day.
21
Melbourne.
22
this evening he called an escort service "Double Your
23
Luck Two's Company".
24
cash at an ATM about 700 metres from his accommodation.
25
The following day he attended the meeting and then went
26
home.
27
On 21 November 2005, the appellant flew
Around 9.51 pm on that day, he arrived in
At 9.33 pm, he called his wife in Sydney.
On
After midnight, he withdrew $200
The last occasion he withdrew cash from his own
28
bank account was $200 on 11 November 2005.
29
four cash withdrawals from the HSU master card between 13
30
November 2005 and 17 November 2005, totalling $1,300.
31
There was no evidence of credit card transaction for the
.TJ:AF 15/12/14
Thomson
CC 3-2S
63
He had made
RULING
1
escort.
2
of $200 as meetings.
3
The appellant noted in the MYOB the cash advance
On both of the appellant, it was submitted that the
4
prosecution cannot prove how the appellant spent the
5
cash, as there is no record.
6
inference in the circumstances is that the appellant used
7
the $200, which he withdrew that night, on the same
8
evening as he contacted the escort service.
9
The only reasonable
I am satisfied beyond reasonable doubt that he used
10
the services of the escort agency.
11
particular kind of logic, arising from the similarity of
12
this charge, and other transactions with which I am
13
concerned in that when the appellant was in a hotel, he
14
contacted an escort service and had the services of that
15
escort.
16
transaction.
17
I rely upon a
I infer he paid cash as there is no credit card
In the circumstances, there is no other reasonable
18
explanation open other than he used that sum - that cash,
19
to pay for the sexual services as alleged.
20
evidence as to precisely how much he paid for that
21
service, but as I stated with Charge 9, the amount he
22
stole is only a particular, and not an element of the
23
offence.
24
he appropriated the cash dishonestly, being property
25
belonging to the HSU as alleged.
26
satisfied beyond reasonable doubt he is guilty.
27
There is no
So I am satisfied beyond reasonable doubt that
Charge 27.
Therefore I am
Craig Thomson at Melbourne between 29
28
March 2006 and 30 March 2006, stole cash being property
29
belonging to HSU valued at $300.00.
30
the appellant flew from Melbourne to Sydney.
31
calendar it showed two days blocked out for Melbourne,
.TJ:AF 15/12/14
Thomson
CC 3-2S
64
On 29 March 2006,
In his
RULING
1
and a meeting with a woman Lilian Jeter, J-e-t-e-r who is
2
of the Elder Abuse Prevention Association.
3
The time was 11.30 for 30 March 2006 in his
4
calendar.
At 11.51 pm, when he was in Melbourne, he
5
withdrew $300 cash.
6
entry in his diary was untrue.
7
lie.
8
facts that she recalled speaking with the appellant in
9
the past over the telephone, but never meeting him.
The prosecution case is that the
In other words, it was a
As Ms Jeter stated, in the statement of undisputed
He
10
checked out on 30 March 2006, and returned to Sydney.
11
The entry made at MYOB in relation to withdrawal of $300
12
cash was "meetings at National Office".
13
On the material before me, I consider there is
14
insufficient evidence to be satisfied beyond reasonable
15
doubt that he used the cash for a purpose other than the
16
business of the HSU.
17
suspicious, and that all these expenses were paid for by
18
the HSU.
19
the MYOB is vague, "meetings National Office".
Clearly his behaviour is very
He told a lie about Ms Jeter and the entry in
20
However, the prosecution has to prove beyond
21
reasonable doubt that he used it, other than for a
22
purpose relating to HSU business.
23
I do not know.
He may have had an informal meeting
24
with people, it is not clear.
25
probabilities, it is very likely he misused those funds
26
as it is very suspicious.
27
standard of proof, I am not satisfied beyond reasonable
28
doubt that he is guilty, so I find him not guilty.
29
Charge 32:
On the balance of
However, applying the criminal
Craig Thomson at Melbourne between
30
20 April 2006 and 21 April 2006 did steal cash, being
31
property belonging to the HSU, valued at $400.
.TJ:EB 15/12/14
Thomson
CC 3-2T
65
On
RULING
1
20 April 2006 the appellant withdrew $400 cash from an
2
ATM in New South Wales.
3
Melbourne and at around 7.57 pm checked into a hotel.
4
There was no record of any appointments for him in his
5
diary for that evening.
6
He then flew from Sydney to
In his hotel room at 8.13 he called his wife who
7
was at home.
At two minutes past nine he called an
8
escort service, "Young Blondes".
9
another escort service, "High Class Confidential Model
10
Escorts".
11
probably model.
12
MS TAYLOR:
13
HER HONOUR:
14
At 9.04 pm, he called
My note says "Motel Escorts", I think it
It is model, Your Honour.
Yes.
It probably is of no consequence.
Each of those escort services traded as escort
15
service company "APB Marketing".
16
company rang on a number of occasions to the hotel to
17
confirm that the appellant - to confirm the booking he
18
had made.
19
client had called two numbers associated with escort
20
services, it generally suggests he has booked an escort.
21
For a booking in 2006, he said a ballpark figure would be
22
about $400 which would equate to about a two hour booking
23
or two girls for one hour.
24
That evening, that
Gary Scott from that service stated that if a
The last occasion the appellant withdrew cash was
25
$50 from his own personal account on 5 April 2006.
26
is no credit card record of payment to the business APB
27
Marketing.
28
it is a reasonable explanation that he used cash.
29
appellant entered in the MYOB that the withdrawal of $400
30
was meetings - national office.
31
reasonable doubt that he used the escort service.
.TJ:EB 15/12/14
Thomson
There
I am satisfied beyond reasonable doubt that
CC 3-2T
66
The
I am satisfied beyond
RULING
1
In this case, I rely upon a particular kind of
2
logic arising from the similarity of this transaction and
3
other transactions with which I am concerned where upon
4
checking in at a hotel when he was away from home, he
5
contacted an escort service and had the services of that
6
escort.
7
doubt that the appellant contacted the escort service,
8
received a sexual service and paid cash in the sum of
9
$400, that sum which he had withdrawn earlier.
In the circumstances, I accept beyond reasonable
I also
10
take into account the contact between the escort service
11
and the appellant.
12
doubt that he is guilty of that charge.
13
I am satisfied beyond reasonable
Charge 58 which had been divided into two - just
14
excuse me for a moment.
15
prosecution case is that the appellant withdrew $500 in
16
Sydney between 19 September 2007 and 20 September 2007
17
belonging to the HSU and that on the previous day or
18
evening he withdrew $300 cash belonging to the HSU.
19
prosecution case is that he used the combined amounts of
20
case, which is $800, for an unauthorised purpose to pay
21
for sexual services.
22
Very well.
As to Charge 58, the
The
I have already ruled that the appropriation as a
23
matter of law is at the time he used the cash that he
24
withdrew using the HSU Commonwealth Bank of Australia
25
MasterCard for an unauthorised service.
26
charges of 58 and 221 I had ruled as duplicitous, as the
27
actus reus using the cash in the way the appellant did on
28
one occasion cannot be two charges.
29
charge, Charge 58.
30
31
Therefore, the
They are now one
On 19 February, going back to the chronology, the
appellant was in Sydney.
.TJ:EB 15/12/14
Thomson
CC 3-2T
At 3.48 on that day he withdrew
67
RULING
1
$500 in cash.
He was in a hotel that evening.
He rang
2
his wife at 11.05 pm for about three minutes.
3
11 pm he sent an SMS to an escort service.
4
called the agency to book the escort.
5
attempted to withdraw $500 cash from another ATM, but as
6
the daily limit from ATMs was $800, he was only able to
7
withdraw 300.
8
withdrawals was $800.
9
was from his personal bank account of $200 on
At 11 past
At 11.25 he
At 11.44 he
So therefore, the total from the two
The last occasion he withdrew cash
10
17 September 2007.
11
personal credit card, or an HSU credit card for the
12
service he obtained from the escort agency.
13
There are no transactions on his
He booked the escort for two hours.
The charge-out
14
rate for this particular escort was $385 per hour, thus
15
the total cost was $770.
16
On each of the two withdrawals of cash, on 19
17
September 2007, the appellant entered in the MYOB
18
meetings national office.
19
the appellant that I ought not be satisfied beyond
20
reasonable doubt that the cash the appellant withdraw
21
that evening, to which I have referred, paid for the
22
escort.
23
withdrawals on behalf of the appellant in his personal
24
accounts, between 4 September and 17 September 2007.
25
It was submitted on behalf of
I have been referred to a number of cash
I am satisfied beyond reasonable doubt that the
26
sums withdrawn that are the subject of the charge paid
27
for the escort.
28
Melbourne at 3.48, the second was 11.44 after he had
29
contacted the escort.
30
refers to contact made between the appellant and this
31
particular woman, the sex worker, between 15 and
.TJ:JLA 15/12/14
Thomson
The first sum was before he left for
CC 3-2U
The statement of undisputed facts
68
RULING
1
21 August 2007, when they exchanged mobile telephone
2
numbers.
3
in his mobile phone.
4
The appellant had her telephone number stored
On 21 August 2007, when in Melbourne, the appellant
5
sent her a text message.
6
there was further communication.
7
went under the name of Ms Smith, said the appellant was
8
one of three men who she would call a regular client.
9
There is no issue he paid cash.
10
She then rang him back and
The sex worker, who
In the circumstances he had contact with this woman
11
before the dates on the charge sheet.
12
her that evening inferentially to organise sexual
13
service, which she provided later.
14
reasonable doubt each of the two withdrawals that were
15
made earlier that day were made by him with an intention
16
to engage her services that evening.
17
sufficient to pay for two hours.
18
that he had $500 cash but after that he went to an ATM
19
late at night, 20 minutes after he made the booking, for
20
extra cash.
21
did go to pay the sum of $770 which is the charge of the
22
escort of $385 per hour.
23
He had contacted
I am satisfied beyond
The sum of $800 was
I take into account
In the circumstances, I am satisfied that he
The amounts of cash he had withdrawn earlier that
24
month, shown in the bank statement in one of the two
25
folders that I have referred to, show that earlier that
26
month they were relatively small amounts; between $60 and
27
$100.
28
days earlier.
29
However, I infer that when he withdrew $500 on
30
19 September, and $300 later, he did so because he needed
31
the cash to pay for the woman he booked.
On 13 September he withdrew $500.
.TJ:JLA 15/12/14
Thomson
That was six
On 17 September he withdrew $200.
CC 3-2U
69
RULING
1
In the circumstances, I find the evidence
2
overwhelming.
There is no reasonable hypothesis open
3
consistent with innocence.
4
reasonable doubt that the appellant is guilty of theft,
5
and I am satisfied the sum was $770.
I am satisfied beyond
6
Charge 151: Craig Thomson at Melbourne, between
7
8 January 2006 and 9 January 2006, did steal property
8
belonging to HSU valued at $300.
9
set out in the statement of undisputed facts, that on
The Crown case, as is
10
Sunday 8 January 2006 the appellant flew from Sydney to
11
Melbourne.
12
the prosecution case is that he withdrew $300.
13
in the statement of undisputed facts.
14
On arrival at Melbourne Airport, Tullamarine,
At 7.59 pm he checked in at a hotel.
That is
At 8.11 pm he
15
called his wife.
At 8.56 pm he called an escort service,
16
APB Marketing, which trades as Young Blondes.
17
pm, APB Marketing called the hotel to confirm the
18
booking.
19
figure for two hours for one woman, or two women for one
20
hour, would be $400.
21
for Young Blondes or APB Marketing.
22
appointments listed in his calendar for Sunday 8 January
23
or Monday 9 January.
At 9.13
The owner of that business said the approximate
There was no credit card payments
There were no HSU
24
On Monday 9 January, at 8.30, the accused checked
25
out and attended at Tullamarine Airport and he withdrew
26
$500.
27
21 December 2005 for $100.
28
Charge 151 was that the cash he stole he had withdrawn in
29
the sum of $300 on Sunday 8 January at Tullamarine
30
Airport.
31
showed one withdrawal of $300, being on 9 January 2006 at
Earlier withdrawals of cash were on
The prosecution case for
In the folder I was given the bank statement
.TJ:JLA 15/12/14
Thomson
CC 3-2U
70
RULING
1
Tullamarine.
2
refers to that taking place on the 8th.
3
However, the statement of undisputed facts
In the statement of undisputed facts, at paragraph
4
174, there's reference to the bank statement with an
5
entry on 9 January 2006 at Tullamarine in the sum of
6
$300.
7
Clearly on the material I had, there was no
8
evidence called.
9
case, as the bank statement and the statement of
10
undisputed facts shows two conflicting pieces of
11
evidence.
12
relation to this conundrum.
13
There is a conflict in the prosecution
I have not had produced any evidence in
In the defence reply which was drafted prior to the
14
statement of undisputed facts, there is reference to a
15
statement of a woman Michelle Bretherick B-r-e-t-h-e-r-i-
16
c-k, which was not referred to by the prosecution in its
17
outline of submissions, nor exhibited.
18
circumstances, I cannot be satisfied beyond reasonable
19
doubt when the accused made the withdrawal of $300, the
20
subject of this charge.
21
say not guilty.
22
Charge 160.
In those
I have no option other than to
Craig Thomson at Melbourne between 7
23
June 2006 and 8 June 2006, did steal cash, property of
24
HSU valued at $500.
25
appellant left Sydney and at 7.20 pm arrived at a hotel
26
in Melbourne.
27
his calendar for the following day, other than a
28
hairdressing appointment at 4 pm.
29
In the afternoon of 6 June 2006, the
He did not have appointments recorded in
On 7 June at 6.38 pm, the appellant withdrew $500
30
in Melbourne.
31
wife.
At 9.18 pm, and 10.16 pm he called his
At 10.30 pm he called an escort service
.TJ:AF 15/12/14
Thomson
CC 3-2V
71
RULING
1
"Misbehaving Escort Service", which also traded as PRM
2
Consultants Proprietary Limited.
3
At 10.35 and 10.59 PRM Consultants called his hotel
4
to confirm his booking with the escort service.
5
operations manager stated the prices varied from $150 to
6
$1,000 for one hour, depending on the service.
7
were no credit card records in relation to that escort
8
service.
9
cash from his personal account was $100 on 5 June 2006.
10
The withdrawal of $500 in cash was entered on the
11
MYOB on 7 June 2006 as "With meetings National Office".
12
The prosecution case is that the only reasonable
13
inference is that the money in the accused possession,
14
that is the withdrawal on 7 June, which he made at the
15
hotel at 6.38 was used to pay for a sexual service.
16
agree with that submission.
17
reasonable doubt that he had a sexual service which he
18
booked that evening, and he paid for in cash.
19
The
There
The last occasion the appellant had withdrawn
I
I am satisfied beyond
I am entitled to take into account a particular
20
kind of logic arising from the similarities existing
21
between some of the transaction, and his conduct in this
22
charge, in that he arrived at the hotel, called an escort
23
service, and that he used that service.
24
is the only reasonable inference open that he withdrew
25
that cash at around 6.38 was to pay for the service he
26
intended to engage in.
27
The use of cash
Now the service cost has not been proven, save it
28
is at least $150.
29
that I am satisfied beyond reasonable doubt of each of
30
the elements, and that the amount that is alleged he
31
stole is a particular.
.TJ:AF 15/12/14
Thomson
CC 3-2V
However, I will repeat the situation
It does not have to be proved
72
RULING
1
beyond reasonable doubt.
2
reasonable doubt that he is guilty of that offence.
3
I am satisfied beyond
Charge 163, now that has now been amended to at
4
Melbourne.
5
cash belonging to the HSU valued at $500.
6
Thursday 14 December, the appellant withdrew $500 cash in
7
Sydney.
8
HSU Business.
9
On 15 December 2006, the appellant did steal
At 8.27 am, on
At 9 am, he had an appointment in relation to
At lunchtime, he had lunch in relation to carrying
10
out his duties, as National Secretary.
11
had an appointment relating to HSU Business.
12
drove to Sydney Airport, arrived in Melbourne and checked
13
into a hotel.
14
At 2.30 pm, he
He then
At 1.13 am, he called an escort service trading as
15
"Frantic Proprietary Limited".
16
establishment called the appellant's hotel to confirm the
17
booking.
An escort attended and provided a sexual
18
service.
Again, there is no credit card record and I
19
infer that it was paid in cash.
20
$500 cash was entered on the MYOB as "Meetings National
21
Office".
22
At 1.28, that
The withdrawal of the
The last occasion the appellant withdrew money from
23
his personal account was 2 November 2006.
24
withdrawals of $300 from the HSU Commonwealth master card
25
on 13 December, $500 on 4 December from his personal
26
account, and $500 on 28 November from his personal
27
account.
28
There were
As I have said, the similarities between this and
29
other transactions, I am entitled to take into account as
30
a particular kind of logic namely he arrived at a hotel
31
when away from home, called an escort service, used an
.TJ:AF 15/12/14
Thomson
CC 3-2V
73
RULING
1
escort service.
The use of cash is the only reasonable
2
inference open and that he had those sexual services.
3
I am satisfied that he used the cash to pay for the
4
escort service, being the cash he withdrew on the morning
5
of 14 December 2006.
6
facts, there is no issue he had meetings, and then had
7
lunch meetings, but there is no suggestion he paid for
8
anything substantial if at all, as it has been agreed all
9
expenses including meals and incidentals are paid for by
10
In the statement of undisputed
the HSU beforehand or he pays on a credit card.
11
As I have stated, there is no precise evidence as
12
to the amount, however I am satisfied of each of the
13
elements of the offence of theft, and the particular
14
amount he used on that occasion is a particular.
15
satisfied beyond reasonable doubt he is guilty of that
16
charge.
17
Charge 169.
I am
That reads, "Craig Thomson at
18
Melbourne on 9 October did steal cash being property
19
belonging to the HSU valued at $350."
20
On 7 October 2007 the appellant withdrew $500 cash
21
in New South Wales.
On 8 October he drove to Sydney
22
Airport and then flew to Melbourne arriving at seven
23
minutes past midday and checked into a hotel.
24
showed a meeting with a woman, Pauline Fegan, at 4
25
o'clock that afternoon.
26
Melbourne.
His diary
At 6.38 he withdrew $500 cash in
27
At 11.01 he called and made a booking with an
28
escort agency, The Boardroom of Melbourne, for one hour.
29
At 1.18 am The Boardroom rang the appellant's hotel to
30
confirm the booking with Kayla Black for one hour for
31
$350.
She provided the service, he paid in cash, there
.TJ:SS 15/12/14
Thomson
CC 3-2W
74
RULING
1
was no credit card facilities.
2
from his personal account was 17 September 2007 in New
3
South Wales, being $200.
4
undisputed facts sets out that there were no credit card
5
facilities, it is clear he paid in cash.
6
The last cash withdrawal
As I said, the statement of
The following morning, the appellant noted in his
7
diary, "Meetings in relation to HSU."
8
taxi to the airport around lunchtime. The withdrawal of
9
cash on 8 October could not be reconciled in the MYOB
10
11
He travelled by
record.
The defence take issue that the prosecution can
12
prove beyond reasonable doubt that the withdrawal of cash
13
in the sum of $350 was used to pay for the escort.
14
Reference has been made to the withdrawal of $500 on 7
15
October and the fact that his wife had withdrawn sums of
16
money between 22 and 7 October.
17
sexual service was provided and cash was paid.
18
circumstances I am satisfied that the only reasonable
19
inference to be drawn is that the appellant withdrew cash
20
in the afternoon of his arrival, namely at 6.38, as it
21
was within his contemplation to use it for an escort
22
service.
23
explanation as to this withdrawal in the MYOB as I
24
stated.
25
that charge.
26
There is no issue that a
I find the evidence overwhelming.
In the
There was no
I find beyond reasonable doubt he is guilty of
Charge 173.
"Craig Thomson at Melbourne between 27
27
May 2005 and 28 May 2005 did steal cash, being property
28
belonging to the HSU valued at $400."
29
On Friday 27 May 2005 the appellant flew from
30
Melbourne to Sydney.
31
withdrew $400 cash.
.TJ:SS 15/12/14
Thomson
CC 3-2W
Prior to leaving Melbourne he
His Outlook diary showed, "Sydney"
75
RULING
1
on 27 May 2005 and no further entries for the weekend.
2
He and his wife stayed for two nights at the Western
3
Hotel in Sydney.
4
agent in Neutral Bay, New South Wales.
5
Diners Club card for a meal at a café on the Central
6
Coast.
7
restaurant Prime at GPO, and the amount he spent on that
8
meal was $400 cash.
9
transaction receipt he received from the ATM, "Prime at
That morning he phoned a real estate
He then used his
Later that night he and his wife had dinner at a
Later the appellant wrote on the
10
GPO, $400 with a tip."
11
by him in the MYOB as "Meetings, national office."
12
The withdrawal of cash was noted
On behalf of the appellant it is submitted that the
13
prosecution cannot prove beyond reasonable doubt that
14
this expense related to the process of the appellant and
15
his wife relocating from Melbourne to the Central Coast
16
of New South Wales.
17
prove beyond reasonable doubt that assistance with
18
relocation was not part of the appellant's employment
19
package.
20
appellant was not authorised to spend HSU funds on
21
personal expenses.
22
appellant to have expenses paid in relation to
23
relocation, I would expect that to be documented.
24
referred to the policy rules and regulations, and it is
25
clear that this expense was not HSU business.
26
personal expense of the appellant, and he knew that it
27
was an unauthorised expense, and I note that there was a
28
bottle of wine he charged that was around $300.
29
to my reasons in relation to dishonesty, in particular
30
his role at the HSU.
31
that was not an authorised expense.
.TJ:SS 15/12/14
Thomson
The prosecution, it said, cannot
I disagree.
CC 3-2W
I have already ruled that the
Clearly if the HSU were to allow the
I have
It was a
I refer
It is clear that he well knew that
76
Consequently I am
RULING
1
satisfied beyond reasonable doubt that the $400 he
2
withdrew, to which I have referred, was used to pay for
3
the restaurant bill, and that he had no authorisation to
4
do it, and he knew he had no legal entitlement to that
5
cash to pay for dinner that was clearly not for the
6
business of the HSU.
7
doubt he is guilty of theft of $400.
8
9
10
11
Charge 219.
I am satisfied beyond reasonable
"Craig Thomson at Melbourne on 13 June
2007 did steal cash being property belonging to Health
Services Union valued at $500."
On 13 June 2007 the appellant checked into a hotel
12
in Sydney for one night.
13
the Central Coast of New South Wales.
14
showed an appointment at 6.30 pm that day with three
15
people.
16
at 10.49 he withdrew $500 cash in Sydney.
17
pm and 11.26 pm he rang three escort/brothel services.
18
Between 11.29 pm and 12.51 pm he rang an escort service,
19
Keywed Pty Ltd/Sexy Girl Escorts.
20
He travelled from his home on
The Outlook diary
At 10.36 pm the appellant called his wife, and
Between 11.17
There were no credit card transaction records to
21
that establishment and the explanation entered by the
22
appellant in to MYOB in relation to that $500 was,
23
"Meetings, national office."
24
personal cash withdrawal from his own credit card was
25
$400 on 13 June.
26
from the HSU, CBA, MasterCard in the same period.
27
appellant's submission is that he was in Sydney on
28
business and I might add there's no issue about that.
29
The absence of records makes the inference of personal
30
expenditure impossible to draw.
31
of the withdrawal and the calls made to the escort agency
.TJ:GT 15/12/14
Thomson
The appellant's last
The appellant had withdrawn $3000 cash
CC 3-2X
77
I disagreed.
The
The time
RULING
1
are consistent with his state of mind, that when he
2
withdrew the cash it was for an escort, it was in
3
contemplation of an escort sexual service, which is
4
clearly not an authorised expense, even when carrying out
5
his duties for the HSU.
6
Further, I rely on a particular kind of logic
7
arising from the similarity of this transaction and
8
others, to which I have referred, where when away from
9
home, he stays at a hotel, contacts an escort service,
10
and had the services of that person.
I am satisfied
11
beyond reasonable doubt, as I said, that at the time he
12
withdrew the cash he intended to engage in sexual
13
services and pay for it with that cash.
14
credit card transaction, therefore I infer he paid cash.
15
Again, there is no evidence as to exactly what was
There was no
16
charged and as I have said before it is a particular, and
17
that does not need to be proved beyond reasonable doubt.
18
I will find the appellant guilty beyond reasonable doubt,
19
however I am not satisfied how much he paid, but I do
20
note that in the statement of undisputed facts that he
21
had used that establishment earlier in March 2003 and had
22
paid $570 on the 10th and 11 March, using a Diners Club
23
card.
24
he paid the same on this occasion.
25
with precision what he paid.
26
However, I am reluctant to draw an inference that
I am not satisfied
Charge 220, the charge is that at Melbourne on 19
27
June 2007 he stole cash, being property belonging to
28
Health Services Union, valued at $500.
29
appellant stayed at a Sydney hotel for one night.
30
diary entry was for HSU conference dinner from 6.30 to
31
10.30.
On 18 June the
The
He attended that conference dinner and at 11.28
.TJ:GT 15/12/14
Thomson
CC 3-2X
78
RULING
1
returned to his hotel.
At 1.06 he called an escort
2
service, the Boardroom Northshore.
3
another escort service, Keywed Pty Ltd, trading as
4
Multinational Escorts.
5
Ltd, trading as Sexy Girl Escorts.
6
Ltd rang to confirm the booking.
7
two minutes past 2 am, the appellant withdrew $500 from
8
an ATM a short distance from the hotel.
9
credit card transactions in relation to Keywed Pty Ltd
At 1.15 he called
At 1.50 am he called Keywed Pty
At 1.55 am Keywed Pty
A short time later, at
There are no
10
for that time.
11
"Meetings, national office," as to the cash withdrawn.
12
The MYOB entry by the appellant was,
On behalf of the appellant it was submitted there
13
was insufficient evidence to satisfy the court as to
14
whether any of the sum of $500 was paid as alleged and
15
referred to the fact that there were cash withdrawals
16
from Mrs Thompson, the accused's wife, of $100 and $250
17
on the day before.
18
evidence is overwhelming.
19
reasonable doubt that in the circumstances that at the
20
time the accused withdrew cash, at two minutes two, early
21
in the morning, after booking an escort, that he withdrew
22
that cash with the intent to pay for that escort, and I
23
draw the inference that he did.
24
relation to other charges, I am entitled to take in to
25
account a particular kind of logic arising from
26
similarities existing between what he did on other
27
occasions and this occasion, to be so satisfied.
I disagree with that submission.
The
I am satisfied beyond
As I have said in
28
It was also submitted that I cannot exclude that
29
the expense was for business purposes, rather than for
30
what is alleged by the Crown.
31
the evidence overwhelming that he withdrew that cash to
.TJ:GT 15/12/14
Thomson
CC 3-2X
79
As I stated, I consider
RULING
1
pay an escort service.
2
absence of evidence, as to precisely how much he paid.
3
do not have to be, that is a particular.
4
beyond doubt that he is guilty of theft of that charge.
5
I am not satisfied, in the
I
I am satisfied
As to Charge 222, that has now been amended from
6
Adelaide to Melbourne.
Craig Thompson at Melbourne on 23
7
December 2002 did steal cash, being property belonging to
8
Health Services Union valued at $150.
9
2002 the appellant and his wife drove to Adelaide from
On 21 December
10
Melbourne.
11
Adelaide.
12
"Newspaper awards."
13
cash was used.
14
withdraw an inference is this.
15
there was no evidence called, it is in the statement of
16
undisputed facts that a man called J-o-r-g-e N-a-v-a-s
17
stated that the South Australian office always closes
18
over Christmas.
19
December, depending on the day, and generally reopens on
20
the 2nd or 3 January.
21
On 23 December 2002 he withdrew $150 in
He entered in the MYOB that withdrawal as,
There is no evidence of how that
The evidence from which I am asked to
Jorge Navas, N-a-v-a-s -
It either closes on the 19th, 20th or 21
The prosecution submitted that on the material
22
there is no evidence as to why he would have attended
23
Adelaide on 21 December, as the office would have been
24
closed.
25
appellant's wife, had family in Adelaide and I ought to
26
draw the inference that the cash was used for personal
27
expenses, not union business.
28
The prosecution case is that Mrs Thomson, the
Unfortunately, Mr Navis was not called to give
29
evidence and cross-examined.
30
proof is high, beyond reasonable doubt.
31
case is that the office would have been closed on those
.TJ:EB 15/12/14
Thomson
CC 3-2Y
80
The criminal standard of
The prosecution
RULING
1
days and would have reopened a week later.
2
explanation given by the accused was "Newspaper awards".
3
It is unclear what that means.
4
The
This is very similar to other offences where the
5
conduct of the accused is highly suspicious.
The telling
6
of what is said to be a lie, namely the explanation
7
"Newspaper awards", is not sufficient evidence to prove
8
the case against the appellant.
9
highly suspicious, and if the standard were more probable
The circumstances are
10
than not he used that cash for a reason not related to
11
the business of the HSU, it is likely I would convict
12
him.
13
explanation, I am not prepared to decide that he is
14
guilty when Mr Navis, at its highest, said it generally
15
either closes on the 19th, 20th or 21st, depending on the
16
day.
17
a criminal standard, and however suspicious I may be, I
18
find him not guilty.
19
However, in the absence of more evidence and
It is just not clear.
Finally, Charge 223:
I have got to operate under
Craig Thomson at Melbourne on
20
15 September 2005 did steal cash, being property
21
belonging to the Health Services Union, valued at $500.
22
This charge is linked in a way to Charge 173 when the
23
appellant and his wife were in the process of relocating
24
from Melbourne to the central coast of New South Wales.
25
However, this offence is alleged to have been committed
26
four months after 173.
27
On 14 September 2005 the appellant applied for and
28
was granted one day of annual recreation leave for
29
16 September.
His diary showed the annual leave day as
30
16 September.
On Friday 16 September, the appellant and
31
his wife flew from Melbourne to Sydney and returned the
.TJ:EB 15/12/14
Thomson
CC 3-2Y
81
RULING
1
following Monday.
2
leave started, he withdrew $500 in cash from an ATM in
3
Melbourne.
4
account was nine days earlier in the sum of $300.
5
wife had made two cash withdrawals from a personal
6
account on 14 September, each in the sum of $100.The $500
7
he withdrew could not be reconciled in the MYOB
8
statement.
9
On 15 September, the day before his
The last cash withdrawal from a personal
His
The appellant's submission is that even if it could
10
be established that the cash was spent in a fashion
11
alleged by the prosecution, there was no evidence that
12
assistance with relocation was not part of the accused's
13
employment.
14
submissions in relation to Charge 173.
15
material in the statement of undisputed facts, the
16
appellant was embarking on a trip to relocate to the
17
central coast.
18
A reference was made to the appellant's
Clearly on the
In the circumstances, I am satisfied of the accused
19
guilt beyond reasonable doubt, as there was no issue he
20
was involved in traveling to Sydney and then to the
21
central coast for personal reasons to make enquiries as
22
to relocation.
23
reasonable doubt that that is not an authorised expense.
24
It is not clear what time the appellant made - sorry, it
25
is not clear whether the appellant was still at work when
26
he made the withdrawal, but I am satisfied beyond
27
reasonable doubt that the cash was not applied to any
28
business relating to the HSU.
29
As I have stated, I am satisfied beyond
As he was about to embark on his trip to relocate,
30
it was clear from the credit card bills during that
31
weekend that a lot of expenses were in relation to
.TJ:EB 15/12/14
Thomson
CC 3-2Y
82
RULING
1
personal matters, and he had other bills paid for by the
2
credit card which was travelling from Sydney to the
3
central coast, and he was not engaged in any meetings or
4
any business connected to the HSU.
5
appellant and his wife moved to Forresters Beach at the
6
central coast of New South Wales in late October 2005.
7
Therefore, I am satisfied that the sum that he withdrew
8
was used for personal expenses and there was no other
9
reasonable explanation open on the evidence.
I note that the
I am
10
satisfied that he is guilty beyond reasonable doubt of
11
that offence.
12
Now we move to the 49 charges.
13
I have already explained or I have foreshadowed
14
that I intend to find the appellant not guilty of each of
15
those 49 charges of obtaining financial advantage by
16
deception.
17
as I said, my role is to determine the legal issues
18
according to the law and it is not a court of morals.
19
I will say again, I find it regrettable, but
The relevant provision of s.82(1) Crimes Act 1958,
20
namely a person - the heading is, "Section 82:
Obtaining
21
a financial advantage by deception".
22
any deception, dishonestly obtains for himself or another
23
any financial advantage is guilty of an indictable
24
offence and liable to ten years' imprisonment.
25
purposes of this section, the section has the same
26
meaning as in s.81, and that section is obtaining
27
property by deception.
A person who, by
For the
28
Deception means any deception, whether deliberate
29
or reckless, by words or conduct, as to a fact or as to
30
law, including a deception as to the present intentions
.TJ:EB 15/12/14
Thomson
CC 3-2Y
83
RULING
1
of the person using the deception or any other person,
2
and includes an act or thing done or omitted to be done
3
with the intention of causing a computer system or a
4
machine that is designed to operate by means of payment
5
or identification to make a response that the person
6
doing or omitting to do the act or thing is not
7
authorised to cause the computer system or machine to
8
make.
9
Each of the charges of obtaining a financial
10
advantage by deception is in relation to the use of a
11
credit card by the appellant, being either the CBA
12
MasterCard, to which I have referred in relation to the
13
theft charges, or a Diners Club Card issued to the HSU.
14
The financial advantage in each of the charges of
15
obtaining a financial advantage by deception is stated as
16
dishonestly obtained for himself a financial advantage,
17
namely the evasion of the debt in the sum of, to Diners
18
Club International, by deception; and in the other
19
charges, dishonestly obtained a financial advantage,
20
namely the evasion of a debt in the sum of to the
21
Commonwealth Bank of Australia.
22
The deception was alleged to be the payment of the
23
outstanding amount owing to the credit card provider by
24
the HSU, as the holder of the credit card of which a
25
portion of that amount is said to be an unauthorised
26
expense, or the total of unauthorised expenses.
27
is an example.
28
and 28 April 2003, the appellant dishonestly obtained for
29
himself a financial advantage, namely the evasion of the
30
debt in the sum of $900 owing to the Commonwealth Bank of
31
Australia, by deception, namely by falsely representing
.TJ:EB 15/12/14
Thomson
Charge 2
That states that between 27 March 2003
CC 3-2Y
84
RULING
1
that all of the transaction details and charges listed on
2
the Commonwealth Bank of Australia business cardholder
3
statement for the period ended 26 March 2003, totalling
4
$1,453.50 were authorised by the HSU.
5
prosecution is that $900 of that total sum was not
6
authorised.
7
Consequently, the
I have already indicated in my ruling earlier that
8
the accused was not authorised to use HSU funds, other
9
than for carrying out the business of the HSU, and he
10
knew that to be the case.
11
on each occasion set out in the charges, the appellant,
12
when using a credit card to obtain goods or services that
13
were not authorised by the HSU, he incurred a debt to the
14
credit card provider, that is Diners Club International
15
or the CBA, who was obliged as a result of his use of
16
that card, to honour the expenditure so that the merchant
17
or the service provider was paid.
18
The prosecution case is that
It was submitted that that debt would fall due upon
19
receipt by the HSU of the monthly statement.
20
prosecution submitted that the contractual obligations
21
existing between the HSU and the credit card provider are
22
beside the point, as by using the credit card in a manner
23
in which he had no authorisation, the appellant
24
dishonestly caused the card or account holder to honour
25
that expenditure.
26
the debt that arose and that is an outline of submissions
27
by the respondent at paragraph 59.
28
The
By virtue of that, he is liable for
On behalf of the appellant, it was submitted that
29
the charges are not made out as a matter of law, as there
30
is no debt owing by the appellant to the credit card
31
provider.
.TJ:EB 15/12/14
Thomson
It is submitted that he is not charged with
CC 3-2Y
85
RULING
1
evading a debt owing to the HSU.
2
there is no evidence that the appellant incurred a debt
3
to Diners Club or the Commonwealth Bank of Australia.
4
The offences charged are the evasion of the debt owing to
5
the credit card provider at the end of each statement
6
period.
7
It was submitted that
Mr James submitted that that debt was the debt that
8
was owing but not evaded, it was paid.
The appellant is
9
not charged with an offence against the HSU, and it was
10
submitted that any debt to the Commonwealth Bank, or
11
service provider, was never a personal one in law, or
12
otherwise, to the appellant.
13
Bank of Australia, nor Diners Club, have ever looked to
14
the appellant as they did not have an agreement or a
15
contract with him to do so.
16
Neither the Commonwealth
Upon an analysis of the evidence, I agree with
17
Mr James' analysis.
The appellant did not have a debt
18
owing to the Commonwealth Bank of Australia or Diners
19
Club to evade.
20
agreement, between the appellant and Diners Club, or the
21
appellant and the Commonwealth Bank of Australia.
22
credit card provider had an agreement with the HSU.
23
prosecution case is, on each occasion, the appellant used
24
an HSU credit card, the service provider or merchant was
25
paid in full by the credit card provider and there was no
26
debt owing to that person.
There was no financial, or any other
Each
The
27
Subsequently, the credit card provider sent a
28
statement to the HSU and the HSU was thus legally obliged
29
to pay outstanding sum set out in that statement from use
30
of the credit card.
31
appellant to pay the credit card provider any money as
.TJ:EB 15/12/14
Thomson
CC 3-2Y
There was no obligation on the
86
RULING
1
there was no agreement between them, and there was no
2
debt incurred by the appellant to the credit card
3
provider.
4
seems to me, have been deceived as the appellant used a
5
credit card, of which the HSU was a holder, for an
6
unauthorised purpose, and the appellant received the
7
particular goods and services as a result.
8
Clearly in all the circumstances, HSU, it
In the circumstances, as a matter of law, each of
9
the charges of obtain a financial advantage must fail.
10
Each charge is pleaded incorrectly; it is a fatal flaw.
11
The defence has conducted its case on the basis that the
12
Crown have maintained that it is a debt owing by the
13
appellant to the credit card provider.
14
the submissions that have been made on behalf of the
15
accused in answer to the case, the Crown has maintained
16
its position.
17
obtaining a financial advantage, I find him not guilty
18
for the reasons I have given.
19
Notwithstanding
Therefore, as to each of these charges of
As I said, that applying the law it is regrettable
20
that I must, as a matter of law, acquit the accused.
21
This is a court of law, not morals, and I will reiterate
22
that my decision must not be taken that this court has
23
endorsed his conduct.
24
It does not.
- - -
25
.TJ:EB 15/12/14
Thomson
CC 3-2Y
87
RULING