Her Honour Judge Douglas

(Unrevised)

(Her Honour Judge Douglas)

R U L I N G

HER HONOUR: I will now move to the offences themselves of theft.

The prosecution rely on inferences to be drawn by relying on individual pieces of evidence as a circumstantial case in relation to proving the elements of the offence of theft as to the offences on the charge sheet.

The prosecution case, as I stated, relied on the document, "Statement of undisputed facts". There were no witnesses called. In addition two folders were tendered, each of which contained documents relevant to each charge. By that I mean receipts paid for by the HSU for air travel of the appellant, taxis, car hire, accommodation, meals, telephone calls and other incidentals in relation to each charge, as well as call charge records and relevant entries in bank statements of the HSU, the appellant and his wife.

In my reasons, which I will set out, when I refer to cash being withdrawn, unless otherwise stated, I am referring to, by use of the Hospital Services Union Commonwealth Bank of Australia MasterCard.

As to Charge 9, I will read the charge and then I will refer to my reasons. "Charge 9. Craig Thomson at Sydney between 9 October and 10 October 2003 did steal cash being property of the HSU valued at $200." I have already set out the elements that have to be proved and I will not go over that. The evidence I am going to refer to now.

On 9 October 2003 the appellant withdrew $200 cash at Canberra Airport in the Australian Capital Territory. He then flew to Sydney where he stayed overnight. At 11.33 he rang his wife, who was in Melbourne, and the call lasted 20 minutes. At 11.59 he rang an escort service, Club 121, and made a booking for an escort to attend his room. The charge was $240. That sum was paid in cash. Bank records do not reveal any relevant credit card transaction on the account of the appellant or the HSU. The explanation entered by the appellant on the MYOB on 9 October 2003 was travel expense.

On behalf of the appellant it was submitted that as the fee charged by the escort agency was $240 the appellant must have had access to other funds to pay for the services. As he withdrew only $200, the prosecution cannot prove its case. I disagree with that submission. I accept on the evidence that the only reasonable explanation is that he used the $200 as well as $40 from another source to pay for the escort. As I accept beyond reasonable doubt he used the $200 to pay, as I have stated, for the escort, which is an unauthorised expense, regardless of whether the remainder of that fee was from another source, he has committed theft, so I am satisfied beyond reasonable doubt that he is guilty.

It is implicit in each of these offences to which I am referring, or to each of these charges that there is no issue that - perhaps I will put it this way - that I have found that he was not authorised to use funds from the HSU for any expense other than the carrying out of the business of the HSU. Consequently, any payment of personal expenses, and sexual service from an escort

.TJ:SS 15/12/14 CC 3-2R 60 RULING

Thomson

comes into that category, are a non-authorised expense, and I will not repeat that in each offence.

Charge 47. "Craig Thomson at Sydney" - that has now been amended as I have stated, that will be Melbourne, as will Charge 9, I omitted to say that, that is now amended - "Craig Thomson at Melbourne between 12 June 2007 and 13 June 2007 did steal cash, property belonging to the HSU valued at $500."

On or about 12 June 2007 the appellant drew $500 cash in Bateau Bay in New South Wales where he lived. He then drove to Sydney. At 12.31 he called a brothel, Chandalay Massage in Roseville. At 1.55 pm he made another call on his phone near Roseville, and then an hour later another call in Chatswood, which is near where the brothel is. He attended at that brothel to receive sexual services and later drove home. There is no issue he attended at the brothel.

The last occasion he withdrew cash was from a personal account on 7 May 2007 which was $400. In the same period he withdrew $3,000 by use of the HSU CBA MasterCard. I accept beyond reasonable doubt that the only reasonable inference open is that he paid for that sexual service when he attended at the brothel by cash, as there is no credit card record for that. The withdrawal of $500 cash was entered on 12 June in the MYOB as, "Meetings, national office."

As he withdrew $500 on the same day, he left and attended at the brothel and he withdrew the cash where he lived. I am satisfied beyond reasonable doubt that he used that cash to pay for sexual services, as he had intended to attend at that brothel.

There is no evidence as to the amount he paid for the sexual services. However, and this also relates to a number of other offences where there is no evidence as to what he paid for sexual services, or other unauthorised expenses.

The amount stolen is only a particular in a charge, it is not an element of an offence. Thus, as I am satisfied beyond reasonable doubt that he stole cash, namely he appropriated the cash dishonestly. Such cash being property belonging to the HSU as alleged, I find he is guilty. However, I am unable to say precisely how much he did steal. Therefore I am satisfied beyond reasonable doubt that he is guilty, and I will add that there may well be submissions made as to what inference I can draw as to the amount he used in relation to penalty.

Charge 22, Craig Thomson at Melbourne on 22 November 2005 did steal cashing belonging to the HSU valued at $200. On 21 November 2005, the appellant flew from Melbourne to Sydney to attend an ACTU meeting the following day. Around 9.51 pm on that day, he arrived in Melbourne. At 9.33 pm, he called his wife in Sydney. On this evening he called an escort service "Double Your Luck Two's Company". After midnight, he withdrew $200 cash at an ATM about 700 metres from his accommodation. The following day he attended the meeting and then went home.

The last occasion he withdrew cash from his own bank account was $200 on 11 November 2005. He had made four cash withdrawals from the HSU master card between 13 November 2005 and 17 November 2005, totalling $1,300. There was no evidence of credit card transaction for the escort. The appellant noted in the MYOB the cash advance of $200 as meetings.

On both of the appellant, it was submitted that the prosecution cannot prove how the appellant spent the cash, as there is no record. The only reasonable inference in the circumstances is that the appellant used the $200, which he withdrew that night, on the same evening as he contacted the escort service.

I am satisfied beyond reasonable doubt that he used the services of the escort agency. I rely upon a particular kind of logic, arising from the similarity of this charge, and other transactions with which I am concerned in that when the appellant was in a hotel, he contacted an escort service and had the services of that escort. I infer he paid cash as there is no credit card transaction.

In the circumstances, there is no other reasonable explanation open other than he used that sum - that cash, to pay for the sexual services as alleged. There is no evidence as to precisely how much he paid for that service, but as I stated with Charge 9, the amount he stole is only a particular, and not an element of the offence. So I am satisfied beyond reasonable doubt that he appropriated the cash dishonestly, being property belonging to the HSU as alleged. Therefore I am satisfied beyond reasonable doubt he is guilty.

Charge 27. Craig Thomson at Melbourne between 29 March 2006 and 30 March 2006, stole cash being property belonging to HSU valued at $300.00. On 29 March 2006, the appellant flew from Melbourne to Sydney. In his calendar it showed two days blocked out for Melbourne,

.TJ:AF 15/12/14 CC 3-2S 64 RULING

Thomson

and a meeting with a woman Lilian Jeter, J-e-t-e-r who is of the Elder Abuse Prevention Association.

The time was 11.30 for 30 March 2006 in his calendar. At 11.51 pm, when he was in Melbourne, he withdrew $300 cash. The prosecution case is that the entry in his diary was untrue. In other words, it was a lie. As Ms Jeter stated, in the statement of undisputed facts that she recalled speaking with the appellant in the past over the telephone, but never meeting him. He checked out on 30 March 2006, and returned to Sydney. The entry made at MYOB in relation to withdrawal of $300 cash was "meetings at National Office".

On the material before me, I consider there is insufficient evidence to be satisfied beyond reasonable doubt that he used the cash for a purpose other than the business of the HSU. Clearly his behaviour is very suspicious, and that all these expenses were paid for by the HSU. He told a lie about Ms Jeter and the entry in the MYOB is vague, "meetings National Office".

However, the prosecution has to prove beyond reasonable doubt that he used it, other than for a purpose relating to HSU business.

I do not know. He may have had an informal meeting with people, it is not clear. On the balance of probabilities, it is very likely he misused those funds as it is very suspicious. However, applying the criminal standard of proof, I am not satisfied beyond reasonable doubt that he is guilty, so I find him not guilty.

Charge 32: Craig Thomson at Melbourne between
20 April 2006 and 21 April 2006 did steal cash, being property belonging to the HSU, valued at $400. On
20 April 2006 the appellant withdrew $400 cash from an ATM in New South Wales. He then flew from Sydney to Melbourne and at around 7.57 pm checked into a hotel. There was no record of any appointments for him in his diary for that evening.

In his hotel room at 8.13 he called his wife who was at home. At two minutes past nine he called an escort service, "Young Blondes". At 9.04 pm, he called another escort service, "High Class Confidential Model Escorts". My note says "Motel Escorts", I think it probably model.

MS TAYLOR: It is model, Your Honour.

HER HONOUR: Yes. It probably is of no consequence.

Each of those escort services traded as escort service company "APB Marketing". That evening, that company rang on a number of occasions to the hotel to confirm that the appellant - to confirm the booking he had made. Gary Scott from that service stated that if a client had called two numbers associated with escort services, it generally suggests he has booked an escort. For a booking in 2006, he said a ballpark figure would be about $400 which would equate to about a two hour booking or two girls for one hour.

The last occasion the appellant withdrew cash was $50 from his own personal account on 5 April 2006. There is no credit card record of payment to the business APB Marketing. I am satisfied beyond reasonable doubt that it is a reasonable explanation that he used cash. The appellant entered in the MYOB that the withdrawal of $400 was meetings - national office. I am satisfied beyond reasonable doubt that he used the escort service.

In this case, I rely upon a particular kind of logic arising from the similarity of this transaction and other transactions with which I am concerned where upon checking in at a hotel when he was away from home, he contacted an escort service and had the services of that escort. In the circumstances, I accept beyond reasonable doubt that the appellant contacted the escort service, received a sexual service and paid cash in the sum of $400, that sum which he had withdrawn earlier. I also take into account the contact between the escort service and the appellant. I am satisfied beyond reasonable doubt that he is guilty of that charge.

Charge 58 which had been divided into two - just excuse me for a moment. Very well. As to Charge 58, the prosecution case is that the appellant withdrew $500 in Sydney between 19 September 2007 and 20 September 2007 belonging to the HSU and that on the previous day or evening he withdrew $300 cash belonging to the HSU. The prosecution case is that he used the combined amounts of case, which is $800, for an unauthorised purpose to pay for sexual services.

I have already ruled that the appropriation as a matter of law is at the time he used the cash that he withdrew using the HSU Commonwealth Bank of Australia MasterCard for an unauthorised service. Therefore, the charges of 58 and 221 I had ruled as duplicitous, as the actus reus using the cash in the way the appellant did on one occasion cannot be two charges. They are now one charge, Charge 58.

On 19 February, going back to the chronology, the appellant was in Sydney. At 3.48 on that day he withdrew

.TJ:EB 15/12/14 CC 3-2T 67 RULING

Thomson

$500 in cash. He was in a hotel that evening. He rang his wife at 11.05 pm for about three minutes. At 11 past 11 pm he sent an SMS to an escort service. At 11.25 he called the agency to book the escort. At 11.44 he attempted to withdraw $500 cash from another ATM, but as the daily limit from ATMs was $800, he was only able to withdraw 300. So therefore, the total from the two withdrawals was $800. The last occasion he withdrew cash was from his personal bank account of $200 on
17 September 2007. There are no transactions on his personal credit card, or an HSU credit card for the service he obtained from the escort agency.

He booked the escort for two hours. The charge-out rate for this particular escort was $385 per hour, thus the total cost was $770.

On each of the two withdrawals of cash, on 19 September 2007, the appellant entered in the MYOB meetings national office. It was submitted on behalf of the appellant that I ought not be satisfied beyond reasonable doubt that the cash the appellant withdraw that evening, to which I have referred, paid for the escort. I have been referred to a number of cash withdrawals on behalf of the appellant in his personal accounts, between 4 September and 17 September 2007.