Craig Thomson trial day 3: Upon the admission of facts

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(Image by John Graham / johngraham.alphalink.com.au)

With the old media blurting out sordid snippets about sex workers and graft, IA court reporter Umberto Ledfooti calmly presents the Craig Thomson trial as it really happened.

Read Umberto’s account of:

THE CRAIG THOMSON TRIAL before at Melbourne Magistrates’ Court adjourned early Wednesday afternoon, allowing time for Magistrate Charlie Rozencwajg to review a slab of statements to be tendered into evidence by the prosecution. While Wednesday’s public proceedings lasted only half a day before the court in this matter, a lot of detailed documentation and evidence was heard and tendered.

Readers of this article are well advised to also review the excellent ‘Jacksonville’ series here on Independent Australia, mostly written by Peter Wicks, so that the full background context of these series of articles will fit into place. This week’s articles are written with the presumption readers are familiar with this background material and that readers are also aware that a sub judice matter is being reported upon, which carries the obligation to provide be a fair and accurate report of proceedings — two things IA takes very seriously.

On Wednesday morning, Lesley Taylor, SC, for the Crown told the court that further agreement had been reach overnight with Craig Thomson’s counsel, Greg James, QC, with regards to reducing the number of witnesses to be called.

Both counsel have worked very hard to reduce the number of witnesses from an initial list of 83, down to 17 on Tuesday, and now Ms Taylor has stated that the prosecution has only six more witnesses it intends to call. Ms Taylor said three of these would appear yesterday (Wednesday), however two of the witnesses were interstate and that the informant, DS John Tyquin of the Victoria Police Fraud and Extortion Squad, would be the last prosecution witness to be called.

If this writer recalls correctly from months ago in the very early stages of these proceedings, the magistrate was reportedly displeased that the prosecution and defence had not reached many agreements as to facts (a process like that set out in section 191 of the Evidence Act 2008 (Vic)) before this matter came into his court.

Those types of issues are usually dealt with by pre-trial voir dire proceedings in the District and Supreme courts, but there is no provision for this process for summary trials in the magistrates’ courts.

In this trial, however, the defence has agreed not to dispute the admission of certain facts that are virtually impossible to prove or disprove without a great deal of expense to the defence. As we have reported on IA previously, The costs involved in disputing or investigating some facts outweighs any value that the discovery of these facts would have in relation to defending these charges. A successful criminal prosecution on indictment requires evidence beyond reasonable doubt being presented to the judge of fact on all the physical elements of the charge, as well as the essential mental element — that the accused had a guilty state of mind.

Unless all of these elements are proven beyond all doubt, the charge cannot be sustained; six proven elements out of seven aren’t good enough for a conviction. So, if the defence beats just one element of the charge, the charge cannot succeed.

One must be very careful here to point out that, in this context, ‘admitted facts’ means facts admitted into the court for the purposes of the trial, and is not, as has been commonly misunderstood by many ‒ including most breathless media reports ‒ an admission by a party of doing an act.

Before fully reporting of Wednesday’s events further, this writer feels that it is worth noting that, despite reports by certain unscrupulous sources, at no time this week was there any discussion before the court about the defence applying for suppression orders in relation to the evidence allegedly to be given by sex workers.

The only discussion this writer recalls hearing this week about suppression orders was a pre-emptive request by the prosecution – later withdrawn – for a media suppression order regarding a family relationship, on the grounds that the disclosure of that family relationship may be potentially embarrassing to the witness. After discussing the reasoning for the issuance of an order with the magistrate, who clearly stated the legislative grounds under which he could make a suppression order, Ms Taylor declined to proceed with the application any further.

The prosecution’s first Wednesday witness was Natalie Bradbury, a National Assistant Secretary of the HSU from 2007 until 2012 and a member of the HSU in New South Wales since 1996. Ms Bradbury stated that she held both an HSU American Express credit card and a Diners Club card and that there was no policy document on credit card usage of which she was aware.

With regards to the personal use of HSU credit cards, Ms Bradbury recalled seeing email reminders about how the cards were to be used for reasonable work-related expenses only. As to why she held two cards, Ms Bradbury testified that the Diners Club card was not accepted everywhere that she needed to do business for the union. Ms Bradbury also stated that she was not aware on any spousal travel policy or prohibition, but recalled that senior union officials would sometimes be accompanied by their partners when traveling to official union functions. 

Iris Knight, the HSU’s National Trustee and an HSU life member who held the position of Vice President in the NSW Branch, was the day’s second prosecution witness. Ms Knight was also a member of the HSU’s National Executive and the union’s Finance Committee, and testified that she had held the latter membership since the committee was established by Craig Thomson in 2002. 

When asked about the documents presented to that committee, Ms Knight stated that “not a great deal of detail” was shown. Ms Knight further stated that she was shocked at the expenditure after the results of the 2008 audit were known to the committee, in particular in relation to cash withdrawals. In response to a prosecution question about the rules regarding the expenditure of union money, Ms Knight stated that “they have improved” since 2008, but the witness could not recall any rules prior to that time regarding the purposes and use of union-supplied credit cards.  

Mr James then asked Ms Knight if a document identified as page 4155 was a typical example of that generally presented to the Finance Committee — to which she agreed it was. Mr James then asked if there was a motion in the committee to accept that type of document as a financial record presented to the committee and Ms Knight agreed it was, however, this was done with the intention that discussions about such documents would be taken up at the next meeting of the National Executive. At the request of Mr James, page 4155 was entered as a defence document and the magistrate placed it on record as Exhibit B.

The witness was next asked by Mr James if she recalled the answers she gave to Terry Nassios of Fair Work Australia, as documented on page 0011 of the court documents.
After listening to Mr James’ question to the witness, this writer believes the material from the FWA report shown in the accompanying photo is substantially identical to that shown to Ms Knight as page 0011.

Ms Knight confirmed in court that she gave these answers to Fair Work Australia. 

Gerard Curtin, a vastly-experience forensic accountant, was the third prosecution witness to be heard today. Mr Curtin, a CPA, has worked in accountancy for over 30 years — and he has worked with Victoria Police for over 25 of those in finding evidence related to proceeds of crime for presentation into court. As an example of this work, Curtin has spent significant time tracing the murky trails left by the money laundering of drug barons so that prosecutions would succeed.

Mr Curtin testified that he had done an extremely through investigation of not only the HSU’s accounts and electronic books, but also the personal bank and credit card accounts of Craig Thomson and his former wife.

The analysis [undertaken by Mr Curtin] went far beyond the charges,” said the magistrate.

At that point, this writer felt certain that if any proverbial smoking gun was going to be displayed to the court, then Mr Curtin would be the one person who could find it.

Ms Taylor questioned Mr Curtin in detail about his forensic financial analysis, which led to at least the following being tendered into evidence:

  • Exhibit 7: a spreadsheet of transactions on Craig Thomson’s personal bank account.
  • Exhibit 8: a spreadsheet of transactions on Craig Thomson’s personal (i.e. non-HSU) MasterCard.
  • Exhibit 9: a spreadsheet of transactions on Craig Thomson’s HSU MasterCard.

Many other forensic accounting exhibits were also tendered — in relation to the HSU’s MYOB system, various Diners Club credit card statement summaries, Craig Thomson’s joint personal loan accounts held with his partner and so on. Mr James had no objection to these being entered into evidence as long as the privacy of the non-union bank statements and Mr Curtin’s summaries of the same were respected.

As part of the process of his auditing, Mr Curtin told the court that he would enter and list the transactions in his summaries that he discovered under broad category headings that described the nature of the expenditure. Some examples of these headings were ‘entertainment expenses’, ‘travel’, ‘accommodation’, as well as others.

Mr Curtin testified that the Exhibit 9 spreadsheet he created had entries totalling $5,993 under the category of “escort services”.

Mr James asked the witness who it was who had suggested that certain transactions were listed under this heading.

The informant,” replied Mr Curtin.

According to Mr Curtin’s evidence, the informant (DS Tyquin) also suggested that certain entries discovered in his comprehensive audit and examination of the Union’s MYOB data were listed in his summaries under the heading of “escort services”.

The preeminent thought in this writer’s mind after hearing this, was “prejudice”.

Originally, the witness testified, some unreconciled cash expenditures were entered under such headings as ‘meeting – National Office’, ‘entertainment’, and ‘teleconference’ on the MYOB database.

As an aside, it may be worth recalling what the notorious FWA report previously had to say about cash withdrawal transactions.

However, this writer cannot recall Mr Curtin making any mention of any figures anywhere close to $100,000 in relation to cash withdrawal transactions in his testimony yesterday.

Is anyone shocked by this?

This writer believes that Mr Curtin’s audit was far more thorough and credible then that done by FWA.

According to my notes, Mr Curtin stated to the court that out of a total expenditure of $164,556 on the card, of which $35,634 was in cash withdrawals, around $21,000 of cash expenditure was not able to be reconciled.

At this point, this writer feels it is appropriate to recall that a previous witness, Nurten Ungen, stated in her evidence that Craig Thomson sometimes verbally advised her ‒ presumably by telephone when he was away from the office and in response to her queries ‒ as to how the cash advances were used.

Further to this documentation issue, it was also interesting to note that Mr Curtin testified that many receipts were missing or unable to be obtained. These missing receipts obviously included any vouchers from any alleged use of escort services.

The witness also conceded that his final analyses were subject to the limitations imposed by the quality of the MYOB data entry and the availability or otherwise of receipts, memoranda and other documentation for use in his review.

Mr James suggested that the principle of “garbage in equals garbage out” applied here, such that any final analysis was only as good as the information available to be analysed. The witness agreed with that assessment.  

Finally, it is worth noting that the mainstream media made an application to access all of the forensic accounting documents tendered by Mr Curtin, including those exhibits which detailed Craig Thomson’s personal account information.

Unsurprisingly, the magistrate rejected that part of the application, confining their access only to the HSU-related accounts. 

It is expected that the last prosecution witnesses will be heard today (Thursday) and that the submissions from counsel may begin next week.

Follow Umberto Ledfooti on Twitter @Uledfooti. If you would like to help defray the expenses of this unpaid IA volunteer – a law student who generously travelled to Melbourne from Sydney at his own time and expense to cover this trial for IA – please make a donation to IA via Paypal, EFT or cheque with the narrative 'Umberto' and we will transfer the money to him as we receive it.

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