The Bill of Rights of 1688, The King, The Queen and the former Member for Dobell Craig Thomson
Thursday, 19 September 2013
Craig Thomson has been given more benefit from doubts as to criminal liability - and more access to the evidence against him than any accused person I'm aware of.
I can't think of a defendant who could be better informed about the likelihood of a successful defence to criminal prosecution than Craig Thomson.
Firstly Mr Thomson is the beneficiary of a detailed Fair Work Australia investigation into his time at the helm of the HSU. It runs to 1,127 pages. You will have your own view about its thoroughness. Some of the matters alleged within the report are now allegations before the Melbourne Magistrates' Court and it is for the Court to determine their truth. But Mr Thomson, like you, cannot say that he is unfamiliar with the recitation of the law, the HSU rules, Fair Work's allegations about his responsibilities and the particulars of each matter alleged against him within the document.
The Statement of Claim filed by Fair Work in the Federal Court sets out specific and detailed allegations about various laws, duties and union rules it alleges Mr Thomson contravened - it runs to 194 pages with indexed entries for each law, each union rule and each statutory duty. It explains how it believes each of those provisions obliged Mr Thomson to spend HSU money only in certain ways and only for specific purposes. This is not the forum to prosecute Mr Thomson but the Fair Work claims are detailed and available for Mr Thomson and for you to peruse.
Mr Thomson has been served with the Victoria Police brief of evidence compiled by the informant Detective Sergeant John Tyquin - that is the documents, exhibits and untested witness statements that make up the police case to support the charges on which Mr Thomson is currently bailed, pending a trial or hearing.
Detective Sergeant Tyquin has charged Thomson with 11 counts of theft, 31 charges of obtaining property by deception and 131 charges of obtaining a financial advantage by deception. Sergeant Tyquin alleges Thomson misused HSU credit cards 49 times over a five-year period, amounting to expenditures of $28,000 and that the misuse amounted to criminal conduct.
The Fair Work report and Statement of Claim disclose considerably more prima-facie criminal offences than are reflected in the police charges. The police and prosecutors will have good reason for their decision to favour Mr Thomson with the benefit of doubt in proving those offences. The Detective will have reported to his superiors any recommendation not to prosecute offences disclosed to him. The Chief Commissioner has an obligation accurately to report the State's crime statistics. Every offence reported to police should be recorded and its disposition reported - the discretion not to prosecute offences will not have been exercised lightly.
Detective Sergeant Tyquin's charges in the initial hearing are here.
Download Revised ocr craig thomson charges
The bulk of the police charges allege that Mr Thomson dishonestly obtained for himself a financial advantage by deception. That charge looks like this:
For the police case to be proven, Detective Sergeant TYQUIN must satisfy the court that he has charged the right man - the man who offended against this section of the criminal law in Victoria:
Crimes Act 1958 - SECT 82
Obtaining financial advantage by deception
82. Obtaining financial advantage by deception
(1) A person who by any deception dishonestly obtains for himself or another any financial advantage is guilty of an indictable offence
And to prove that charge he must adduce sufficient evidence, beyond reasonable doubt, of the following points - known as the Points of Proof for the Offence.
1 Identity - that the person charged is the person who did these things - all of these things, not just some.
2. That the person charged engaged in some deception - for example falsely claiming that a personal expense was a legitimate company expense.
3. That the person charged acted dishonestly - that it wasn't simply an honest error or a once off oversight or omission.
4. That as a result of the deception, the person charged received a financial advantage, or someone else received a financial advantage as a result of the deception. A financial advantage includes the evasion of a debt, the reduction of a debt or the deferral of a debt.
Each offence carries a maximum penalty of 10 years imprisonment. Common defences to the charge include identification dispute (it wasn't me), factual dispute (the records are wrong) or lack of dishonest intent (I really believed my company should have paid for those things for me). The accused has to prove his defence on the balance of probabilities, the prosecution in a plea of not guilty has to prove its case beyond reasonable doubt.
While the defendant can plead not guilty and leave it to police to prove every point in every charge, he or she cannot plead a little bit guilty, or guilty to a few of the points of proof. It's all or nothing as far as a plea goes. And a guilty plea that saves the state time and money obliges a Court to discount any punishment.
The current Thomson legal negotiations at present are preliminary courtroom discussions in which the court will be told what points of proof will be in issue - that is what will Thomson concede and what does the prosecution have to prove. This stage of criminal proceedings, always conducted in the absence of a jury, often includes a legal function known as the Voire Dire, or discussions about what evidence can or should be admitted against an accused.
The Thomson discussions at present revolve around what Thomson is prepared to admit to. The law in Victoria provides that he could admit certain things, or consent to certain things being given in evidence at this stage. But a further provision of the Evidence Act provides that an accused person can make out a formal, written agreement as to facts - with the facts he has admitted to unable to be contradicted or qualified in any way from that point. Prosecutors are apparently keen for Mr Thomson's agreement as to facts to be in the latter format. I'm told that Mr Thomson's learned counsel fears that such a form of agreement might be used against Mr Thomson elsewhere.
You no doubt watched last year as Mr Thomson made a personal statement to the House of Representatives. He gave a one hour parliamentary speech starting with the words,
"Madam Deputy Speaker. I seek leave to make a statement."
Mr Thomson used our Parliament to tell us about certain things alleged against him in great detail. He set out alibis and presented scenarios that involved other people who were engaged in the commission of offences - and he excluded himself from any involvement in those offences, other than as a victim.
In that parliamentary speech Mr Thomson named a living person as being responsible for a threat to set Mr Thomson up in relation to the allegations. And he reiterated that he himself had done nothing wrong with the implication he was due some recompense as a victim of a crime.
But none of what Mr Thomson told the Parliament in his hour long address can be given in evidence in the Melbourne Magistrates' Court or any other court, anywhere.
Mr Thomson is the beneficiary of the privilege of our parliament and its assertion of its superiority to the highest courts in the land. That privilege derives directly from the Bill of Rights of 1688 which provided for the privilege of the British Parliament, in particular the Freedom of Parliamentary Speech, placing parliamentary proceedings above the reach or influence of any court or other authority.
That privilege is formidable. But like any privilege, the Privilege of the Parliament ought to be commensurately respected and exercised with great care and responsibility.
Our constitution provided that our parliament would have the same privileges as the UK's parliament. Australia's Parliamentary Privilege was then codified into Australian law in 1987. The effect is that nothing Mr Thomson or any other parliamentarian says in parliament can be used in any way in a court outside the parliament. No court, no authority can call him to account for what he said in our House. No authority that is, except for us; that is because it's our House of our Representatives, elected by us to sit and to perform their duties in our Parliament.
And our law says that the parliament itself can deal with an allegation of a breach of parliamentary privilege. Each House of our parliament has the power to call offenders to account and to punish them as it sees fit - including a gaol term of up to 6 months. In this case that means the members of the House of Representatives, people like Tony Abbott, Bronwyn Bishop, Joe Hockey and their 147 colleagues. There's no requirement for the other House to review the decision. Each House has power to bring an offender to the chamber, to hear evidence and to impose sentence where an offence against the Privilege is proven. This is an extract from the Australian law, currently in force.
Penalties imposed by Houses
(1) A House may impose on a person a penalty of imprisonment for a period not exceeding 6 months for an offence against that House determined by that House to have been committed by that person.
(2) A penalty of imprisonment imposed in accordance with this section is not affected by a prorogation of the Parliament or the dissolution or expiration of a House.
The British Parliament's House of Commons (the lower house, like our House of Representatives) has some experience with the breach of privilege that happens when a member deliberately misleads the House. In 1963 a married man named John Profumo was a member of the House of Commons, and a member of the government. He was reported to have been seeing a reputed call-girl, or escort named Christine Keeler. The circumstances were apparently embarrassing and Mr Profumo was not keen for the story of the call-girl and the parties and the money to be told.
In March 1963, Profumo stated to the House of Commons that he was involved in "no impropriety whatsoever". He said that he would issue writs for libel and slander if the allegations were repeated outside the House. (Within the House allegations are protected by Parliamentary privilege and members can speak without any danger of defamation proceedings.)
Faced with overwhelming evidence 3 months later Profumo confessed that he had misled the House and had lied in his testimony and on 5 June, he resigned his Cabinet position, as well as his Privy Council and Parliamentary membership.The handbook provided to Australian MPs contains a great deal of detail about Australian MPs and their obligations to observe Parliamentary Privilege The Australian Parliament's publication for members called Powers, Practice and Procedure has a chapter about Privilege and Misleading the House. Here's an extract.
Deliberately misleading the House
May (the UK parliamentary authority) states:
The Commons may treat the making of a deliberately misleading statement as a contempt. In 1963 the House resolved that in making a personal statement which contained words which he later admitted not to be true, a former Member had been guilty of a grave contempt.127 (Profumo’s Case, CJ (1962–63) 246)
The circumstances surrounding the decision of the House of Commons in Profumo’s Case are of importance because of the guidance provided in cases of alleged misrepresentation by Members (here in Australia). Mr Profumo had sought the opportunity of making a personal statement to the House of Commons to deny the truth of allegations currently being made against him. Later he was forced to admit that in making his personal statement of denial to the House, he had deliberately misled the House. As a consequence of his actions, he resigned from the House which subsequently agreed to a resolution declaring him guilty of a grave contempt.
This is a grave matter. Mr Thomson has a lot at stake. So do you and I. The regard in which our parliament is held and the respect it ought be accorded should be of concern to all Australians. I feel that way and I hope the people in our new government feel that way too.
But feeling that way is not enough. We didn't elect a new government to tell us how they feel, we tossed out a government that spent endless time and money doing that. We elected a government to act, to bring back our confidence and pride in ourselves and to make us feel the way Australians used to feel.
Each member of our new government has a duty right now to act in accordance with their beliefs and according to our law.
But I think they have a higher duty and a very rare opportunity - to act to restore our faith in the parliament.
And to confirm our faith in them.