99 The explanation given by Ms Salamon about how she came to make a payout to Gary is not entirely implausible - it could have happened. Nevertheless, it is not at all easy to accept that a person of Ms Salamon's obvious intelligence and experience would have handed over $1145.00 to a customer - even one she knew was a regular - without some reasonable indication that the money was, in fact, owing. Ms Salamon did not strike me as a person easily bluffed or fooled or embarrassed by an agitated customer in circumstances where verification (or otherwise) of the entitlement to a payout would not have involved much time or effort on Ms Salamon's part.
100 What makes the explanation of the Gary incident even more difficult to accept are the following considerations:
(1) At the time of the incident and in the interview on 29 March 2004 Ms Salamon provided only the sketchiest of information to those investigating the matter. For instance, in her written report to Mr Jeff of 14 March 2004 she did not, despite having been asked to, give any details apart from the amount of the payout being approximately $1,100, or just over that, and the time being between 2.00 pm and approximately 5.00 pm. In this respect, I accept Mr Jeff's evidence that Mr Mather said to the applicant on 14 March:
You should prepare a report of the incident and actions of Saturday. It should tell us how much the shortage was, what terminal the shortage occurred, plus any other information you could give us that could help us find out about the shortage. This will become part of the investigation. Put it in the report, and send it to Phil's email.
(2) On 1 December 2004 the applicant swore an affidavit in which she stated, for the first time, that Gary gave her the details of his bet and she checked the information against the results on the terminal. What Ms Salamon meant by the details of the bet was "what his bet was, what horse it was, what race..." This was inconsistent with what she told Mr Hunter and Mr Goldsworthy during the interview on 29 March 2004. During that interview the applicant stated that Gary "basically said that he scanned the ticket and he didn't win any money for it." He said he didn't have the ticket. She stated in the interview, "I didn't look at it (the ticket). We've got viser-scan tickets and throw tickets away in the bin, so I've got no idea what it was, what it was for". She was not sure what had happened but she paid him "about the $1,000 mark".
(3) In her cross-examination the applicant recalled the details of Gary's bet as being "a winning bet on a horse in Brisbane." The applicant said she had not provided these details to Mr Mather or Mr Jeff because "I was never asked what the details were… They didn't ask for any further details…" This was not so. Mr Jeff asked for "... any other information you could give us that could help us find out about the shortage." In her affidavit in reply the applicant did not deny that this was said to her. Mr Jeff's contemporaneous note of the incident to Mr Hunter records that Mr Mather requested that in the report the applicant should provide details of times and amounts to assist in identifying the incident from a "TABditto" (the computer record of all the day's transactions). Neither Mr Mather nor Mr Jeff was cross-examined in relation to this matter. The applicant at the interview on 29 March 2004 provided no details of the nature offered in cross-examination.
(4) The respondent speculated that the reason why the applicant had not provided details of the bet at the early stages of the investigation as opposed to two years later, was that the applicant was concerned her story could be easily disproved by an examination of contemporaneous TAB records. It was submitted that the applicant believed that two years later would be too late to investigate her story. However, that is not the case. A review of all bets placed on Brisbane thoroughbred races at the Jannali agency on 13 March 2004 revealed that no such bet of the type or size supposedly described by Gary to the applicant was ever laid.
(5) Whether the respondent's speculation as to the applicant's motives in not revealing details of the bet in March 2004 is correct, is unnecessary to determine. It is pure speculation. That Gary did not lay a bet of the type or size described does not discount the possibility, for example, that Ms Salamon was conned. However, the failure of the applicant to provide the necessary details in March 2004 to enable a full investigation of her claims, adds another layer of difficulty to accepting that on the balance of probabilities, the incident involving Gary occurred as the applicant contended.
(6) On her own evidence, the applicant made no concerted attempt to locate Gary. The only staff member present at the time, Catherine Zigas, provided a written statement to Mr Mather but was not called as a witness in the applicant's case when her evidence could have been tested. The respondent submitted it was open to the Court to conclude that Ms Zigas' evidence would not have assisted the applicant's case. This raises the question of a Jones v Dunkel inference ((1959) 101 CLR 298), namely, that the unexplained failure by a party to give evidence, to call witnesses, or to tender documents or other evidence may, in appropriate circumstances, lead to an inference that the uncalled evidence would not have assisted that party's case. It is the case that the reason for not calling Ms Zigas was not explained. Ms Zigas' testimony, if it were consistent with the statement to Mr Mather, would have been very helpful to the applicant. As it was, however, the Court did not have the benefit of seeing Ms Zigas in the witness box. That leaves it open to the Court to draw the inference that Ms Zigas' evidence would not have assisted the applicant.
101 I propose to put aside for the moment any further consideration of the "Gary" issue and deal with the applicant's failure to report and record the cash under.
102 There is no dispute that the applicant failed to report the cash under on 13 March 2004 and that she failed to record the cash under on the Cashier's Summary. The respondent submitted the applicant deliberately concealed from the TAB the fact that the cash on hand was in excess of $1,000 less than it should have been, by logging off the computer without declaring the cash under in the manner that she knew was required. The applicant, it was submitted, compounded the deception by filling out the Cashier's Summary by deliberately writing false figures in Section D of the document.
103 The applicant's case was that at approximately 5.20 pm on the afternoon of 13 March 2004 she did a balance of the cash and in the process became aware of the existence of a "cash under" of approximately $1,145.00. Ms Salamon stated in her evidence:
As soon as I became aware of the cash under I immediately did a balance of the safe to make sure the money had not accidentally been put into the safe without the appropriate accounting transaction being done. I obtained the amount that should be in the safe from my opening Cash Distribution card and simply added my cash progresses for the day in order to get the figure of the amount that should be in the safe.
Later that evening I undertook a search of the office at the agency in the attempt to locate money which may account for the cash under. The search involved going through the bins in the office space which is where tickets are placed that have been processed that customers leave behind on the counter. Since the customer (Gary) was sure he scanned the ticket I checked the bins to see if I had thrown the ticket in the bin after it was scanned. It has happened in the past that when a ticket is scanned it makes the usual beeping noise but for one reason or another does not process the ticket. If I had found that ticket and scanned it there would have been no cash under to record.
104 The applicant stated that she completed the Cashier's Summary in the way she did because she was still unclear as to what had happened and if in fact there was a cash under or simply an accounting or reconciliation problem. Ms Salamon stated that it was late on Saturday evening; it had been a very busy day and she wanted to look at the issue the following day. If she found the missing ticket the following morning she said could then scan it, which would mean that she would balance.
105 Ms Salamon stated that because she was uncertain as to what had occurred she decided that whilst continuing her investigation she would make good the amount by withdrawing cash from her Credit Union account over two days. The applicant said she needed a period of two days because she understood that her daily withdrawal limit was $550.00. Accordingly, the applicant said on the evening of 13 March 2004 she placed a cheque in the safe in the amount of $595.00 to partly cover the apparent cash under.
106 The cheque Ms Salamon wrote was dated February 2004. The reason for that was explained in the following terms:
This was the next cheque in my cheque book. In February 2004 I was on holidays on the Gold Coast. I had attempted to pay for my accommodation by cheque. After dating my cheque I was informed that the place did not accept personal cheques. When I wrote out the cheque on the evening of 13 March 2004 I did not notice the cheque was already dated.
107 The applicant stated that she closed the agency at approximately 9.30 pm on 13 March, intending to withdraw $550.00 the following day, Sunday 14 March.
108 There is no doubt the applicant was aware of the TAB's requirement to report a cash under of over $1,000 and there is no doubt the applicant was aware of the requirements in relation to recording the cash under on the Cashier's Summary. Ms Salamon gave three different reasons for not reporting and recording the cash under. The first was that she felt the cause of the cash under, for one reason or another, would reflect badly on her. Mr Jeff's contemporaneous note of the incident records that the applicant's explanation as to why she had not declared the shortage and contacted SOS with the details was:
I know how you guys think and you would assume that I had taken the money. This would not help me when I go for another agency. I know how you think; after all it's your job to think that way. I would think I had done it.
109 In her first written statement made on the day after the incident the applicant stated, "In an error of judgement and fear that I would be in trouble for just handing over the cash I decided not to report it to SOS but to pay for it myself …" According to Mr Mather the applicant, on 13 March 2004, stated she had not declared the cash under as she wanted to become a multi-site agent and that she thought it would reflect poorly on herself.
110 The second reason Ms Salamon gave for not declaring the cash under was that she did not want to have another run-in with Mr Mather. Ms Salamon considered she had been targeted by Messrs Mather and Jeff, claiming that there had been five visits by the OSMs while she was at the Jannali agency. Mrs Salamon later retracted that proposition when pressed and accepted there had been three visits in the period she had been the agent at Jannali. During the applicant's time as agent at Jannali Mr Mather said he had visited the agency on only two occasions, both in the company of Mr Jeff, whereas Mr Jeff had visited the agency on three occasions. The respondent submitted, and I accept, this was consistent with the pattern and frequency of visits to other agencies.
111 The third reason given by the applicant for not declaring the cash under on 13 March was that she was uncertain about what caused the cash under and needed time to investigate the cause but always intended to make good the shortfall out of her own pocket. During the interview on 29 March 2004, when asked about her decision not to declare the shortage, the applicant responded, "Well I didn't know exactly what had gone wrong to start with" and, "I wasn't sure where we went wrong or what we could do, and I just didn't want to go through all this because I've had a lot of run-ins with Matthew Mather and we do not get along." In her primary affidavit the applicant stated that she was, "… still unclear as to what had happened …"
112 It does not seem to me that the third reason given by the applicant for not declaring the cash under withstands scrutiny. In her written report of 14 March, the applicant expressed no doubt as to the cause of the cash under. She was clear that it was the amount paid out to Gary and that she had "…turned the entire office space upside down in my frustration to find the money. However it could not be found anywhere." In her primary affidavit the applicant described how she searched the bins in the agency looking for Gary's ticket.
113 In cross-examination, the following exchange occurred between counsel for the respondent and the applicant:
Q. So there wasn't a great deal more to investigate, was there, as to the cause of the cash under?
A. Well, I think I was searching for the ticket to see if I could find it.