SUPREME COURT OF QUEENSLAND

[1]  THE COURT:  The appellant, a former member of the Queensland Legislative Assembly, appeals his convictions on 36 counts of receiving secret commissions.  The first of those counts concerned his receipt of an amount of $60,000, paid to him, on the Crown case, by Harold Shand.  Two of the appeal grounds specifically relate to that count; they concern the admission of evidence that the moneys were paid from a particular company loan account, and the directions given by the trial judge in relation to that evidence.  The remaining counts were based on the appellant’s receipt from one Kenneth Talbot of monthly payments of $8,333.33 over a three year period.  In respect of those counts, the complaint is that the learned judge failed adequately to direct the jury as to the defence argument about the timing of the payments.  In respect of all counts it is said that the summing-up was too long, confusing and in some respects mistaken.  The application for leave to appeal against sentence is based solely on the ground that the sentences were manifestly excessive.

The offence of receiving a secret commission

[2] The offence of receiving a secret commission is created by s 442B of the Criminal Code 1899 (Qld), the relevant parts of which are as follows:

“442BReceipt or solicitation of secret commission by an agent

Any agent who corruptly receives or solicits from any person for himself or herself or for any other person any valuable consideration –

…

(b) the receipt or any expectation of which would in any way tend to influence the agent to show, or to forbear to show, favour or disfavour to any person in relation to his or her principal’s affairs or business;

commits a crime.”

“Agent” is defined in s 442A of the Criminal Code as including a Minister of the Crown, while “principal” is defined as including the Crown.  As to the meaning of the word “corruptly” in s 442B, the learned trial judge adopted Brooking J’s formulation in R v Dillon and Riach:[1] that

“[the recipient of the funds] acted corruptly if at the time he received the benefit he believed that [the payer] intended that it should influence him to show or refrain from showing favour or disfavour in relation to the principal’s affairs or business.”[2] 

[3] Once certain matters are proved, s 442M(2) of the Code creates, in effect, a rebuttable presumption that a payment is a secret commission:

“442MCustom of itself no defence

….

Burden of proof that gift not secret commission

(2) If in any prosecution under this chapter it is proved that any valuable consideration has been received or solicited by an agent from or given or offered to an agent by any person having business relations with the principal, without the assent of the principal, the burden of proving that such valuable consideration was not received, solicited, given, or offered in contravention of any of the provisions of this chapter shall be on the accused.”

The evidence in the Crown case

[4] The appellant was a member of parliament from 1992 to 2006, in opposition from 1996 until 1998, and thereafter as a member of the government.  During the period in which he sat as a member of the opposition, he was introduced to a man named James Gorman, who had been a shareholder with Kenneth Talbot in Queensland Coal Mine Management Pty Ltd, a company engaged in a mining joint venture.  Mr Shand was the company’s solicitor.  Another company, Jellinbah Resources Pty Ltd, was set up to market the coal from Queensland Coal Mine Management’s mine;   Mr Shand was its chief executive officer.  Mr Gorman and Mr Talbot, together with   Mr Shand and a Mr Chong, also held interests in Capregin Pty Ltd, a vehicle for them to invest profits from their mining venture.  In 1996, Mr Talbot had a falling out with the others and separated his affairs from theirs.  They bought out his interests in the various companies and all loans, between them as individuals and between the companies in which they had interests, were discharged.  Notwithstanding that severance of their affairs, Capregin Pty Ltd continued to record in its accounts an amount of $300,000 as a debt owed by it to a Talbot company, Mozic Pty Ltd, although no such liability in fact existed.

[5] Mr Talbot then became a competitor to his erstwhile associates, and obtained an exploration permit which they had also sought.  In May 1998, after a meeting with Mr Shand and Mr Gorman, the appellant made a speech in Parliament highly critical of Mr Talbot.  In early 1999, the corporate parties in another joint venture, one of the partners in which was a company controlled by Mr Shand, Mr Chong and Mr Gorman, came to the appellant’s assistance by buying a residential unit from him.  His mortgage payments on it had fallen into arrears and the contract of sale was executed on the same day on which the mortgagee made a demand for possession.  According to Mr Gorman, during 2000, the appellant (by this time a member of the government) indicated that he would like other assistance.  On one occasion, he suggested he be given a block of land in the property development which the joint venture was undertaking, remarking, “You know, I could help.  I can talk to the boss, brother”.  On another, having mentioned his hope of being appointed to the ministry, he requested “a couple of hundred thousand dollars” to help with his mortgage debt.  Mr Gorman did not oblige.

[6] On 22 February 2001, the appellant became Minister for Industrial Relations.  On 17 September 2001, he put Mr Shand’s name forward to cabinet as a prospective director of the WorkCover Queensland Board, having previously asked both Mr Shand and Mr Gorman whether they had any interest in service on Government boards.  The appellant did not disclose any possible conflict of interest, and Mr Shand was duly appointed as a director. 

The Shand payment – count 1

[7]  Contact with Mr Shand seems to have continued through the medium of the appellant’s solicitor, Mr Richardson.  The latter had a diary note of a meeting between Mr Shand and himself on 6 December 2001, but he was unable to recall it or its subject matter.  On 22 January 2002, Mr Gorman, the appellant and Mr Gorman’s solicitor, Mr Lindwall, lunched together.  According to Mr Lindwall, the appellant raised the prospect of Mr Gorman’s lending him $1,000,000 to enable him to buy a number of properties, with a caveat to be registered over them in Mr Gorman’s favour.  He offered no proposal for repayment of the advance.  The appellant purported to have solicitors’ advice that such a transaction would not have to be recorded in the Parliamentary Register of Members’ Interests, because no mortgage would come into existence.  Mr Lindwall disagreed with that proposition.  He discussed the matter with Mr Shand as solicitor for QCMM and later advised Mr Shand in writing that he took a contrary view of the requirement for disclosure.

[8] On 23 January 2002, the appellant met officers of the Queenslanders Credit Union Ltd.  The upshot of that meeting was a loan proposal from the credit union the following day, under which the appellant was to borrow $1,000,000 by way of an overdraft facility in order to pay out an existing facility in an amount of $360,000, refinance a loan for his son, and purchase houses for each of his daughters and himself.  The credit union officer dealing with the appellant was told that a guarantee would be provided by Jellinbah Resources Pty Ltd, in regard to which he was to contact Mr Shand.  His notes indicated that he met Mr Shand, but, in the event, the company’s guarantee was not required.  The appellant’s guarantee was sufficient support for the loans for the daughters’ property purchases, which were made in their own names, while the refinancing of the son’s loan did not require any guarantee.  The interest on all loans was to be paid out of the appellant’s account, with the first deduction to be made on 5 April 2002.

[9] As to what Mr Shand’s role was thereafter, the Crown tendered as an exhibit a note in the appellant’s handwriting addressed to “Dear Harold”, referring to an “annual fee” of $60,000 payable to the Queenslanders Credit Union Ltd, with payment due in April 2002 and “no guarantee required”.  An account number was given.  On 11 April 2002, the chief financial officer of Capregin Pty Ltd obtained a bank cheque in the amount of $60,000 which was paid into the appellant’s account at the credit union.  The $60,000 was recorded in the books of Capregin Pty Ltd as credited to the Mozic Pty Ltd loan account, although, as already mentioned, no such loan existed in fact.  The officer who effected the payment was able only to say that she would have been instructed by Mr Shand or Mr Gorman to do so.  Mr Gorman and Mr Chong both gave evidence denying any knowledge of the Mozic Pty Ltd account or having instructed that any payment be made in respect of it. 

[10]  The appellant applied the funds to make a year’s payments on the loans.  He did not disclose his receipt of them in the Register of Members’ Interests, as both the parliamentary Code of Ethical Standards and the Ministers’ Code of Ethics required him to do.  In June 2003, Mr Shand was reappointed to the WorkCover Board.  The appellant did not raise any potential conflict of interest at the relevant cabinet meeting.

The Talbot payments – counts 2-36

[11]  Mr Talbot was a director of Macarthur Coal Ltd, which was engaged in a mining joint venture.  The Crown case was that the joint venturers needed the assistance of the Government to finance a project involving the removal of infrastructure.  The dealings between the joint venturers and the Government over that project (“the TIC Project”) took place throughout 2002.  On 9 April 2002, there was a meeting between the appellant and Mr Talbot.  Six days later, the appellant attended a cabinet meeting at which the grant of a mining lease to a company owned by Macarthur Coal Ltd was approved.  He did not disclose any conflict of interest; nor did he do so at any subsequent meeting at which matters were dealt with concerning Macarthur Coal.  On 9 May 2002, there was another meeting between Mr Talbot and the appellant, subsequent to which the appellant attended a cabinet meeting approving an assistance package for the TIC Project. 

[12]  On 4 June 2002, another meeting took place between Mr Talbot and the appellant.  On the same day Mrs McLennan, an accountant who worked for Mr Talbot’s private company, noted that Mr Talbot had requested her to ring the appellant’s solicitor.  She did so; her note for the following day showed that the solicitor, Mr Richardson, was seeking a loan for $1,000,000.  There were telephone discussions between the two over the next couple of months, and they met on 15 August.  Mrs McLennan made notes of the meeting, in which she recorded details and values of properties that the appellant owned and noted that the amount sought was $1.2 million.  It was initially envisaged that Mr Talbot would have to borrow the money from a financial institution in order to lend it to the appellant, but ultimately the arrangement reached was that Mr Talbot would advance $100,000 over a 12 month period in equal monthly payments of $8,333.33.  (While these negotiations were under way, the appellant attended a cabinet meeting at which further expenditure was authorised relating to the TIC project.)  Mr Richardson advised the account into which the payments were to be made and instructed that the payments should commence from 21 October 2002. 

[13]  Mr Richardson also gave evidence about the negotiations with Mrs McLennan.  He said that there had been no discussion of interest or repayments in relation to the arrangement.  The negotiations turned on Mr Talbot making available $100,000 over 12 months as a line of credit.  He could not recall having anything to do with organising the time for the payments to begin. 

[14]  In fact, the first payment was made in the form of a cheque dated 22 October 2002, deposited two days later.  Between the cheque’s drawing and its deposit, the deeds documenting the agreement between the joint venturers and the Government for the TIC project were signed.  The second payment, a month later, was made also by cheque; thereafter payments were made by direct debit credited to the appellant’s account.  A year later, in October 2003, a letter from MDA Capital Pty Ltd to Mr Richardson, signed by Mr Talbot, confirmed that the “line of credit facility to the value of $100,000 per year” would be extended for a further two years; the arrangement duly continued until 28 September 2005.  In its last year, in April 2005, the appellant attended a cabinet meeting at which three mining leases were granted for a Macarthur Coal project. 

The defence case

[15]  Unusually, Mr Richardson was recalled as first witness in the defence case.  He said that the timing of the first payment was a matter of agreement between him and Mrs McLennan rather than the subject of instruction from the appellant or Mr Talbot.  Under cross-examination, he said that he did not think he had specifically chosen 21 October as the date for the first payment, although he agreed that if he were to pick such a particular date, it would be on instructions.

[16]  The appellant gave evidence denying that he had ever asked Mr Gorman for a loan of a million dollars; he had, rather, sought assistance by way of a guarantee of his lending.  Once it became clear he did not need the guarantee he had suggested to Mr Shand that he be lent $60,000 to meet the first year’s interest on his borrowings, but he regarded himself as borrowing, not from Mr Shand, but from Mr Gorman, who was a personal friend.  No conflict of interest had arisen at any stage in relation to the latter.  He did not believe Mr Shand or Mr Gorman had any notion of anything improper when they dealt with him.  Neither Mr Gorman nor Mr Shand needed or sought any help from him; the loan was made purely on the basis of his friendship with Mr Gorman.  He had discussed with Mr Talbot his desire to set his children up with property; the latter had suggested that he might be able to assist with a loan, and the appellant had left it to his solicitor to arrange the matter with Mr Talbot’s solicitors.  He believed Mr Talbot to have acted from kindness.  Mr Talbot was well known in Government circles and needed no help from him.  He, the appellant, had not given any instructions about when the first of the payments was to be made and he was under no particular time constraints in relation to it.  He regarded both sets of payments as gifts from personal friends which did not need to be entered in the Register of Members’ Interests. 

The appeal grounds

The admission of evidence as to the recording of the payment from Capregin

[17]  Counsel at trial were, as on the appeal, Mr Rivett for the defence and Mr Martin SC for the Crown.  In a pre-trial application, Mr Rivett objected to the admission of evidence that the amount of $60,000 was shown in Capregin Pty Ltd’s books as paid to Mozic Pty Ltd.  The learned trial judge ruled that the evidence was admissible and the evidence was led.  In his address, Mr Martin made the following submissions about it:

“...[I]t's a second extremely curious circumstance that it was accounted for in a particularly odd fashion in the records of Capregin.  It rather looks like Shand was trying to hide this $60,000 payment.  Why?  And the answer is, the only answer, because Shand knew it was dodgy, too.  I'm not saying Shand is dodgy, we don't speak like that, we say Shand knew that this specific payment was dodgy.

How is this significant?  The accused says, well, he didn't know what Shand had done.  How is it significant?  This is the way you can think about these things.  Suppose I see – or let's say you see a man sitting in a car that proves to be stolen, with the engine running, and a balaclava on, parked outside a bank.  And you also see another man in the bank with a balaclava, holding a gun, doing a robbery.  The behaviour of the two men is separate in distance and time, but those observations allow you to draw the inference that together they're in on the robbery.  That one's the get-away driver, one'[sic] the inside man, the man to go in.

It doesn't matter that nothing [sic] says that he didn't know about what Shand was doing, the point to be drawn about this is that Shand's behaving as though this is something to be hidden, and Nuttall's behaving as though this is something to be hidden, and from that you might draw the conclusion that they both realised this was rank.”

The reference to “nothing” in the last paragraph seems, clearly enough, to be a mistranscription of “Nuttall”.

[18]  Mr Rivett argued that the learned Judge’s ruling admitting the evidence was wrong.  There was no evidence that the appellant had any knowledge as to how the payment had been dealt with in the Capregin Pty Ltd books.  Consequently, the evidence was both irrelevant and highly prejudicial.  In addition, the trial judge had erred in not correcting Mr Martin’s statement that an inference of guilt could be drawn against the appellant from the way in which the payment had been dealt with.  The example revolving around the person in the car with the balaclava was wrong, and should also have been corrected.

[19]  Mr Martin submitted that the evidence concerning the transaction was admissible as a circumstance from which the complicity of the appellant and Mr Shand in the offence could be inferred.  He relied on Ahern v The Queen,[3] and in particular the following passage:

“...evidence may be led which includes the acts or declarations of one alleged conspirator made outside the presence of the others provided such evidence is not led to prove against the others the truth of any assertion or implied assertion made by the actor or the maker of the statement.  It may take the form of evidence of separate acts or utterances from which the fact of combination might be inferred.  Led in that way, it is not hearsay and is not dependent upon some circumstance to take it outside the hearsay rule, such as an implied authority making the acts and words of one the acts and words of the other.

Thus it was said in Tripodi that proof of the crime of conspiracy ‘may well consist in evidence of the separate acts of the individuals charged which, although separate acts, yet point to a common design and when considered in combination justify the conclusion that there must have been a combination such as that alleged in the indictment’.”[4] (footnotes omitted)

The High Court followed those observations with an example of conspiracy to commit armed robbery, in much the same terms as the example of the balaclava-clad robbers Mr Martin gave in his address. 

[20]  Mr Martin also referred to the case of Mawaz Khan v The Queen,[5] in which it was held that matching false alibis told by the accused were relevant

“as tending to show that the makers were acting in concert and that such action indicated a common guilt”.[6]

This was a circumstance, the Privy Council said, which could be taken into consideration with other circumstantial evidence in determining guilt or innocence, regardless of the fact that the accused were not charged with conspiracy.

[21]  Mr Martin contended that a common corrupt purpose could be inferred from the fact that both the appellant and Mr Shand endeavoured to conceal the payment of the money, in Mr Shand’s case by false accounting, and in the appellant’s by failing to declare the receipt of the funds and endeavouring to persuade others (Mr Gorman and Mr Lindwall) that no disclosure was required.  From that illicit complicity, it was in turn to be inferred that the appellant believed Mr Shand intended the payment to influence him.

[22]  The present case was not, of course, a conspiracy case, and it is not essential in order to prove the corrupt receipt of a secret commission that the Crown prove that the payer is complicit in the corruption.  But the Crown case was, as Mr Rivett conceded, advanced on the basis that Mr Shand and the appellant had engaged in a common unlawful purpose.  Perhaps of more assistance than the passage cited from Ahern is the following analysis in Tripodi v The Queen[7] which, like the present case, was one where a substantive offence was charged, rather than conspiracy:

“But when a substantive crime, not a conspiracy, is charged in the indictment it is the ingredients of the substantive crime that must be proved, not combination for a common purpose.  When the case for the prosecution is that in the commission of the crime a number of men acted in preconcert, reasonable evidence of the preconcert must be adduced before evidence of acts or words of one of the parties in furtherance of the common purpose which constitutes or forms an element of the crime becomes admissible against the other or others...

It must be remembered that the basal reason for admitting the evidence of the acts or words of one against the other is that the combination or preconcert to commit the crime is considered as implying an authority to each to act or speak in furtherance of the common purpose on behalf of the others…Usually the question of admissibility will relate to directions, instructions or arrangements or to utterances accompanying acts…[P]reconcert confederacy or combination may make such directions and the like admissible when they are given by one of several acting in preconcert with the prisoner and are given in furtherance of the common design.”[8]

[23]  Those observations were adopted in Ahern v The Queen.  The court in the latter case went on to say of cases involving substantive offences rather than conspiracy:

“The question does not…arise in cases other than conspiracy of the use of evidence of the acts and declarations of others to prove the combination except as evidence of separate acts from which a combination might be inferred.  Once there is reasonable ground for inferring a combination in cases other than conspiracy, acts and declarations of the participants in furtherance of the common purpose may be used to prove, not the fact of participation in the combination, but the offence charged.”[9]

[24]  If, in seeking to establish a common unlawful purpose as between the appellant and Mr Shand, the Crown had no more to offer than the anomaly in Capregin Pty Ltd’s books and the appellant’s failure to disclose his receipt of the payment, it is unlikely that it would have succeeded in proving the combination.  This was not a case such as Mawaz Khan in which the significant feature of the attempt at concealment was the fact that the false alibis matched, in itself suggestive of collusion.  But there was more and stronger evidence, in the form of the appellant’s reference of the credit union to Mr Shand, “the Dear Harold” note and the actual payment of the $60,000, apparently at Mr Shand’s direction.  Indeed Mr Rivett did not suggest that the Crown had failed to adduce reasonable evidence from which a combination between Mr Shand and the appellant might be inferred.  His argument went solely to the relevance of that evidence in proving the appellant’s intent.

[25]  Once the Crown had adduced reasonable evidence of a common purpose, the evidence of what Mr Shand did in playing his part was admissible against the appellant.  The jury could properly take into account the manner in which the transaction proceeded, including the steps taken by Mr Shand to disguise the payment, in assessing its nature and, in particular, the intent and purpose of the parties engaged in it.  Mr Martin was entitled to invite the jury to draw an inference as to the appellant’s intent from that evidence, and there was no error in the trial judge’s not correcting his suggestion to that effect.  The balaclava example drawn from Ahern was more relevant to proof of combination than intent, but it was not wrongly put to the jury.  It did not require correction by her Honour.

The effect of the summing-up

[26]  The next appeal ground was that the summing-up had produced a miscarriage of justice because it was too long and was confusing, repetitive and contradictory.  Particular complaints were made of the directions about the matters requiring proof and the burden of proof.  To enable them to be understood, it is necessary to reproduce a document which was given to the jury as an aid, and which became Exhibit “N” for identification: 

“Count 1. (SHAND)

EITHER -

If the prosecution satisfies you beyond a reasonable doubt of each and every one of the following 8 matters that is,

At the relevant time –

1. (The defendant, an) agent

2. (of the Crown) principal

3. corruptly

4. received from (Shand) any person

5. any valuable consideration ($60,000)

6. the receipt or expectation of which would tend to influence him

7. to show or forbear to show favour or disfavour to any person,

8. in relation to his principal’s (the Crown’s) affairs and business.

THEN you would have to find him guilty of Count 1.

IF you are not satisfied beyond reasonable doubt of each and every element, then you must find the defendant not guilty of Count 1, unless the alternative below applies.

OR -

If the prosecution satisfies you beyond reasonable doubt of each and every one of the following 4 matters that is,

At the relevant time –

A. the defendant was an agent of his principal i.e. that the defendant was a Minister of the Crown;

B. any valuable consideration has been received by the defendant i.e. $60,000 was received by the defendant;

C. from any person having business relations with the principal i.e. from Shand a person having business relations with the Crown; and

D. without the assent of the principal i.e. without the assent of the Crown (the Governor in Council)

THEN -

The burden shifts to the defendant to prove, on the balance of probabilities, that he is not guilty. He would have to satisfy you that more probably than not -

E. the defendant was not an agent of the Crown (principal), or that Shand did not have business relations with the Crown

OR THAT

F. he did not receive $60,000 (any valuable consideration) from Shand

OR THAT

G. he did not corruptly receive $60,000 from Shand

that is

When the defendant received that payment, the defendant believed that Shand did not intend that the payment should influence the defendant to show or refrain from showing favour or disfavour to any person in relation to the Crown’s affairs

OR THAT

H. the receipt or expectation of that $60,000 would not tend to influence the defendant to show or forbear to show favour or disfavour to any person in relation to (his principal’s) the Crown’s affairs and business.

If the defendant satisfies you on the balance of probabilities of either E, or F or G or H: - THEN you must find him NOT GUILTY of Count 1.

If the defendant does not satisfy you on the balance of probabilities of either E, or F or G or H: - THEN you would have to find him GUILTY of Count 1.”

The document continued in similar terms in relation to the counts concerning Mr Talbot.

[27]  It should be said at once that the statement at item G of what the defendant must prove does not precisely represent the negative of Brooking J’s formulation of corrupt receipt, and consequently imposes a greater burden on the defendant than s 442M contemplates.  It was not incumbent upon the appellant to prove a positive belief that Mr Shand did not intend the payment to influence him; rather he had merely to show the absence of any belief that Mr Shand did have such an intent.  Item G would have been more accurately expressed in these terms:

“When the defendant received that payment, the defendant did not believe that Mr Shand intended that the payment should influence the defendant to show or refrain from showing favour or disfavour...” 

[28]  But having said that, it should be noted that the direction was devised after discussion with counsel.  As Mr Rivett very properly pointed out, although the learned judge raised with him whether it was setting the test “too high for the defendant”, he gave it his approval.  The reason for his acquiescence is not hard to understand.  In the context of the case, the distinction between item G and the alternative wording suggested above was not important, because the appellant had given evidence of a positive belief that in each case the advances had been made to him by the payers without any expectation that he was to do anything in return for them.  One can see why counsel might have thought there was utility in keeping the direction in a simpler form to conform with the issues raised by the evidence.

[29]  The other point which might be made about Exhibit “N” is that it was more complex than necessary in identifying among the alternative matters of which proof fell to the appellant:

“E. the defendant was not an agent of the Crown (principal), or that Shand did not have business relations with the Crown” and

OR THAT

“F. he did not receive $60,000 (any valuable consideration) from Shand.”

The burden of proof shifts to a defendant only once the jury is satisfied beyond a reasonable doubt that he was an agent of his principal, that he received valuable consideration and that it was received from a person having business relations with the principal without the latter’s assent.  If the Crown satisfies the jury beyond reasonable doubt of those matters, it becomes meaningless to talk of the defendant’s satisfying the jury on the balance of probabilities to the contrary of them.  If the evidence in the defence case creates a reasonable doubt as to any of them, the pre-condition for the application of s 442M(2) no longer exists, and the defendant bears no burden of proof.  The only issues which can remain relevant to proof of the matter as to which s 442M(2) places the onus on the defendant (that the valuable consideration was not received in contravention of the provisions of the relevant Code chapter) are, whether the payment was corruptly received and whether its receipt or the expectation of it would tend to influence the appellant in the way described in s 442B(b).  For those reasons, paragraphs E and F were surplusage; but they caused no prejudice to the appellant.

[30]  Mr Rivett’s first point was that leaving, in Exhibit “N”, two options by which guilt might be proved (option 1 relating to the eight matters to be proved under s 442B, and option 2 to the four to be proved by the prosecution under s 442M, followed by the shift of the burden to the defence) merely produced confusion.  Only the second should have been left, he said, because once the Crown proved, under option 1, a receipt of valuable consideration by the appellant as an agent of the Crown the onus shifted, and there was no point in further considering that option.

[31]  But that analysis is not accurate.  Under s 442B, the Crown need not show the absence of the principal’s assent or that the payer had business relations with the principal, although it must establish that the receipt would tend to influence the agent in the way described.  Under s 442M, the first two of those matters – business relations between the payer and the principal and the absence of the latter’s assent – must be proved, together with the receipt of valuable consideration by the agent from the payer.  Once those matters are proved, the burden of proving the absence of corruption or the absence of any tendency to influence falls to the defendant.  The two are different paths to conviction, and the second is not merely a truncated version of the first.  The Crown was entitled to have both alternatives left to the jury.

[32]  The existence of the different ways to conviction undoubtedly made the summing-up more complex, and meant that the learned judge had to direct the jury about different burdens of proof and the circumstances in which the burden shifted.  But complexity does not necessarily mean confusion.  However, Mr Rivett identified particular passages of the summing-up which, he said, would have so confused the jury that a miscarriage of justice had occurred.  He said, correctly, that at some points the learned judge wrongly told the jury that the burden shifted to the defendant to negative one of eight (rather than four) elements.  It is clear that on some occasions during a long summing-up, her Honour made a slip of the tongue in regard to the number (but not the content) of the elements involved; but on other occasions she stated the number correctly.  More importantly, the jury had the benefit of Exhibit “N”, which made it perfectly clear which and how many elements were in question.  The jury was not at any risk of misunderstanding what was required. 

[33]  Another claimed defect in the summing-up was that the learned trial judge more than once referred to the prosecution’s burden of proving guilt beyond reasonable doubt, which, it was said, was inconsistent with the shifting of the burden under s 442M, and hence productive of confusion.  But those references were made in the context of more general directions – for example, as to the use of circumstantial evidence, or the consequences of rejecting a defendant’s evidence – and were properly qualified when her Honour came to explain the approach to the matters to be proved under s 442M.  In any event, it is difficult to see how a reiteration of the higher burden on the prosecution could in any way disadvantage the appellant. 

[34]  Some of the matters raised verged on the trivial.  It was said that the learned judge had used the words “elements”, “things” and “matters” at different points.  But it was perfectly clear that she was using the terms interchangeably and there is no reason why she should not have done so.  It was pointed out that her Honour had wrongly stated in the negative the belief which the Crown had to prove the appellant held as to the payer’s intent:  the payer “did not intend to influence”; but given that her Honour almost immediately corrected herself, the mistake is of no moment.

[35]  The summing-up was long and somewhat repetitive, but that largely related to the need to ensure that relatively complicated matters of law were made clear to the jury.  None of the matters identified by the appellant was such as to mislead them, and it is noteworthy that no complaint or request for a redirection was made at trial.  The summing-up did not produce any miscarriage of justice.

The direction as to the meaning of the word “corruptly”

[36]  The learned judge explained what constituted corrupt receipt, in accordance with what Brooking J had said in Dillon and Riach, as follows:

“...the defendant in a case like this acts corruptly, if he then believes that the person giving him the money, the valuable consideration, intended that it should influence him to show favour or forbear to show disfavour to some person in relation to his principal's affairs or business.”

That direction was the subject of a ground in the notice of appeal, although Mr Rivett conceded here that it did not warrant separate consideration.  Brooking J’s formulation has been approved by appeal courts in Victoria,[10] and it would be difficult to argue that it ought not be applied in this state.  Indeed, Mr Rivett did not seek to do so.  Instead, he suggested that the direction as to what constituted corrupt receipt would be less likely to confuse a jury if it were differently phrased:

“A payment is corruptly received if the accused believed that as a result of the payment, he was expected by the payer to show or forebear to show favour or disfavour to the payer or any other person.” 

In the absence of any contention that the direction actually given by the learned judge was wrong, it is unnecessary to deal with the submission.

The failure to refer the jury to evidence about the timing of the Talbot payments

[37]  In his address to the jury, Mr Martin emphasised some matters of timing in relation to the Talbot payments, including this sequence of events: 21 October was the date set for the first payment; 23 October was the date on which the final signatures were applied to the TIC agreement; and 24 October was the date on which the first instalment was in fact paid.  Mr Rivett’s pre-emptive answer (since he addressed first) was that the timing of the payments was determined as a result of the negotiations between Mrs McLennan and Mr Richardson, not by the appellant or Mr Talbot. 

[38]  After the learned judge had completed some preliminary remarks in her summing-up, she asked counsel whether there was anything arising out of their addresses that they wanted her to deal with in the summing-up.  Mr Rivett asked her to read to the jury the evidence which Mr Richardson gave when he was called in the defence case.  Her Honour agreed to do so, but evidently overlooked the matter.  Mr Rivett argued here that the failure to refer the jury to the evidence was an error leading to a miscarriage of justice.  That evidence, he said, was crucial to disproving the Crown case that the Talbot payments were related to the approval of the TIC project, and there was no evidence of any subsequent assistance given by the appellant to Mr Talbot.

[39]  Mr Richardson’s evidence, however, was not entirely favourable to the appellant on the point.  He had no recollection of telling Mrs McLennan the first payment should be made on 21 October and indeed, said that he would not have done so.  However, he conceded that if he were to choose a particular date in such a transaction, he would do so on instructions; although he reiterated that he had not received any such instructions from the appellant.  But, of course, if Mrs McLennan’s evidence, that  Mr Richardson did give the  instruction for the particular date,  were to be preferred, the jury might reasonably have concluded, having regard to Mr Richardson’s concession, that the impetus or the setting of the particular date came from the appellant.  A reading of his evidence in full would have reminded them of that aspect.

[40]  In any event, it is not incumbent on a trial judge to remind the jury of every point made for the defence; and the fact that the learned judge was prepared to read the evidence to the jury does not mean that it was imperative to the trial’s fairness that she do so.  Defence counsel did not point out the oversight.  Her Honour did remind the jury of the relevant defence submissions: that the transaction had been left up to Mrs McLennan and Mr Richardson to put in place, and that looking at the times when the moneys were paid, it was more probable than not that Mr Talbot wanted nothing in return and that the appellant believed that to be the case.

[41]  There is no substance in this or the other grounds advanced.  The appeal against conviction should be dismissed.

The application for leave to appeal against sentence

[42]  In respect of each of the 36 separate counts the trial judge sentenced the appellant to concurrent terms of imprisonment of seven years (the maximum penalty for one such offence) and fixed the date upon which the appellant would be eligible to apply for parole at 2 January 2012.

[43]  The appellant applied for leave to appeal against sentence on the grounds that the sentences were manifestly excessive and that the sentence for count 1 (concerning the $60,000 received from Mr Shand) was excessive when compared to the sentences for counts 2-36 (concerning the $300,000 received from Mr Talbot, comprising $8,333.33 under counts 2-27 and 29-36 and $16,666.66 under count 28). 

[44]  As to the conviction on count 1, Mr Rivett argued that it was not the “worst case” and should not have attracted the maximum sentences because it involved a relatively small amount of money when compared with that received under counts 2-36 from Mr Talbot and no favours were in fact given by the appellant.  It was submitted for the appellant that because count 1 and counts 2-36 were not of “equal criminality”, they should not have attracted “equal sentences”, although Mr Rivett acknowledged in the written submission that it was a moot point as to which was the more serious charge.  As to the convictions on the counts related to the payments by Mr Talbot, Mr Rivett argued that for sentencing purposes those 35 convictions should have been treated as only one criminal act rather than numerous, separate criminal acts.  It was also argued for the appellant that he should have been sentenced on the basis that he did not intend to and did not actually give any favour to Mr Talbot or anyone else; that the payments were made by way of loan, rather than by way of gift or other corrupt payment; and that the payments were not hidden from the parties’ lawyers, bankers and accountants.  Mr Rivett argued that the trial judge erred in concluding that the maximum sentence was called for merely because the appellant was a Minister of the Crown when he committed the offences.  It was also submitted for the appellant that the sentencing judge erred in not discounting the terms of imprisonment to reflect matters personal to the appellant, including the absence of any previous convictions. 

[45]  It is not necessary to summarise the opposing submissions made for the respondent which, for the most part, are reflected in our reasons for concluding that the sentence imposed by the trial judge was not manifestly excessive or otherwise in error.

[46]  One aspect of the appellant’s argument incorrectly assumed that the trial judge imposed the maximum term of imprisonment which was theoretically available under the statutory provisions.  Strictly speaking, the available sentence extended to 36 separate terms of imprisonment each of seven years with each to be served cumulatively upon the other.  Such a sentence would plainly have been manifestly excessive, but it certainly would have been open to the trial judge to accumulate the sentences in some respects.  The offences in count 1 on the one hand and counts 2-36 on the other hand were unrelated in time and as to the identity of the payer.  These were quite separate episodes of serious criminality.  It would have been open to the trial judge to impose concurrent sentences for counts 2-36 and to order that those concurrent sentences be served cumulatively upon a separate sentence for count 1.  The sentencing discretion plainly extended at least to an effective sentence of imprisonment for seven years, constituted, for example, by a sentence of four years imprisonment for counts 2-36 to be served cumulatively upon a sentence of three years imprisonment for count 1.  The availability of that alternative sentence structure tends to expose a flaw in the appellant’s argument that the effective sentence of seven years imprisonment imposed by the trial judge is manifestly excessive.

[47]  Putting that to one side, we are satisfied that the trial judge did not commit any of the particular errors attributed to her Honour.  As to the argument about the appellant’s intention when he received the payments, the trial judge correctly found that for the purpose of the offences of which the appellant was convicted it was irrelevant whether or not he intended to or did show or forebear to show favour or disfavour to any other person.  What was relevant was the appellant’s state of mind when he received the payments.  Consistently with the jury’s verdicts, the trial judge sentenced the appellant on the basis that when he received each payment the appellant believed that each payer anticipated receiving a benefit and believed that the appellant would use his authority as a cabinet minister in breach of a high public duty that had been imposed upon him.  That amounted to the corrupt receipt by the appellant of the payments, as explained earlier in these reasons.  It would have been inconsistent with the jury’s verdicts for the trial judge to have sentenced the appellant on any other basis.  It is therefore not to the point for the appellant now to seek to argue, as his counsel did, that parts of the evidence suggested that there was “an honest if misguided belief by both parties that the loan was not thought by them to be corruptly given or received”.

[48]  The argument that the charges concerning the payments by Mr Talbot related only to one criminal act rather than 35 separate criminal acts for sentencing purposes overstates the position.  The appellant was convicted of 36 separate offences, 35 of which concerned the receipt of payments from Mr Talbot.  The sentencing judge correctly took into account that the totality of the offences concerning the payments by Mr Talbot related, “in effect to two decisions the evidence showed of the donor, one to, in effect, give you $100,000 from a company called MDA Capital Pty Ltd to be paid in 12 monthly instalments, the other decision was made about 12 months after the first decision was made by that donor and that was to continue those monthly payments which amounted to all up $300,000.”

[49]  As to the argument that count 1 involved a less serious offence than those in counts 2-36, the sentencing judge took into account that count 1 concerned the receipt of no more than $60,000 and the Crown did not allege that the appellant in fact gave any favour in exchange for that or the other payments.  Nevertheless, the maximum penalty was called for under count 1, as well as in relation to counts 2-36.  The appellant’s conduct in corruptly receiving payments whilst he was a Minister was a gross abuse of his position and it necessarily called for a severe and deterrent sentence.  The trial judge’s statement that the appellant had committed one of the gravest examples of this offence was entirely justified by the considerations that he was a Minister when he received the payments and that the particular circumstances of the offending revealed its seriousness: the appellant received the payments with the seriously corrupt state of mind identified earlier, he was the instigator of the payments, the offending occurred over a substantial part of the period during which the appellant was a Minister, and he did not disclose any of those payments despite the well known requirements for disclosure in a Queensland Cabinet Handbook, a Ministerial Handbook, and a Code of Ethical Standards adopted by the Legislative Assembly. 

[50]  We would emphatically reject the appellant’s argument that the trial judge overstated the significance of the fact that the appellant held office as a Minister when he committed the offences.  As Lee J observed in R v Jackson & Hakim:[11]

“We live, and are fortunate to live, in a democracy in which members of Parliament decide the laws under which we shall live and cabinet ministers hold positions of great power in regard to the execution of those laws.  A cabinet minister is under an onerous responsibility to hold his office and discharge his function without fear or favour to anyone, for if he does not and is led into corruption the very institution of democracy itself is assailed and at the very height of the apex.  Democracy can only survive when ordinary men and women have faith in the integrity of those whose responsibility is the preservation of integrity of Parliament in all its workings.  It is particularly important that those who have the privilege, the honour and the responsibility of cabinet rank should not, for their personal advantage, abuse their position.”[12]

[51] R v Jackson & Hakim concerned an even more serious offence, but that emphasis upon the fundamental importance in a democracy of the office of a cabinet minister is equally applicable here.  Jackson was a party to a conspiracy to deviate from his duty as the Minister for Corrective Services by granting favours to certain prisoners in exchange for bribes.  Making due allowances for the significantly more serious nature of that offence and the other differences between the cases, the head sentence of 10 years imprisonment, with a non-parole period of five years, imposed upon Jackson does not indicate that the head sentence of seven years imprisonment with eligibility to apply for parole after approximately two and a half years imposed upon the appellant is in any way excessive.

[52]  The trial judge took into account that the appellant had no prior criminal history, that he had undoubtedly attracted public humiliation as a result of his offending, that his family had undergone enormous stress and the health of those dear to the appellant had been jeopardised, in one case apparently very seriously, but as her Honour also pointed out, these sad events are what commonly happens to families where a member of the family commits a serious offence.  The trial judge observed that the offending here was more public than in most cases and that would have increased the effect on the appellant’s family and his ultimate desolation at what had occurred.  Accordingly, her Honour thought that to ignore those matters peculiar to the appellant’s position would be unjust.

[53]  The appellant’s contention that those personal matters should have led to a head sentence for a shorter period than the maximum of seven years must be rejected.  We have already made the point that the maximum term of imprisonment for the appellants’ offences exceeded seven years.  The appellant benefited from the trial judge’s decision not to order any cumulative sentence.  Furthermore, the mitigating effect of the personal matters upon which the appellant relied must necessarily be relatively limited in light of the high degree of criminality in his flagrantly corrupt receipt over a long period of numerous payments constituting the substantial total amount of $360,000.  The matters advocated for the appellant in mitigation of sentence were sufficiently reflected in the sentencing judge’s decision not to impose cumulative sentences and in her Honour’s order fixing the parole eligibility date of 2 January 2012, which was a year earlier than the date upon which the appellant otherwise would have been eligible to apply for parole.

[54]  The application for leave to appeal against sentence should be refused.

Orders

[55]  The appeal is dismissed and the application for leave to appeal against sentence is refused.