R v Hanna[2021] QCA 48

SUPREME COURT OF QUEENSLAND

1. [1]
   MORRISON JA:  The appellant appeals against his conviction on a single count, of receipt of the secret commission by an agent, contrary to s 442B(b) of the Criminal Code 1899 (Qld).  The charge fully particularised was:

“That between the 28^th day of February 2013 and the 30^th day of November 2013 at Cornubia and elsewhere in the State of Queensland, David Arthur Hanna, being an agent, corruptly received from Mathew Jason McAllum and Adam Joseph Moore for himself and another, valuable consideration, the receipt of which would tend to influence David Arthur Hanna to show, or forbear to show, favour or disfavour to any person in relation to his principal’s affairs”.

2. [2]
   Mr McAllum who is mentioned in that charge was also tried on a separate charge in the same indictment that he had corruptly given Mr Hanna valuable consideration in the same way.  Mr McAllum was found not guilty at the same trial as that of Mr Hanna.
3. [3]
   Mr Moore, mentioned in the charge against Mr Hanna, died before the trial commenced.
4. [4]
   The two grounds of Mr Hanna’s appeal are:

   1. (a)
      the learned pre-trial judge erred in refusing an application for a judge only trial, sought pursuant to s 590AA(2)(da), s 614 and s 615 of the Criminal Code; and
   2. (b)
      the verdict is unreasonable and cannot be supported having regard to the evidence.
5. [5]
   Separate issues are involved in respect of each ground, and it is convenient to deal with ground 1 first.

Ground 1 – the pre-trial ruling

6. [6]
   The trial ultimately commenced before his Honour Judge Farr SC and a jury on 28 October 2019.  The application for a no-jury order was filed on 26 August 2019, only about two months prior to the trial.  The learned pre-trial judge held that there were no satisfactory reasons advanced for why the application was made so late.^[1]
7. [7]
   The contention before the pre-trial judge was that Mr Hanna had been compulsorily examined before the Royal Commission into Trade Union Governance and Corruption in 2015.  Even though the publication and broadcasting of the compulsory examination was not admissible in the trial, there was considerable pre-trial publicity concerning Mr Hanna’s examination in the Royal Commission, and that was still publicly available at the time of the application, and would be at the trial.  The contention advanced on the application was that it was in the interests of justice to make a no-jury order because the significant pre-trial publicity may affect the deliberations of the jury, and the complexity or length of the trial was such that it was likely to be unreasonably burdensome on a jury.
8. [8]
   Further, one contention advanced was that there was a forensic disadvantage created by the publication and broadcasting the compulsory examination of Mr Hanna, in that he was effectively “locked into a version of events from which [he] could not credibly depart at trial”.^[2]

Approach of the pre-trial judge

9. [9]
   The pre-trial judge noted that when the application was made the identity of the trial judge was already known, as the matter had been set down for trial.  Where the identity of the trial judge is known then a no-jury order could only be made if there were special reasons for making the order: s 614(3) of the Criminal Code.  The pre-trial judge referred to Baker v The Queen,^[3] where this was said by Gleeson CJ in relation to the issue of “special reasons”:

“There is nothing unusual about legislation that requires courts to find ‘special reasons’ or ‘special circumstances’ as a condition of the exercise of a power.  This is a verbal formula that is commonly used where it is intended that judicial discretion should not be confined by precise definition, or where the circumstances of potential relevance are so various as to defy precise definition.  That which makes reasons or circumstances special in a particular case might flow from their weight as well as their quality, and from a combination of factors.”

10. [10]
    The pre-trial judge also referred to s 615(1) of the Criminal Code, which provided that the order might only be made if the court considered it was in the interests of justice to do so.
11. [11]
    The pre-trial judge then summarised the factual background, in a way which is not criticised in this Court:^[4]

“[22] The charge against Mr Hanna alleges that he corruptly received valuable consideration from Mr McAllum and Adam Joseph Moore.  Mr Moore was charged with the same offence as Mr McAllum, but died shortly after the committal hearing.

[23] Prior to 2014 and during the period of the alleged offending, Mr Hanna was a senior office bearer with the federal and state branches of the Builders Labourers Federation (‘the BLF’).  In early 2014 there was a merger of the BLF and the construction and general division of the Construction, Forestry, Mining and Energy Union (‘the CFMEU’).  Mr Hanna became the president of the CFMEU construction and general division, Queensland and Northern Territory divisional branch and president of the construction and general division of the CFMEU.

[24] On 10 February 2014 the Australian government announced an intention to establish a Royal Commission into trade union governance and corruption (‘the Royal Commission’).  The Royal Commission was established by letters patent on 13 March 2014.

[25] In 2015 the Royal Commission held public hearings in Brisbane in relation to allegations against Mr Hanna, including the allegations which are the subject of the present charge.

[26] In the course of the hearings Mr Hanna was compulsorily examined, including in relation to matters the subject of the present charge.  Mr McAllum and Mr Moore also gave evidence.

[27] As witnesses called to give evidence at the Royal Commission, the defendants and Mr Moore could not claim privilege against self-incrimination.  However, any statement or disclosure made by a witness is not admissible in evidence in any civil or criminal proceedings in any court of the Commonwealth, of a state or of a territory, apart from in respect of proceedings for an offence against the Royal Commissions Act 1902 (Cth).

[28] The final report of the Royal Commission was delivered on 28 December 2015.  The report outlines the allegations against Mr Hanna.  The report was published on the Royal Commission website and remains publicly available through the National Library of Australia website.  Transcripts of the Royal Commission hearings and selected exhibits remain publicly available.

[29] The following is an overview of the Crown case:

‘Mirvac Qld at the relevant time was a separate operation and entity from Mirvac.  It was run by Moore.  McAllum was Moore’s subordinate.  At the relevant time the CFMEU were causing significant problems on building sites by stopping work if workers were not members.

The case is largely inferential.  It can be demonstrated that Hanna was provided services to build his house which were falsely invoiced to Mirvac.  They were ultimately paid by Mirvac.  The intention of that action is proven through inference based on the positions of the relevant persons.  The union members could not possibly benefit from Hanna having most of a house built at the expense of a national builder.  There is a very strong inference Hanna must have understood that he was expected to not cause Mirvac trouble or at least direct the union trouble to other non-Mirvac projects and by doing so not acting for the benefit of his members.’”

12. [12]
    The pre-trial judge then noted that Mr Hanna had been engaged in criminal proceedings in 2018 and 2019.  One of those was a charge of destroying documents, a charge that arose out of the Royal Commission hearings.  The trial was in 2018 and the appeal from Mr Hanna’s conviction was in 2019.  In addition, in February 2019 Mr Hanna was tried in the District Court for the offence of rape.  The pre-trial judge noted that trial was also the subject of reporting in electronic and print media.^[5]
13. [13]
    The pre-trial judge dealt with the issue of the pre-trial publicity, noting that the evidence obtained at the Royal Commission was compulsorily acquired and not admissible in the proceedings nor available to the prosecution.  So much was conceded by counsel appearing for Mr Hanna on the application.^[6]
14. [14]
    His Honour noted several matters relevant to the decision he was making:

    1. (a)
       whilst it was not possible to ascertain the extent to which potential jurors may be aware of the evidence given at the Royal Commission hearings, during jury selection the jury was normally informed of the identity of the accused, the nature of the charges and the names of witnesses;^[7]
    2. (b)
       the Royal Commission report was delivered in 2015 and therefore, notwithstanding information remained publicly available, the level of public interest may be expected to have diminished;^[8]
    3. (c)
       the trials in 2018 and 2019 were more recent in terms of the reporting of them in electronic and print media, and the most recent media reports were in July 2019, relating to the appeal against Mr Hanna’s conviction for destroying documents;^[9]
    4. (d)
       jurors empanelled on a criminal trial were directed not to conduct their own investigations, and could be the subject of written instructions emphasising the importance that the case was to be decided on the evidence at the trial, and not their own investigations or enquiries;^[10]
    5. (e)
       High Court authority in R v Glennon^[11] established that whilst the law acknowledged the existence of a possibility that jurors might acquire irrelevant prejudicial information, the law proceeded on the footing that the jury, acting in conformity with instructions given to them by the trial judge, would render a true verdict in accordance with the evidence, and to conclude otherwise was to underrate the integrity of the system of trial by jury and the effect on the jury of the instructions given by a trial judge.^[12]
15. [15]
    On that basis the pre-trial judge held that potential prejudice arising from pre-trial publicity in respect of Mr Hanna’s involvement with the Royal Commission could be adequately dealt with by appropriate directions to the jury.^[13]  His Honour said that he was satisfied that the pre-trial publicity could be adequately addressed by the usual procedures adopted during the jury selection process, and appropriate directions.
16. [16]
    The pre-trial judge dealt more summarily with the contention that the trial might be so complex and long that it was unreasonably burdensome on the jury.  Noting that the trial was estimated to last three weeks, and upwards of 50 witnesses might be called, his Honour did not consider the trial to be so complex or lengthy that it would be unreasonably burdensome.^[14]

Consideration of the contentions on ground 1

17. [17]
    Before this Court the focus of the appellant’s contentions on this ground was not that the pre-trial judge erred in the findings he made concerning the protections offered by the empanelling process, directions to the jury and the presumptions in R v Glennon.^[15]  Rather, it advanced a point which, it was contended, had not been addressed by the pre-trial judge even though it had been raised.  It was that the publication and broadcasting of the compulsory examination of Mr Hanna, though not admissible at the trial, was still publicly available at the time of the no-jury application, and would be at the trial.  It was contended that raised against Mr Hanna a “forensic disadvantage of being locked into a version of events from which [he] could not credibly depart at trial”.  It was contended that the forensic disadvantage could only be cured by the making of a no-jury order.^[16]
18. [18]
    Considerable reliance was placed upon the High Court decision in Strickland (a pseudonym) v Director of Public Prosecutions (Cth).^[17]  That case involved illegality which tainted the examinations conducted by the Australian Crime Commission at the invitation of the Australian Federal Police.  A key finding noted by the High Court was that the lead investigator with the AFP had decided that if the appellants would not voluntarily answer the AFP’s questions, he would force them to answer questions by taking advantage of the Australian Crime Commission coercive powers and that the AFP investigator considered that process would yield the prosecution a forensic advantage of locking each appellant into a version of events, on oath, from which they could not credibly depart at trial.^[18]  The plurality held that that finding was correct and went on to observe:^[19]

“As Hayne and Bell JJ observed in X7 [No 1] in relation to an unlawful compulsory examination conducted post charge, even if the answers given at a compulsory examination are kept secret, and so cannot be used directly or indirectly by those responsible for investigating and prosecuting the matters charged, the requirement to give answers after being charged fundamentally alters the accusatorial judicial process that begins with the laying of a charge and culminates in the accusatorial and adversarial trial in the courtroom.  The examinee can no longer decide the course which he or she should adopt at trial according only to the strength of the prosecution’s case as revealed by the material provided by the prosecution before trial or to the strength of the evidence led by the prosecution at trial:

‘The accused person would have to decide the course to be followed in light of that material and in light of any self-incriminatory answers which he or she had been compelled to give at an examination conducted after the charge was laid.  That is, the accused person would have to decide what plea to enter, what evidence to challenge and what evidence to give or lead at trial according to what answers he or she had given at the examination.  The accused person is thus prejudiced in his or her defence of the charge that has been laid by being required to answer questions about the subject matter of the pending charge.’”

19. [19]
    The remedy imposed in Strickland was to permanently stay the proceedings.  The appellant in the case before this Court did not submit that the prejudice to which they pointed warranted a permanent stay.  Rather, it was contended that the remedy was to grant a judge alone trial.^[20]  The contention continued “Absent that order, a miscarriage of justice has occurred in that the appellant was obliged to proceed to trial while prejudiced by a forensic disadvantage in relation to the conduct of his defence”.^[21]
20. [20]
    There are distinguishing features between the present case and that which applied both in Strickland and X7 [No 1].  In Strickland and X7 [No 1] the relevant evidence was compelled after the charge had been brought.  Here, the evidence was given at the Royal Commission in 2015, when the indictment was not presented until March 2019.  Secondly, each of Strickland and X7 involved unlawful compulsory examination, which is not the case here.  The appellant eschewed any suggestion that the Royal Commission acted unlawfully to compel Mr Hanna to answer questions.^[22]  Thirdly, there is no suggestion in this case that the content of the examinations had been placed in the hands of the prosecution.  In Strickland not only was the examination illegal, but the illegally obtained material had been placed in the hands of the police prosecution.
21. [21]
    The appellant’s contention here is that lawfully obtained answers (from the Royal Commission) had not been placed in the hands of the prosecution and would not be admissible in the trial.  However, “The content of the examinations … has been made available to the jury pool through live broadcast, online publication and significant publicity”.^[23]  Further, the appellant did not submit that the forensic disadvantage in Strickland is the same as in the present case.^[24]
22. [22]
    In my view, the appellant’s contentions cannot be accepted.  That is so for a number of reasons.  First, it is accepted that the acquisition of the evidence during the Royal Commission hearings was the product of lawful conduct.  There is no illegality tainting the process in any relevant respect.
23. [23]
    Secondly, that process of acquiring evidence occurred many years before the charge was preferred against Mr Hanna.  It is the case that the charge arose out of evidence given at the Royal Commission, but that makes this case stand in stark contrast to Strickland and X7 [No 1].
24. [24]
    Thirdly, it is not contended that the prejudice identified is sufficient to prevent a trial from proceeding.  All that is said is that it should be a judge alone trial, rather than a jury trial.  Whatever the prejudice it is not suggested that a fair trial cannot be had.
25. [25]
    Fourthly, the pre-trial judge held that whatever potential prejudice arose from pre-trial publicity could be adequately addressed by the usual procedures during the jury selection process and appropriate directions to the jury.  That finding is not challenged on this appeal.  In this respect what was said in R v Glennon is apposite:^[25]

“The possibility that a juror might acquire irrelevant and prejudicial information is inherent in a criminal trial.  The law acknowledges the existence of that possibility but proceeds on the footing that the jury, acting in conformity with the instructions given to them by the trial judge, will render a true verdict in accordance with the evidence.  As Toohey J observed in Hinch, in the past too little weight may have been given to the capacity of jurors to assess critically what they see and hear and their ability to reach their decisions by reference to the evidence before them.  In Murphy v The Queen, we stated, see also Reg. v Von Einem:

‘But it is misleading to think that, because a juror has heard something of the circumstances giving rise to the trial, the accused has lost the opportunity of an indifferent jury.  The matter was put this way by the Ontario Court of Appeal in Reg. v Hubbert: ‘In this era of rapid dissemination of news by the various media, it would be naïve to think that in the case of a crime involving considerable notoriety, it would be possible to select twelve jurors who had not heard anything about the case.  Prior information about a case, and even the holding of a tentative opinion about it, does not make partial a juror sworn to render a true verdict according to the evidence.’’

To conclude otherwise is to underrate the integrity of the system of trial by jury and the effect on the jury of the instructions given by the trial judge.”

26. [26]
    If that finding is correct, and in my view it is, then there is no prospect that Mr Hanna is locked into a version of events from which they cannot credibly depart at trial.  The only basis for that suggestion is what the jury might know of the Royal Commission proceedings, and nothing else.  If that can be successfully neutralised by the process involved in empanelment and appropriate directions, it cannot be the case that what the jury knows in advance puts Mr Hanna in a straightjacket as to his version of events.  To so conclude would be irrational.
27. [27]
    In this respect one must also bear in mind that the appellant’s submissions proceed upon the basis that a fair trial is possible, though it is said to be only before a judge alone.  Since that turns only on what might be known from pre-trial publicity, it cannot, in my view, be the case that the suggested prejudice is real.
28. [28]
    In my view, it cannot be demonstrated that the failure of the pre-trial judge to order a judge alone trial has resulted in a miscarriage of justice.  The jury panel were given the usual warning of the importance of impartiality, and asked to declare anything that might adversely reflect on the fairness of the trial.  No such declaration was made.^[26]
29. [29]
    Further, in the opening remarks the jury were told to ignore feelings of sympathy or prejudice,^[27] and make their decision based only on the evidence.^[28]  Further, the jury were instructed to ignore anything that they might hear or read about the case from sources outside the court room.^[29]  The trial judge gave a specific direction telling the jury that they must put aside any knowledge they had of the Builders Labourers Federation and the CFMEU, and that any pre-knowledge they had of such an organisation had nothing to do with their assessment of the evidence.^[30]  To that was added a specific direction to the jury that they must not attempt to investigate or enquire about anyone, or anything, involved in the case.^[31]
30. [30]
    At the conclusion of the evidence each day the jury were reminded of the direction to them not to discuss the matter with anyone outside their own number, and not to make private enquiries by themselves.^[32]
31. [31]
    This ground fails.

Ground 2 – unreasonable verdict

32. [32]
    In a case where the ground is that the conviction is unreasonable or cannot be supported having regard to the evidence, SKA v The Queen^[33] requires that this Court perform an independent examination of the whole of the evidence to determine whether it was open to the jury to be satisfied of the guilt of the convicted person on all or any counts, beyond reasonable doubt.  It is also clear that in performing that exercise the Court must have proper regard for the pre-eminent position of the jury as the arbiter of fact.
33. [33]
    The role of the appellate court was recently restated in Pell v The Queen:^[34]

“The function of the court of criminal appeal in determining a ground that contends that the verdict of the jury is unreasonable or cannot be supported having regard to the evidence, in a case such as the present, proceeds upon the assumption that the evidence of the complainant was assessed by the jury to be credible and reliable.  The court examines the record to see whether, notwithstanding that assessment – either by reason of inconsistencies, discrepancies, or other inadequacy; or in light of other evidence – the court is satisfied that the jury, acting rationally, ought nonetheless to have entertained a reasonable doubt as to proof of guilt.”

34. [34]
    The High Court restated the pre-eminence of the jury in R v Baden-Clay.^[35]  As summarised by this Court recently in R v Sun,^[36]in Baden-Clay the High Court stressed that the setting aside of a jury’s verdict on the ground that it is unreasonable is a serious step, because of the role of the jury as “the constitutional tribunal for deciding issues of fact”,^[37] in which the court must have “particular regard to the advantage enjoyed by the jury over a court of appeal which has not seen or heard the witnesses called at trial.”^[38]

35. [35]
    Consideration of this ground will be aided by the general factual summary.  The following is taken from the appellant’s outline.  The contents were not the subject of major criticism before this Court and therefore it will serve as a general summary.  However, I shall return to various features of it in more detail later.
36. [36]
    Prior to 2014 the appellant, Mr Hanna, was a senior office bearer of the Builders Labourers Federation (BLF), a trade union, based in Queensland.  In 2014 the BLF merged with another trade union, the Construction and General Division of the Construction, Forestry, Mining and Energy Union (CFMEU).  Following the merger, the appellant became President of the CFMEU Construction and General Division, Queensland and Northern Territory Divisional Branch, and President of the Construction and General Division of the CFMEU.
37. [37]
    In February 2011, Mr Hanna and his wife bought a property at Cornubia.  Towards the end of 2012, he spoke to Mr Dalby, a licensed builder, about the construction of a house at the property.  Around 3 February 2013, and Mr Hanna and his wife signed a new home construction contract with Dalby Constructions to build the home to lock-up stage.
38. [38]
    Mr Hanna was also in contact with Mr McAllum and Mr Moore, who then worked for a major construction company called Mirvac Construction Proprietary Limited (Mirvac).  Mirvac was then involved in several building projects and engaged a range of tradespeople.  The national construction director for Mirvac was Mr Vieusseux, to whom Mr Moore reported.  Mr Moore was the construction director for Queensland and had authority in relation to the projects under his control, including the approval of subcontractor variations expenditure up to $1 million.
39. [39]
    One project Mr Moore oversaw was the construction of a shopping centre in Springfield, called the Orion project.  Mr Moore had appointed Mr McAllum as a manager on that project.  Mr McAllum reported to Mr Moore.  Mr McAllum had authority to approve subcontractor variations up to $10,000.
40. [40]
    In early 2013, Mr Flood, a Mirvac project manager, met Mr Moore and Mr Hanna at a café.  Mr Moore asked him to recommend a few subcontractors to Mr Hanna to help him build his house.  Over the following months, a number of tradespeople completed work at the Cornubia house.  They included:

    1. (a)
       Mr Wall, an electrical contractor, who was told to send his invoice to Klenner Murphy Electrical; Klenner Murphy Electrical then included that cost in its billing to Mirvac for work done on the Orion project;
    2. (b)
       Mr Davies of L.A.D. Services Proprietary Limited, who submitted an invoice to Mirvac for work conducted at the Orion Project, a component of which was to cover the cost of the work at the Cornubia house; Mr Hanna subsequently asked for an invoice for the work on the house to be sent to himself; and
    3. (c)
       Mr Mullan, who did tiling work at the house and billed Mirvac on instructions from Mr McAllum.
41. [41]
    Mr Vieusseux was the national construction director at Mirvac in 2013.  In cross-examination Mr Vieusseux accepted that Mirvac was a company of good standing, with a reputation for complying as far as possible with industry best practice; was concerned with complying with safety obligations and workplace health and safety rules, and was concerned with complying with applicable industrial relations laws.  Further, Mirvac had no interest in giving a gift of work on the construction of a private residence to a union official and there was no benefit to Mirvac from something like that happening.
42. [42]
    Mr Noonan gave evidence in his role as the national assistant secretary of the CFMEU and national secretary of the construction and general division of that union.  In cross-examination Mr Noonan agreed that the applicable union rules in 2013 did not require disclosure of a gift that was received other than in the union representative's official capacity.
43. [43]
    Evidence was also given by a police officer about his dealings with the appellant in his union role, and from a forensic accountant and a quantity surveyor in relation to the value of work done on the house but not paid for by Mr Hanna.
44. [44]
    Lastly, Mr McAllum gave evidence.  He set out how he came to be involved in arranging work for Mr Hanna’s house, including having payments made via Mirvac.

Evidence of Mr Vieusseux

45. [45]
    Mr Vieusseux was the most senior person at Mirvac to give evidence at the trial.  Relevant parts of his evidence were as follows:

    1. (a)
       in 2012-2013 he was employed by Mirvac as the national construction director;
    2. (b)
       in that role he was responsible for all of Mirvac’s construction activities nationally within Australia;
    3. (c)
       below him in the hierarchy were three construction directors, one of whom was the construction director responsible for Queensland and Western Australia, namely Mr Moore;
    4. (d)
       Mr Moore reported to Mr Vieusseux, and they would have spoken and exchanged emails on a daily basis;
    5. (e)
       after July 2012 there was a formal document within Mirvac setting limits of authority;^[39] under that document Mr Moore had authority to approve expenditure up to $99,000; below him project managers could approve up to $10,000 per individual variation;
    6. (f)
       in 2012 and 2013 Mirvac was involved in a shopping centre project in Queensland, bearing the name “Orion”; that was under Mr Moore’s control as the state construction manager;
    7. (g)
       Mr McAllum was involved in the Orion project, originally as a design manager but then as project manager during the course of the project;
    8. (h)
       Mr Moore, as state manager, was responsible for all aspects of construction in Queensland; his responsibility as state manager included interaction with unions;
    9. (i)
       there were occasional meetings between Mr Vieusseux and Mr Moore but because they resided in different states contact was more via email and telephone;
    10. (j)
        Mr Vieusseux received communications from Mr Moore concerning the conduct of the CFMEU in relation to building projects in Brisbane; one such email became exhibit 106;^[40] the email was dated 6 March 2013 and marked “High Importance” and “DO NOT DISTRIBUTE”; its text was:

“Lang O'Rourke are at war with the brothers, CFMEU are smashing all other Projects other than Mac & Anne (the disaster in Fortitude Valley 14 months)

They are calling meetings on most projects weekly

Kawana is unaffected”

11. (k)
    Mr Vieusseux knew that the email referred to building projects, though he did not know the details; he described the contents as “general industry information” but he did not take it to affect Mirvac’s projects;
12. (l)
    it was part of Mr Moore’s role, as construction director of Queensland, to have discussions with relevant unions such as the BLF and the CFMEU;
13. (m)
    an example of Mr Moore communicating to Mr Vieusseux in respect of matters concerning unions was exhibit 107,^[41] which referred to “BLF hazard report” and attached a “Union Hazard Report as used by the BLF and CFMEU in Queensland”; Mr Vieusseux understood this to be a case of Mr Moore bringing his attention to some safety issues;
14. (n)
    Mr Vieusseux said he knew of Mr Hanna but had never met or spoken with him; he understood him to be the state secretary of the BLF in Queensland;
15. (o)
    in late July 2013 Mr Moore advised Mr Vieusseux that he (Mr Moore) intended to resign or cease working for Mirvac; he eventually tendered his letter of resignation on 6 August 2013;^[42]
16. (p)
    Mr Vieusseux had no knowledge that Mirvac was associated with work that had been done on Mr Hanna’s house at Cornubia, until he was told about it in July 2015; so far as he was aware there was no authorisation for that work to be done on that dwelling; Mirvac had ceased doing work on single dwellings in Queensland in 2012;
17. (q)
    Mr Vieusseux said that in 2013 Mirvac had no interest in giving a gift of work on the construction of a private residence to a union official, and that would not have been in accordance with Mirvac’s policies;
18. (r)
    Mr Vieusseux understood that Mr McAllum, in his position as project manager, reported to Mr Moore;
19. (s)
    in his position, Mr Moore was not the subject of direct supervision, and supervision by Mr Vieusseux was not possible because he lived in Sydney;
20. (t)
    a lot of Mr Vieusseux’s time was taken up with matters in New South Wales and Victoria;
21. (u)
    the Orion project was something that fell within the limits of Mr Moore’s authority, and the practical effect was that Mr Moore had the day to day running of that project.

Evidence of Mr McAllum

46. [46]
    Mr McAllum said that he started with Mirvac in 1997 when he was a cadet and worked with them until 2002.  At the time Mr Moore was the site manager on a project upon which Mr McAllum worked.  After leaving Mirvac he worked for various construction companies and at the same time built his own properties.  In 2011 he contacted Mr Moore to see if there was an opportunity with Mirvac, and in 2012 Mr Moore contacted him to say that Mirvac required a design manager for the Orion shopping centre.  He was engaged as a design manager to work on stage 2 of the Orion shopping centre.  His evidence then included the following details:

    1. (a)
       because of the friendship they had developed when Mr McAllum originally worked with Mr Moore, they remained close in a professional and personal way;
    2. (b)
       Mr McAllum understood Mr Moore’s authority within Mirvac Queensland to be “everything from a construction point of view … he had the ultimate say”;
    3. (c)
       Mr McAllum became the project manager on the Orion project;
    4. (d)
       during the course of the project there were monthly meetings with Mr Moore, at which progress on the site would be reviewed, including safety performance and financial performance;
    5. (e)
       in 2013 Mr Moore asked him to stay back after one such meeting and told Mr McAllum that “Mirvac were going to undertake a residential project”; Mr Moore said he had spoken with Mr Vieusseux and that Mr Vieusseux said it was okay for Mr Moore’s department to undertake the residential project; Mr McAllum did not see any independent confirmation of that, nor did he ask for any;
    6. (f)
       Mr Moore said he would forward drawings and asked Mr McAllum to organise various matters in the way a project manager would, approaching trades and getting quotes;
    7. (g)
       Mr Moore told him that Mirvac would be looking after certain elements of the project and that because the Orion project had a surplus in its budget, the intention was that the Orion project would look after the costs of the work on the residential project;
    8. (h)
       at that point Mr McAllum did not know for whom the residential project was being conducted;
    9. (i)
       Mr Moore provided floor plans for the Cornubia house and Mr McAllum set about obtaining quotes for work to be undertaken at the Cornubia house; contractors he worked with to obtain quotes to do work included: Klenner Murphy Electrical,^[43] Mr Nicoll, Mr Considine, Mr Davies of LAD Services, Mr Wadsworth of Wadsworth Constructions, contractors engaged by Mr Wadsworth, and others;
    10. (j)
        in respect of Klenner Murphy Electrical, Mr McAllum had a conversation with its principal, Mr Greenland, who asked Mr McAllum if Mr Moore was aware of the project; Mr McAllum told him that it was at Mr Moore’s request that Mr Greenland’s firm cover the costs of the house; Mr Greenland engaged someone else to do the work;
    11. (k)
        Mr McAllum spoke to Mr Moore, telling him that he would have to talk to Mr Wadsworth to have Mr Wadsworth undertake works such as rendering, painting and plasterboard;
    12. (l)
        Mr McAllum was responsible for meeting Mr Davies of LAD Services onsite at the house to inspect what was there and ascertain what needed to be done;
    13. (m)
        Mr McAllum explained that if a variation was requested on the Orion project, and it was not a legitimate variation, the only person with authority to approve it was Mr Moore;
    14. (n)
        at the time Mr Moore gave Mr McAllum the drawings for the house at Cornubia, it had the name “Jenny and David Hanna” on it; Mr McAllum did not know who Mr Hanna was; some time after the commencement of doing work on the house Mr McAllum came to know what Mr Hanna did;
    15. (o)
        when Mr Moore first approached Mr McAllum in relation to work on the Cornubia house, Mr McAllum assumed it was a for a friend of Mr Moore;
    16. (p)
        there was a direction from Mr Moore “in order to how the costs would be carried out”; Mr Moore told him that anything that was done at the Cornubia house and paid for through the trades was to be referred to as the Orion project “to make it look as if it was a part of their work on pad sites”;
    17. (q)
        Mr McAllum said he would not question Mr Moore, because Mr Moore was Mirvac Constructions Queensland; he described his role as being “to take instruction from Adam Moore”;
    18. (r)
        the Cornubia costs were not submitted as variations;
    19. (s)
        Mr McAllum explained his acquiescence in this way: “There was a culture within Mirvac and I was following what I was asked to do by a very senior person within Mirvac”; accordingly, he thought everything was above board; he was not there to judge what was right or wrong, or to question Mr Moore; “I wasn’t there to question anything regarding the nature of why this come about”;
    20. (t)
        he was under the impression that the Cornubia house “was a legitimate project that Mirvac were going to undertake”;
    21. (u)
        he agreed that the Cornubia project was kept hidden and secret from the rest of the Mirvac Group; he explained that Mr Moore told him he had spoken to Mr Vieusseux; he described it this way:  “The whole scenario is unusual” … it was always kept secret from others within the organisation; Mr McAllum tried to do his part “in a way that would minimise any impact on anyone”;
    22. (v)
        he said just because he was the project manager on the Orion project did not mean that he dealt with unions, or cared to deal with unions;
    23. (w)
        he spoke to Mr Moore every time he had to make a decision in the project; they would talk whenever Mr Moore was in the office and Mr McAllum would provide him with updates of who he thought would be able to do what; because he could not ask people to absorb the costs in their contract, Mr Moore needed to make sure that he spoke to those people so that when Mr McAllum subsequently spoke to them they were aware of what was required;
    24. (x)
        time and again Mr McAllum said he was simply doing what he was told to do; that was in the context of Mr Moore saying his intention was “to do whatever needed to be done on the house that could be used by trades on Orion”;
    25. (y)
        no emails were sent between Mr McAllum and Mr Moore about the Cornubia project or about the approvals sought in that respect; the contact was all verbal; and
    26. (z)
        Mr Wadsworth’s first claim for work on the Orion project was $160,000, and that included work which had been done on the Cornubia site; Mr McAllum knew that to be so, because he had asked people to charge Mr Wadsworth; the same applied to the second invoice sent by Mr Wadsworth in the sum of $227,000.

Tradesmen who worked on the house

47. [47]
    Mr Dalby had his own construction firm, called Dalby Constructions.  He knew Mr Hanna through their children going to the same school.  He also knew that Mr Hanna worked for the BLF.  His firm signed a contract with the Hannas for the construction of the house at Cornubia, but only up to lockup stage.  No part of the contract was for work beyond lockup.  Mr Dalby said that after that “they would just complete it themselves”, a task that had “nothing to do with me”.
48. [48]
    Mr Wall was an electrical contractor who quoted on and completed some of the work on the Cornubia house.  His initial quote was just under $14,000, and sent direct to Mr and Mrs Hanna because Mr Hanna had approached him to see if he was interested in doing the electrical work at the house, and to give him a price.^[44]  He was given plans with annotated instructions by Mrs Hanna.^[45]
49. [49]
    Mr Hanna gave Mr Wall the phone number of an individual who, according to Mr Hanna, was taking care of payment.  Mr Wall’s instructions were to make out his invoice to Klenner Murphy Electrical.  Mr Wall did so and emailed the invoice to Mr Greenland, a director of Klenner Murphy Electrical.^[46]  In accordance with his instructions the invoices were entitled “Orion Project”.  Mr Wall did not speak with anyone from Klenner Murphy Electrical.
50. [50]
    Mr Greenland of Klenner Murphy Electrical said that in 2013 his firm was working on the Orion project for Mirvac.  He had discussions with Mr McAllum in relation to the Cornubia house.  At Mr McAllum’s direction Mr Greenland’s quotes for work on the Cornubia house listed the location as “Orion Pad Sites Stage 2”.^[47]  Mr McAllum advised him that he had a cheaper quote from Mr Wall’s firm.  Mr Greenland then told Mr McAllum that Mirvac should use Mr Wall’s firm, but that Klenner Murphy Electrical would engage Mr Wall’s firm and pay him.  After Mr Wall’s firm invoiced for his work, Klenner Murphy Electrical would “build it back through the job [at Orion]”.^[48]  Mr Greenland understood that the invoice from Mr Wall’s firm would be related to the Orion project.
51. [51]
    Mr Greenland could recall receiving two invoices from Mr Wall’s firm, each of which were for the Cornubia house, and each of which listed Orion as the location.  The arrangement with Mr McAllum was that Mr Wall’s costs would be put on the job at Orion so that Klenner Murphy Electrical was paid for the Cornubia work, and could therefore pay Mr Wall.^[49]
52. [52]
    There were a number of variations for the Cornubia work and they were dealt with in a way which meant that the cost was put on to the Orion project.^[50]
53. [53]
    Mr Greenland said that none of the invoices or emails which dealt with the costs for the Cornubia site were to or from Mr Hanna, and at the time Klenner Murphy Electrical were engaged to do the work he had no idea Mr Hanna was involved.  During the course of the project he had no discussions with Mr Hanna.  Mr Greenland understood from Mr McAllum that the job was not for Mr McAllum, but being done at Mr Moore’s request.
54. [54]
    Mr Nicoll was the director of a plumbing company, Nicoll Industries.  He knew Mr McAllum through a working relationship.  He did not know Mr Hanna.  In 2013 Nicoll Industries were doing a job for Mirvac at the Orion project.  During the course of that work he had discussions with Mr McAllum about doing other work on a house at Cornubia.  Mr McAllum asked for a price from Mr Nicoll in respect of the Cornubia house^[51] and he was subsequently sent information about the fixtures at that house.^[52]
55. [55]
    At the end of the work, just under $15,000 worth of work had been done by Mr Nicoll’s firm.  He did not receive payment for it.  He said the reason for that was:

“I just made a commercial decision that we would do this with the view of securing future works from Mirvac.”^[53]

56. [56]
    He said that arrangement was not the product of direct discussions with Mr McAllum but he “just made that assumption” … “[i]ts the industry.  You scratch my back, I’ll scratch yours”.^[54]
57. [57]
    Mr Nicoll said it was his assumption when he took the job offer for the work at Cornubia, that he was more than likely not to be paid, but he “felt that it was a commercial decision because of future works that Mirvac were doing at Orion”.^[55]
58. [58]
    Mr Davies was a co-director of LAD Services.  He met Mr McAllum at the start of the Cornubia house project.  LAD Services quoted for work on the Cornubia house, at about $70,000.  As work progressed LAD Services invoiced for work on Cornubia, and at times the Cornubia work was included in tax invoices for the Orion project.^[56]
59. [59]
    Halfway through the project Mr Davies met Mr Hanna and his co-director, Mr Lewis, at a coffee shop.  Mr McAllum was also present.  Mr McAllum and Mr Hanna asked for an invoice for the work at the house at Cornubia.^[57]  An invoice had been submitted by LAD Services to Mirvac, for Progress Claim 1.^[58]  It was that invoice which Mr Davies identified as containing the brickwork for the Cornubia house.  He explained “we’re requested to put – so whatever work we did at the Orion Shopping Centre … we added on the Cornubia house as well”.^[59]  That was at the request of Mr McAllum.  A second invoice was sent for the plastering and carpentry services at Cornubia, this time addressed to Wadsworth Constructions.^[60]  Mr McAllum had asked for it to be made out to Wadsworth Constructions.  Notwithstanding that, Mr Davies said that LAD Services had never done any work for a firm called Wadsworth Construction.^[61]
60. [60]
    Mr Garnsey was a cabinetmaker whose firm was called Cutting Edge Cabinets.  He did work on the Cornubia house, contracted through Mirvac by Mr McAllum.^[62]  At one point of the project he met Mr McAllum on site in order to discuss aspects of the construction.
61. [61]
    Mr Wadsworth was a director of Wadsworth Constructions, which specialised in internal fitouts.  It operated in the commercial sphere but not the domestic.  Wadsworth Constructions lodged a tender for the Orion project.  He knew Mr Moore of Mirvac, he met Mr McAllum during the course of the work.  He had met Mr Hanna some considerable number of years previous.
62. [62]
    At one point there was a meeting at Mirvac’s office to discuss the house at Cornubia.  At that meeting was Mr Moore and Mr McAllum.  The work to be done at Cornubia was discussed “for which we may have some involvement, but none of our direct employees were to be involved in it”.^[63]  Mr Wadsworth’s response to that proposition was to “go with the flow”.^[64]  Mr Wadsworth explained the position of Wadsworth Constructions in respect of Cornubia: “We didn’t do any work on that job.  We paid for some stuff to be done, but it wasn’t us”.^[65]
63. [63]
    In cross-examination Mr Wadsworth was asked when he found out the Cornubia house had a connection with Mr Hanna.  He said he was pretty sure it was “at the very first meeting at Mirvac, I would’ve had to have found out because that’s where I was told we couldn’t use any of our people.  To keep it on the quiet”.^[66]  It was obvious to Mr Wadsworth that the work was going to be funded through Mirvac.  As he understood it, neither the BLF nor the CFMEU were involved.
64. [64]
    In further cross-examination Mr Wadsworth was asked about the meeting where he was told not to use any of his own employees on the Cornubia house.  He said it was Mr Moore “who drove it, really”, while the rest of them simply went along with what he said, including Mr McAllum.^[67]  He explained: “you know, we were Mirvac’s koala, you know, I mean, we – like, we had done lots and lots of work.  You don’t – you don’t burn your bridge”.^[68]
65. [65]
    Mr Wadsworth accepted an explanation of what happened in these terms:

    1. (a)
       Wadsworth Constructions had a contract to do work at the Orion project;
    2. (b)
       there were negative variations and positive variations, which resulted in money being left spare in that contract;
    3. (c)
       that spare money was applied to Cornubia through various subcontractors; and
    4. (d)
       that was authorised by Mr Moore.^[69]
66. [66]
    Mr Carter, the CEO of the VAE Group (an air conditioning contractor) said that his firm carried out work on the Orion project in 2013.  The VAE Group installed and serviced large commercial air conditioning installations.  He knew Mr McAllum and knew of Mr Hanna though did not personally know him.
67. [67]
    In May 2013 Mr McAllum emailed him on the subject of “Mechanical Price – House at Cornubia”.^[70]  Mr Carter arranged for a quote to be prepared and met Mr McAllum to explain what the costs were.  Because the costs were so high it was decided that Mr McAllum would arrange to contact the equipment supplier directly and buy the air conditioning units, and VAE Group would arrange for the installation.  There was an email exchange between them progressing the purchase of the equipment and the work.^[71]
68. [68]
    The work was actually undertaken by Gray Bros.  Their invoice was paid by VAE Group.^[72]
69. [69]
    Mr Carter said VAE Group was not paid for the job, he explained why:^[73]

“I spoke with [Mr McAllum] and he indicated we could claim the works as a variation or multiple variations on the Orion pad site project.  Initially, we were going to process it and then before the invoice went out, collectively, myself and the chairman, VAE and the project manager for the Orion pad sites had a chat and we elected not to invoice it.”

70. [70]
    Mr Carter said that they “made a commercial decision not to … invoice the incorrect job for the works”.^[74]
71. [71]
    At the time of the work Mr Carter noted Mr Hanna’s name on the plans, but had no idea of his position.  Mr Carter explained that the decision taken by VAE Group to pay Gray Bros was not the consequence of any influence by Mr McAllum; he explained:

“No, well, I’d given them a go ahead to do the work and they sent me an invoice and I had to pay it, like, because I’d asked them to do the work.”^[75]

72. [72]
    Mr Gray of Gray Bros Air Conditioning gave evidence of his involvement, subcontracted to VAE Group.  The name David Hanna meant nothing to him.
73. [73]
    Mr Mullan had a tiling business (Tilecorp) which did work at the Cornubia house.  In 2013 he also had a contract in respect of the Orion project.  At some point Mr Mullan was engaged on the Cornubia house to install the tiles.  Tilecorp’s work on the Cornubia house was arranged between himself and Mr McAllum.  On 25 July 2013 Mr Mullan’s firm provided a quote for the Orion project, in the sum of $32,370.^[76]  When Tilecorp invoiced Mirvac the figure was a combination of costs for the Orion project as well as the Cornubia house.^[77]

Evidence of the forensic accountant and quantity surveyor

74. [74]
    Ms McKinnon was an investigative accountant with the Queensland Police.  She was provided with bank statements, witness statements, and source documents such as invoices and quotes.  She was able to match payments that came from the accounts represented by the bank statements to invoices for contractors who worked on the Cornubia property.  The result was exhibits 135-139.  In summary they revealed:

    1. (a)
       Mr and Mrs Hanna paid out of their own accounts the sum of $274,660.36;^[78]
    2. (b)
       Mr Hanna paid cash construction costs totalling $4,991.80;^[79]
    3. (c)
       possible construction costs paid by Mr Hanna totalled $42,084.49;^[80]
    4. (d)
       possible cash withdrawals for the construction by Mr Hanna totalled $87,800;^[81]
    5. (e)
       the total of all of those sums, being the total possible contribution to the building of the Cornubia house by Mr Hanna was $409,536.65;^[82]
    6. (f)
       Mr Lukin was an experienced quantity surveyor.  He provided an opinion as to the construction cost of the Cornubia house.^[83]  Mr Lukin explained the process by which he estimated the cost, including the various rates and documents which form the basis of his opinion.  His estimate was that the total cost of the house was $696,743.^[84]

Extent of the benefit

75. [75]
    A comparison of the financial analysis by the forensic accountant, and the total cost of construction reveals that the benefit to Mr Hanna was in excess of $285,000.^[85]  Put another way, the evidence showed that Mr Hanna only paid 60 per cent of the cost of the house himself, and therefore 40 per cent of the cost of the house was the benefit he gained by money being contributed by others.

Ground 2 – consideration

76. [76]
    The jury were given an aid to their understanding of the elements of the charge against Mr Hanna.^[86]  At trial and before this Court there was no complaint as to the accuracy of what is said.
77. [77]
    Thus the jury were instructed that in order to find Mr Hanna guilty under s 442B(b) they had to be satisfied beyond reasonable doubt that at the relevant time Mr Hanna:

    1. (a)
       was an agent of the principal (i.e. the CFMEU and/or the BLF);
    2. (b)
       received for himself and another^[87] from Mr McAllum and Mr Moore;
    3. (c)
       any valuable consideration (i.e. goods and services in relation to the construction of the house at Cornubia);
    4. (d)
       corruptly; and
    5. (e)
       the receipt of which would tend to influence him to show or forbear to show favour or disfavour to any person, in relation to his principal’s affairs.
78. [78]
    The jury were given the definition of “corruptly” taken from R v Nuttall.^[88]  Once again, there was no complaint as to the accuracy of what they were told.  It was:

“[A] defendant acts corruptly if at the time of receiving the valuable consideration, the recipient of it believed that the person or persons who provided it intended that it should influence the recipient to show or refrain from showing favour or disfavour in relation to his principal’s affairs.”

79. [79]
    In R v Nuttall^[89] this Court said:

“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.”

…

Brooking J’s formulation has been approved by appeal courts in Victoria, and it would be difficult to argue that it ought not be applied in this state.”

80. [80]
    The jury were then directed that if they were not satisfied of every element of s 442B(b), then s 442M would need to be considered.  That required them to be satisfied  beyond reasonable doubt that at the relevant time:

    1. (a)
       any valuable consideration (i.e. goods and services in relation to the construction at Cornubia);
    2. (b)
       has been given to an agent (i.e. Mr Hanna as Divisional Secretary of the Queensland Builders Labourers' Divisional Branch of the Construction and General Division of the CFMEU and as the State Senior Vice President as part of the Queensland State Executive for the CFMEU and as part of the National Executive Committee for the Construction and General Division of the CFMEU and as secretary of the BLF;
    3. (c)
       from any person having business relations with the principal (i.e. from a person having business relations with the CFMEU and/or with the BLF); and
    4. (d)
       without the assent of the principal (i.e. without the consent of the CFMEU and/or the BLF).
81. [81]
    Then the jury were told (again it was accepted, accurately) that if they were satisfied of those matters the burden shifted to Mr Hanna to prove, on the balance of probabilities, that he was not guilty.  That would require him to prove, more probably than not, that at the relevant time:

    1. (a)
       he did not corruptly receive valuable consideration (i.e. goods and services in relation to the construction at Cornubia); or
    2. (b)
       the receipt of that goods and services in relation to the construction at Cornubia would not tend to influence him to show favour, or forbear to show disfavour, to any person in relation to his principal’s (i.e. the CFMEU and/or the BLF) affairs.

Valuable consideration

82. [82]
    There was no issue at the trial that Mr Hanna and his wife had received valuable consideration from Mr Moore and Mr McAllum.  As noted above (see paragraphs [74] and [75] above) there was evidence from a forensic accountant and a quantity surveyor.  It established that Mr Hanna’s contribution to the Cornubia construction was $409,536.65.43, whereas the cost of construction would have amounted to an estimated $696,743.45.  That revealed a benefit to Mr Hanna in excess of $285,000.

Mr Hanna’s contentions on appeal

83. [83]
    Before this Court the central contention was that the jury could not have been satisfied beyond reasonable doubt that Mr Hanna believed that Mr Moore or Mr McAllum intended to influence him to show favour or refrain from showing disfavour in relation to the union’s affairs.^[90]  In support of this contention it was said that the evidence simply did not support a conclusion that any person involved intended that the doing of work and payment via Mirvac should influence Mr Hanna in relation to the union’s affairs.^[91]
84. [84]
    The next contention was that the jury could not have been satisfied beyond reasonable doubt that Mr Hanna’s receipt of the subject gift would tend to influence him to show favour, or forbear to show disfavour, to any person, in relation to his principal’s affairs.
85. [85]
    In relation to the alternative route to conviction under s 442M, it was contended^[92] that the jury could not have been satisfied beyond reasonable doubt that Mr Hanna’s receipt of the subject gift was without the assent of his principal.  In this respect it was submitted that the evidence of Mr Noonan was such that the union may be said to have given assent via its established rules and policies that did not prohibit, and by implication assented to, the receipt of gifts in an official’s private capacity.  That the policy was later changed to expressly preclude personal gifts only makes the point clear.  Since s 442M requires proof beyond reasonable doubt that the union did not assent, the evidence of Mr Noonan about what was permissible, at least leaves open that the receipt of gifts in this case was permissible.
86. [86]
    As Mr Hanna did not give evidence of any conclusion as to his state of mind had to be a matter of inference drawn from the evidence overall.  As to that, there are several reasons why, in my view, the jury could infer that Mr Hanna believed that Mr Moore (and through him, Mr McAllum) intended that the gift of the work on the Cornubia house should influence Mr Hanna in the BLF’s and CFMEU’s affairs.
87. [87]
    First, for the reasons given in paragraphs [104] to [113] below Mr Moore had a clear appreciation that the BLF and CFMEU could adversely impact on Mirvac’s projects in Queensland.  He therefore had good reason to ensure that the senior official of the unions in Queensland, Mr Hanna, was encouraged to a favourable view of Mirvac’s conduct of the project.
88. [88]
    That appreciation was plainly heightened in March 2013 when Laing O'Rourke was “at war” with the unions, and projects were being “smashed” by the unions.
89. [89]
    Secondly, the fact that Mr Vieusseux considered that Mirvac, operating through its normal standards and rules, had no interest in giving a gift of the work on the house to a union official, and he perceived no benefit to Mirvac, is not to the point.  Mirvac was not committed to this course of conduct by any application of normal standards and rules, but rather by Mr Moore fraudulently and secretly providing a benefit of nearly $285,000 to Mr Hanna.  Essentially Mirvac was never told about the truth, because Mr Moore never told Mr Vieusseux, and lied to Mr McAllum when he said he had Mr Vieusseux’s approval.  There could be little doubt in the jury’s mind that if Mr Moore had told Mr Vieusseux what was planned, it would have been vetoed.
90. [90]
    Thirdly, the jury could conclude that Mr Hanna could not have honestly believed that the work done on his house which he got for nothing, could have been anything other than a gift intended to influence him in the union’s affairs.  He could not have held the honest belief that the cost of such work could, as a matter of regular or honest business practice, be added to the price of a totally different Mirvac project.  What did he imagine was the benefit to Mirvac in doing so?  What did he believe was Mr Moore’s motivation for doing so?  Mr Moore was not a friend; there was no evidence to suggest so.  There was no evidence that Mr McAllum was his friend either.  The Cornubia house project was not a Mirvac project but Mr Hanna’s private construction project.  There is simply no rational basis to conclude that Mr Hanna believed he was simply a lucky man as the recipient of a $285,000 benefit for nothing.
91. [91]
    Fourthly, the sheer size of the benefit to Mr Hanna tells heavily against any conclusion that his receipt of it was not likely to influence him to show favour to Mirvac, or at least to forbear to show disfavour to Mirvac.  This gift of $285,000 could not be put in a brown paper bag and left on his desk.  It amounted to 40 per cent of the cost of his private home.  Whatever sanguine attitude the BLF or CFMEU rules revealed about union officials receiving gifts, this was extraordinary in size, and achieved by fraudulently pretending that the work was done on a Mirvac project, when Mr Hanna plainly knew it was not.
92. [92]
    Fifthly, the jury could be satisfied, in my view, of the tendency of the gift to influence Mr Hanna.  The sheer size of the gift here, and the fact that it was in the form of a sizeable portion of Mr Hanna’s private house, tells heavily to that conclusion.  The jury would have struggled in vain to reach any conclusion that there could be an innocent explanation on Mr Hanna’s part for the fact that he took a gift of $285,000 towards his house construction, facilitated by a senior official of a construction company coming within the jurisdiction of the BLF and CFMEU, and falsely ascribed to the account of an unrelated Mirvac project.  In this respect the submission on Mr Hanna’s behalf, that “While it may be argued that the doing of work and payment via Mirvac may have tended to influence [Mr Hanna] to show or forbear to show favour or disfavour to Mr Moore and/or Mr McAllum out of gratitude, there was no basis on the evidence to conclude that any such gratitude would or could be in relation to the union’s affairs”,^[93] should be rejected.  It is utterly irrational to conclude that the gift had the tendency to influence Mr Hanna towards Mr Moore, and not Mirvac.
93. [93]
    Similarly, the submission that “the evidence merely indicated that the appellant was benefiting in his private capacity from a misuse of authority by Mr Moore”,^[94] should be rejected as taking a romancing view of the conduct.  The jury would again ask themselves why was Mr Moore doing that?  Of what benefit was it to Mr Moore?
94. [94]
    The main submission on the appeal was that the weight of evidence was such that the jury could not have been satisfied beyond reasonable doubt that Mr Hanna believed that Mr Moore or Mr McAllum intended to influence Mr Hanna to show favour, or refrain from showing disfavour, in relation to the union’s affairs.^[95]  The submission then was that the evidence “simply did not support a conclusion that any person involved intended that the doing of work and payment via Mirvac should influence the appellant in relation to the union’s affairs”, and “there was no basis in the evidence for a finding that the appellant believed that any person had such an intention”.^[96]
95. [95]
    Support for this contention was sought from the evidence of Mr Vieuseux.  It was said that the uncontradicted evidence was that Mirvac had no interest in giving a gift of work on the construction of a private residence to a union official, and there was no benefit to Mirvac from something like that happening.^[97]  And there was no basis for a finding that Mr Hanna believed that Mr Moore or Mr McAllum intended otherwise.
96. [96]
    That may have been Mr Vieuseux’s view and he said that the giving a gift of free work on a house to a union official was not in accordance with Mirvac’s policies.  But that does not answer the benefit that Mr Moore might have perceived in doing so.  He was the Queensland manager and had the responsibility for dealing with unions and union officials.  It was he who sent the warning to Mr Vieuseux about the adverse impact of the CFMEU’s actions “smashing” various sites in Queensland: see paragraphs [108] to [109] below.  What is noteworthy about that communication is Mr Moore’s assessment that: (i) one building group (Laing O'Rourke) was “at war” with the unions; (ii) the CFMEU were “smashing” all other projects other than Mac & Anne; (iii) the Mac and Anne project was a 14 month “disaster”; (iv) the CFMEU were calling meetings on most projects weekly; but (v) Mirvac’s Kawana project was unaffected.
97. [97]
    The greater context in which that email was sent was before the jury.
98. [98]
    Mr Hanna was a senior union official.  He was the Divisional Secretary of the Queensland Builders Labourers’ Divisional Branch and the State Senior Vice President as part of the Queensland State Executive for the Construction, Forestry, Mining and Energy Union (CFMEU).^[98]  He was also the secretary of the Australian Building Construction Employees and Builders’ Labourers Federation (Queensland) Union of Employees (BLF).
99. [99]
    As secretary of the BLF Mr Hanna’s duties included governance of the branch and the administration of the rules of the branch.  His duties included conducting correspondence in connection with all industrial matters.  He was responsible for: (i) the enforcement of all awards and industrial agreements; and (ii) supervision of the conduct of all wage claims, compensation matters and legal matters within the jurisdiction of his branch.  Elected and unelected officers and employees of the union would be answerable to, and directed, by Mr Hanna.  He was also responsible for “organisers” whose duties were to: (i) visit workplaces to service the needs of members of the union in respect of their industrial wages and conditions, and their safety in the workplace; (ii) attempt to recruit members to the union; and (iii) pursue underpayments of wages or other entitlements in the workplace.^[99]
100. [100]
     There was evidence that union activities could impact adversely on Mirvac’s operations in Queensland.  Mr Noonan, a senior official of the CFMEU, gave evidence about the frequency of union involvement in protests against construction firms.  The CFMEU was involved with a lot of protest activity,^[100] including protests to highlight comparative treatment of unions under Australian law with the treatment of corporations.^[101]  The protests could be “very bitter” as with the building company Grocon, or “big disputes” as with the Queensland Government.^[102]  Those protests were often conducted during normal working hours which would require union members to leave their work duties.^[103]  Such protests are authorised by the union involved (the CFMEU, relevantly) and the secretary (Mr Hanna) would be aware of it.^[104]
101. [101]
     As the evidence of Senior Sergeant O'Connor of Queensland Police revealed, Mr Hanna was actively involved and was the key point of contact for police during a protest on 20 August 2012 involving between 100 and 150 members of the CFMEU and BLF.^[105]  At that and other protests Mr Hanna spoke to protesters on a PA system.  He was also present and talking to protestors at a Grocon protest on 30 August 2012, and a larger event, involving in the order of 600 protestors from the CFMEU and BLF (and other unions) which took place on 6 May 2013.^[106]
102. [102]
     There was also direct evidence of Mr Hanna’s involvement in Mirvac’s Orion shopping centre construction site.  In 2013 Mr Badano was a Mirvac site manager at the Orion site, reporting to Mr McAllum, the project manager.  He knew Mr Moore to be the construction director and he also knew of Mr Hanna as the CFMEU state secretary.  Mr Hanna provided an information session on site to workers.^[107]  Mr Badano also informed Mr McAllum and Mr Moore of visits from union representatives and issues raised by the union relating to absence of enterprise bargaining agreements.^[108]
103. [103]
     Mr Moore was Mirvac’s construction director for Queensland and Western Australia, and responsible for all aspects of Mirvac’s construction projects in Queensland. It was his responsibility as state manager to interact with unions.  In carrying out his role he had a large degree of autonomy, not being subject to direct supervision.  In that role the jury could infer, in my view, that Mr Moore was very well aware of the BLF and CFMEU actions, and the potential for them to adversely impact on a Mirvac project.

Moore’s appreciation of BLF/CFMEU impact on Mirvac

104. [104]
     The jury had a body of evidence from which they could conclude that Mr Moore, and through him, Mirvac, was well aware of the impact that the BLF and the CFMEU could have on Mirvac’s core construction business.
105. [105]
     Mr Moore was the construction director for Queensland and Western Australia, and thus the most senior Mirvac person in Queensland.  He reported to Mr Vieusseux, the national construction director who was responsible for all of Mirvac’s constructions activities nationally.
106. [106]
     Mr Moore was responsible for all aspects of construction projects by Mirvac in Queensland.  He had a broad delegated authority allowing him to approve variations to an already approved contract up to a value in the order of $99,000.  As at March 2013 Mr Vieusseux knew that Mr Hanna was the Queensland secretary of the BLF.  He also said that the BLF and CFMEU were unions that had some relevance to Mirvac’s operations in Queensland.^[109]  Mr Moore was responsible, as state manager, to interact with unions.  That naturally meant that he had the responsibility of having discussions with the BLF and CFMEU, and that meant speaking to Mr Hanna as state secretary of the BLF.
107. [107]
     The plain inference the jury could draw is that Mr Moore would be in a better position than Mr Vieusseux to comment on relevant activities of the BLF and CFMEU, and the impact that they could have on Mirvac’s operations in Queensland.
108. [108]
     In fact there were three instances in evidence where Mr Moore drew Mr Vieusseux’s attentions to such matters.  On 6 March 2013 he emailed Mr Vieusseux, saying:^[110]

“Laing O'Rourke are at war with the brothers, CFMEU are smashing all other Projects other than Mac & Anne (the disaster in Fortitude Valley 14 months)

They are calling meetings on most projects weekly

Kawana is unaffected”

109. [109]
     Mr Vieusseux’s understanding of what the email referred to was that Laing O'Rourke were struggling with union interactions on the Mac and Anne Project and Mr Moore was bringing that to his attention.^[111]  He also said it was an example of the sort of thing he might expect to discuss with Mr Moore or hear about from Mr Moore.^[112]  Other evidence showed that the reference to “Kawana” was to a Mirvac project at Kawana in Queensland.^[113]  In March 2013 Mr Moore had communicated with the BLF and CFMEU in relation to getting the BLF’s permission to have men work on flexible rostered days off, on the Kawana project.^[114]  Mr Hanna was part of the line of communication about that.^[115]
110. [110]
     The same day Mr Moore emailed Mr Vieusseux, forwarding a document entitled “MA Presentation contractors”, and labelling the importance level “High” and the subject matter as “DO NOT DISTRIBUTE”.^[116]  The email chain shows that to be produced by Laing O'Rourke in respect of and for contractors on the Mac and Anne project.
111. [111]
     Then, on 19 April 2013, Mr Moore sent Mr Vieusseux an email attaching two documents, a “BLF Hazard Report” and a “BLF Project Summary”.^[117]  Mr Moore had received those documents on 9 April 2013 from Mr Campbell, Regional HSE Manager of Mirvac.^[118]  Mr Campbell asked Mr Moore whether the documents should be sent to “sites”.  The email chain to Mr Campbell shows what the documents were about:

“… a copy of an iAuditor checklist (see attached ‘BLF Hazard Report’) currently being used by the BLF for undertaking OHS compliance audits on job sites.  I’ve also attached a form used by the BLF for recording subcontractor and delegate details (‘BLF Project Summary’).

I would strongly suggest you keep a copy of these for future reference as the audit tool in particular, is an extremely useful indicator of what the unions will be looking for when they come on site.”

112. [112]
     Mr Vieusseux thought the documents were about safety issues being drawn to his attention by Mr Moore.^[119]
113. [113]
     In my view, the jury could readily draw the inference that Mr Moore saw a significant benefit to Mirvac in maintaining good relations with the CFMEU, and keeping Mirvac projects such as Kawana from being smashed or otherwise affected.  Even Mr Vieusseux understood that Mr Moore was drawing his attention to the fact that Laing O'Rourke were struggling with union interactions on the Mac and Anne Project.  The jury were not compelled to accept Mr Vieusseux’s evidence on that point as destructive of the inference that Mr Moore saw an obvious benefit in providing Mr Hanna, a CFMEU official, with a gift that would influence Mr Hanna to cause the CFMEU to act to the advantage of Mirvac.

The transactions were without Mirvac’s approval

114. [114]
     There was ample evidence from which the jury could conclude that work on Mr Hanna’s house for which Mirvac paid, was done without Mirvac’s approval.
115. [115]
     Mr Draffen, Mirvac’s CEO of development in 2013, said that Mirvac would not engage in one-off residential projects: “One-off residential projects are beyond the scale of our business.  The … overhead structure of Mirvac is such that we just are not cost-efficient to do individual houses for individual vendors”.  A one-off would only be done as part of a charity exercise.^[120]
116. [116]
     There was no authorisation from Mirvac for the involvement of Mirvac employees, assets, or financial assistance to be involved with or used in the construction of the Cornubia house.^[121]  Mirvac had no interest in building a house for a union official, and it would not endorse that, nor would it accrue any benefit from doing so.^[122]
117. [117]
     Mr McAllum’s evidence was that at first he assumed the Cornubia house was a legitimate project but then found out it was illegitimate.  His evidence could have been accepted as credible and reliable by the jury, and telling in terms of whether Mr Hanna’s receipt of the benefit was corrupt:^[123]

“When did you find out it wasn’t legitimate?---After discussions with Adam and obviously, talking about how the project was going to be covered.

When was that?---That was early in the piece.  I can’t remember exactly when.

Well, how early in the piece? I mean, we’re talking about you’ve just had a meeting with him after others who you’d expect to be present for this sort of thing weren’t there?---It might have been - - -

How soon after that?---Might have been a week, might have been a few days.  I can’t remember.

Yet, you still continue to be involved?---Adam Moore asked.

Well, he was a reasonable man, you said, Adam Moore?---Yes, he was.

You weren’t forced into doing this, were you?---No.

There wasn’t any bribery involved? You weren’t bribed to do it?---No.

You weren’t blackmailed to do it?---No.

You did it of your own free will, didn’t you?---Because he asked, yes.

You did it of your own free will, knowing that it was not legitimate?  ---Knowing that it was a project that was going to be for someone else, yes.

It’s the same way as knowing it’s not legitimate, isn’t it? You just don’t want to admit that, is that what you’re saying?---It’s hard to explain with regards to what,  you know, what you think is right or wrong.

Well, it was being hidden, so you didn’t think you were going to get caught out, did you?---I never hid anything.  I never – it was all on Mirvac [indistinct]

Well, we’ll talk about that in a moment.  But it wasn’t out in the open, it was hidden from other people.  It wasn’t a normal business project that you’d expect to be talking about at Mirvac, it was just you and Adam Moore?---Correct.

Right.  So it was hidden from the rest of the Mirvac group, wasn’t it?---It was hidden from people so that, you know, anyone that sort of thinks there’s an opportunity to get something for free, then everyone can get something for free.

So you’re agreeing with me it was hidden.  It was secret?---Correct.”

118. [118]
     Further, the jury could accept Mr McAllum’s evidence that Mr Moore lied to him when he said that Mr Vieusseux had approved the Cornubia project.^[124]

Knowledge or consent of the BLF/CFMEU?

119. [119]
     There was no evidence from which the jury could conclude that the BLF or CFMEU agreed or would have agreed to Mr Hanna’s receiving benefits on the scale he did in the Cornubia construction.  The jury could conclude that the work for which Mr Hanna did not pay was the subject of levels of secrecy that extended from false invoices to obscured payment trails.  The fact that such secrecy was involved tells heavily against any suggestion that the BLF or CFMEU would have been happy to endorse it had they known.
120. [120]
     Dealing with the alternative path under s 442M, the appellant’s submissions were that the jury could not have been satisfied beyond reasonable doubt that Mr Hanna’s receipt of the gift was without the assent of his principal.^[125]  That was because the union’s rules at the time did not preclude a gift to a union official in that official’s private capacity.
121. [121]
     Mr Noonan gave evidence as to the unions’ personal disclosure rules.  The rules changed on 19 December 2013 when there was an amalgamation of the unions.  Prior to that the BLF and the CFMEU had separate rules.^[126]  He produced the BLF’s gift policy for 2013 though he was evidently unfamiliar with it.^[127]  It required disclosure of a material personal interest when a matter arose “involving the union’s financial management or procurement activities”.^[128]  It also dealt with gifts to union officials, which Mr Noonan explained in this passage:^[129]

“And it starts with a declaration that the union’s primary position is that no gifts may be received from any company with which the BLF bargains with or does business; you see that?---Yes.

And there is then a clarification that follows in relation to certain activities; do you agree with that?---Yes.

Including:

All gifts received any officer or employee of the union in his or her capacity as an officer or employee of the union must be recorded on a benefit notification form.

?---Yes.

It’s not the policy of the BLF or, rather, it was not the policy of the BLF in 2013 that every gift that any officer or employee of the union receives from anybody must be declared.  Do you agree with that?---Well, clearly, it’s in – in his or her capacity as an officer or employee of the union.”

122. [122]
     Tellingly Mr Noonan was not asked to address gifts the size and type of the one received by Mr Hanna.  Given his lack of familiarity with the policy it is doubtful he could have assisted.
123. [123]
     In any event, this was a gift to a union official which attracted s 442B(b) or s 442M of the Criminal Code.  Since the underlying rationale of those offences (as they apply in this case, at least) is that they are directed at a gift that: (i) the union official believes it was given intending it should influence the union official to favour another in the union’s business; and (ii) would tend to influence a union official to favour another in the union’s business, the jury could conclude that the gift likely was caught by the policy.

Tendency to influence?

124. [124]
     The respondent submitted that such a high value of consideration would have the tendency to influence the receiver, that is, influence him to show favour, or forbear to show disfavour, to any person, in relation to his principal’s affairs.  In my view, that submission should be accepted.  It is a conclusion that was clearly open to the jury.
125. [125]
     That inference could also be drawn from the fact that in March 2013 the BLF/CFMEU were “smashing” all project sites except Mac & Anne, at war with one construction company, and calling meetings weekly on most sites, yet Mirvac sites were unaffected.  And they remained unaffected throughout the period in question at the trial.

Hypothesis based on friendship

126. [126]
     When considering whether there was an inference consistent with innocence that could not be excluded, one must bear in mind that the word “reasonable” in this context does not mean theoretically open; it cannot rest on “mere conjecture” and must be based on evidence.  As was said by the High Court in R v Baden-Clay:^[130]

“For an inference to be reasonable, it ‘must rest upon something more than mere conjecture.  The bare possibility of innocence should not prevent a jury from finding the prisoner guilty, if the inference of guilt is the only inference open to reasonable men upon consideration of all the facts in evidence.’  Further, ‘in considering a circumstantial case, all of the circumstances established by the evidence are to be considered and weighted in deciding whether there is an inference consistent with innocence reasonably open on the evidence’.  The evidence is not to be looked at in a piecemeal fashion, at trial or on appeal.”

127. [127]
     One hypothesis consistent with innocence, which it was submitted could not be excluded, was that the work and payment for it was organized by Mr Moore because of his friendship with Mr Hanna.  That conclusion does not rise above mere speculation.
128. [128]
     Apart from social outings that were open to Mirvac employees,^[131] there was no evidence before the jury to suggest that the relationship between Mr Hanna and Mr Moore, or Mr McAllum, was anything more than business or union related.  Mr McAllum was the only witness to suggest a friendship between Mr Hanna and Mr Moore but that was merely an assumption on his part and not based on any substratum of fact.^[132]
129. [129]
     The jury could therefore exclude any hypothesis that the actions of Mr Moore or Mr McAllum were fraudulent activities aimed simply at aiding a friend.  Even if it was, that would not exclude a belief that such actions would influence Mr Hanna in the exercise of his principal’s affairs.

Was the benefit received corruptly?

130. [130]
     In my view, the jury could infer that Mr Hanna knew that his private house would be funded in part through Mirvac.  There was evidence that compels that conclusion.
131. [131]
     First, Mr Hanna entered into a building contract for the Cornubia house that was restricted to construction only to lock-up stage.  Mr Hanna discussed the construction with a builder who said he could build either to lockup or to completion, whichever Mr Hanna wanted.^[133]  No agreement was reached in the initial discussions as to whether the builder would be engaged to construct the house to completion or to lockup stage.^[134]  When the contract was entered into, it was for construction only to lockup stage.^[135]  That had a contract price of $200,000.  The difference between that price and the total cost of construction (about $697,000) is stark.
132. [132]
     Secondly, Mr Hanna was well aware that payment for building work on his house was being paid for otherwise than by him.  For that work there was no evidence to show that he was invoiced or that he paid.
133. [133]
     The same process was followed for invoicing after fit-out.  Similar means of payments were arranged by Mr McAllum or Mr Moore for completion of brickwork, supply of materials and painting (for example) undertaken for Mr Hanna at the Cornubia house, that is, the cost being included in invoices charged to Mirvac’s Orion project.
134. [134]
     Further, there were three pieces of evidence of the direct involvement by Mr Hanna which the jury could accept as showing that Mr Hanna was well aware that the cost of the work on his Cornubia house was to be borne by Mirvac.
135. [135]
     The first was when the electrician (Mr Wall) asked Mr Hanna about payment after “rough-in”, Mr Hanna gave him a phone number to call, indicating that that person would take care of payment.  Mr Wall called that number and was given instruction to make an invoice out to Klenner Murphy Electrical, and also to indicate that the invoice was for work done at Mirvac’s Orion project.^[136]  He did so and was paid on that basis.
136. [136]
     The second was from Mr Davies of LAD Services.  He knew his work was to be invoiced as though it was on the Orion Project, and invoices were prepared in that form.  However, halfway through the project he and Mr Lewis (co-partner in LAD Services) met Mr Hanna and Mr McAllum.  Mr Davies said the meeting was after they had finished their work on Cornubia.  Mr Hanna asked for another invoice, this time directed to himself.
137. [137]
     The third was the evidence of Mr Lewis, who confirmed the meeting and that Mr Hanna was part of it.  And, that it was Mr Hanna who requested a “receipt” or invoice for the work on the Cornubia house, though he did not pay a lot of attention to that because it was not his job.^[137]

Conclusion

138. [138]
     On a review of the evidence it was, in my view, open to the jury to be satisfied beyond reasonable doubt that Mr Hanna was guilty.  The appeal should therefore be dismissed.
139. [139]
     I propose the following order:

1. Appeal dismissed.

140. [140]
     PHILIPPIDES JA:  I agree for the reasons given by Morrison JA that the appeal should be dismissed.
141. [141]
     CROW J:  I agree with the order proposed by Morrison JA for the reasons given by his Honour.