R v Hanna

Case [2021] QCA 48

SUPREME COURT OF QUEENSLAND

CITATION:

R v Hanna [2021] QCA 48

PARTIES:

R
v
HANNA, David Arthur
(appellant)

FILE NO/S:

CA No 328 of 2019
DC No 632 of 2019

DIVISION:

Court of Appeal

PROCEEDING:

Appeal Against Conviction

ORIGINATING COURT:

District Court at Brisbane – Date of Conviction: 8 November 2019 (Farr SC DCJ)

DELIVERED ON:

19 March 2021

DELIVERED AT:

Brisbane

HEARING DATE:

29 October 2020

JUDGES:

Morrison and Philippides JJA and Crow J

ORDER:

Appeal dismissed.

CATCHWORDS:

CRIMINAL LAW – PROCEDURE – APPLICATION FOR NO JURY ORDER – where the trial commenced before a jury – where an application for no-jury order filed – where the trial judge refused to order a judge alone trial – where the accused had been examined by the Royal Commission into Trade Union Governance and Corruption – whether publicly available information could affect deliberations of the jury – whether accused was at a “forensic disadvantage of being locked into a version of events from which [he] could not credibly depart at trial” – whether the pre-trial judge erred in refusing the application for a judge only trial

CRIMINAL LAW – APPEAL AND NEW TRIAL – VERDICT UNREASONABLE OR INSUPPORTABLE HAVING REGARD TO EVIDENCE – APPEAL DISMISSED – where the appellant was convicted of receipt of a secret commission – where the appellant was a senior office bearer for a trade union – where the appellant received valuable consideration relating to the construction of a private dwelling – where evidence included that of a forensic accountant and quantity surveyor – whether the jury could have been satisfied beyond reasonable doubt that there was an intention to influence to show favour or refrain from showing disfavour in relation to union affairs – whether the gift was without assent of the principal – whether the benefit was received corruptly

Criminal Code Act 1899 (Qld), s 442B(b), s 442M, s 590AA(2)(da), s 614, s 615

Baker v The Queen (2004) 223 CLR 513; [2004] HCA 45, cited
Pell v The Queen (2020) 94 ALJR 394; [2020] HCA 12, applied
R v Baden-Clay (2016) 258 CLR 308; [2016] HCA 35, applied
R v Glennon (1992) 173 CLR 592; [1992] HCA 16, applied
R v Nuttall [2011] 1 Qd R 270; [2010] QCA 64, applied
R v Sun[2018] QCA 24, cited
SKA v The Queen (2011) 243 CLR 400; [2011] HCA 13, applied
Strickland (a pseudonym) v Director of Public Prosecutions (Cth) (2018) 266 CLR 325; [2018] HCA 53, distinguished

COUNSEL:

M J McCarthy for the appellant
D Nardone for the respondent

SOLICITORS:

Fisher Dore Lawyers for the appellant
Director of Public Prosecutions (Queensland) for the respondent

  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 28th day of February 2013 and…

Continue reading R v Hanna

Sign in free to access the full text

Details
AGLC
R v Hanna [2021] QCA 48
Case
[2021] QCA 48
Decision Date

CaseChat Overview and Summary

In the matter of R v Hanna, the appellant, a senior office bearer for a trade union, appealed against his conviction for receiving a secret commission in relation to the construction of a private dwelling. The appellant argued that the trial judge erred in refusing his application for a no-jury trial. The appellant claimed that publicly available information from his examination by the Royal Commission into Trade Union Governance and Corruption would create a forensic disadvantage, locking him into a version of events from which he could not credibly depart at trial. The appellant also argued that the verdict was unreasonable or insupportable having regard to the evidence. The court was required to decide whether the trial judge erred in refusing the no-jury application and whether the verdict was unreasonable or insupportable.

The court found that the trial judge did not err in refusing the no-jury application. The court noted that the trial was estimated to last three weeks and that the pre-trial judge had considered the protections offered by the empanelling process, directions to the jury, and the presumptions in R v Glennon. The court also considered the appellant's argument that the publication and broadcasting of his examination by the Royal Commission created a forensic disadvantage. The court held that this argument had not been addressed by the pre-trial judge, but that the appellant had not demonstrated how this disadvantage could only be cured by a no-jury order. The court found that the evidence was open to the jury to be satisfied beyond reasonable doubt that the appellant was guilty. The court dismissed the appeal and affirmed the conviction.

The final orders of the court were that the appeal be dismissed.

Orders

Orders of the court

Appeal dismissed.

Background

Background to the litigation

Full text does not contain this section.

Evidence

Evidence Before The Court

Mr Vieusseux was the most senior person at Mirvac to give evidence at the trial. Relevant parts of his evidence were as follows:(a)in 2012-2013 he was employed by Mirvac as the national construction director;(b)in that role he was responsible for all of Mirvac’s construction activities nationally within Australia;(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;(d)Mr Moore reported to Mr Vieusseux, and they would have spoken and exchanged emails on a daily basis;(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;[39]Exhibit 104, AB 1091.(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;(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;(h)Mr Moore, as state manager, was responsible for all aspects of construction in Queensland; his responsibility as state manager included interaction with unions;(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;(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:[40]AB 1109.“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 weeklyKawana is unaffected”(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;(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;(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;(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;(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](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;(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;(r)Mr Vieusseux understood that Mr McAllum, in his position as project manager, reported to Mr Moore;(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;(t)a lot of Mr Vieusseux’s time was taken up with matters in New South Wales and Victoria;(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.[41]AB 1110.[42]Exhibit 108, AB 1111.Evidence of Mr McAllum

Decision

Reasons for decision

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][137]AB 340-341.Conclusion 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. I propose the following order:1. Appeal dismissed. PHILIPPIDES JA: I agree for the reasons given by Morrison JA that the appeal should be dismissed. CROW J: I agree with the order proposed by Morrison JA for the reasons given by his Honour.

Ratio Decidendi

Legal Principle Established

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][14]Reasons below at [40]-[43].Consideration of the contentions on ground 1 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][15](1992) 173 CLR 592 at 603.[16]Appellant’s outline, para 7. 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.’”[17](2018) 266 CLR 325; (2018) 93 ALJR 1; [2018] HCA 53.[18]Strickland at [54].[19]Strickland at [76].