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Published by , 2018-10-12 10:49:19

_au_cases_qld_QCA_2003_409

_au_cases_qld_QCA_2003_409

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SUPREME COURT OF QUEENSLAND

CITATION: Hanson v DPP (Qld) [2003] QCA 409
PARTIES:
PAULINE LEE HANSON
FILE NO/S: (applicant/appellant)
v
DIVISION: DIRECTOR OF PUBLIC PROSECUTIONS
PROCEEDING: (QUEENSLAND)
ORIGINATING (respondent)
COURT:
DELIVERED ON: Appeal No 7844 of 2003
DELIVERED AT: Appeal No 7982 of 2003
HEARING DATE: SC No 7566 of 2003
JUDGES:
ORDERS: Court of Appeal
CATCHWORDS:
Miscellaneous Application - Civil
Appeal from Bail Application

Supreme Court at Brisbane

15 September 2003

Brisbane

9 September 2003

Jerrard JA, Dutney and Philippides JJ
Judgment of the Court

1. Application for bail refused
2. Appeal against refusal of bail dismissed

CRIMINAL LAW – JURISDICTION, PRACTICE AND
PROCEDURE – BAIL – JURISDICTION OF SUPREME
COURT – AFTER CONVICTION – where applicant applies
for grant of bail in this Court – where authority requires the
applicant to establish strong grounds that her conviction
appeal will be allowed and that she will have served the
majority of her sentence before appeal is decided – whether
applicant has satisfied the critical test for release on bail
pending appeal

CRIMINAL LAW – JURISDICTION, PRACTICE AND
PROCEDURE – BAIL – GROUNDS FOR GRANTING
AND REFUSING – SPECIAL OR EXCEPTIONAL
CIRCUMSTANCES – PARTICULAR CASES – where
appellant refused bail pending appeal – where learned judge
below directed himself that the appellant must show
exceptional circumstances in order to be granted bail pending
appeal – where prospect of success on appeal important in
determining whether exceptional circumstances exist –

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COUNSEL: whether formulation of test applied by learned judge below
SOLICITORS: correct according to authority

Bail Act 1980 (Qld), s 8
Criminal Code (Qld), s 408C(1)(b), s 408C(1)(f)
Electoral Act 1992 (Qld)

Chamberlain v R (No 1) (1983) 153 CLR 514, referred to
Doggett v R [2001] HCA 46; B54 of 2000, 9 August 2001,
discussed
Ex parte Maher [1986] 1 Qd R 303, followed
Marotta v R (1999) 73 ALJR 265, considered
Scrivener v DPP (2001) 125 A Crim R 279, referred to
United Mexican State v Cabal & Ors (2001) 183 ALR 645,
applied

C E Hampson QC, with K Howe, for the applicant/appellant
B G Campbell, with S E McGee, for the respondent

Nyst Lawyers for the applicant/appellant
Director of Public Prosecutions (Queensland) for the
respondent

[1] THE COURT: On 3 September 2003 Pauline Lee Hanson filed an application for
orders that this Court admit her to bail on three offences. The first is an offence
charged under s 408C(1)(f) of the Criminal Code, and the second and third are
charges laid under s 408C(1)(b) of that Code. The first count carries a maximum of
five years imprisonment, and the second and third a maximum sentence of ten
years.

[2] She was convicted just over three weeks ago on 20 August 2003 of those three
offences, and sentenced to three years imprisonment on all charges. She filed a
notice of appeal on 21 August 2003 against her conviction listing a number of
grounds of appeal, and she has filed an application dated 25 August 2003 for leave
to appeal against her sentence. She filed extensive material in support of her
application for bail late on the day of 8 September 2003, and filed an appeal by
leave on 9 September, during the hearing, against an earlier decision by a single
judge of this Court to refuse her bail.

[3] In Scrivener v DPP (2001) 125 A Crim R 279 this court held that a person who has
been convicted, and who has been refused bail after conviction by a judge of the
Supreme Court, may renew his or her application for bail to this Court, as well as
making the refusal to grant bail the subject of an appeal from the decision of the
judge refusing bail. The decision of Chesterman J of this Court on 1 September
2003 records that Ms Hanson did unsuccessfully apply before him for bail, on an
application heard on 29 August 2003.

[4] The principles applicable when considering an application for bail pending appeal
have been established by the decision of the Queensland Full Court in Ex parte
Maher [1986] 1 Qd R 303. The leading judgment in that decision holds that the
Bail Act 1980 (Qld) makes a clear distinction between applications for bail by
persons who have not been convicted, and applications by those who have.
Likewise, Courts have long recognised a fundamental difference between

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applications for the granting of bail by persons who are presumed to be innocent,
and by people who have been found guilty (beyond reasonable doubt).

[5] The decision of the Full Court in Maher’s case recognised that s 8(1) and (5) of the
Bail Act give jurisdiction to this Court to grant bail to convicted offenders wanting
to appeal their conviction or sentence, or both; but that the respect for a jury’s
verdict which underlies our system of criminal justice requires that a regularly
obtained conviction should not be seen as a mere step in the process of appeal.
Accordingly, the release on bail of an appellant sentenced to a reasonably long term
of imprisonment should occur only in exceptional circumstances. To do otherwise
runs the risk of proliferation of appeals without merit; and it is against the public
interest, which is that convicted offenders are seen to be penalised. It would also
encourage applications for bail which would really be preliminary hearings of
subsequent appeals.

[6] In United Mexican States v Cabal (2001) 183 ALR 645 at 656 the joint judgment of
Gleeson CJ, McHugh and Gummow JJ says:
“To stay an order of imprisonment before deciding the appeal is a
serious interference with the due administration of criminal justice.
As Thomas J pointed out in Ex parte Maher, to allow bail pending
the hearing of an appeal after a person has been convicted and
imprisoned:
 makes the conviction appear contingent until confirmed;
 places the court in the invidious position of having to return
to prison a person whose circumstances may have changed
dramatically during the period of liberty on bail;
 encourages unmeritorious appeals;
 undermines respect for the judicial system in having a
“recently sentenced man walking free”;
 undermines the public interest in having convicted persons
serve their sentences as soon as is practicable.”

[7] Their Honours held that in consequence in a criminal case an order granting bail
will only be made if there are exceptional circumstances, and that the history of
decisions in the High Court show that ordinarily that Court will grant bail in
criminal cases only if two conditions are satisfied. First, the applicant must
demonstrate that there are strong grounds for concluding that the appeal will be
allowed. Second, the applicant must show that the sentence, or at all events the
custodial part of it, is likely to have been substantially served before the appeal is
determined. Those remarks were made in the context of an application for bail
pending extradition, but are equally applicable in an appeal to this Court, which
point is demonstrated by the citation from Thomas J in Ex parte Maher in the
decision in Cabal.

[8] In two relatively recent matters in the High Court, Callinan J admitted to bail
applicants who had been granted special leave to appeal against their convictions,
and who were serving sentences of imprisonment. The first was a decision in
Marotta v R (1999) 73 ALJR 265. In Marotta, Callinan J quoted remarks by
Brennan J in Chamberlain v R (No 1) (1983) 153 CLR 514 at 519-520, to the effect
that a verdict of a jury was not to be treated for the purposes of an application for
bail as provisional. Callinan J noted that that comment was made in a case in which
an application for bail had been brought pending the hearing of an application for

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special leave to appeal to the High Court, and doubted whether a grant of bail does
treat a verdict of guilty as provisional. His Honour went on to allow the appellants’
bail in that case, holding that their successful argument on which special leave had
been obtained raised an arguable point which might have real substance, that
substantial parts of the custodial sentence they were serving were likely to have
been served and possibly completed in the case of one person by the time the
decision of the Court on their appeal was published, that there was no suggestion
they were likely to abscond or offend whilst on bail, and that so long it was clear
that the full terms in actual time to be served in prison were to be served if the
appeals were refused, then the public interest and the fact of convictions and their
consequences would not be adversely affected. His Honour held that there was no
public interest or benefit in the incarceration of people who may turn out to have
been wrongly convicted according to law.

[9] Some of the views expressed by Justice Callinan, while undoubtedly achieving
justice in that case, appear at odds with the statements already quoted from United
Mexican States v Cabal, made some two years later in the joint judgment.
Likewise, remarks Callinan J in the case of Doggett v R [2001] HCA 46; B54 of
2000 9 August 2001 are also inconsistent with what was said in Cabal. In Doggett,
Callinan J repeated his opinion that admitting a convicted appellant to bail did not
treat a jury’s verdict as provisional. In His Honour’s opinion, it is punishment only
that is thus suspended or interrupted; and the jury’s verdict stands until it is set
aside. He wrote:
“No responsible juror should be disappointed simply because part of
a sentence is interrupted whilst the High Court considers whether a
convicted person has had what he was entitled to, a trial according to
law.

I asked the respondent [the DPP] why it was thought to be in the
public interest that a convicted person who had been granted the
comparatively rare opportunity to appeal to the High Court not be
allowed bail when there is no discernable risk to the complainant or
the community, when he has a job to go to, he has observed
conditions of bail before his convictions, the conditions currently
proposed are suitable and some many months are likely to elapse
before his appeal is decided.”

[10] Callinan J wrote that the answer he got was:
“a repetition of no more than that it was not possible to say other
than that a grant of bail would be to treat a jury’s verdict as
provisional and that a grant of special leave was not, of itself, an
exceptional circumstance and should not be seen to be so.”

His Honour went on to grant bail, and that appellant ultimately succeeded too in the
High Court. However the possible change of attitude which Callinan J’s remarks
suggest, in the principles on which bail is granted or refused to convicted appellants,
was not borne out by the later judgment in Cabal, which returned the law to the
position declared in Maher. It is the law so declared in Cabal which this Court
must apply.

[11] The judgments in Maher make clear that the prospect of success on appeal is an
obviously important matter when determining whether or not such exceptional

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circumstances exist. The written submissions filed contain a number of attacks on
discretionary rulings by the trial judge and on rulings on admission of evidence; and
a significant argument that the evidence proved that no offence was committed at all
by Ms Hanson. The Crown case as to the offence in the first count is helpfully
summarised in the judgment of Chesterman J, and the jury must have accepted that
case. That case is that an application to register Pauline Hanson’s One Nation as a
political party was made on 15 October 1997, on which date there relevantly were
two separate and distinct groups of people. One was known as Pauline Hanson’s
One Nation. It was the political party, and was an unincorporated association. The
other group was an incorporated association initially named Pauline Hanson
Support Movement Inc.

[12] A precondition to registration of a political party under the Electoral Act 1992 (Qld)
was that the party have 500 members at least who were eligible to vote in
Queensland State Elections. The Crown case was that the political party, Pauline
Hanson’s One Nation, did not have 500 members or more, and the incorporated
association did, but that it was not a political party and was not entitled to be
registered as such; and in any event it was not. The substance of the charge which
the jury accepted as proved beyond reasonable doubt was that the appellant
dishonestly informed the Electoral Commissioner that a list of more than 500 names
were members of the political party, thereby inducing the Commissioner to register
that party.

[13] On behalf of Ms Hanson it was argued that the jury ought to have come to the
positive conclusion that there were many more than 500 members of the political
party Pauline Hanson’s One Nation. Mr Hampson QC presented a strong
submission to that effect when he took the Court with care through a number of the
extensive documentary exhibits at the trial. Those exhibits show that Pauline
Hanson’s One Nation was registered as a political party under the Commonwealth
Electoral Act 1918 (Cth) on 27 June 1997, and the Pauline Hanson Support
Movement Inc, originally formed as an unincorporated association in October 1996,
became incorporated under the Association Incorporation Act 1981 (Qld) on 10
March 1997. The constitution of that incorporated association lodged with the
application for incorporation appears to have been a model or draft form
constitution which was simply lodged without any amendment or insertion of detail.
The constitution lodged with the application to register Pauline Hanson’s One
Nation as a political party was described in Mr Hampson’s submissions as identical
to that lodged with the Australian Electoral Commission, when Pauline Hanson’s
One Nation was registered as a political party in the Federal sphere; and the one
lodged with the State Electoral Commission is plainly a somewhat reworked version
of the one lodged in unamended form to incorporate the association.

[14] Mr Hampson’s submission took the Court to evidence led by the Crown from
witnesses (Claire Wright and Stephen Menagh) who worked in the Manly offices of
Pauline Hanson’s One Nation, and who described a process of regularly receiving
applications for membership of Pauline Hanson’s One Nation, (presumably after
federal registration) providing the applicants with a receipt and membership card,
and recording the fact of their membership of Pauline Hanson’s One Nation (the
political party) on a central data base. Ms Wright’s evidence was that by October
1997 there were thousands of members of that political party and that, in response
to a request by the appellant Ettridge, a list of 500 such members entitled to vote in
Queensland was supplied by the witness Wright to Mr Ettridge, such list being of

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persons who were members of Pauline Hanson’s One Nation, and the same list of
members was supplied to the Electoral Commission.1

[15] Mr Hampson then took the Court to a number of internal documents of the two
organisations, which documents appeared to distinguish between membership of the
Pauline Hanson Support Movement Inc and of Pauline Hanson’s One Nation.
Those documents could also be interpreted as showing that as from at least 24 May
1997 it was determined by the National Management Committee of the Pauline
Hanson Support Movement (the minutes are exhibit 42), that that support movement
would have two levels of membership; they being “One Nation members” with full
voting rights, and “Pauline Hanson One Nation supporters” having all rights of
membership other than voting rights. “One Nation level” membership in the
Pauline Hanson Support Movement would cost “$40 Single $50 Couple” and the
non-voting members appear to have needed a five dollar membership fee. The
constitution of neither organisation reflected those decisions.

[16] The Crown case in response to those submissions was that those witnesses Menagh
and Wright were process workers, performing an administrative job, and not part of
the controlling “mind” of any organisation; and that while persons who applied to
join Pauline Hanson’s One Nation might well have believed that they had become
members of that political party, and while Wright and Menagh may have well
believed that they were receiving applications for membership of that party, the
appellants had set up structures which “quarantined” general membership to within
the Pauline Hanson Support Movement. The Crown case was that all that existed
was two different levels of membership of that support movement, and that at all
times there were only three members of the political party Pauline Hanson’s One
Nation, those being the two appellants and a third person.

[17] Mr Hampson’s contentions gained force from the documents to which he referred
the Court. He explained the fact of the jury’s verdict on the grounds that “they had
inadmissible evidence and they weren’t properly instructed on it.”2 The Court
hearing the bail application did not have a copy of any of the rulings by the learned
trial judge, or of the directions to the jury. That makes it very difficult to pass final
judgment on the force of Mr Hampson’s submissions, particularly because the
Crown primarily relied on the oral evidence of various witnesses and on statements
made at various times by Ms Hanson and her co-appellant Mr Ettridge. The Crown
did not rely in the bail hearing on the non-compliance (or lack of any evidence of
compliance) with the requirements in the constitution of Pauline Hanson’s One
Nation for the admission of members;3 Mr Hampson submitted it was assumed at
the trial that there was a delegation to the office workers.4

[18] It is of concern that the Crown case, as expressed when resisting the application for
bail, appears to be at odds with the documents in existence at the relevant time, and
further that Counsel for the Crown conceded in argument that the persons who had
paid the $40 membership fee asked for by the Manly office workers from those who
sought to join Pauline Hanson’s One Nation (by then a registered political party in

1 The evidence led at the criminal trial differed from that led in Sharples v O’Shea and Hanson [2000]
QCA 23, in which neither Wright nor Menagh gave evidence.

2 Transcript page 13.
3 Rule 9 requires the management committee consider applications. It can delegate its powers (Rule

21), but only to a subcommittee.
4 Transcript 26.

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the Federal sphere), and who had been given a receipt and a membership card
(apparently some 16,000 to 17,000 people in all throughout the Commonwealth of
Australia), may have been entitled to enforce such membership rights as the
constitution of Pauline Hanson’s One Nation gave to its members. Despite that
concession,5 repeated in argument, Counsel for the Crown made the apparently
quite inconsistent submission that those persons were not members of Pauline
Hanson’s One Nation (it is only fair to record that Counsel for the Crown was
somewhat taken by surprise by questions from the Court on this point, and had no
time to formulate a reply).

[19] An examination of the constitution of Pauline Hanson’s One Nation, lodged in mid
October 1997 when the applicant applied to register it as a political party in
Queensland, shows that its members had contracted for almost no rights at all.
Instead, control rested in a management committee consisting of the President, Vice
President, and Treasurer (who were apparently respectively Ms Hanson, Mr
Ettridge, and the third person), who had the right to determine if others could
become members of the party or whether their membership should be terminated;
the right to control and manage the affairs and funds of the party; to exercise all of
its powers; to constitute a quorum (by a majority of the members of the
management committee) at any general meeting; to determine that any business not
on the agenda for that meeting could be considered only by a consent of the
majority of that management committee; to decide by what manner notice would be
given of any general meeting, and the sole power (exercisable by majority of the
management committee) to nominate candidates for election to the management
committee. The express rights of members appear to be limited to voting at any
annual general meeting, at which those members are able to be present, (there is no
clear requirement of any notice) for the (deliberately limited number of) candidates
nominated by the majority of the management committee for election to that
committee. Other than that, members were given by the constitution a right to
portray themselves as a member of Pauline Hanson’s One Nation.

[20] The Crown case appears to accept and rely upon a view Ms Hanson and Mr Ettridge
may have held, namely that those two persons (and the third member of the
management committee) could unilaterally put an end to even those very limited
contractual rights of the other members of Pauline Hanson’s One Nation; but the
constitution placed quite considerable restrictions on the circumstances in which the
management committee could terminate membership. No blanket power to do so en
masse for all other members was granted. Assuming in Mr Hampson’s favour that
there was a delegation of the power to admit members, the Crown case appears to
ignore the contractual obligations and relationship objectively existing between the
appellant and those other persons who paid the relevant fee and received the
relevant membership card describing them as a member of One Nation. On the
given assumption, Mr Hampson’s submission that they were members (with
admittedly limited) rights appears sound, appears in parts actually conceded in
argument by the Crown, and would appear to destroy the basis for Ms Hanson’s
conviction on any count.

[21] However, the Court hearing the bail application did not hear by any means the
arguments in full that the Crown wished to advance, and was referred to only a very
small portion of the evidence and to none of the rulings or directions. Further, the

5 At transcript 72 and 73.

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jury accepted the essential factual contention underlying the Crown case and it may
be that the Court hearing the appeal determines that, contrary to the submissions of
Mr Hampson, the evidence upon which the jury relied in doing that was admissible,
and that the jury was properly directed. That may not be enough to save the
Crown’s case if the concession made during the appeal is repeated, namely that the
many thousands of persons who believed themselves to be members of Pauline
Hanson’s One Nation could have enforced their limited rights by action, and were
in law thus members of One Nation, just as Ms Hanson and Mr Ettridge represented
to the Electoral Commissioner. A critical issue on appeal may be whether there was
evidence of a delegation of power, whereby those paying $40 did become members
without the express agreement of the management committee. If they did, the
Crown case that Ms Hanson and Mr Ettridge believed those persons were not
members might be factually correct, but those beliefs would be an error in law on
which the Crown case was also based.

[22] Had the Court hearing the bail application heard argument in full from the Crown,
including on the point of delegated approval of membership applications, we may
have concluded that there were strong grounds for holding that the appeal would be
allowed. Absent that argument in full, that conclusion cannot be reached. There
was plainly much evidence to which the Crown would take a Court deciding the
case on its merits. In those circumstances we are not persuaded that Ms Hanson has
satisfied the critical test for release on bail pending hearing her appeal.

[23] Her prospects of success on her application for leave to appeal against her sentences
are hard to calculate. The sentence of three years imprisonment on all charges
seems arguably to be a high sentence on the first count, for which the maximum
penalty is five years imprisonment; and her grounds of appeal imply that restitution
was paid in full on counts two and three, which might well mean that the sentence
on those counts, without any portion being suspended, might also be regarded as a
high sentence. However, to show the exceptional circumstances necessary for a
grant of bail, Ms Hanson would need to show now that there are strong grounds for
concluding it is likely that the Court hearing the appeal would say that a sentence of
three weeks imprisonment at most was sufficient, and that any longer period of
imprisonment was excessive. If that happened, it would have been unjust for her to
be in prison between the date of this appeal and the appeal on the merits. Because
no easily comparable cases have been quoted in argument on her application, the
possibility that the Court hearing her appeal will say that a sentence of three weeks
at most was sufficient cannot be excluded; but as of now it cannot be said with any
confidence that that is the probable outcome.

[24] That being so, and since the appeal and application will be listed for hearing in the
week of 3 November 2003, and within two and a half months of the date of
conviction and sentence, her application for bail should be refused.

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