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[2003] HCA 68
procedural. Applications dismissed. [20]
Hanson and Ettridge asked a single High Court Justice to release them on bail after the Queensland courts had already refused bail. Their appeals against conviction and sentence had not yet been heard, and they had not obtained special leave to challenge the Court of Appeal’s refusal of bail. Callinan J considered that the contested merits and sentencing arguments could not properly be examined in detail at this stage. Given the procedural position and the relatively prompt expected hearing of the substantive appeals, the applicants had not shown exceptional circumstances. Both applications were dismissed.
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2,207 words · generated 05/10/2026
The High Court dealt together with two applications by Pauline Hanson and David Ettridge for bail. The decision was made by Callinan J, sitting as a single Justice, not by a Full Court. The applications were not the substantive appeals against conviction, nor were they the applicants’ substantive appeals against the earlier refusal of bail. They sought bail while applications for special leave to appeal against the Court of Appeal’s refusal of bail were pending. The underlying conviction appeals had not yet been heard. [3], [11]
2 cited instruments linked from this judgment.
Hanson had been convicted on three counts. One concerned dishonestly inducing the Electoral Commission of Queensland to register Pauline Hanson’s One Nation as a political party. Two concerned dishonestly receiving cheques totalling almost $500,000. Ettridge, who was tried jointly with Hanson, was convicted on the registration count only. Both were sentenced to three years’ imprisonment, without recommendations for parole, and both appealed against conviction and sentence. [5], [11]
The prosecution case, as summarised by Callinan J, was that the list of more than 500 members supplied to obtain registration and public funding was in fact a list of members of Pauline Hanson Support Movement Inc, rather than members of the political party. The party constitution provided for the Management Committee to decide on membership applications. Hanson and Ettridge were members of the party’s national management committee and respectively president and vice-president of the incorporated movement. The case against them relied substantially on out-of-court statements proved through witnesses at trial. [8]-[10]
The applicants were first refused bail by Chesterman J in the Supreme Court. They then unsuccessfully appealed that refusal to the Queensland Court of Appeal. After applying to the High Court for special leave to appeal against that decision, they sought bail from Callinan J. [11] The order was short and unequivocal: “Applications dismissed.” [20]
The judgment’s starting point is that a conviction can be wrong and a sentence can be excessive, but those matters ordinarily become clear only after careful appellate consideration. Until then, the conviction and punishment are conventionally accepted as regularly entered and imposed. [1] Callinan J recognised an exception: courts may grant bail to convicted people in exceptional cases while an appeal is pending. [2]
The procedural stage made these applications particularly difficult. The applicants had already been convicted and sentenced, and a State appellate court had refused bail. They were asking the High Court to act before the substantive appeal against conviction had been heard and before they had obtained special leave to challenge the refusal of bail. Callinan J described those prior steps as compounding the difficulty of obtaining bail. [3]
The applicants argued that their convictions were likely to be overturned. They relied on what they described as overwhelming, contemporaneous written evidence of more than 500 party members, the legal effect of the membership applications, the terms of the constitution, and an arrangement at trial about employees’ authority to accept applications. They also contended that the Court of Appeal had erred in assessing their appeal and had shown unease about the convictions. [12]-[13] The respondent’s position was that the applicants knew and intended that the people on the list were not party members, and that the trial arrangement did not displace the relevance or weight of oral evidence about their knowledge. [14]
Callinan J did not decide which account of the evidence was correct. He said he could not form a confident view about the outcome of the conviction appeals at that stage. More importantly, he stated that a single Justice should not undertake a detailed exploration of the facts that would be examined on the substantive appeal, with full argument. [15] This is a procedural limit on the inquiry in this bail hearing, not a finding that the conviction evidence was strong or weak.
The applicants also relied on their arguments about sentence. These included asserted failures to give proper weight to good character, absence of prior offending, public service, family circumstances, repayment to the State, and electoral support. They also raised comparisons with sentences imposed on other people and argued that Ettridge should have been given an opportunity to address the sentencing court. [16] Callinan J considered that some submissions might be arguable, but said that this hearing was not the occasion to examine their factual foundation. In any event, they did not establish the exceptional circumstances required for bail at this stage. [17]
The judgment then gave broader institutional reasons. The High Court is not ordinarily a sentencing court. If sentencing error of principle is shown, its general practice is to return the matter to the intermediate court so that the proper principles can be applied. The cases remained within the Queensland courts’ jurisdiction, and Callinan J considered it inappropriate for a single High Court Justice to interfere with the State discretionary process, except perhaps in a very exceptional case. [19]
Finally, the applicants had not yet obtained special leave to appeal against the bail refusal, and their conviction appeals were expected to be heard in about six weeks. Those procedural circumstances mattered to the assessment. [19] The reasons do not establish a fixed rule that bail can never be granted before an intermediate appeal is heard. They explain why these applicants had not shown a sufficient basis for bail in the particular procedural posture before the Court.
The judgment describes the legal position at a general level rather than setting out a comprehensive test. Before addressing the applications, Callinan J states that exceptional cases exist in which courts may allow a convicted person bail pending appeal. [2] He does not define a checklist for exceptional circumstances or give a numerical threshold.
The decision’s principal contribution in the text provided is its focus on procedural stage. At the High Court, an applicant who has already had bail refused by an intermediate appellate court, and whose substantive appeal has not yet been heard, faces a more difficult application. [3] A single Justice should not use a bail hearing to conduct the detailed factual review that belongs to full argument on the substantive appeal. [15]
The judgment also explains the relationship between High Court review and State proceedings. Where sentencing error of principle is established, the usual course described by Callinan J is remittal to the intermediate court, rather than the High Court acting as a sentencing court in the ordinary sense. [19] In this case, the Court treated the ongoing Queensland proceedings and prior State-court bail decisions as important context. [19]
The judgment does not provide a survey of the law before this decision, nor does the supplied text identify later cases that adopted, limited, or distinguished its reasoning. Accordingly, no claim about subsequent precedential treatment can be grounded in the text supplied. The judgment itself does mention a legislative development in a footnote: after the events described, s 73A of the Electoral Act 1992 (Q) was enacted, prescribing requirements that included a rule for the free and democratic election of a candidate for preselection. [5 n 2] Callinan J does not analyse the effect of that later provision on the applicants’ convictions or on the bail issue.
At [1], Callinan J observes that an incorrect conviction or excessive sentence may cause a deep grievance, but that error is usually assessed retrospectively by an appellate court after careful argument. In plain English, the possibility of appellate error does not itself resolve whether release before the appeal is warranted.
At [2], he says that “there are exceptional cases” in which courts may allow bail to a convicted person pending appeal. This recognises the availability of bail after conviction while making clear that the judgment treats it as exceptional.
At [3], Callinan J explains that the High Court stage is more complicated because applicants will almost always have been convicted and reviewed by an appellate court. He says the difficulty is compounded when the intermediate court has already refused bail and the applicant has not obtained special leave to challenge that refusal. In practical terms, the Court considers the sequence of prior decisions and the stage of the appeal relevant, rather than looking only at the applicant’s arguments about the conviction.
At [15], he says a single Justice should not undertake “a detailed exploration of the facts” at this stage. This does not mean the facts were unimportant. It means the bail hearing was not the appropriate procedural setting for deciding disputed evidentiary questions that would receive full consideration in the substantive appeal.
At [17], Callinan J accepts that some sentencing submissions might appear arguable, but finds that they do not establish the required exceptional circumstances. “Arguable” therefore does not mean that bail follows, or that the applicant’s legal position on sentence has been finally determined.
At [19], the statement that the High Court is “not a sentencing court in the ordinary sense” describes the role the Court ordinarily plays in sentencing appeals. Callinan J adds that a case involving error of principle would generally be sent back to the intermediate court for the proper principles to be applied. He also notes that these proceedings remained in the Queensland courts and that the applicants’ substantive appeals were expected relatively soon.
The decision is most directly relevant to a convicted person seeking bail from a single Justice of the High Court after an intermediate appellate court has refused bail, where the substantive appeal against conviction has not yet been heard. Its reasoning is particularly directed to the additional procedural difficulty created when the applicant has not obtained special leave to challenge the intermediate court’s bail decision. [3], [11], [19]
It is also relevant where the bail application depends on arguments that substantially overlap with disputed issues on the pending conviction appeal. In Ettridge and Hanson, the applicants’ case depended on the meaning and effect of membership documents, the party constitution, an alleged trial arrangement, and oral evidence about knowledge and intention. Callinan J declined to determine those matters in detail in the bail hearing. [12]-[15]
The decision may also be relevant where the applicant relies on asserted sentencing error before the intermediate appeal has been heard. The judgment indicates that sentencing points can be considered as part of the exceptional-circumstances argument, but that their arguability alone did not suffice here. It also emphasises the High Court’s ordinary practice of remitting sentencing matters to the intermediate court where error of principle is shown. [16]-[19]
The supplied judgment does not establish that every case involving these features must result in refusal of bail. Callinan J expressly recognises that exceptional cases exist. [2] The decision records the Court’s assessment of these applications in light of the prior refusals, the uncompleted special-leave process, the pending substantive appeals, and the expected timing of those appeals. [11], [19]
The supplied judgment contains no later decisions and provides no account of how subsequent courts treated Ettridge or Hanson. The judgment was delivered on 23 September 2003, and the text supplied identifies no later citations, applications, distinctions, or reversals. It would therefore be unsupported to state that a later court followed, confined, or rejected its reasoning.
The decision itself does not identify any earlier case as the source of a rule or discuss other judgments in its reasons. The “precedentRelationships” field is consequently empty. For research that requires a later-treatment history, that history cannot be derived from this judgment alone.
The judgment leaves the content of “exceptional cases” open. It recognises that exceptional cases may justify bail after conviction but does not set out a comprehensive test or specify what combination of factors would be sufficient. [2] The decision instead explains why the applicants’ arguments, taken at this particular procedural stage, did not meet that description. [17], [19]
It also leaves unresolved the substantive merits of the conviction appeals. The applicants argued that the membership documents and related evidence undermined the convictions, while the respondent relied on evidence of knowledge and intention. Callinan J deliberately did not decide between those positions. [12]-[15] The judgment therefore cannot be treated as a determination that the applicants’ membership arguments were either correct or incorrect.
The sentencing grounds were likewise not finally resolved. Callinan J did not decide whether the sentencing judge gave proper weight to each asserted mitigating factor, whether the sentences were comparable to those imposed in other cases, or whether Ettridge should have been invited to address on penalty. He held only that those submissions did not establish a basis for bail in the hearing before him. [16]-[17]
Finally, the judgment does not specify the effect of the applicants’ expected six-week wait on any general bail test. It identifies the anticipated timing as a relevant circumstance in these applications, alongside the procedural history and lack of special leave. [19] The text also does not describe later developments in the applicants’ appeals or the subsequent interpretation of s 73A of the Electoral Act. [5 n 2]
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Source: the High Court of Australia (www.hcourt.gov.au). Converted to plain text by ZoeLaw. Not the official version.
HIGH COURT OF AUSTRALIA
CALLINAN J
Matter No B70/2003
DAVID WILLIAM ETTRIDGE APPLICANT
AND
DIRECTOR OF PUBLIC PROSECUTIONS (QUEENSLAND) RESPONDENT
Matter No B71/2003
PAULINE LEE HANSON APPLICANT
AND
DIRECTOR OF PUBLIC PROSECUTIONS (QUEENSLAND) RESPONDENT
Ettridge v Director of Public Prosecutions (Q))
Hanson v Director of Public Prosecutions (Q)
[2003] HCA 68
23 September 2003
B70/2003, B71/2003
ORDER
Applications dismissed.
Representation:
Matter No B70/2003
B W Walker SC for the applicant (instructed by Boe Callaghan)
B G Campbell for the respondent (instructed by Director of Public Prosecutions (Queensland))
Matter No B71/2003
C E K Hampson QC with K S Howe for the applicant (instructed by Nyst Lawyers)
B G Campbell for the respondent (instructed by Director of Public Prosecutions (Queensland))
Notice: This copy of the Court's Reasons for Judgment is subject to formal revision prior to publication in the Commonwealth Law Reports.
CATCHWORDS
Ettridge v Director of Public Prosecutions (Q)
Hanson v Director of Public Prosecutions (Q)
Criminal Law – application for bail pending the hearing of an application for special leave to appeal against a refusal of bail by an intermediate appellate court and before even the substantive appeal against conviction has been heard by the intermediate court of appeal – whether exceptional or special circumstances shown.
CALLINAN J. Anyone who turns out to have been wrongly imprisoned, even for a day, is entitled to feel a deep sense of grievance. Accordingly our system of law is intended to ensure, so far as is possible, that an accused person be given a fair trial, and if convicted, not be excessively penalised. Even so, trials can and do miscarry, and punishments more harsh than the crime and the circumstances of the convicted person warrant, are sometimes imposed. Unfortunately however whether either of those events has occurred can only be determined in hindsight, and with the careful evaluation of the trial by an appellate court with the benefit of argument and the time to undertake it. In the meantime, conventionally, all concerned are, as a practical and a legal matter, obliged to accept that the conviction and punishment have been regularly entered and imposed.
But there are exceptional cases. And when these are shown to exist, the courts may react by allowing bail to a convicted person pending the hearing of his or her appeal.
In this Court however matters are somewhat more complicated. By the time that convicted applicants seek to invoke the jurisdiction of this Court they have almost always not only been tried and convicted, but also have had the benefit of a review of their cases by an appellate court. It follows inevitably that no matter how difficult it may be for a convicted person to persuade an intermediate appellate court that he or she should be granted bail pending the disposition of his or her appeal to that Court, the difficulties are compounded when the applicant comes to this Court seeking bail before that appeal is heard. Self-evidently, the difficulties are further compounded by the facts here that the applicants' application for bail has been rejected by the intermediate court, and they have not been granted special leave to appeal to this Court against that rejection.
It is convenient to deal with both applicants' cases together.
Ms Hanson was convicted on three counts: first, contrary to s 408C(1)(f) of the Criminal Code (Q) ("the Code"), of dishonestly inducing the Electoral Commission of Queensland to register "Pauline Hanson's One Nation", a political party, as a political party pursuant to s 70 of the Electoral Act 1992 (Q) ("the Act"). To qualify for registration as a party at the relevant time, there were limited formal requirements. One was that the party must have no fewer than 500 members (s 70). Another was that it have a constitution to which there were no requirements as to its control and management.1 If duly registered its candidates who attracted in total not less than 4 percent of the vote, would qualify for pro rata payment of money by the State. Ms Hanson was also convicted of two other counts, of dishonestly, contrary to s 408C(1)(b) of the Code, receiving two cheques for, in total, almost $500,000. Mr Ettridge, who was jointly tried with Ms Hanson was convicted on the first count only.
It is necessary to say something more about the Act, the facts and course of proceedings.
The Act (s 3) defines "political party" in this way:
"'political party' means an organisation whose object, or 1 of whose objects, is the promotion of the election to the Legislative Assembly of a candidate or candidates endorsed by it or by a body or organisation of which it forms a part."
"ADMISSION AND REJECTION OF MEMBERS
9 (1) At the next meeting of the Management Committee after the receipt of any application and the fee applicable for any class of membership, such application shall be considered by the Management Committee, who shall thereupon determine upon the admission or rejection of the applicant.
(2) Any applicant who receives a majority of the votes of the members of the Management Committee present at the meeting at which such application is being considered shall be accepted as a member to the class of membership applied for.
(3) Upon the acceptance or rejection of an application for any class of membership the secretary shall forthwith give the applicant notice in writing of such acceptance or rejection."
As well as the party, an incorporated association, "Pauline Hanson Support Movement Inc" came into existence. The applicants were both members of the national management committee of the party. They were, also respectively, president and vice-president of the movement.
The case against the applicants at the trial in the District Court of Queensland was that the purported list of more than 500 members of the party that they provided to the Electoral Commissioner to obtain registration and therefore public funding of the party under the Act, was in fact a list of members of the movement. For proof of this, reliance was placed by the respondent largely upon out of court statements by the applicants proved by the oral evidence of a number of witnesses at the trial.
On their conviction the trial judge sentenced both applicants to three years imprisonment with no recommendations for parole. Both have appealed to the Court of Appeal against conviction and sentence. Their appeals have not been heard. Both sought bail pending the hearing of their appeals. The Supreme Court (Chesterman J) refused bail. They then unsuccessfully appealed to the Court of Appeal (Jerrard JA, Dutney and Philippides JJ) against that refusal. They have filed applications to this Court for special leave to appeal against the decision of the Court of Appeal. And now they come to a single Justice of this Court, having, it is accepted on both sides, an inherent or incidental power to grant bail pending the application for special leave, if a case for it can be made out.
Submissions on conviction
Both applicants argued that their cases were exceptional. They had been, they contended, wrongly convicted: there was overwhelming, objective, generally contemporaneous, written evidence that there were more than 500 members of the party in Queensland at the relevant time. Such statements as may have been made by the applicants to, or having the appearance of being to the contrary, could not contradict the clear legal effect of the written applications for membership of the party, and the acceptance thereof, by employees of the party. No point, it was submitted, was, or could now be taken that Art 9 of the constitution had not been satisfied. At the trial the respondent made an arrangement with the applicants which was tantamount to a concession that the employees concerned were authorized to accept applications and grant membership.
The Court of Appeal accordingly erred, the submissions went, in two particular respects: in not finding that the appeals against conviction were likely to succeed; and in having regard to the outcome of a civil trial before a judge without a jury, in which the same or a similar issue was decided in the same way as the jury must have decided it in the criminal proceedings. Counsel for the applicants also submit that in the reasons for the decision of the Court of Appeal there can readily be detected a real sense of unease about the convictions.
Respondent's submissions on conviction
Decision
Conviction
Submissions on penalty
The applicants submit that in any event non-custodial sentences or custodial sentences much shorter in time should have been imposed. They say that the trial judge failed to comply with s 9 of the Penalties and Sentences Act 1992 (Q), for example: by disregarding or giving no weight to the applicants' good character, the absence of any prior criminal conduct, their participation in public affairs, and their personal family circumstances; and by not giving proper or real weight to their successful efforts to reimburse the State in full for the money received, not it may be said by them personally, but by the party; and by ignoring the significant popular electoral support that the party and its candidates received. As to the last, it should immediately be said that it was a matter to which her Honour clearly paid attention, and regarded as a factor reflecting on the applicants' characters: that their representation that One Nation was a [registered] party may well have induced electors to vote for its members. It was further submitted that other persons convicted of comparable offences had been dealt with much less harshly than the applicants. Mr Ettridge, as an unrepresented accused, it was said, should have been but was not told by the trial judge that he was entitled to address on penalty. Furthermore, as a person convicted of one of the offences only, he should have received a lesser penalty than Ms Hanson.
As arguable as some of the submissions may appear to be - it is not possible or indeed appropriate in a hearing of this kind to delve into the substratum - they do not demonstrate special or exceptional circumstances of the kind which would lead to a grant of bail at this stage.
But there are still more fundamental reasons why the applicants cannot succeed.
The High Court is not a sentencing court in the ordinary sense. Its general practice, if error of principle in sentencing has been shown, is to send the case back to the intermediate court to apply the proper principles. These cases are still in the jurisdiction of the Supreme Court. It is for the courts of that jurisdiction to decide how they should be dealt with. It would not be right for this Court, especially a singe Justice of it, to interfere with the exercise of a state discretionary jurisdiction in a pending matter, save perhaps for a very exceptional case which it is not easy to envisage. A judge of the Supreme Court has refused bail and the Court of Appeal has reviewed that refusal and upheld it. It is, among other things, on the prospects of success of obtaining special leave to appeal from the dismissal of an appeal against a refusal of bail by a primary judge, and in turn, if special leave were to be granted, on the prospects of the appeal itself that I am bound to focus. It is highly relevant that the applicants have not even succeeded yet in obtaining a grant of special leave to appeal against the decision of the Court of Appeal refusing bail. It is, in my opinion very unlikely that a Full Court of this Court would grant bail to any applicant whose substantive appeal to an intermediate court of appeal has not been heard. Furthermore, the applicants do have the benefit of a relatively prompt hearing, in, as I understand it, six or so weeks.
Subsequently s 73A of the Act was enacted prescribing a number of requirements including, by s 73A(1)(f) a rule for the free and democratic election of a candidate for preselection. ↩
Ettridge
Director of Public Prosecutions [2003] HCA 68;
(2003) 202 ALR 423
(2003) 78 ALJR 157
Applications dismissed. [20]
I am bound to, and dismiss the applications by Ms Hanson and Mr Ettridge.