Jerrard, JA, Dutney and Philippides JJ, Judgment of the Court
Catchwords
CRIMINAL
LAW - JURISDICTION, PRACTICE AND PROCEDURE - BAIL - JURISDICTION OF SUPREME
COURT - AFTER CONVICTION - where applicant applies
for grant of bail in this
Source
Original judgment source is linked above.
Catchwords
CRIMINALLAW - JURISDICTION, PRACTICE AND PROCEDURE - BAIL - JURISDICTION OF SUPREMECOURT - AFTER CONVICTION - where applicant appliesfor grant of bail in thisCourt - where authority requires the applicant to establish strong grounds thather conviction appeal willbe allowed and that she will have served themajority of her sentence before appeal is decided - whether applicant hassatisfiedthe critical test for release on bail pending appealCRIMINAL LAW - JURISDICTION, PRACTICE AND PROCEDURE - BAIL - GROUNDS FORGRANTING AND REFUSING - SPECIAL OR EXCEPTIONAL CIRCUMSTANCES- PARTICULAR CASES- where appellant refused bail pending appeal - where learned judge belowdirected himself that the appellantmust show exceptional circumstances inorder to be granted bail pending appeal - where prospect of success on appealimportant indetermining whether exceptional circumstances exist - whetherformulation of test applied by learned judge below 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] HCA 13
(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] QCA 454
(2001) 125 A Crim R 279, referred
to
United Mexican State v Cabal & Ors [2001] HCA 60
(2001) 183 ALR 645,
applied
Judgment (36 paragraphs)
[1]
Director of Public Prosecutions (Queensland) for the respondent
[2]
[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.
[3]
[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.
[4]
[3] In Scrivener v DPP[2001] QCA 454; (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.
[5]
[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 Act1980 (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 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).
[6]
[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.
[7]
[6] In United Mexican States v Cabal[2001] HCA 60; (2001) 183 ALR 645 at 656 the joint judgment of Gleeson CJ, McHugh and Gummow JJ says:
[8]
"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:
[9]
* makes the conviction appear contingent until confirmed;
[10]
* 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;
[11]
* undermines respect for the judicial system in having a "recently sentenced man walking free";
[12]
* undermines the public interest in having convicted persons serve their sentences as soon as is practicable."
[13]
[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.
[14]
[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] HCA 13; (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 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.
[15]
[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:
[16]
"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.
[17]
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."
[18]
[10] Callinan J wrote that the answer he got was:
[19]
"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."
[20]
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.
[21]
[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 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.
[22]
[12] A precondition to registration of a political party under the Electoral Act1992 (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.
[23]
[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 Act1918 (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.
[24]
[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 persons who were members of Pauline Hanson's One Nation, and the same list of members was supplied to the Electoral Commission.[1]
[25]
[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.
[26]
[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.
[27]
[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]
[28]
[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 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).
[29]
[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.
[30]
[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.
[31]
[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 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.
[32]
[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.
[33]
[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.
[34]
[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.
[35]
[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.
[36]
[3] Rule 9 requires the management committee consider applications. It can delegate its powers (Rule 21), but only to a subcommittee.