As today’s Australian notes, bail applications and appeals against refusal of bail by One Nation founders Pauline Hanson and David Ettridge were yesterday refused by Queensland’s Court of Appeal.
What I hadn’t realised (not being a criminal law specialist) until I did some quick research just now, is that there appears to be a divergence of opinion on the High Court as to the principles that should apply to the grant of bail after conviction of a serious offence. The Court of Appeal’s reasons for decision also suggest quite strongly that Hanson and Ettridge’s substantive appeal might well succeed, and that even if it doesn’t there are strong arguments that the 3 year sentence imposed by the trial judge was excessive.
The political implications of such a decision on appeal are obvious: Hanson would be free to participate in the forthcoming federal election campaign with the status of a vindicated martyr. The One Nation factor would then be likely to be very powerful indeed, especially in Queensland. If I was John Howard, I’d be thinking very seriously about calling an early election before that can occur, which probably means before Christmas. Moreover, if I wasn’t able to engineer a double dissolution election before Hanson is released, I wouldn’t want to call a double dissolution election at all, because the prospect of significant numbers of One Nation Senators holding the Senate balance of power may well be unacceptably high.
The Qld Court of Appeal decision (NB the entire judgment in PDF format is worth reading) followed the more restrictive line of authority favoured by Gleeson CJ, McHugh and Gummow JJ in United Mexican States v Cabal (2001), holding that:
“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.”
That stringent approach coincided with the previous approach of the Full Court of the Qld Supreme Court. However, High Court Justice Callinan favoured a significantly less rigorous approach in Marotta v The Queen (1999), and Justice Kirby appeared to agree with him in Sinanovic v The Queen (2001). New South Wales Supreme Court Justice Greg James also agreed with Callinan J’s approach at an earlier stage of Sinanovic (not available online). On the Callinan approach, Hanson and Ettridge would almost certainly be entitled to bail pending hearing of their appeal. However, as the substantive appeal itself is due to be heard by the Court of Appeal on 3 November, it’s likely that it will have been determined before any High Court appeal on the principles governing bail could be heard and determined.
The Court of Appeal’s reasoning shows (at least to my way of thinking) why there is a respectable argument for adopting something like the Callinan approach, and also why Hanson’s appeal may well succeed. It seems that the only reason why The Court of Appeal was not able to conclude that there were “strong grounds” for believing the substantive appeal would succeed was that the Crown had failed to advance full argument before the judge hearing the initial bail application! Here is the crucial passage from the Court’s reasons:
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.
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.
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.
The arguments by Hanson’s counsel are given added force by the fact that there doesn’t appear to be any statutory definition of “member” or “membership” of a political party in relation to eligibility for public election funding. Perhaps there really were more than 500 members of One Nation, and perhaps ironically Hanson and Ettridge believed erroneously that they retained a higher degree of control over membership than they actually in law possessed.
The Court of Appeal’s observations about whether the sentence imposed by the trial judge was excessive are much shorter but equally interesting:
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.