Electoral fraud ... Forget the dishonest intent, see how the lunge for contract law saved Pauline ... Qld Court of Appeal missed the golden opportunity to finish Pauline Hanson's One Nation for good ... Instead, unpersuasive reasoning saved her and saddled the country with more poisonous nonsense ... Thanks Daphnis ... From Justinian's archive ... November 18, 2003
THE reasons advanced by the Queensland Court of Appeal in quashing the fraud convictions of Pauline Hanson and David Ettridge are not at all compelling.
The outcome is this: Hanson and Ettridge knew the 500 Queensland electors whose names were given to the Queensland Electoral Commission to procure the registration of One Nation were not really members of the party. There was stacks of evidence that the management committee of the party (the two Davids, Ettridge and Oldfield, plus Pauline) had no intention of letting the great unwashed have full voting membership. They were merely members of the Pauline Hanson Support Movement.
The Court of Appeal said that evidence largely should not have been admitted at the criminal trial because it only went to the fraudulent intention of the accused to procure the registration of the party. It could not, as Chief Justice Daphnis de Jersey put it:
"... legitimately aid a determination of the scope of the contracts entered into by the applicants for membership including identifying the contracting parties. That fell to be determined by reference to the objectively discernable circumstances of and surrounding the execution and submission of the applications and their treatment by the recipient."
Contract law suddenly came to the rescue, allowing the appeal court to say that because the applicants for membership thought they were members, had paid their fees and got bits of paper leading them to think they were members, therefore they must be members.
All the other evidence to the contrary was simple “misinformation” put about by Hanson and Ettridge to confuse the members and entrench the power of the management committee.
Indeed, there was plenty of material which went to the intentions of the flame haired siren from Ipswich and Ettridge, her chief enforcer.
Ettridge seems constantly to have been quizzed by people who thought they were members or who wanted to know more about the “structure” of the organization.
His invariable response was that the branches were no more than a support movement, that the party had a “bullet-proof” structure, and there were only three members of the party - the two Davids and Pauline (plus from time to time elected parliamentary candidates of One Nation).
For instance, at a One Nation lunch in Geelong in July 1997 there was evidence that Ettridge told someone who inquired about how to get copies of the party’s constitution: “They can get stuffed. There is no party. They are not members of any party and there never will be a party.”
There was a pile of documentary evidence from One Nation’s files to the same effect. Exhibit 58 will suffice as an example:
"One Nation has been set up to protect it from being attacked and broken down. Remember the 30,000 Chinese who wanted to join? It is a structure that is absolutely bullet-proof and it is structured that way to protect all of us who are genuinely concerned with success at the next election. We will not be destroyed or all our efforts will have been in vain."
However, the appeal judges (de Jersey CJ, McMurdo P and Davies JA) said the jury should have been instructed not to use the evidence about Hanson’s and Ettridge’s intentions to prevent the rank and file from controlling the party as evidence of the actual status of the “members”.
That evidence was said only to be admissible in relation to the question of their dishonest intention in providing the list to the Electoral Commissioner.
The jury at the trial found beyond reasonable doubt that Hanson and Ettridge had the requisite dishonest intent to induce the Electoral Commissioner to register Pauline Hanson’s One Nation as a political party.
The appeal court made no attack on the jury’s finding of dishonest intent.
What emerges then is that Pauline and the two Davids effectively failed to fulfil their intentions to create a political party that excluded the proletariat from membership - in particular their desire to prevent Asians joining and attempting to take control of One Nation.
In the civil case (Terry Sharples v Desmond O’Shea and Pauline Hanson) the plaintiff who was a disaffected “member” of One Nation established that the names on the list in support of the application for registration did not contain the names of members of the party.
The Court of Appeal upheld that finding by Justice Roslyn Atkinson and de Jersey and McMurdo (the same two judges who sat on the criminal appeal) wrote the only judgments.
In her civil appeal in 2000, Pauline pointed to the objective evidence on membership to which weight should have been given at the trial: the branch starter kits, letters, minutes and membership forms.
This is what Daphnis de Jersey said in his appeal judgment in the civil case about that contrary, objective evidence:
"In my view the cumulative effect of that material was not such as necessarily or reasonably to exclude the conclusion strongly to be drawn from the uncontradicted evidence of the statements made by the members of the management committee."
The President of the Court of Appeal, Margaret McMurdo, in the civil appeal thought the same way as Daphnis and upheld Atkinson’s finding that the names on the list were not party members and the party had been fraudulently registered.
Of course, that was a civil case and this is a criminal case. De Jersey and McMurdo devoted a considerable portion of their reasons explaining why they should not be embarrassed by their contrary findings in March 2000 in the civil appeal.
Daphnis explained that the evidence of Andrew Carne, which went a long way to sinking Pauline and Ettridge at the civil trial, was not before the court in the criminal trial. Hanson and Ettridge did not give evidence at the civil trial and so the trial judge was entitled to rely on inferences. Finally, the precise “delineation” of the contracts of membership was not ventilated before the trial judge in Sharples v O’Shea. Daphnis went on:
"The approach taken here, both at trial and with appeal endorsement, does not support the conclusion that evidence of the character earlier described was admissible in these proceedings in the criminal jurisdiction, proceedings constituted among different parties, as an aid to the determination of the identification of the parties to the contracts of membership."
"It is self-evident that the Sharples case turned on different evidence than this case and that the lower civil standard of proof applied."
Regardless of all the judicial manoeuvring, the mass of oral and documentary evidence pointed to the fact that Hanson and Ettridge had an intention to hoodwink the Electoral Commissioner, claim the electoral funding and still control the party by excluding the “members”.
That evidence was “unobjective” in the criminal case, but objective in the civil case.
It should not be forgotten that the benefit of party registration was that it shifted control of the funding money to the management and away from the candidates. If One Nation wasn’t a registered party with a registered agent, then the candidates could claim the funds. Given the nature and quality of most of the candidates that was not a sensible option.
Yet, it was the genesis of Pauline’s nightmares. It was because Terry Sharples wasn’t given his money by the organisation after he ran as a candidate in Queensland that he commenced the civil proceedings for deregistration of One Nation.
De Jersey also briefly put the fall-back argument in the criminal appeal. Even if those on the list were not really members of the party, it was “arguable” that the relationship between the political party and the support group was sufficiently close for the supporters to be members.
In any event, the thinking of the Chief Justice and the President was sufficient to quash the convictions, with no need for a retrial.
It will be recalled that Daphnis also gave a little lecture in his reasons in the criminal appeal that just because Chief Judge Patsy Wolfe stuffed up the trial doesnt mean that “the process to this point has been unlawful”.
The appellants, he said, “will have endured the consequences of adjudication through due process in accordance with what is compendiously termed the rule of law”.
At the criminal trial Hanson was represented by Gold Coast solicitor and crime writer Chris Nyst, Ettridge represented himself. On appeal Cedric Hampson strode into the arena for Hanson and Bret Walker for Ettridge.
"Although I do not say this critically of Ms Hanson’s representation, it is my view that had both appellants been represented by experienced trial counsel throughout, the relevance of all the evidence would more likely have been addressed with appropriate precision.
The case will in my view provide a further illustration of the need for a properly resourced, highly talented, top level team of prosecutors within or available to the Office of the Director of Public Prosecutions. In this complex case, which resulted in a trial of that length, and the consumption of vast public resources, highly talented lawyers of broad common law experience should desirably have been engaged from the outset in the preparation and then presentation of the Crown case.
I do not raise this critically of the prosecutors who were involved: my observation relates to the resourcing of the office. Had that been done, the present difficulty may have been avoided."
Now premier Peter “Media Tart” Beattie has whipped the Queensland Crime and Misconduct Commission to examine Daphnis de Jersey’s comments in the Hanson-Ettridge appeal.
For good measure the Tart wants the CMC to look at “Mad Monk” Abbott’s role in stoking the initial civil action against Hanson. He also wants any loopy conspiracy theorist to come forward and give evidence to the inquiry.
No conspiracy to prosecute Hanson and Ettridge will be found. Maybe, the prosecutors simply were inspired by the findings of the appeal judges in the Sharples case.
This is a true copy of the judgment prepared by Miss Ginger Snatch, Judges’ Associate.