//
[2021] WASC 274
General information, not legal advice.
Supreme Court of WA
2021-08-13
Archer J
Original judgment source is linked above.
1 Mr Culleton seeks to appeal against his conviction of an offence against s 54(1) of the Bankruptcy Act 1966 (Cth). The offence was that he, 'being a person against whose estate a sequestration order had been made, did fail, within fourteen days from the day on which he was notified of the bankruptcy, to make out and file with the official receiver for the district in which the sequestration order was made, a statement of his affairs and furnish a copy of the statement to the trustee'.
2 Mr Culleton was convicted on 3 April 2019 after trial.
3 Mr Culleton's grounds of appeal are (typographical errors corrected):
1. no jurisdiction
2. matter sitting part heard in the House under motion 163 waiting final determination under s 47 Constitution
3. Australian Financial Security Authority had no standing to bring any form of prosecution as the bankruptcy notice issued was irregular and was done so on a falsehood by a purported creditor being Mr Richard Lester on behalf of Balwyn Nominees Pty Ltd as that order was statute barred in October 2014 through a prior bankruptcy
4. The magistrate ignored the evidence from the prosecutor's witnesses in relation to the 'Stay' of all proceedings 21 days and beyond and was precluded from applying s 54(1) Bankruptcy Act 1966 to conviction which apply within 14 days (strict liability)
5. His Honour ignored mens rea and ss 9.1 and 9.2 Criminal Code Act 1995
Legal principles - appeals from magistrates' decisions[1]
4 The grounds on which appeals may be brought against a conviction by a magistrate are that the magistrate made an error of law or fact (or both), or acted without or in excess of jurisdiction, or that there has been a miscarriage of justice.[2]
7 Unless leave to appeal is granted on one or more grounds, the appeal is taken to have been dismissed.[6]
8 Mr Culleton's submissions are difficult to understand. It appears that he contends the magistrate did not have jurisdiction to hear the charge against Mr Culleton 'as no Commonwealth Magistrate was declared at the commencement of any hearing/trial deeming the matter void, not voidable'.[7]
10 Jurisdiction is conferred by legislation, not by declaration.
11 By s 11 of the Magistrates Court Act 2004 (WA), the Western Australian Magistrates Court has jurisdiction to hear and determine summary offences in Western Australia. It is therefore a State court exercising jurisdiction with respect to the summary conviction of persons charged with offences against the laws of the State.
12 By s 68(2) of the Judiciary Act 1903 (Cth), the Magistrates Court has a 'like jurisdiction' with respect to persons who are charged with offences against the laws of the Commonwealth.
13 Therefore, the Western Australian Magistrates Court has jurisdiction to hear and determine Federal summary offences.
14 An offence contrary to s 54(1) of the Bankruptcy Act is not punishable by imprisonment. By s 4H of the Crimes Act 1914 (Cth), such an offence is a Federal summary offence unless a contrary intention appears. A contrary intention does not appear. Therefore, an offence contrary to s 54(1) of the Bankruptcy Act is a Federal summary offence.
15 Therefore, the Western Australian Magistrates Court has jurisdiction to hear and determine a charge of an offence against s 54(1) of the Bankruptcy Act.
16 There is no merit in ground 1, and I would refuse leave to appeal on this ground.
Ground 2 - matter sitting part heard in the House
17 Ground 2 is that the 'matter [is] sitting part heard in the House under motion 163 waiting final determination under s 47 Constitution'.
18 Section 47 of the Commonwealth of Australia Constitution Act 1900 (Cth) relevantly provides that, until the Parliament otherwise provides, any question respecting the qualification of a senator shall be determined by the Senate. By s 44(iii), a senator is incapable of sitting as a senator if he or she is an undischarged bankrupt.
19 Mr Culleton appears to contend that the Federal Court did not have the power to make a sequestration order because the Senate was dealing with the question of whether he was disqualified, and had not referred that question to the Court of Disputed Returns.[8] He appears to contend that, because the Senate had exclusive jurisdiction to determine whether he was disqualified, the Federal Court could not have jurisdiction to determine something that would have the effect of making him incapable of sitting as a senator. If this is his contention, it is misconceived.
20 The Federal Court's jurisdiction to make sequestration orders is provided by s 43 of the Bankruptcy Act.[9] Section 7(1) of the Bankruptcy Act provides that the Act 'extends to debtors being persons who are not Australian citizens and persons who have privilege of Parliament'. The consequences of such an order to a person who is a senator is a separate issue that is irrelevant to this appeal.[10] The Federal Court's power to make a sequestration order is unrelated to the procedure of the Senate.
21 There is no merit in ground 2, and I would refuse leave to appeal on this ground.
22 Ground 3 alleges that the 'Australian Financial Security Authority had no standing to bring any form of prosecution as the bankruptcy notice issued was irregular and was done so on a falsehood by a purported creditor ... as that order was statute barred in October 2014 through a prior bankruptcy'.
23 It appears that Mr Culleton seeks to argue that, because the sequestration order was, he asserts, invalid:
1. he was therefore not required to file a statement of affairs;
2. he therefore did not contravene s 54 of the Bankruptcy Act;
3. he was therefore not able to be prosecuted; and
4. the prosecutor therefore did not have standing to prosecute him.
24 Where a sequestration order is made but is subsequently set aside on appeal, complex issues arise as to the effect, if any, of the sequestration order up to the point it was set aside.[11] However, in my view, it would not have the effect of retrospectively denying standing to a prosecutor who prosecuted a person for failing to file a statement of affairs after the sequestration order had been made. Accordingly, I consider that there is no merit in ground 3, and I would refuse leave to appeal on this ground.
25 I further note that Mr Culleton has tried, in numerous proceedings, to demonstrate that the sequestration order was invalid. Each attempt failed.
26 First, Mr Culleton appealed against the sequestration order. That appeal was dismissed by the Full Court of the Federal Court.[12]
27 Mr Culleton then applied for special leave to appeal the Full Court's decision. He also sought an extension of a stay that had been made at the time the sequestration order was made[13] and which had been extended on a number of occasions due to further litigation brought by Mr Culleton in the Federal Court. The last extension lapsed on 8 February 2017.[14] Mr Culleton sought that the stay be extended until such time as the special leave application was determined.
29 Finally, on 1 November 2017, Mr Culleton commenced fresh proceedings in the Federal Court seeking, amongst other things, an order 'setting aside and annulling' the sequestration order. The proceedings were dismissed summarily.[17]
30 Although not captured by a ground of appeal, Mr Culleton's written submissions advanced an argument that was logically connected to the issue of standing.[18] This was his contention that the person who issued the prosecution notice did not have the power to commence a prosecution. As Mr Culleton is unrepresented, I will consider this contention even though it is not a ground of appeal.
32 Section 13 of the Crimes Act 1914 provides:
Unless the contrary intention appears in the Act or regulation creating the offence, any person may:
(a) institute proceedings for the commitment for trial of any person in respect of any indictable offence against the law of the Commonwealth; or
(b) institute proceedings for the summary conviction of any person in respect of any offence against the law of the Commonwealth punishable on summary conviction.
33 A contrary intention does not appear in the Bankruptcy Act. Therefore, Mr Devellerez had the power to commence the prosecution. Accordingly, this argument is without merit and must be rejected.
34 In his submissions, Mr Culleton also challenged the power of the Commonwealth DPP to conduct the prosecution.[21] Again, I will consider this contention even though it is not a ground of appeal.
35 Section 6(1)(e) of the Director of Public Prosecutions Act 1983 (Cth) provides that the Director may carry on proceedings for the summary conviction of persons in respect of offences against the laws of the Commonwealth, whether or not the proceedings are commenced by the Director. Therefore, the Director had the power to conduct the prosecution. Accordingly, this argument is without merit and must be rejected.
36 Ground 4 alleges that the 'magistrate ignored the evidence from the prosecutor's witnesses in relation to the "[s]tay" of all proceedings 21 days and beyond and was precluded from applying s 54(1) Bankruptcy Act 1966 to conviction which apply within 14 days (strict liability)'.
Barker J's void order was automatically stayed for a period extending 21 days, to whereby if the matter was voidable, could not have ever offended s 54(1) as that specifically requires it to be within 14 days of when a sequestration order is made, deeming any alleged offence a nonsense. The stay precluded any penalty or order that may arise under 54(1) Bankruptcy Act 1966 as no sequestration order can ever be made without the personal service of a creditor's petition which had never occurred.
38 The sequestration order was made on 23 December 2016.[24] As noted earlier, the court also ordered, at the same time, that there be a stay of all proceedings under the sequestration order for a period of 21 days.[25] Due to further litigation brought by Mr Culleton in the Federal Court, the stay of proceedings was extended on a number of occasions. The last extension lapsed on 8 February 2017.[26]
40 Mr Culleton received that letter, and therefore the notification, by no later than 16 March 2017.[29]
41 By s 54(1) of the Bankruptcy Act, Mr Culleton was required to file a statement of affairs within 14 days of that notification. That is, he was required to file a statement of affairs by no later than 30 March 2017 (being 14 days after 16 March 2017). He did not. He therefore contravened s 54(1).
42 The fact that the sequestration order was stayed for a period of time prior to the notification being sent is immaterial to whether Mr Culleton contravened s 54(1).
43 There is no merit in ground 4, and I would refuse leave to appeal on this ground.
46 By s 54(3) of the Bankruptcy Act, an offence under s 54(1) is an offence of strict liability. Accordingly, it does not have any 'fault elements'[32] for any of the 'physical elements'[33] of the offence.[34] This means that the prosecution does not need to prove, among other things, intention.[35] There was therefore no need for the magistrate to consider whether Mr Culleton intended to commit the alleged offence.
47 Section 9.1 applies only to offences that have a physical element for which there is a fault element. It therefore does not apply to offences of strict liability. There was therefore no need for the magistrate to consider s 9.1 of the Criminal Code.
48 Section 9.2 does apply to strict liability offences. It provides for a mistake of fact defence.
49 During the Magistrates Court trial, Mr Culleton gave evidence that he had been given legal advice that he did not have to complete a statement of affairs due to his ongoing matters before the courts and the Federal Parliament.[36]
50 If true, this would not have been a mistake of fact. It would have been a mistake of law.[37]
51 During the hearing of the appeal, Mr Culleton said that his mistake was that he believed he did not have to complete a statement of affairs due to the stay that had been issued.[38]
52 Again, if true, this would not have been a mistake of fact. It would have been a mistake of law.[39]
53 Section 9.2 applies only to mistakes of fact. There was therefore no need for the magistrate to consider s 9.2 of the Criminal Code.
54 There is no merit in ground 5, and I would refuse leave to appeal on this ground.
55 Under s 40(1)(e) of the Criminal Appeals Act 2004 (WA), I have the power to admit new or fresh evidence in the hearing of the appeal. The approach to be taken to such evidence in an appeal against conviction was recently summarised by the Court of Appeal in Austic v The State of Western Australia.[40]
56 Prior to the hearing, Mr Culleton communicated to the court that he intended to adduce additional evidence during the hearing.
57 Mr Culleton was advised that he would need to seek leave to do so, and was advised that specified paragraphs of Austic set out the approach to be applied by an appeal court, depending on whether the evidence is 'new evidence' or 'fresh evidence'.
59 Most of the documents annexed to the Affidavit existed prior to the Magistrates Court trial. The Affidavit does not assert that the documents could not have been obtained for use at the trial with reasonable diligence. A number of the documents clearly could have been.[43]
60 During the hearing of the appeal, Mr Culleton explained, in effect, that he had not adduced the evidence in the Magistrates Court trial because he had been under a lot of pressure and had to choose where to direct his attention and time. He said he chose to direct his attention and time at 'the top league' rather than what was 'only a Magistrates Court matter'.[44]
61 The Affidavit itself is primarily argumentative, not factual. To the extent that it asserts matters of fact, these matters do not add to the existing material or are not relevant to the merits of the appeal.
62 In addition to not being relevant to the merits of the appeal, the Affidavit includes some misleading statements. In particular, Mr Culleton asserts (formatting removed):[45]
On the 4th May 2020, the Australian Federal Police fully investigated the matter post April 2019 in relation to the complaint received from the AEC, claiming among other things, that I was an alleged undischarged bankrupt and subsequently after extensive investigation by the AFP over a period of just over 1 year, based on the prima facie evidence and the law, it was found that the claim by the AEC was held to be of no merit and was declared that the Federal Court ruling in WAD 492/2016 was of no legal effect and was declared in writing on the 4th May 2020. Annexed and marked RNC 17 is a true copy of the AFP letter dated 4 May 2020 and the public notice made through the mainstream media.
63 WAD 492/2016 was the file number of the proceedings before Barker J in which the sequestration order was made.
64 Annexure 'RNC 17' is a copy of an email from the Australian Federal Police (AFP) to Mr Culleton. It states:[46]
I refer to the information received by the Australian Federal Police (AFP) in April 2019 from the Australian Electoral Commission (AEC) alleging offences by you, contrary to sections 136 and 137 of the Criminal Code (Cth) 1995.
On 24 April 2019, the AFP commenced an investigation into the aforementioned allegation. During the course of the investigation AFP members examined a significant volume of material obtained through enquiries, received from the AEC and provided by yourself.
As a result of those enquiries, the AFP has determined there is insufficient evidence to substantiate any offence has occurred. As a result the matter will now be finalised.
If you require any further information please contact [name, phone number and email address redacted].
65 Plainly, the AFP was not advising Mr Culleton that there was insufficient evidence that he had ever committed any criminal offence. It is plain that the email dealt with the allegations in relation to s 136 and s 137 of the Commonwealth Criminal Code. Section 136 provides that it is an offence to make a false or misleading statement in particular circumstances. Section 137 is in similar terms in relation to giving false or misleading information. From the annexed media reports in 'RNC 17', and the Australian Electoral Commission's (AEC) letter to Mr Culleton in 'RNC 16', it appears that the AEC had alleged that Mr Culleton had provided false information on his nomination form to be elected as a senator in the 2019 federal elections in declaring that he was qualified to be elected as a senator.
66 Contrary to Mr Culleton's assertion, the email does not declare that the Federal Court ruling in WAD 492/2016 was of no legal effect. The email related solely to the investigation into whether there was evidence that Mr Culleton had made a false or misleading statement or given false or misleading information. There are many reasons why the AFP may have concluded there was insufficient evidence that Mr Culleton had committed an offence against s 136 or s 137 of the Commonwealth Criminal Code. The conclusion did not inevitably entail an opinion that the sequestration order made in WAD 492/2016 was of no legal effect. In any event, such an opinion held by the AFP would be entirely irrelevant to whether or not WAD 492/2016 was of no legal effect.
67 There is nothing admissible in the Affidavit which supports the merits of any of Mr Culleton's grounds of appeal. I decline to accept it into evidence.
68 Mr Culleton also filed a number of applications in the appeal proceedings.
69 In the first, filed 20 August 2019, Mr Culleton applied for:
Validation of jurisdiction and standing within the constitutional limits.
Ground 1 an estoppel exists as to the jurisdiction of the Crown of Australia and Queen of Australia as the Constitution for the Commonwealth provides for the Crown of the United Kingdom and Queen of United Kingdom to the exclusion of any other;
Ground 2 an estoppel exists as to the jurisdiction of the Crown of Australia and Queen of Australia for want of constitutional compliance to constitutional law at clauses 2, 3 and 5, supported by preamble and sections 30 and 32 Interpretation Act 1889 (UK);
Ground 3 an estoppel exists against the jurisdiction of any Federal Court, under Queen of Australia and Crown of Australia, as there is no case law to judicially consider the jurisdiction as constitutionally compliant by proof of authority;
Ground 4 an estoppel exists to the jurisdiction of the Crown of Australia and the Queen of Australia by the inherent disability, or failure, of any domestic law to alter modify or otherwise suspend the operation of the constitutional law.
70 In the second, filed 17 October 2019, Mr Culleton applied for:
1. Crown Order(s) under the judicial powers of the Commonwealth and Crown to have the matter heard in her Majesties rightful title (Invoked).
2. To have the matter heard in full compliance with Sections 16 and 17 (2) Supreme Court Act 1935, in Crown Jurisdiction.
3. Order for qualification (Oath of Office and Allegiance) of the parties including but not limited to any other oath as being compliant to s 88 Imperial Act Application Act 1922.
4. Order to strike down any order and/or decision made under the Queen of Australia as void and unlawful.
5. Orders to be compliant to s 7, 8 Acts Interpretation Act 1901 (Cth) and s 8 and 37(c) (d) (e) and (f) Interpretations Act 1984 Western Australia.
6. Order lifting the suspension of licence [number redacted] (WA) in the name of Rodney Norman Culleton.
71 On 21 July 2020, I made provisional orders that the applications would be listed with the substantive hearing of the appeal, and ordered Mr Culleton to file submissions in support of the applications and the appeal by 14 August 2020.
72 On 23 July 2020, Mr Culleton made a third application in the appeal. He sought:
73 On 25 January 2021, Mr Culleton filed a fourth application. In this application, Mr Culleton wrote:
The applicant applies for - Declaration for the application of the Crown; and
Evidence of the person named on the prosecution notice as Paul Devellerez's authority to commence proceedings, pursuant to s 13 Crimes Act 1914, against a subject of the Queen, pursuant [to] s 34(2) Constitution.
Order Sought;
Quo-Warranto against the prosecutor; and
Writ of Certiorari issued out of the Crown side of the Queen's Bench.
74 I made an order at the start of the hearing that this fourth application would also be dealt with in the hearing.[47]
75 I dealt with the third application on 16 September 2020. I extended the time within which Mr Culleton was required to file submissions in support of the applications and the appeal to 21 October 2020. I also dismissed his application in relation to his license suspension.
76 Mr Culleton filed submissions on 22 October 2020, but, contrary to my order, these did not address the orders he sought in the first two applications.
77 It is difficult to understand why Mr Culleton seeks the orders set out in the first two applications. On their face, they do not appear to have any merit. Given Mr Culleton's breach of my orders, there are no written submissions from him that may have shed some light on the orders he seeks.
79 The fourth application is particularly difficult to understand. It appears to relate to Mr Culleton's claim that Mr Devellerez did not have the power to commence the prosecution. Further, in relation to the orders sought in the fourth application, relief in the nature of quo warranto or certiorari is to be sought by an application filed in accordance with O 56 of the Rules of the Supreme Court 1971 (WA), not by an application in an appeal.
80 In any event, the applications are not relevant to the appeal.
81 In relation to the first application, Mr Culleton could not be contending that an estoppel arises in relation to this court's jurisdiction. Mr Culleton invokes this court's jurisdiction to determine his appeal against his conviction in the Magistrates Court. If estoppel in relation to some other court is relevant to why his conviction should be quashed, it should have been the subject of a ground of appeal and submissions. It is difficult to comprehend, however, how estoppel in relation to some other court could be relevant to the appeal.
82 In relation to the second application, the first, third and fourth orders sought are incomprehensible and would never be made.
83 There is no basis upon which the second order would or could be made. Section 16 of the Supreme Court Act 1935 (WA) relates to this court's jurisdiction. Mr Culleton could not sensibly challenge this court's jurisdiction - he invokes it himself by bringing this appeal. Section 17(2) of the Supreme Court Act gives the court the power to transfer a matter into a lower court if it is within the lower court's jurisdiction. It is not relevant to the appeal.
84 There is no basis upon which the fifth order would or could be made. Section 7 of the Acts Interpretation Act 1901 (Cth) and s 37 of the Interpretation Act 1984 (WA) relate to the effect of the repeal or amendment of an Act. Section 8 of the Acts Interpretation Act 1901 was repealed in 2011. Section 8 of the Interpretation Act 1984 provides that a written law is always speaking. None of these provisions are relevant to the appeal.
85 The sixth order was overtaken by the orders sought and dismissed in the third application. In any event, his appeal has now been dismissed.
86 In relation to the fourth application, as explained earlier, any person may commence proceedings in relation to offences of this type.
87 I would dismiss the first, second and fourth applications.
88 I would refuse leave to appeal on each ground and dismiss the remaining applications. As I would refuse leave on each ground, the appeal is taken to be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
Research Associate to the Honourable Justice Archer
[1] This section reproduces statements I have made in other decisions.
[5] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
[7] Appellant's Submissions page 3 [1]. See also, among other references, Appellant's Submissions page 6 [1] - [3], and page 11 [2].
[8] See Appellant's Submissions page 5 [4(f)], page 7 [6B], page 8 [6C] and [9].
[10] See also Culleton v Balwyn Nominees Pty Ltd [2018] FCA 313 [35] - [39].
[11] See the cases cited in Culleton v Balwyn Nominees Pty Ltd [2017] FCAFC 8 [1].
[12] Culleton v Balwyn Nominees Pty Ltd [2017] FCAFC 8.
[13] Exhibit 5 in the Magistrates Court trial. The order was made in WAD 492/2016 by Barker J following his Honour's judgment in Balwyn Nominees Pty Ltd v Culleton [2016] FCA 1578.
[14] Exhibit 11B. This was admitted by Mr Culleton in his evidence at trial - see the transcript of the Magistrates Court trial (Trial Transcript) 28 February 2019 page 112.
[15] Culleton v Balwyn Nominees Pty Ltd [2017] HCATrans 41.
[16] Although Mr Culleton asserted that his lawyers made him withdraw it, he did not dispute that he had withdrawn it - see ts 27, 29.
[17] Culleton v Balwyn Nominees Pty Ltd [2018] FCA 313.
[18] See Appellant's Submissions page 4 [2] - [3].
[19] Consistently with cl 3 of sch 1 of the Criminal Procedure Act 2004 (WA), which applies pursuant to s 68(1) of the Judiciary Act.
[20] Appellant's Submissions page 4 [2] - [3].
[21] See, for example, the Appellant's Submissions pages 11 - 13 [3] - [17].
[22] Appellant's Submissions page 9 [14].
[23] Appellant's Submissions page 9 [14].
[24] Exhibit 5 in the Magistrates Court trial. The order was made in WAD 492/2016 by Barker J following his Honour's judgment in Balwyn Nominees Pty Ltd v Culleton [2016] FCA 1578.
[26] Exhibit 11B. This was admitted by Mr Culleton in his evidence at trial - see the Trial Transcript 28 February 2019 page 112.
[27] See the Trial Transcript 28 February 2019 page 135.
[29] See the Trial Transcript 27 February 2019 pages 66 - 68 and exhibits 13 - 15.
[30] See Walden v Hensler [1987] HCA 54; (1987) 163 CLR 561, 592.
[33] See s 3.1 and s 4.1 of the Criminal Code (Cth).
[34] See s 6.1 of the Criminal Code (Cth).
[35] See s 5.1 of the Criminal Code (Cth).
[36] Trial Transcript 28 February 2019 pages 118, 123 - 124. See also Mr Culleton's questions of witnesses as to s 9.2 of the Criminal Code (Cth), at Trial Transcript 27 February 2019 pages 30 - 31 and Trial Transcript 28 February 2019 page 22.
[37] Ostrowski v Palmer [2004] HCA 30; (2004) 218 CLR 493 [12] (Gleeson CJ and Kirby J), [41], [46] and [53] - [59] (McHugh J), and [85] and [90] (Callinan and Heydon JJ).
[39] Ostrowski v Palmer [2004] HCA 30; (2004) 218 CLR 493 [12] (Gleeson CJ and Kirby J), [41], [46] and [53] - [59] (McHugh J), and [85] and [90] (Callinan and Heydon JJ).
[40] Austic v The State of Western Australia [2020] WASCA 75 [49] - [66]. See also Tsang v Francis [2021] WASCA 131 [79] - [87].
[42] The application will be addressed in the next section.
[43] See for example annexure 'RNC 0' which purports to be two pages of the 2013 Supreme Court judgment of Curthoys DCJ (as his Honour then was) upon which the creditor's petition was founded. See Culleton v Balwyn Nominees Pty Ltd [2017] FCAFC 8 [3].
[48] See ts 19 - 20, 35. See also ts 39.
(2005) 30 WAR 473
(1987) 163 CLR 561
(2004) 218 CLR 493