Culleton v Elliott - [2019] WASC 407

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   CULLETON -v- ELLIOTT [2019] WASC 407
CORAM:   QUINLAN CJ
HEARD:   7 NOVEMBER 2019
DELIVERED          :   7 NOVEMBER 2019
FILE NO/S:   SJA 1100 of 2019
BETWEEN:   RODNEY NORMAN CULLETON
Appellant
AND
SHAYNE ELLIOTT
Respondent

ON APPEAL FROM:
Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA
Coram:   MAGISTRATE R JOHNSTON
Citation:   RODNEY NORMAN CULLETON v SHAYNE ELLIOTT
File Number             :   NG 114 of 2019

Catchwords:

Criminal law - Single judge appeal - Whether grounds of appeal have reasonable prospects of success - Leave refused

Legislation:

Criminal Appeals Act 2004 (WA)
Criminal Code (WA
Criminal Code Act 1995 (Cth)
Criminal Procedure Act 2004 (WA)
Magistrates Court Act 2004 (WA)
Royal Style and Titles Act 1973 (Cth)

Result:

Leave to appeal in relation to each ground is refused

Category: B

Representation:

Counsel:

Appellant	:	In Person
Respondent	:	No Appearance

Solicitors:

Appellant	:	In Person
Respondent	:	Herbert Smith Freehills

Case(s) referred to in decision(s):

Hopes v Australian Securities and Investments Commission [2016] WASC 198
Hopes v Australian Securities and Investments Commission [2017] WASCA 108

QUINLAN CJ:

This is an appeal from a decision of the Magistrates Court, under pt 2 of the Criminal Appeals Act 2004 (WA) (the Criminal Appeals Act).
Today I refused leave in relation to each ground of appeal in the appeal notice, pursuant to s 9 of the Criminal Appeals Act. In accordance with s 9(3), the appeal is therefore taken to have been dismissed.
These are my reasons for doing so.
Mr Culleton commenced a private prosecution against the respondent by signing, and then lodging, a Prosecution Notice with the Magistrates Court at Narrogin pursuant to the Criminal Procedure Act 2004 (WA) (the Prosecution Notice). The Prosecution Notice was lodged on 21 December 2018.
The Prosecution Notice contained a lengthy description of the alleged offence by the respondent, an employee of the ANZ Bank.
A summary of the alleged offence (which was set out in submissions made on behalf of the respondent to the Magistrates Court and which the learned Magistrate accepted as accurate) is as follows:
(a)Mr Elliott commenced legal action against Mr Culleton on 29 August 2012 based on a fictitious mortgage (CIV 2473/2012 in the Supreme Court of Western Australia) without authority to do so.
(b)Mr Elliott knowingly frustrated 'the opportunity of settlement by preventing payment to an unknown lender/creditor' and did so 'by committing fraud' to:
(A)unlawfully obtain property;
(B)induce landowners to deliver their property; and
(C)gain a pecuniary benefit he had no right to.
(c)Mr Elliott shut down existing trading accounts of Mr Culleton without giving notice or obtaining Mr Culleton's consent.
(d)Mr Elliott, through his actions, has obtained 'stolen goods' from Mr Culleton and has sold those goods.
I agree with this description of what is alleged by Mr Culleton as a fair description of Mr Culleton's complaint (save that CIV 2473 of 2012 also involved a corporation).
The Prosecution Notice identified various written laws pursuant to which the offence was alleged to have occurred including, relevantly, provisions of the Criminal Code (WA) and the Criminal Code Act 1995 (Cth) (Criminal Code Act).
On 22 July 2019, a Magistrate heard, and allowed, an application to dismiss the prosecution. The learned Magistrate's reasons for doing so were, essentially:
(a)that the prosecution notice did not reasonably reveal an offence against a law of the Commonwealth and, in particular, the Commonwealth offences identified in the prosecution notice (being s 134 and s 135 of the Criminal Code Act 1995 (Cth));[1] and
(b)insofar as the prosecution notice alleged offences against the Criminal Code (WA), Mr Culleton was not an authorised person within the meaning of s 20 of the Criminal Procedure Act 2004 (WA) able to commence a State prosecution.
[1] The relevance of this conclusion was that a private prosecution may be commenced in relation to offences against a law of the Commonwealth (Crimes Act 1914 (Cth), s 13)
Mr Culleton filed an appeal pursuant to pt 2 of the Criminal Appeals Act against the learned Magistrate's decision. The appeal notice identified the following grounds of appeal:
1.Failure to confirm and maintain jurisdiction previously declared to the Crown.
2.Magistrate erred when making her decision without dealing with the presumption and the rule of evidence before the court.
3.Magistrate erred in her decision claiming that the offence was made against land when the offence(s) was factually against a company registered with Australian Securities Investment Commission governed under commonwealth law.
4.Magistrate breached the principles of procedural fairness.
Leave is required for each ground of appeal.
On 24 September 2019, the Principal Registrar made an order that Mr Culleton's application for leave to appeal be listed before a judge on 7 November 2019. The respondent was not required to attend. The Principal Registrar also made orders in relation to the filing of an outline of submissions by Mr Culleton.
Mr Culleton filed an outline of submissions on 5 November 2019.
The bulk of the outline of submissions is concerned with a tired and unmeritorious argument challenging the validity of the Royal Style and Titles Act 1973 (Cth) providing that the royal style and titles of Her Majesty, in this country, are 'Elizabeth the Second, by the Grace of God Queen of Australia and Her other Realms and Territories, Head of the Commonwealth'.
The argument is hopelessly misconceived and has previously been rejected in decisions of this and other courts.[2]
[2] See e.g. Hopes v Australian Securities and Investments Commission [2016] WASC 198 and Hopes v Australian Securities and Investments Commission [2017] WASCA 108.
At the hearing of the matter today, Mr Culleton handed up an affidavit attaching various statutes, judicial decisions and other material relevant to the argument concerning Her Majesty's style and title as Queen of Australia.
Mr Culleton also referred to an affidavit he had filed on 6 November 2019. While that affidavit was not on the hard copy court file, I was able to access it electronically in the course of the hearing. That affidavit contains certain factual material in relation to Mr Culleton's dispute with the ANZ Bank. It does not address the matters determined by the learned Magistrate in dismissing the Prosecution Notice.
I advised Mr Culleton that he would, in addition to his written submissions, be provided a further opportunity to make oral submissions in support of the application for leave (limited to 30 minutes).
Mr Culleton spent the better part of that opportunity challenging my authority to sit as a judge of this Court or yelling at me. He also maintained that I must first determine an application in an appeal in relation to which, in essence, Mr Culleton sought to agitate the conspiracy theory concerning the royal style and title of Her Majesty and other amphigories concerning the legal system in this country. I declined to do so, they having no bearing on whether there were reasonable grounds to appeal the learned Magistrate's decision.
Nothing in the submissions made by Mr Culleton reveals a ground of appeal from the decision of the learned Magistrate that has a reasonable prospect of success.
Briefly stated, her Honour was undoubtedly correct to conclude that the Prosecution Notice issued by Mr Culleton did not disclose an offence against a law of the Commonwealth. In particular, the Commonwealth offence provisions identified in the Prosecution Notice (the Criminal Code Act, s 134 and s 135) are concerned with fraudulent conduct concerning property that belongs to a 'Commonwealth entity' or in relation to a person that is a 'Commonwealth entity'.
A Commonwealth entity is defined the Criminal Code Act as the Commonwealth or a Commonwealth authority. A Commonwealth authority means a body established by or under a law of the Commonwealth. Bodies established by or under the Corporations Act 2001 (WA) are expressly excluded from that definition (contra proposed ground of appeal 3).
There is no arguable basis that the offence described in the Prosecution Notice involves either a Commonwealth authority or the property of a Commonwealth authority. None of the alleged grounds of appeal could provide any basis for avoiding that result.
Similarly, the learned Magistrate was correct to hold that insofar as the prosecution notice alleged offences against the Criminal Code (WA), Mr Culleton was not an authorised person within the meaning of s 20 of the Criminal Procedure Act 2004 (WA) able to commence a prosecution.
In that regard, it is a peculiar feature of the position taken by Mr Culleton that the court should disregard, as invalid, any legislation assented to in the name of Her Majesty, Queen of Australia, and yet has brought both the prosecution in the Magistrates Court and this appeal pursuant to statutes that meet that very description (namely, the Magistrates Court Act 2004 (WA), the Criminal Procedure Act 2004 (WA), and the Criminal Appeals Act 2004 (WA)).
Mr Culleton's appeal is without merit, and has already diverted enough of the Court's limited resources from the cases of other litigants before the Court.
Leave to appeal in relation to each ground is refused.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
BC
Principal Associate to the Honourable Chief Justice Quinlan
7 NOVEMBER 2019