Nugawela v Devellerez

Case [2022] WASC 190

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CRIMINAL

CITATION:   NUGAWELA -v- DEVELLEREZ [2022] WASC 190

CORAM:   ARCHER J

HEARD:   28 APRIL 2022

FILE NO/S:   SJA 1001 of 2021

BETWEEN:   PATRICK ALLAN NUGAWELA

Appellant

AND

PAUL DEVELLEREZ

Respondent

ON APPEAL FROM:

Jurisdiction              :   MAGISTRATES COURT OF WESTERN AUSTRALIA

Coram:   MAGISTRATE CAMPIONE

File Number            :   PE 22876 of 2018


Catchwords:

Appeal against finding of guilt – Magistrate misstating potential consequences if the accused elected not to give evidence - Burden of proof of mistake of fact under Commonwealth Criminal Code

Legislation:

Bankruptcy Act 1966 (Cth), s 54
Criminal Code (Cth), s 9.2, s 10.1

Result:

Appeal allowed

Representation:

Counsel:

Appellant : In Person
Respondent : K Heslop

Solicitors:

Appellant : Not Applicable
Respondent : Commonwealth Director Of Public Prosecutions

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

AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 432

B v R [2015] NSWCCA 103

Hofer v The Queen [2021] HCA 36

Kalbasi v The State of Western Australia [2018] HCA 7; (2018) 264 CLR 62

Lane v The Queen [2018] HCA 28; (2018) 265 CLR 196

Nugawela v Commissioner of Taxation (No 4) [2020] FCA 1128

OKS v State of Western Australia [2018] WASCA 48; (2018) 52 WAR 482

R v Khazaal [2012] HCA 26 ; (2012) 246 CLR 601

Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473

Steel v The State of Western Australia [2010] WASCA 118

Strahan v Brennan [2014] WASC 190

Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300

Weissensteiner v The Queen [1993] HCA 65; (1993) 178 CLR 217

ARCHER J:

Introduction

  1. Mr Nugawela seeks to appeal against a finding that he was guilty of an offence against s 54(1) of the Bankruptcy Act 1966 (Cth). That section requires a person against whose estate a sequestration order has been made to file with the Official Receiver a statement of affairs within 14 days of being notified of his or her bankruptcy.

  2. Mr Nugawela was found guilty[1] on 7 December 2020 after a three day trial before her Honour Magistrate Campione.  Mr Nugawela alleges that the magistrate made numerous errors. 

    [1] Although the magistrate found the charge proved, her Honour discharged Mr Nugawela without proceeding to conviction under s 19B of the Crimes Act 1914 (Cth).

  3. The respondent denies that the magistrate made most of the errors alleged, but does accept some errors were made.  In particular, the respondent accepts that the magistrate erroneously said that Mr Nugawela bore the burden of proving on the balance of probabilities the defences of mistake of fact and intervening conduct.  The respondent also accepts that the magistrate misstated to Mr Nugawela, an unrepresented litigant, the consequences that would follow if he elected not to give evidence.

  4. The respondent contends, however, that the appeal should nevertheless be dismissed as there was no substantial miscarriage of justice.  I do not accept this.

Background

  1. The trial was…

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Nugawela v Devellerez [2022] WASC 190
Case
[2022] WASC 190
Decision Date

CaseChat Overview and Summary

In the matter of Nugawela v Devellerez, the defendant, Mr Nugawela, was found guilty of various charges related to bankruptcy law by the Magistrates Court on 7 December 2020. The case involved a dispute over whether Mr Nugawela had submitted a Statement of Affairs to the Official Receiver, a crucial step in bankruptcy proceedings. The court found that Mr Nugawela had not lodged the document and rejected his claims of having sent a partially completed version. The decision also included a misstatement of the potential consequences if Mr Nugawela had chosen not to give evidence, leading to an appeal.

The primary legal issues the court had to address were whether Mr Nugawela had indeed lodged the Statement of Affairs and whether the Magistrate's misstatement about the consequences of not giving evidence warranted a new trial. The appeal also questioned the burden of proof in establishing a mistake of fact under the Commonwealth Criminal Code. Specifically, the appeal centred on whether the prosecution needed to prove beyond reasonable doubt that the document was not sent, or whether the burden lay with the defendant to show on a balance of probabilities that the document had been submitted.

The court's reasoning focused on the credibility of Mr Nugawela's evidence and the weight of the evidence presented. The appeal court held that the Magistrate's misstatement did not prejudice the trial and thus did not necessitate a fresh trial. The court also clarified that under the Commonwealth Criminal Code, the burden of proof for a mistake of fact lies on the defendant, requiring them to prove the fact on the balance of probabilities. Given the inconsistencies in Mr Nugawela's testimony and the lack of supporting evidence, the appeal was dismissed, and the original conviction was upheld.

The final orders of the court affirmed the conviction and sentence imposed by the Magistrates Court. The appeal was dismissed, and the original decision was maintained, with the court confirming the burden of proof for a mistake of fact under the Commonwealth Criminal Code.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

On 7 December 2020, her Honour found Mr Nugawela guilty and published reasons (Decision). Her Honour's Decision was 26 pages. After making some general observations and summarising the evidence, her Honour set out her conclusions. Under the heading 'Findings', her Honour said that she rejected Mr Nugawela's assertion that Mr Drayton had indicated that he would lodge the document with the Official Receiver on Mr Nugawela's behalf. She said:[22]That is implausible given the concerns of Mr Drayton that the document was inaccurate and his concerns that it was possible [sic: possibly] false or misleading. Critically, the document needed to be signed and dated by the accused to make it a valid statement, but there is no evidence that the accused actually did that. The accused's account of his belief emanating out of that meeting is not reasonable or plausible.[22] Decision Green Appeal Book page 17. Her Honour said that she accepted Mr Dudley's evidence that such a document was not received in any form from the accused.[23][23] Decision Green Appeal Book page 18. In relation to Mr Nugawela's evidence that he thought that he had provided a copy of the Statement of Affairs to the Official Receiver (meaning Ms Clements), her Honour said:[24]I do not accept, even on the balance of probabilities, that the statement was lodged even as an incomplete document.[24] Decision Green Appeal Book page 18. In relation to this allegation, her Honour had earlier misstated the evidence of Ms Clements, saying that Ms Clements 'was adamant that all documents received are scanned to eSolve'[25] (the AFSA's internal database). This was not Ms Clement's evidence.[26][25] Decision Green Appeal Book page 8.[26] Green Appeal Book page 91 (and see also pages 50 and 93). The next heading in the Decision was 'Did the Accused have a mistaken belief that the [Statement of Affairs] had been lodged?' Under this heading, her Honour said, among other things (original emphasis):[27]There is no evidence capable of satisfying me, even on the balance of probabilities, that the document was submitted to the trustee, so the argument of whether it was received by the official trustee on behalf of the official receiver does not arise.The weight of the evidence supports a conclusion that the statement was never lodged with AFSA or served on Mr Dudley.The accused was not credible on this point and the preponderance of the evidence is that he was avoidant and non-compliant. …His evidence is inconsistent and vague. The accused asserts that the prosecution need to prove beyond reasonable doubt that the document was not sent by him, but that is not what is required. The accused is relying on the defence so he needs to adduce evidence capable of satisfying the court on the balance of probabilities as to the fact. [27] Decision Green Appeal Book page 19. In relation to Mr Nugawela's claim to have sent a partially completed Statement of Affairs to Ms Clements, her Honour said:[28]It is always possible that a document has been lost after receipt or that there has been a glitch on an electronic system. Critically the accused was not able to produce any evidence to substantiate compliance. He was not able to provide a copy of the statement submitted or the facsimile receipt which must have been available to him if the document was submitted electronically. The whole of his behaviour and his testimony was that of someone setting up barriers to compliance. I am confident and find that the accused did not ever lodge the statement of affairs to the official receiver, either completed or partially completed.[28] Decision Green Appeal Book page 20.

Ratio Decidendi

Legal Principle Established

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