Nugawela v Devellerez
[2022] WASC 190
•28 APRIL 2022
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
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.
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).
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.
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
The trial was heard on 27 and 28 May and 20 August 2020. Mr Nugawela represented himself in the trial.
A strict liability offence
By s 54(3) of the Bankruptcy Act, an offence against s 54(1) is an offence of strict liability. Accordingly, it does not have any 'fault elements'[2] for any of the 'physical elements'[3] of the offence.[4] This means that the prosecution does not need to prove, among other things, intention.[5]
The defences
[2] As to which, see s 3.1 and s 5.1 of the Criminal Code, being the schedule to the Criminal Code Act 1995 (Cth).
[3] As to which, see s 3.1 and s 4.1 of the Criminal Code.
[4] Section 6.1 of the Criminal Code.
[5] See s 5.1 of the Criminal Code.
Defences to a strict liability offence include mistake of fact under s 9.2 of the Commonwealth Criminal Code,[6] intervening conduct under s 10.1 and mental impairment under s 7.3. Mr Nugawela raised each of these defences in the trial.
[6] Section 6.1(1)(b) of the Criminal Code.
Section 9.2 of the Criminal Code provides (original emphasis):
9.2Mistake of fact (strict liability)
(1)A person is not criminally responsible for an offence that has a physical element for which there is no fault element if:
(a)at or before the time of the conduct constituting the physical element, the person considered whether or not facts existed, and is under a mistaken but reasonable belief about those facts; and
(b)had those facts existed, the conduct would not have constituted an offence.
(2)A person may be regarded as having considered whether or not facts existed if:
(a)he or she had considered, on a previous occasion, whether those facts existed in the circumstances surrounding that occasion; and
(b)he or she honestly and reasonably believed that the circumstances surrounding the present occasion were the same, or substantially the same, as those surrounding the previous occasion.
Note: Section 6.2 prevents this section applying in situations of absolute liability.
Section 10.1 of the Criminal Code provides (original emphasis):
10.1Intervening conduct or event
A person is not criminally responsible for an offence that has a physical element to which absolute liability or strict liability applies if:
(a)the physical element is brought about by another person over whom the person has no control or by a non-human act or event over which the person has no control; and
(b)the person could not reasonably be expected to guard against the bringing about of that physical element.
A person charged with a Commonwealth offence who wishes to deny criminal responsibility by relying on s 9.2 or s 10.1 bears an evidential burden in relation to such a matter.[7]
[7] Section 13.3 of the Criminal Code.
An evidential burden does not require proof on the balance of probabilities. 'Evidential burden' is defined in s 13.3(6) of the Criminal Code to mean 'the burden of adducing or pointing to evidence that suggests a reasonable possibility that the matter exists or does not exist'. This requires 'no more than slender evidence'.[8] Further, 'for the purposes of establishing whether the evidential burden … has been discharged, the evidence may be taken at its most favourable to the accused'.[9]
[8] R v Khazaal[2012] HCA 26; (2012) 246 CLR 601 [74] (Gummow, Crennan and Bell JJ).
[9] Khazaal [74] (Gummow, Crennan and Bell JJ).
In addition, an evidential burden may be discharged by the evidence adduced by the prosecution.[10]
[10] Section 13.3(4) of the Criminal Code.
If the evidential burden is discharged, the prosecution bears the legal burden of negativing the defence beyond reasonable doubt.[11]
[11] B v R [2015] NSWCCA 103 [27] (Ward JA), [217] (Simpson J), and [339] (Wilson J agreeing). See also, in the similar context of self‑defence under the Criminal Code (WA),
By contrast, an accused must establish a defence of mental impairment under s 7.3 of the Criminal Code on the balance of probabilities.[12]
The alleged mistakes of fact
[12] Section 7.3(3) of the Criminal Code.
While not entirely clear, Mr Nugawela appeared to raise the mistake of fact defence on the following bases:
1.he mistakenly believed that the trustee was going to file on his behalf the statement of affairs required by s 54(1) of the Bankruptcy Act 1966 (Statement of Affairs);[13]
2.he had sent a partially completed Statement of Affairs to the Official Receiver and mistakenly believed that that was sufficient to comply with the legal requirements;[14] and
3.he mistakenly believed that he was not required to file a Statement of Affairs because it was the trustee's obligation to file it.[15]
[13] See the Reasons For Decision given by the learned magistrate on 7 December 2020 (Decision) in the Green Appeal Book pages 5, 13 - 14, 17 and 19 - 20 and the Defendant Closing Address dated 4 November 2020, filed by Mr Nugawela in the Magistrates Court (Mr Nugawela's Trial Submissions) in the Yellow Appeal Book at page 113 (paragraphs 12.3(iii) - (iv)).
[14] See the Decision Green Appeal Book pages 5, 14 - 15 and 18 - 19, Mr Nugawela's Trial Submissions Yellow Appeal Book page 113 (paragraphs 12.3(v) - (viii)) and ts 36 (where Mr Nugawela confirmed this in the appeal hearing).
[15] See the Decision Green Appeal Book pages 5 and 22 - 23 and ts 16 (where, in the appeal hearing, counsel for the respondent identified this as a defence).
For the purposes of this appeal, it is only necessary to detail the first two.
The first alleged mistake of fact - the trustee (via Mr Drayton) would file it
The first alleged mistake of fact was based on a meeting Mr Nugawela had with a Mr Drayton. Mr Drayton was an accountant who worked with and assisted a Mr Dudley. Mr Dudley was the person appointed as the trustee of the bankrupt estate of Mr Nugawela.
Mr Nugawela asserted that he had met with Mr Drayton to fill in the information required by a Statement of Affairs. Mr Nugawela asserted that Mr Drayton took copious notes. Mr Nugawela said he thought Mr Drayton was going to use the information in his notes to complete the Statement of Affairs and file it with the Official Receiver.
Mr Drayton gave evidence that he had met with Mr Nugawela and that Mr Nugawela had begun to fill in a Statement of Affairs, but that, after some interjections by Mr Drayton, Mr Nugawela stopped filling it in and said he would fill it in later.[16]
The second alleged mistake of fact - he sent a partially completed one to the Official Receiver (by sending it to Ms Clements)
[16] Green Appeal Book pages 160 and 182 - 184. And see the Decision Green Appeal Book pages 11 - 12.
The second alleged mistake of fact was based on Mr Nugawela's claim that he had sent a Statement of Affairs to a Ms Clements in December 2017, and believed, even though it was incomplete, that this would be sufficient to comply with the legislation.[17] Ms Clements was an officer of the Australian Financial Security Authority (AFSA). The AFSA fulfils the role of the Official Receiver.
[17] This was confirmed by Mr Nugawela during the hearing of the appeal - see ts 36.
There was no evidence that a Statement of Affairs was received by Ms Clements in December 2017 (or at any time). Ms Clements also gave evidence as to the manner in which records were kept by the AFSA[18] and said that she had not seen such a document.[19] She said she received two faxes from Mr Nugawela in December 2017, but neither contained a Statement of Affairs.[20]
The alleged intervening conduct
[18] Green Appeal Book pages 50, 91 and 93.
[19] Green Appeal Book pages 81, 90 and 93 - 94.
[20] Green Appeal Book pages 67 - 69.
Mr Nugawela's intervening conduct defence appeared to be based on Mr Nugawela's allegation that the trustee had a duty to assist him and had failed in that duty.[21] This defence turned upon whether, as a matter of statutory construction, there was such a duty and, if so, whether Mr Nugawela did need assistance (and, arguably, whether the trustee knew or ought to have known this).
The Decision
[21] See Mr Nugawela's Trial Submissions Yellow Appeal Book pages 124 - 126.
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.
Her Honour further accepted the evidence of Mr Drayton and Mr Dudley that they did not receive a Statement of Affairs.[29]
[29] Decision Green Appeal Book page 20.
Her Honour concluded this section by saying:[30]
… the evidence of the accused is implausible, inconsistent and simply not credible. … The evidence of the prosecution witnesses is quite compelling that the document had not been received. The only reasonable and rational conclusion to draw from the evidence is that the accused did not in fact lodge the document as claimed.
[30] Decision Green Appeal Book page 21.
Her Honour then dealt with Mr Nugawela's claim that the trustee had failed in his duty to assist Mr Nugawela.[31]
[31] Decision Green Appeal Book pages 21 - 23.
Her Honour found, in effect, that no such duty arose.[32] Her Honour said that '[t]he preponderance of evidence does not support a conclusion that the accused was unable or incapable of completing the statement'.[33]
[32] Decision Green Appeal Book pages 21 - 22.
[33] Decision Green Appeal Book page 22.
Her Honour further found that, while Mr Nugawela might have believed that the trustee was going to get him assistance, this was not reasonable.[34] Her Honour concluded:[35]
The accused's evidence that he held this belief is not particularly plausible. I am not satisfied that the accused has met the evidentiary burden that his belief was reasonable.
The prosecution have negatived that defence beyond reasonable doubt.
Appeals from magistrates' decisions[36]
[34] Decision Green Appeal Book pages 22 - 23. See also ts 16 - 17.
[35] Decision Green Appeal Book page 23.
[36] This section reproduces or draws upon statements I have made in other decisions.
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). However, under s 19B(3)(b) of the Crimes Act, Mr Nugawela has the same right of appeal as if he had been convicted.
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.[37]
[37] Criminal Appeals Act 2004 (WA) s 8(1).
Leave to appeal is required.[38]
[38] Criminal Appeals Act s 9(1).
The court must not grant leave to appeal on a ground of appeal unless it is satisfied that the ground has a reasonable prospect of succeeding.[39] That means that the ground is required to have a real, rational and logical prospect of succeeding.[40]
[39] Criminal Appeals Act s 9(2).
[40] Samuels v The State of Western Australia [2005] WASCA 193; (2005) 30 WAR 473 [56].
Unless leave to appeal is granted on one or more grounds, the appeal is taken to have been dismissed.[41]
[41] Criminal Appeals Act s 9(3).
When considering a magistrate's reasons, it is necessary to keep in mind the nature of the work of magistrates. As was pointed out by Martin CJ in Strahan v Brennan,[42] magistrates are required to conduct cases efficiently and with a degree of informality given the large volume of cases they hear each day. Accordingly,[43]
it is not appropriate to scrutinise the reasons for decision given by magistrates with a fine‑tooth comb or with an eye keenly attuned to the identification of error. Nor is it appropriate for the court to infer from infelicity of language that error is thereby demonstrated. That is because, of necessity, magistrates are required to perform their important functions in a different time frame to that which applies in the superior courts and in that context it is to be expected that some infelicity of language is likely to occur from time to time.
[42] Strahan v Brennan [2014] WASC 190 [89] ‑ [90].
[43] Strahan [90].
These observations may have less weight when, as here, a magistrate has reserved their decision after a hearing and delivered it at a later date. Nevertheless, a magistrate in such a case must still manage a large volume of cases daily and is still faced with the requirement to conduct cases efficiently and with a degree of informality. It remains inappropriate to scrutinise their reasons with a fine‑tooth comb and it is still to be expected that some infelicity of language is likely to occur from time to time, even with reserved decisions.
If, despite error, no substantial miscarriage of justice
By s 14(2) of the Criminal Appeals Act, even if a ground of appeal might be decided in favour of Mr Nugawela, the court may dismiss the appeal if it considers that no substantial miscarriage of justice has occurred (the proviso).[44]
[44] Criminal Appeals Act s 14(2).
A necessary condition of the application of the proviso is that the appellant's guilt was established beyond reasonable doubt.[45] The appellate court must make an independent assessment of whether, despite the error, guilt was proved beyond reasonable doubt on the admissible evidence at the trial that was had.[46] In considering this, the appellate court must make 'due allowance for the "natural limitations" that exist in the case of an appellate court proceeding wholly or substantially on the record'.[47]
[45] Hofer v The Queen [2021] HCA 36 [54] (Kiefel CJ and Keane and Gleeson JJ, with whom Gageler J broadly agreed).
[46] Hofer [59] and [62] (Kiefel CJ and Keane and Gleeson JJ, with whom Gageler J broadly agreed).
[47] Hofer [62] (Kiefel CJ and Keane and Gleeson JJ, with whom Gageler J broadly agreed), citing Weiss v The Queen [2005] HCA 81; (2005) 224 CLR 300 [41]. See also Gageler J [91] and [93].
Some errors will prevent the appellate court from making that assessment.[48] These may include (citations omitted):[49]
cases which turn on issues of contested credibility, cases in which there has been a failure to leave a defence or partial defence for the jury's consideration and cases in which there has been a wrong direction on an element of liability in issue or on a defence or partial defence.
[48] Hofer [60] (Kiefel CJ and Keane and Gleeson JJ, with whom Gageler J broadly agreed), citing Kalbasi v The State of Western Australia [2018] HCA 7; (2018) 264 CLR 62 [15]. See also at [41].
[49] Kalbasi [15], cited in Hofer [60] (Kiefel CJ and Keane and Gleeson JJ, with whom Gageler J broadly agreed).
In such cases, the proviso cannot be applied.
Further, while it is a necessary condition of the application of the proviso that the appellant's guilt was established beyond reasonable doubt, this will not always be sufficient to permit the proviso to be applied.[50] This is because 'some errors will establish a substantial miscarriage of justice even if the appellate court considers that conviction was inevitable'.[51]
[50] Hofer [54] (Kiefel CJ and Keane and Gleeson JJ, with whom Gageler J broadly agreed).
[51] Lane v The Queen [2018] HCA 28; (2018) 265 CLR 196 [38] (Kiefel CJ, Bell, Keane and Edelman JJ).
In Weiss,[52] the High Court identified two categories of cases as examples of cases in which it may be proper to allow an appeal and order a new trial even though the appellate court was satisfied that guilt was proved beyond reasonable doubt.[53]
[52] Weiss [45] - [46].
[53] AK v The State of Western Australia [2008] HCA 8; (2008) 232 CLR 432 [87] (Heydon J) and OKS v State of Western Australia [2018] WASCA 48; (2018) 52 WAR 482 [92] (Buss P), [258] (Beech JA), [259] (Pritchard J, as her Honour then was). Although the decision in OKS was reversed on appeal, this part of the decision was not the subject of the appeal.
The first category was cases where there had been a 'significant denial of procedural fairness at trial'.[54]
[54] Weiss [45]. See also AK [87] (Heydon J) and OKS [92] (Buss P), [258] (Beech JA), [259] (Pritchard J, as her Honour then was).
The second category was cases where the 'errors or miscarriages of justice … may amount to such a serious breach of the presuppositions of the trial as to deny the application of the common form criminal appeal provision with its proviso'.[55]
[55] Weiss [46]. See also AK [87] (Heydon J) and OKS [92] (Buss P), [258] (Beech JA), [259] (Pritchard J, as her Honour then was). See also Hofer [72] (Kiefel CJ and Keane and Gleeson JJ) and Gageler J [123].
In OKS v State of Western Australia,[56] Buss P, with whom Beech JA and Pritchard J[57] relevantly agreed, said (citations omitted):
In Weiss, the High Court referred to a 'significant' denial of procedural fairness at trial as an example of a category of case where it would be proper to allow an appeal and order a new trial, even though the appellate court was satisfied beyond reasonable doubt of the accused's guilt. The word 'significant' and other formulations by the High Court (for example: a 'serious' breach of the presuppositions of a criminal trial; such a departure from the essential requirements of the law that it goes to 'the root' of the proceedings; errors which are 'so fundamental' or involved 'such a departure' from the essential requirements of a fair trial 'radical' error at trial; a 'grave' error by the trial judge, indicate that questions of degree are involved in determining whether, in the circumstances of a particular case, an appellate court considers that the nature of the error or miscarriage at trial precludes the court from being satisfied, in terms of the proviso, that no substantial miscarriage of justice has actually occurred, irrespective of the strength of the prosecution case or the appellate court's opinion as to the accused's guilt.
[56] OKS [97] (Buss P), [258] (Beech JA), [259] (Pritchard J, as her Honour then was).
[57] As her Honour then was.
Issues to be determined
Mr Nugawela's grounds of appeal are:
Ground 1: The learned Magistrate Campione erred in acting ultra vires in making determinations as to the conduct of the trustee in preparation and filing/lodging the [Statement of Affairs] pending the related hearing at the Federal Court.
Ground 2: Jurisdictional Error: The Learned Magistrate erred in several critical issues of fact and law, and as a consequence the Appellant was denied procedural fairness.
Ground 3: Errors in law: Failure to prove Beyond Reasonable Doubt and Reversal of Burden of Proof
Ground 4 : Jurisdictional Error: Errors of Law
Ground 5 : Jurisdictional Error: Errors of Fact
Mr Nugawela is unrepresented in this appeal. The grounds of appeal and the particulars traverse 12 pages. His written submissions are 20 pages. Many of the points made in these documents are misconceived, do not relate to a ground of appeal and/or misrepresent the evidence at trial.[58]
[58] A stark example of the latter is paragraph (vi) on pages 10 - 11 of Mr Nugawela's written submissions filed 9 April 2021 (Appellant's Submissions).
Further, the written submissions are not entirely consistent with the grounds of appeal. During the appeal, Mr Nugawela clarified that, to the extent of any inconsistency, he relied on his written submissions.[59]
[59] ts 4.
In these reasons, I will only address those points that I consider are necessary to be addressed in order to fairly dispose of this appeal. Those points raise the following issues:
1.In relation to ground 1, was the magistrate acting ultra vires in considering the conduct of the trustee?
2.In relation to ground 2:
a.did the magistrate give Mr Nugawela inaccurate information in relation to his decision as to whether to give evidence?
b.if so, did that constitute a denial of procedural fairness?
c.if so, was it a significant denial of procedural fairness such that I cannot be satisfied that no substantial miscarriage of justice has actually occurred?
3.In relation to ground 3:
a.did the magistrate place the burden of proof in relation to the defences of mistake of fact and intervening conduct on Mr Nugawela?
b.if so, was this a serious breach of the presuppositions of a trial such that I cannot be satisfied that no substantial miscarriage of justice has actually occurred?
4.In relation to ground 4:
a.did the magistrate err in not considering Mr Nugawela's claimed reasonable excuse?
b.further, did the magistrate err in rejecting Mr Nugawela's defence of mental impairment?
As will be seen, I consider that the leave should be given to appeal in relation to grounds 2 and 3, and that the appeal should be allowed on those grounds.
For this reason, I will begin with those grounds.
Ground 2 - procedural fairness
Ground 2 is that Mr Nugawela was denied procedural fairness.
One of the particulars to ground 2 alleges, in effect, that the magistrate did not provide accurate information to Mr Nugawela in relation to his decision as to whether to give evidence.[60]
[60] See particular (f).
During the trial, after the prosecution had closed its case, the magistrate asked Mr Nugawela if he elected to give evidence. This exchange occurred:[61]
Accused: Your Honour, could the court draw any adverse conclusion if I chose not to give evidence?
Her Honour: Yes, it could. So you have a right not to give evidence, that's a matter for you, okay? And ordinarily, nothing turns on that. But in relation to this, the offence is one of strict liability... But you've raised a number of defences. So if a defence is to be open, there needs to be evidence which is capable of satisfying the court on the balance of probabilities about those circumstances ...
So you - if you elect not to give evidence that's a matter entirely for you, however you must understand that there may then not be evidence before the court which is capable of enabling me to reach a conclusion on the balance of probabilities about certain facts that then open up.
[61] Trial Transcript 28 May 2020, page 159.
This was incorrect. Only one of the defences raised by Mr Nugawela was required to be established by him on the balance of probabilities. This was his defence of mental impairment under s 7.3 of the Criminal Code. The respondent acknowledges[62] that, in relation to the other defences (being the defence of mistake of fact and the defence of intervening conduct), Mr Nugawela bore only an evidential burden.[63] As noted earlier, proof on the balance of probabilities is not required to discharge an evidential burden. Further, an evidential burden may be discharged by the evidence adduced in the prosecution case.
[62] ts 10.
[63] Under s 13.3(2) of the Criminal Code.
The respondent submits that the magistrate's statement did not result in a denial of procedural fairness. The respondent submits:[64]
The ordinary rule is that the court cannot draw any adverse inferences against an accused person from their exercise of their right to silence in their case. However, given Mr Nugawela did raise defences in his matter, it was appropriate for the Magistrate to make clear to him, as a self-represented litigant, that if he elected not to give evidence, there would not be evidence before the Court of things he may wish to assert as defences.
The Magistrate made it clear this was a decision for Mr Nugawela.
The Magistrate was not required to inform Mr Nugawela to obtain legal advice. He had previously been represented in proceedings. He now elected to self-represent in his trial.
Mr Nugawela was not denied procedural fairness.
[64] Respondent's Outline of Submissions filed 6 July 2021 (Respondent's Submissions) [64] - [67].
These submissions do not engage with the fact that the magistrate misrepresented the legal position in answering Mr Nugawela's question.
The magistrate ought to have answered Mr Nugawela's question negatively. That is, the magistrate ought to have told him that the court could not draw any adverse conclusion if he chose not to give evidence.[65] It would not have been inappropriate for the court to explain the evidential burden in relation to the defences. However, by telling Mr Nugawela that he needed to prove his defences on the balance of probabilities, the magistrate misrepresented the legal framework within which the evidence fell to be assessed. It meant that Mr Nugawela made his decision as to whether or not to give evidence under a misapprehension as to the standard of proof he was required to meet before his defences would be open. This was a denial of procedural fairness.
[65] This was not a case where the Weissensteiner principle (that 'hypotheses consistent with innocence may cease to be rational or reasonable in the absence of evidence to support them when that evidence, if it exists at all, must be within the knowledge of the accused', from Weissensteiner vThe Queen [1993] HCA 65; (1993) 178 CLR 217, 228 (Mason CJ, Deane and Dawson JJ)) applied.
Accordingly, I would uphold ground 2.
The respondent submits that, even if there was a denial of procedural fairness, the appeal should not be allowed on this ground as there was no substantial miscarriage of justice. The respondent's submissions are to the following effect:[66]
1.the evidential burden could not be said to have been discharged by the prosecution case (that is, it would not have been open to the magistrate to find that the evidential burden had been discharged by the prosecution case);
2.therefore, unless Mr Nugawela gave evidence which discharged the evidential burden, the defences would not have been open;
3.therefore, he did not suffer any prejudice as a result of the incorrect information he was given.
[66] See ts 11 - 15.
I earlier set out the defences relied upon by Mr Nugawela. The defences on which Mr Nugawela bore an evidential burden were his claims to have made mistakes of fact (under s 9.2 of the Criminal Code) and his claim that there was intervening conduct or an intervening event (under s 10.1 of the Criminal Code). I also set out a summary of the evidence of the prosecution witnesses that bore upon those defences.
I accept that there is force in the prosecution submission that the evidential burden was not discharged by the prosecution case. However, it is unnecessary to consider this further. That is because I consider that the incorrect information was a significant denial of procedural fairness such that I am not satisfied that there was no substantial miscarriage of justice.
From the exchange between Mr Nugawela and the magistrate, I would infer that Mr Nugawela's decision as to whether or not to give evidence was influenced by, if not due to, the incorrect information he was given. The right to silence and the right to make an informed election to give up that right are fundamental to a fair trial. In the circumstances, I am not satisfied that there was no substantial miscarriage of justice, and would therefore allow the appeal.
Given this, it is not necessary to consider the other respects in which Mr Nugawela alleges he was denied procedural fairness.
Ground 3 - burden of proof
Ground 3 alleges that the learned magistrate erred in law by 'accepting the prosecution's failure to prove its case beyond reasonable doubt and by reversing the burden of proof to the respondent'.
In addressing ground 2 of the appeal, the respondent's written submissions quite properly noted two respects in which the magistrate had made incorrect statements to the effect that Mr Nugawela was required to prove his defences on the balance of probabilities.[67] Neither of these passages were the subject of specific complaint by MrNugawela.[68] However, as Mr Nugawela is unrepresented, and the error so fundamental, I will treat it as having been raised by ground 3.
[67] Respondent's Submissions [72].
[68] In paragraph (ix) on page 14 of the Appellant's Submissions, Mr Nugawela referred to the remarks the magistrate made immediately prior to the second of her erroneous references to the burden of proof in relation to defences.
Her Honour's reasons indicate that she considered that Mr Nugawela bore the onus of establishing the mistake of fact defence on the balance of probabilities.
Her Honour said:[69]
I do not accept, even on the balance of probabilities, that the statement was lodged even as an incomplete document.
[69] Decision Green Appeal Book page 18
Later, her Honour said:[70]
There is no evidence capable of satisfying me, even on the balance of probabilities, that the document was submitted to the trustee (meaning Mr Drayton and Mr Dudley), so the argument of whether it was received by the official trustee on behalf of the official receiver does not arise.
…
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.
[70] Decision Green Appeal Book page 19.
As previously explained, Mr Nugawela did not bear the onus of establishing the mistake of fact defence on the balance of probabilities.
The respondent's submissions acknowledged that the magistrate had erred.[71] However, the respondent submitted that the error did not give rise to a substantial miscarriage of justice for two reasons:[72]
Firstly, the finding of the learned Magistrate that she does not accept [Mr Nugawela's] evidence, that the [Statement of Affairs] was lodged, in that she was satisfied that [his] evidence on this part was implausible, was a sufficient basis for the Magistrate to be satisfied beyond reasonable doubt that [Mr Nugawela] was guilty of the offence;
Secondly, the learned Magistrate considered whether section 9.2 applied in the circumstances of this case and concluded that she was not satisfied that any mistaken belief, claimed to have been held by the Appellant was objectively reasonable (for the purposes of section 9.2) of the Code) [sic]. The prosecution bore the onus of establishing that the claimed mistaken belief was not reasonably held, and this was established by way of examination in chief and cross-examination on relevant points. The learned Magistrate made findings that:
i.[Mr Nugawela's] evidence in respect of his claim that he sent the [Statement of Affairs] was inconsistent and vague and the accused was not credible on this point; and
ii.the preponderance of the evidence is that he was avoidant and non-compliant.
[71] Respondent's Submissions [72].
[72] Respondent's Submissions [73].
The question is not whether there was a sufficient basis for the magistrate to be satisfied beyond reasonable doubt that Mr Nugawela was guilty. If the proviso was able to be applied, the question would be whether I am satisfied that guilt was proved beyond reasonable doubt.
In any event, I consider that the proviso cannot be applied to these errors. The burden and standard of proof is a principal safeguard for an accused in a criminal trial.[73] I consider that placing the burden of proof on the accused was a 'serious breach of the presuppositions of the trial' such that I am not satisfied that there has been no substantial miscarriage of justice. Accordingly, I would uphold ground 3 and allow the appeal on this ground.
[73] AK [102] (Heydon J).
This makes it unnecessary to consider Mr Nugawela's submissions in relation to ground 3. However, I observe that there is no obvious merit in any of them.
Some of the submissions include assertions as to evidence that ought to have been adduced but was not and the weight that ought to have been given to particular evidence. On the evidence, it was plainly open to the magistrate to reach the factual findings that she did.
Other submissions reflect Mr Nugawela's lack of legal representation. An example is the allegation that there was 'double jeopardy by judicial decree' when the magistrate interrupted the prosecution's examination of a witness. Another example is the allegation that the magistrate made an 'unlawful dispensation of evidence' in relation to a witness's notes.
Ground 1 - ultra vires
Ground 1 alleges that the learned Magistrate 'erred in acting ultra vires in making determinations as to the conduct of the trustee in preparation and filing/lodging the [Statement of Affairs] pending the related hearing at the Federal Court.' In view of the conclusions I have reached in relation to grounds 2 and 3, it is unnecessary to consider this ground. I will, however, briefly explain why I reject the central contention.
Mr Nugawela said that the 'related hearing in the Federal Court' had the matter designation of 'WAD 528'.[74]
[74] Ground 1 particular (a).
WAD 528 appears to be an application in the Federal Court (WAD528/2017) to review the trustee in bankruptcy's decision to abandon the AAT proceedings in which Mr Nugawela sought to challenge income tax assessments.[75] During the hearing of the appeal, Mr Nugawela said it also related to other challenges to the trustee's conduct,[76] but nothing turns on that.
[75] See Nugawela v Commissioner of Taxation (No 4) [2020] FCA 1128.
[76] See ts 6 - 7.
During the trial, Mr Nugawela submitted, in effect, that he should be acquitted because it was the trustee's fault that the Statement of Affairs was not filed. He made a number of complaints about the trustee's conduct. In his submissions in the appeal, Mr Nugawela said that:[77]
A key argument and defence in the trial was the Trustee's conduct was an intervening event [under s 10.1 of the Criminal Code] as the Trustee had agreed to assist the Appellant and had an obligation to do so pursuant to s 19(2) of the [Bankruptcy Act] given the Appellant's known incapacity and mental condition.
[77] Appellant's Submissions page 3 at Ground 1 particular (a)(iii).
Section 19 of the Bankruptcy Act provides:
19Duties etc. of trustee
(1)The duties of the trustee of the estate of a bankrupt include the following:
(a) notifying the bankrupt's creditors of the bankruptcy;
(b)determining whether the estate includes property that can be realised to pay a dividend to creditors;
(c)reporting to creditors within 3 months of the date of the bankruptcy on the likelihood of creditors receiving a dividend before the end of the bankruptcy;
(e)determining whether the bankrupt has made a transfer of property that is void against the trustee;
(f)taking appropriate steps to recover property for the benefit of the estate;
(g)taking whatever action is practicable to try to ensure that the bankrupt discharges all of the bankrupt's duties under this Act;
(h)considering whether the bankrupt has committed an offence against this Act;
(i)referring to the Inspector‑General or to relevant law enforcement authorities any evidence of an offence by the bankrupt against this Act;
(j)administering the estate as efficiently as possible by avoiding unnecessary expense;
(k)exercising powers and performing functions in a commercially sound way;
(l)the duties imposed on the trustee under Schedule 2.
(2)Where a person who became a bankrupt on a creditor's petition is unable to prepare a proper statement of affairs, the trustee may employ, at the expense of the estate, a qualified person to assist in the preparation of the statement.
I understand Mr Nugawela's propositions, put into the proper legal framework, to have been as follows:
1.He was unable to prepare a proper Statement of Affairs without help because of his mental illness;
2.In those circumstances, by s 19(2) of the Bankruptcy Act, the trustee was required [that is, had a duty] to engage a person to assist in the preparation of a Statement of Affairs;
3.The trustee did not do this;
4.Therefore, a Statement of Affairs was not filed because the trustee had failed in his duty;
5.Therefore, the failure to file a Statement of Affairs was brought about by a person over whom Mr Nugawela had no control (and Mr Nugawela could not reasonably be expected to guard against the failure to file the Statement of Affairs);
6.Therefore, Mr Nugawela was not criminally responsible, under s 10.1 of the Criminal Code.
Although the magistrate appeared to deal with this defence as a defence of mistake of fact rather than a defence of intervening conduct,[78] the magistrate was entitled, and indeed required, to consider the trustee's conduct. In so doing, the magistrate was not acting ultra vires. Her Honour had the jurisdiction to determine whether Mr Nugawela was guilty of the alleged offence. She was required to determine whether she was satisfied of this beyond reasonable doubt in view of the evidence and the matters raised by Mr Nugawela. One of the central matters raised by Mr Nugawela was the trustee's conduct.
[78] Decision Green Appeal Book pages 21 - 23.
Accordingly, there is no merit in ground 1, and I would refuse leave to appeal on this ground.
Although not a ground of appeal, one of the particulars to ground 1 alleges that the magistrate erred in stating that the Trustee Review had been dismissed by the Federal Court.[79]
[79] Ground 1 particular (a).
The magistrate stated 'I was informed' that the application to review the actions of the trustee was dismissed. Even if this was an error, I am satisfied that it could not have affected the outcome. It was not relevant to Mr Nugawela's guilt of the charge and I do not consider that magistrate treated it as relevant. In my view, it was simply something the magistrate mentioned when setting out the background of the proceedings.[80]
[80] Decision Green Appeal Book page 5.
It is unnecessary to deal with Mr Nugawela's remaining complaints under this ground.
Ground 4 - errors of law
Ground 4 alleges that the magistrate made two errors of law.[81] In view of the conclusions I have reached in relation to grounds 2 and 3, it is unnecessary to consider ground 4. I will, however, briefly explain why I reject ground 4.
[81] See the Appellant's Submissions pages 16 - 18 and ts 4 (where Mr Nugawela clarified that, to the extent of any inconsistency, he relied on his written submissions).
The first alleged error of law is that the magistrate 'failed to take into consideration Mr Nugawela's "reasonable excuse" provided under s 77CA of the Bankruptcy Act'.
Section 77CA gives the Official Receiver the power to send a notice to a bankrupt requiring the bankrupt to give the Official Receiver a Statement of Affairs within 14 days after receiving the notice. By s 267B of the Bankruptcy Act, it is an offence to fail to comply with a notice given under s 6A(3), s 77C(1), s 77CA or s 139V, unless the person has a reasonable excuse.[82]
[82] In relation to which, the person bears an evidential burden – see s 13.3(3) of the Criminal Code.
However, Mr Nugawela was not charged with an offence against s 267B. He was charged with an offence against s 54(1). Section 54(1) is a strict liability offence. Whether or not he had a reasonable excuse was not relevant to the magistrate's determination of the charge he faced.
The second alleged error of law is that the magistrate conflated a panic disorder with Mr Nugawela's capacity to work as a medical practitioner. This relates to her Honour's reasons for rejecting Mr Nugawela's defence under s 7.3(1)(c) of the Criminal Code. Section 7.3 provides (original emphasis):
7.3Mental impairment
(1)A person is not criminally responsible for an offence if, at the time of carrying out the conduct constituting the offence, the person was suffering from a mental impairment that had the effect that:
(a)the person did not know the nature and quality of the conduct; or
(b)the person did not know that the conduct was wrong (that is, the person could not reason with a moderate degree of sense and composure about whether the conduct, as perceived by reasonable people, was wrong); or
(c) the person was unable to control the conduct.
(2)The question whether the person was suffering from a mental impairment is one of fact.
(3)A person is presumed not to have been suffering from such a mental impairment. The presumption is only displaced if it is proved on the balance of probabilities (by the prosecution or the defence) that the person was suffering from such a mental impairment.
(4)The prosecution can only rely on this section if the court gives leave.
(5)The tribunal of fact must return a special verdict that a person is not guilty of an offence because of mental impairment if and only if it is satisfied that the person is not criminally responsible for the offence only because of a mental impairment.
(6)A person cannot rely on a mental impairment to deny voluntariness or the existence of a fault element but may rely on this section to deny criminal responsibility.
(7)If the tribunal of fact is satisfied that a person carried out conduct as a result of a delusion caused by a mental impairment, the delusion cannot otherwise be relied on as a defence.
(8)In this Code:
mental impairment includes senility, intellectual disability, mental illness, brain damage and severe personality disorder.
(9)The reference in subsection (8) to mental illness is a reference to an underlying pathological infirmity of the mind, whether of long or short duration and whether permanent or temporary, but does not include a condition that results from the reaction of a healthy mind to extraordinary external stimuli. However, such a condition may be evidence of a mental illness if it involves some abnormality and is prone to recur.
Mr Nugawela had submitted to the magistrate that he was unable to control his failure to prepare a Statement of Affairs due to his mental condition.[83]
[83] See Mr Nugawela's Trial Submissions Yellow Appeal Book page 123 [15.20].
I do not accept the magistrate erred as alleged in this ground. The magistrate found that, even on Mr Nugawela's expert evidence, there was no evidence that Mr Nugawela was unable to control his conduct. She also observed that the expert evidence that court proceedings were the trigger for his panic attacks did not sit well with the evidence that Mr Nugawela was representing himself in litigation in various courts. She also noted the evidence that, among other things, he continued to practice as a medical practitioner. Her Honour was plainly doing so in the context of evaluating his claim to be unable to complete the Statement of Affairs.[84]
[84] See the Decision Green Appeal Book pages 25 - 27.
There is no merit in ground 4, and I would refuse leave to appeal on this ground.
Ground 5 - errors of fact
By ground 5, Mr Nugawela alleges 'that the magistrate's judgment and reasons were filled with inconsistencies and errors of fact'. In view of my findings in relation to grounds 2 and 3, it is unnecessary to consider this ground. Nor would any observations as to the allegations be of any value in the retrial.
Conclusion
I would grant leave to appeal on grounds 2 and 3 and allow the appeal.
Mr Nugawela seeks orders that '[t]his matter be sent to the Federal Court of Australia to be considered as a Special Federal Matter and heard concurrently with the pending Trustee Review.' This is not an order I can or would make in relation to this appeal.
Instead, I would set aside the finding of guilt, the order under s 19B of the Crimes Act and the order to pay $60.50 costs, and I would order that there be a retrial of the charge in the magistrates court.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KH
Associate to the Honourable Justice Archer
2 JUNE 2022
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