Warren v Ashna - [2021] QDC 13

DISTRICT COURT OF QUEENSLAND

CITATION:

Warren v Ashna [2021] QDC 13

PARTIES:

ALEXIA MARGARET WARREN

(appellant)

v

ZARA ASHNA

(respondent)

FILE NO:
Appeal BD 3188 of 2018, MAG 83208/17

DIVISION:

Appellate

PROCEEDING:

Criminal Appeal

ORIGINATING COURT:

Magistrates Court, Brisbane

DELIVERED ON:

5 February 2021

DELIVERED AT:

Brisbane

HEARING DATE:

6 to 7 January 2021

JUDGE:

Burnett AM, DCJ

ORDER:

Appeal against conviction dismissed.

Appeal against sentence allowed. Orders made 2 August 2018 convicting and fining the appellant $450 are set aside and substituted with an order that pursuant to Crimes Act 1914 s.19B the appellant be discharged without conviction upon her giving a recognisance fixed in the sum of $450 to be of good behaviour for 6 months

CATCHWORDS:

APPEAL – BANKRUPTCY ACT – PARTICULAR OFFENCE- FALURE TO COMPLY WITH REQUIREMTNS -offence of failure to file and furnish Statement of Affairs –

JURISDICTION – authority of nominated complainant to institute prosecution – authority of Commonwealth Director of Prosecutions to prosecute proceedings on behalf of Inspector- General Bankruptcy in respect of Bankruptcy Act offence.

EVIDENCE – Documentary evidence – certificate – proof of form in certificate not covered by statutory provisions – Carltona principle - presumption of regularity – failure to object to admission – documents of addressing formal matters - not matters constituting an elaborate code - admissible

SENTENCE - Failure to consider impact of conviction upon a legal practitioner

LEGISLATION:

Acts Interpretation Act(Qld) s 27A(4)
Bankruptcy Act 1966 (Cth) ss 6D(1)(a), 11, 12, 12(1)(b)(c), 13 54(1), 54(3), 77CA
Crimes Act 1914 (Cth) ss 13(a), (b), 16A, 16C, 19B
Director of Public Prosecutions Act 1983 (Cth) ss 6(1)(d),(e), (n)
Judiciary Act 1903 (Cth) s 68(1)
Justices Act 1886 (Qld) ss 42, 222, 239
Public Service Act 1999 (Cth)

CASES:

R v Forrest [2017] QCA 132
McDonald v Queensland Police Service [2017] QCA 255
DPP V Buckett; DPP v Vaughan [2004] QCA 206
Cross Country Realty Pty Ltd v Pebbles [2007] 2 Qd.R. 254
Carltona v Commissioner of Works [1943] 2 All ER 560

O’Reilly v State Bank of Victoria Commissioners (1983) 153 CLR 1

Dixon v Lekich [2010] QCA 213
Huth v Petersen, ex parte Petersen [1975] Qd R 340

R v Brown (1985) 2 Qd.R. 126

COUNSEL:

A M Warren (self-represented)

M. Jackson for the respondent

SOLICITORS:

Appellant self-represented

Commonwealth Director of Prosecutions for the respondent

Introduction

The self-represented appellant/defendant was convicted and fined $450 following trial of an offence against s 54(1) Bankruptcy Act 1966 (Cth). She appeals her conviction and sentence.
Her somewhat prolix nine page notice of appeal and supporting 28 page outline of argument can be distilled into complainants that:
(a)The Magistrate refused her application for dismissal of her “no case” submission; and in default of that contention, relying on the grounds advanced in her complaints detailed in the no case submission, she complains of error in finding the offence proven[1].
(b)The court lacked jurisdiction to hear the complaint because the complainant was not authorised by the relevant agency charged with responsibility…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

Continue reading Warren v Ashna

Details

AGLC: Warren v Ashna [2021] QDC 13
Case: [2021] QDC 13
Decision Date: 5 February 2021

CaseChat Overview and Summary

The case of Warren v Ashna concerns the appellant's appeal against a conviction and sentence imposed by a magistrate for an offence under the Bankruptcy Act. The appellant, an undischarged bankrupt, was prosecuted for failing to file and furnish a Statement of Affairs. The appeal was heard by the District Court, which dismissed the appeal against the conviction but allowed the appeal against the sentence.

The legal issues before the court included the authority of the Commonwealth Director of Prosecutions to prosecute the appellant on behalf of the Inspector-General of Bankruptcy and the admissibility of certain documentary evidence, specifically a certificate. The court also needed to determine whether the certificate was sufficient proof of form, considering it was not explicitly covered by the statutory provisions. Additionally, the court examined whether the failure to object to the admission of certain documents constituted a failure to comply with the presumption of regularity.

The court held that the Commonwealth Director of Prosecutions had the authority to prosecute the appellant as it was permissible for the prosecution to be instituted on behalf of the Inspector-General of Bankruptcy. The court also found that the Carltona principle and the presumption of regularity applied, and the failure to object to the admissibility of certain documents did not invalidate the proceedings. The documentary evidence, including the certificate, was deemed admissible as it did not pertain to an elaborate code but rather addressed formal matters.

In conclusion, the District Court dismissed the appeal against the conviction but allowed the appeal against the sentence. The original conviction and sentence were set aside, and the court ordered that the appellant be discharged without conviction upon her giving a recognisance to be of good behaviour for six months.

Orders

Orders of the court

Appeal against conviction dismissed.

Appeal against sentence allowed. Orders made 2 August 2018 convicting and fining the appellant $450 are set aside and substituted with an order that pursuant to Crimes Act 1914 s.19B the appellant be discharged without conviction upon her giving a recognisance fixed in the sum of $450 to be of good behaviour for 6 months

Background

Background to the litigation

That is the approach I adopt here. It follows that while an error does not need to be established for an appeal to the District Court to be successful, it is a factor that strongly influences the success of an appeal. The appellant here contends there were numerous identifiable errors which I have summarised above as the grounds of appeal. Those matters will be discussed in a short time. Background facts The appellant is an undischarged bankrupt. She was rendered a bankrupt following a sequestration order made in the Federal Circuit Court of Australia on 5 February 2016 upon the application of the Queensland Law Society. She was self-represented in proceedings before both the Federal Circuit Court and the Federal Court and continued as such before both the Magistrates Court and this court.[4] At the time of sequestration David Lewis Clout was appointed her trustee and acted as such from that date. While it is correct that the appellant appealed that order (that is the order made in the Federal Circuit Court) the progress of that appeal which was dismissed is of no relevance to this appeal.[4] Although the Appellant emphasised the unfairness manifest against her as a self-represented litigant that characterisation is somewhat misleading in this instance. She completed studies at the University of Queensland in 1989, commenced practice as a solicitor shortly thereafter and practised as a solicitor/legal practitioner, including in litigation until 2013 when her Practising Certificate was cancelled. She practised broadly, principally in the small firm environment for much of that time. It appears her unrestricted Practising Certificate was initially cancelled in 2011 by order of QCAT which decision was affirmed in 2013. It was the costs order in that jurisdiction that appears to have given rise to the debt claimed by the QLS as the Petitioning Creditor. Her appearances in both this court and before the Magistrates Court were sustained with energy and in many respects the intellectual rigour that would be expected of an experienced legal practitioner. However, respectfully in my view, it was an obsession with immaterial detail that has resulted in the un-necessary elongation of proceedings complained of by the magistrate and evidenced in this court. Mr Clout gave evidence that he wrote to the appellant on 11 February 2016 enclosing inter alia, a “sealed copy of the Sequestration Order… together with a copy of the Certificate of Appointment of Trustee confirming (his) appointment”. The body of the letter stated, inter alia:The appellant’s response to Mr Clout’s letter of 11 February was faxed to him on 1 March 2016 (the letter was dated 29 February 2016). She acknowledged receipt of Mr Clout’s letter and materially she complained about the ‘ex-parte’ nature of the sequestration orders which had been made.[5] She stated she was appealing the orders and requested time. [5] There was no evidence to suggest the sequestration order was not regularly made that is the order was made upon hearing an application made with notice to the appellant.

Evidence

Evidence Before The Court

Full text does not contain this section.

Decision

Reasons for decision

Full text does not contain this section.

Ratio Decidendi

Legal Principle Established

Full text does not contain this section.

CITATION:	Warren v Ashna [2021] QDC 13
PARTIES:	ALEXIA MARGARET WARREN (appellant) v ZARA ASHNA (respondent)
FILE NO:	Appeal BD 3188 of 2018, MAG 83208/17
DIVISION:	Appellate
PROCEEDING:	Criminal Appeal
ORIGINATING COURT:	Magistrates Court, Brisbane
DELIVERED ON:	5 February 2021
DELIVERED AT:	Brisbane
HEARING DATE:	6 to 7 January 2021
JUDGE:	Burnett AM, DCJ
ORDER:	Appeal against conviction dismissed. Appeal against sentence allowed. Orders made 2 August 2018 convicting and fining the appellant $450 are set aside and substituted with an order that pursuant to *Crimes Act 1914* s.19B the appellant be discharged without conviction upon her giving a recognisance fixed in the sum of $450 to be of good behaviour for 6 months
CATCHWORDS:	APPEAL – BANKRUPTCY ACT – PARTICULAR OFFENCE- FALURE TO COMPLY WITH REQUIREMTNS -offence of failure to file and furnish Statement of Affairs – JURISDICTION – authority of nominated complainant to institute prosecution – authority of Commonwealth Director of Prosecutions to prosecute proceedings on behalf of Inspector- General Bankruptcy in respect of Bankruptcy Act offence. EVIDENCE – Documentary evidence – certificate – proof of form in certificate not covered by statutory provisions – Carltona principle - presumption of regularity – failure to object to admission – documents of addressing formal matters - not matters constituting an elaborate code - admissible SENTENCE - Failure to consider impact of conviction upon a legal practitioner
LEGISLATION:	Acts Interpretation Act(Qld) s 27A(4) Bankruptcy Act 1966 (Cth) ss 6D(1)(a), 11, 12, 12(1)(b)(c), 13 54(1), 54(3), 77CA Crimes Act 1914 (Cth) ss 13(a), (b), 16A, 16C, 19B Director of Public Prosecutions Act 1983 (Cth) ss 6(1)(d),(e), (n) Judiciary Act 1903 (Cth) s 68(1) Justices Act 1886 (Qld) ss 42, 222, 239 Public Service Act 1999 (Cth)
CASES:	R v Forrest [2017] QCA 132 McDonald v Queensland Police Service [2017] QCA 255 DPP V Buckett; DPP v Vaughan [2004] QCA 206 Cross Country Realty Pty Ltd v Pebbles [2007] 2 Qd.R. 254 Carltona v Commissioner of Works [1943] 2 All ER 560 O’Reilly v State Bank of Victoria Commissioners (1983) 153 CLR 1
Dixon v Lekich [2010] QCA 213 Huth v Petersen, ex parte Petersen [1975] Qd R 340 R v Brown (1985) 2 Qd.R. 126
COUNSEL:	A M Warren (self-represented) M. Jackson for the respondent
SOLICITORS:	Appellant self-represented Commonwealth Director of Prosecutions for the respondent