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 560O’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 340R 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 for regulation of such matters, The Australian Financial Security Authority (“the Authority”) initiate the complaint. Accordingly, it was submitted the proceedings that had been instituted were a nullity and the Commonwealth Director of Public Prosecutions was not authorised to conduct the prosecution.
(c)The court acted upon inadmissible evidence, in particular evidence of the then extant Form 3, Statement of Affairs, because the certificate addressing that fact was not certified by a person holding the appropriate delegation permitting him to certify that matter.
(d)The appellant also challenged the sentence of conviction and fine contending it was manifestly excessive.
[1]I do not propose to discretely deal with the appellant’s complaints addressed solely to the issue of her no case submission as those matters are subsumed into the appeal against a conviction.
Applicable principles to s 222 appeals
The approach to an appeal under section 222 has recently been discussed in the Court of Appeal in both R v Forrest[2] and McDonald v Queensland Police Service[3]. In R v Forrest, concerning the approach to be taken on an appeal under that section the President said at pages 4-5:
“It has been said many times that such an appeal by way of rehearing requires an appellate Court to decide the case for itself. Although the reasoning of the Court from which such an appeal has been brought is relevant to be considered by an appellate tribunal, and it is sometimes said that it should be given appropriate weight and even great weight in particular cases particularly where credit is an issue, it is not the function of a court hearing such an appeal merely to consider whether or not the tribunal at first instance has made an error of fact or law. Nor is there an onus upon an appellant to demonstrate the existence of an error of fact or law, although such a demonstration will go a long way towards winning an appeal.
And later,
“Yet an appellate court hearing an appeal by way of rehearing must conduct a real review of the evidence and make up its own mind about the case. That has been established by numerous cases: see for example: Fox v Percy; Warren v Coombes; Dwyer v Calco Timbers.”
[The citations are omitted]
[2] [2017] QCA 132
[3] [2017] QCA 255
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.
She did not respond to Mr Clout’s request for delivery of her Statement of Affairs. Although he had no specific knowledge of the matter he stated in evidence, “(I) would have authorised my manager to report the fact that the Statement of Affairs hadn’t been received and to seek (AFSC’s) assistance in obtaining it.”[6] As no Statement of Affairs was provided he then passed the matter into the hands of the Official Receiver for action pursuant to s 77CA Bankruptcy Act.
[6] T1-32 Ln 1-4
The application for the issue of such notice was made by email of 5 April 2016, part of Exhibit 20. Once in the office of the Authority the file was passed into the hands of Ms Zarlasht Ashnar, a compliance investigator for action. She gave evidence of advising the appellant of the sequestration order and of numerous efforts previously made to forward a Form 3 to her. While it was accepted by her, based upon the appellant’s statements, that earlier efforts of delivery had been unsuccessful, she gave evidence that advice to her from Australia Post was that the letter of 23 September 2016 was delivered to the appellant’s address on 27 September 2016 at Fay Road, Bellmere. In her evidence she said:
“I mentioned to her (the appellant) that Australia Post had advised that the letter dated 23 September was delivered on 27 September. She didn’t believe that was true. She demanded that I resend the letter and a copy of what Australia Post had given me. That’s when I started to read the contents of the compliance letter out to her, starting with, you know, a 77CA Notice was sent to you. You need to file your statement of affairs form with the official receiver and if you don’t file you may remain bankrupt indefinitely. Ms Warren started to get angry. I offered Ms Warren the opportunity to participate in a recorded interview if she did not agree with the allegation. She demanded to speak with my manager and I provided her with my team leader’s contact details. I reminded – I reminded her of her obligations as a bankrupt to file a statement of affairs form and that she had been served with a compulsory notice in May to do so.”[7]
[7] T1-34, l 10, 7-17.
The appellant denied receiving any such correspondence. This was the principal material factual issue in the trial. The magistrate found against her on this issue. Although it is open for me to reach a different conclusion, on the evidence I should afford respect to the decision of the magistrate on this point remembering she had the benefit of seeing the witness. The magistrate found her to be a ‘credible witness with no interest in the outcome of the proceedings, and in relation to her positon was not challenged in connection with her practices’. From my review of the evidence I see no reason to depart from that view of her and I too accept her as a credible witness in all respects.
Plainly the Authority tired of her refusal to file her Form3 and issued a complaint and summons in the Queensland Magistrates Court at Brisbane. A copy of that complaint and summons was not on the court file. However it is evident from the transcript that an original complaint and summons was issued on 11 January 2017. It alleged a different offence under the Bankruptcy Act premised upon the same conduct. That charge was discontinued and from the court file it is evident that another charge was proceeded, with which charge issued on or about the date of the bail undertaking entered into on 21 April 2017, court file number Mag-00083208/17(1). It was noted to be returnable on 19 May 2017. The court file includes a bench charge sheet bearing the same file number alleging a charge of failure to file a statement of affairs s 54(1) Bankruptcy Act 1966 (Cth). The endorsement on the first page of endorsements is dated 19 May 2017 (the return date indicated on the bail undertaking) and was endorsed as follows:
“This is a replacement charge laid 19/5/17 and bail granted 21/4/17. The replacement charge not in substance different. Rather a change of section number the main reason to despite delay.”
This matter occasioned considerable angst on the appellant’s part, particularly because the charge of 19 May was an amended charge[8] but in my view this is not material. The real issues are those I have already identified. Ultimately the charge as prosecuted concerned a failure to make, file and furnish a statement of affairs contrary to s 54(1) of the Bankruptcy Act. It is the conviction in respect of that charge that leads to this appeal.
[8] The amendment alleged differing dates to that originally charged.
The elements of that offence are:
(a)a sequestration order has been made against the respondent;
(b)the respondent has been notified of her bankruptcy;
(c)there is a form of Statement of Affairs approved by the Inspector General of Bankruptcy[9]; and
(d)the respondent has failed to make out and file with the official receiver and not furnished to /her trustee within 14 days of being notified of her bankruptcy a copy of the statement of affairs.
[9] DPP V Buckett; DPP v Vaughan [2004] QCA 206 at [11].
Section 54(3) Bankruptcy Act provides for the offence against s 54(1) to be a strict liability offence: that is there are no fault elements for any of the physical elements of the offence. No defences were raised on the evidence. In simple terms it means that the offence is established by proving the existence of the physical elements (being that despite notice of her bankruptcy the appellant failed within 14 days to make, file and furnish a statement of affairs in the form approved by the Inspector General) were extant at the time of the offence.
Here there was evidence to support each of the elements, in particular that the appellant was subject to a sequestration order, she had been informed of her that order, she had not made, filed and furnished a Form 3 within 14 days of notice of the sequestration order and that there was extant at the time a Form 3 approved by the Inspector General.
Evidence[10] in respect of the sequestration order was in the form of the order supported by the testimony of Mr Clout who forwarded to the appellant both it and a copy of the Certificate of Appointment of Trustee nominating him as Trustee[11]. Ms Ashnar gave evidence that no completed From 3 had been received from the appellant. That was despite evidence that Australia Post delivered to the appellant’s address on 15 February 2016 correspondence containing a Form 3 which correspondence was signed for by ‘A. Warren’. Despite the appellant’s contention to the contrary there was no admissible evidence before the court to rebut the presumption that there had been delivery of the item of correspondence as claimed by both Mr Clout and Ms Anhnar. Finally the Form 3 was proven by a certificate under the hand of a delegate of the Inspector General certifying to the then extant Form 3.
[10] I note a copy of that letter was tendered in the trial (Exhibit 18) but it did not include either instrument. However, those instruments were before the Magistrate in Exhibits 17 and 20. It seems in all probability that Mr Clout’s tendered letter was deficient as Exhibit 18 omitted to include those documents as part of that Exhibit. A copy of the enclosed Form 3 was included in Exhibit 18 as well as a 14 page “Warning Bulletin” and a letter in response from the appellant dated 29 February 2016. No point was taken in trial about the deficiency in Mr Clout’s tendered correspondence. It is probable that Exhibit 18 was contaminated with Exhibit 20 which included copies of those instruments. Exhibit 20 also included a copy of the express post/registered post lodgement form and tracking status of the correspondence. I note the appellant made no complaint about these matters in either her correspondence of 29 February or at trial. Accordingly I think that is reasonably open to infer from the evidence that occurred here and I proceed on that basis.
[11] Ex 18.
In cross-examination of Ms Ashnar the appellant sought to make something of purported representations by conduct of Ms Ashnar in contacting her, that is the appellant and forwarding the relevant documents to her “to assist with the compliance”[12] and by reason of that the case was not one of strict liability.[13]
[12] See T1-59, l 2.
[13] T1-60, l 20.
Respectfully, the appellant’s position on this is entirely misconceived. Beyond Ms Ashnar’s evidence concerning the forwarding of the correspondence addressing the physical elements of the notice of bankruptcy and the appellant’s failure to make, file and furnish a statement of affairs within 14 days, evidence by Ms Ashnar concerning conversations addressing assistance to the appellant were of no relevance to the proceeding.
The appeal
In summary the grounds advanced by the appellant can be condensed into three groups:
(a)Authority to prosecute;
(b)Admission of inadmissible evidence; and
(c)Sentence
Authority to initiate prosecution
The most substantive complaint made by the appellant concerning process concerns the complainant herself. In summary the appellant contends the complainant had no standing to initiate the proceeding and the Commonwealth Director of Public Prosecutions (the Director) could not continue the proceedings in that instance[14]. She contended that Ms Ashnar had no authority, actual or delegated, to initiate and further she didn’t even have knowledge of such proceedings. For these reasons the appellant contended the proceedings were unlawfully instituted and a nullity and should be set aside.
[14] She also contended the Director had no standing to appear for the complainant as respondent to her appeal. However her complaint in that regard is dismissed for the same reasons as is her complaint about the Director’s standing to appear for the complainant at trial.
For the reasons that follow I do not accept her contentions.
The appellant was charged with an offence under s 54 of the Bankruptcy Act. Section 54 imposes an obligation upon a bankrupt to make out and file with the Official Receiver a statement of her affairs and to furnish a copy of that statement to the trustee. That must be done within 14 days from the day on which the bankrupt was notified of the bankruptcy. It provides for a penalty of 50 penalty units[15] and s 54(3) provides the offence is one of “strict liability”. The offence is one against the Commonwealth.
[15] A penalty unit has a value of $210 – Crimes Act 1914 (Cth) s.4AA
Section 13 of the Crimes Act 1914 provides for the institution of proceedings in respect of Commonwealth offences. Relevantly it provides,
13 Institution of proceedings in respect of offences
Unless the contrary intention appears in the Act or regulation creating the offence any person may:
(a)… ;
(b)institute proceedings for summary conviction of any person in respect of any offence against the law of the Commonwealth punishable on summary conviction.
The Director is an appropriate officer to institute such a prosecution. The functions of the Director include to institute proceedings for the summary conviction of persons in respect of offences against laws of the Commonwealth and to carry on proceedings of that kind (whether instituted or not by the Director).[16] Even if the term “institute proceedings” means the proceedings must be commenced in the name of the Director s 6(1)(e) makes it plain that the Director may “carry on proceedings” whether instituted by him or not. As I have noted earlier s 13 of the Crimes Act permits “any person” to institute proceedings for summary conviction. It follows the complainant was within her rights in initiating the complaint and the Director was authorised to carry on the proceedings arising from the initiated proceeding.
[16] Director of Public Prosecutions Act 1983 (Cth) s 6(1)(d),(e); and concerning appeals s s 6(1)(n).
The complaint itself identified the complainant as “Zarlasht Ashnar, Australian Financial Security Authority: ref 563”. In her evidence the following exchange occurred:
“Question:Now Ms Ashnar, how is it that you’re named as ‘complainant’? –
Answer:I’m not sure.
Question:Have you made a complaint in this matter?
Answer:No. I haven’t.
Question:Do you have any authority to make a complaint in this matter?
Answer:I don’t think so.
Question:Thank you. So, when you say you don’t think so, you don’t even know?
Answer:Whether I’d made a complaint or not?
Question:No. Whether you have authority to make a complaint?
Answer:I don’t think it’s within my role to make a complaint.”
The cross-examination of the witness, Ms Ashnar was clearly directed to a jurisdictional fact concerning her authority to be a complainant. Section 68(1) of the Judiciary Act provides, inter alia, that; “The laws of a state… respecting… persons charged with offences, and procedure for… their summary conviction… shall… apply and be applied so far as they are applicable to persons who are charged with offences against the laws of the Commonwealth in respect of whom jurisdiction is conferred on the several courts of that State… by this section.”
The relevant state provision is contained in s 42 of the Justices Act 1886 which provides that:
“42
(1)Except where otherwise expressly provided… all proceedings under this Act shall be commenced by a complaint in writing, which may be made by the complainant in person… or other person authorised in that behalf.”
The term complainant is not defined in the justices Act and as I have ealier noted, in any event, s 13(b) of the Crimes Act (Cth) 1914 relevantly authorises ‘any person’ which would include Ms Ashnar to commence the proceedings.
However incidental to these matters is the presence of the Authority. Section 13 of the Bankruptcy Act creates the entity to be known as “the Australian Financial Security Authority”. That Authority is the group including the Inspector General and those persons engaged under the Public Service Act 1999 to assist the Inspector General.[17] The functions of the Inspector General include the function of making enquiries and investigating as the Inspector General thinks fit with respect whether a person has committed an offence against the Bankruptcy Act.[18]
[17] See s 13(a) Bankruptcy Act.
[18] See s 12(1)(b)(c).
At all material times Ms Ashnar was a Commonwealth employee engaged under the Public Service Act to assist the Inspector General[19] so one assumes had an interest in these matters not that in my view s 13(b) Crimes Act required that. Significantly however, her delegation was not relevant to the issue of her authority to institute the proceedings as s 12 Bankruptcy Act which provided for the functions of the Inspector General did not include the function of initiating proceedings. Its functions were limited to, inter alia, making ‘… such inquires and investigations as the Inspector General thinks fit with respect to whether a person has committed an offence against the Act’. Those limited functions which did not include the function of initiating proceedings for offences against the Bankruptcy Act might seem appropriate given the existence of both the Director of Public Prosecutions Act (Cth) 1983 and the Crimes Act (Cth) 1914.
[19] T1-24, l 16-28.
As it happened, by reason of her role she investigated the offence and prepared the brief for the Director. No doubt it was because of her role as investigator and likely principal prosecution witness that the Director chose to nominate her as complainant on the Summons. However irrespective of the Director’s reasoning she was capable of being the complainant in her own right. As the functions of the Inspector General did not include the function of initiating proceedings no delegation was required by Ms Anhnar to initiate proceedings and I note no objection was made by the Inspector General through the agency of the CDDP to her doing so.
It was further contended by the appellant that the Summons should have been set aside as Ms Ashnar, as complainant had no sufficient knowledge of that fact. However it seems plain upon a reading of s 13 that the complainant requires no specific knowledge to be a complainant: see Cross Country Realty Pty Ltd v Pebbles [2007] 2 Qd.R. 254, 257.
It follows in my view that the proceedings were regularly instituted and amended in respect of an offence against section 54(1) of the Bankruptcy Act and that by operation of the relevant provisions of the Crimes Act (Cth) 1914, the Judiciary Act 1903, the Justices Act (Q) 1886, and the Director of Prosecutions Act (Cth) 1983 the proceedings were regularly prosecuted, initiated and carried on by the Director.
It follows the complainant’s appeal on this ground fails.
But if I am wrong in my conclusion and the proceedings were tainted by some irregularity then the appellant then faces the difficulty of s 239 of the Justices Act. Relevantly it provides:
“239 Want of summons or complaint
When the person convicted , or against whom an order has been made, …was present at the hearing of the case, the conviction or order shall be sustained, although there may have been no complaint or summons or amendment thereof , unless the person objected at the hearing that there was no complaint or summons or amendment thereof.”
In this case the appellant was arraigned before the commencement of the trial.[20] The evidence reveals that she was arraigned on 7 July 2017 and pleaded not guilty. The matter was then listed for trial. There is no endorsement on the file indicating a conditional plea having been entered because of any technical challenge by her to the complaint. Her first complaint did not arise until cross examination of Ms Ashnar and even then it was limited to the question of her authority to initiate a prosecution. As the annotations in Kennedy Allen[21] at p 548 note:
“Appearing without protest, submitting voluntarily to the Justices, pleading to an oral charge, asking the complainant to go on and prove his case, neglecting to apply for an adjournment, cross-examining witnesses for the prosecution, calling witnesses for the defence, asking for judgment on the merits, each of these acts or forbearances is an illustration of waiver by conduct.”
Earlier in the footnote the learned author observed that a defendant may waive mere irregularities either expressly or by his or her conduct at the hearing.
[20] T1-3 Ln 14-15.
[21] The Justices Acts (Queensland) 3rd Ed , William Kennedy Abbott Allen, LBC 1956
Aside from the appellant’s complaint as to authority other matters were seized upon by her in the course of the trial. For instance, it was only following a series of questions directed to the material contained in the brief prepared by Ms Ashnar and forwarded to the DPP that it was revealed by her that she did not consider it her role to recommend charges.[22] Importantly, however, no complaint had been raised about this matter either prior to the outset of the trial, nevertheless prior to arraignment.
[22] T1-65 Ln 1-20
In my view it follows any irregularity, if there were one, was waived and again on this basis this ground of appeal fails.
Admission of inadmissible material
The appellant contends the certificate, Exhibit 5 addressing the form of the Form 3 Statement of Affairs approved by the Inspector General was not admissible because the certifier, Warren Estcourt, did not hold a delegation permitting him to certify to that matter on behalf of the Inspector General.
It is accepted that s54(1) of the Bankruptcy Act provides the proof of the existence of a form of Statement of Affairs approved for the time being by the Inspector-General is an element of the offence under s 54 that must be established.
At the trial the Director sought to prove this element by tendering a copy of the then extant Form 3. This was sought to be done by attaching the then extant Form 3 Statement of Affairs to a certificate signed by a delegate of the Inspector-General in Bankruptcy stating that at the time the Form 3 attached was the then approved form.
The certificate, Exhibit 5 was stated to be under the hand of Mr Estcourt who described himself as, “Acting Assistant Director, Australian Financial Security Authority, Regulation and Enforcement, Delegate of the Inspector-General in Bankruptcy”. Mr Estcourt stated in his certificate,
“I, Warren Estcourt, hold a delegation of the Inspector-General in Bankruptcy’s powers under regulation 11.01B, and hereby certify that from 1 December 2010 to the date of this certificate the attached form of statement of affairs, attached to this certificate and marked with the letter “A”, was the approved form for the purpose of subsections 54(1) and (2) and subsection 54A(2), paragraphs 55(2)(b), 56B(3)(a), 56F(1)(a) and (b), 57(2)(a) and (b), section 77CA and Part X of the Bankruptcy Act 1966”.
Regulation 11.01B relevantly provides, inter alia,
“Proof of statement of affairs
11.01B (1) Sub regulation (2) applies in any proceedings to a document or copy of a document that purports to be a certificate signed by the Inspector-General stating that at a particular point in time, the form of statement of affairs that is attached to the certificate was the approved form for section 6A of the Act.
(2) The document or copy:
(a) is proof, in the absence of evidence to the contrary, of information that is stated in it; and
(b) may be tendered in evidence without further proof.”
The Director contends that the certificate, being one signed by Mr Estcourt as a delegate of the Inspector-General is one, that in effect was signed by him (See s.11(4) BA) and it follows is proof of the information contained in it, that is, the attached Form 3 was the then extant form (no evidence to the contrary having been produced) and thus could be tendered, as it was, without further proof. It was upon that basis that the Director contended at trial this element had been proven. At the trial Exhibit 5 was received without objection except as to the failure by Ms Ashnar to effect a proper comparison between the Form 3 attached to the certificate and the Form 3 forwarded to the appellant in her letter delivered on 15 February 2016 (Exhibit 20). No objection was taken to the certificate of Mr Estcourt.
The Director contends the appellant’s submission are in error on three basis:.
(a)First he submits the certificate, Exhibit 5 is a proper certificate constituting admissible evidence concerning the accuracy of the Form 3.
(b)Alternatively on that matter, by operation of the principle of presumption of regularity Exhibit 5 can be accepted and acted upon.
(c)Finally, if he is wrong on either or both the above conclusions then the Director contends the appellant, not having objected to the admission of Exhibit 5 at the time it was tendered, has waived her right to now complain of its admissibility.
The appellant’s first contention is there was no proper delegation of the Inspector-General’s powers to permit Mr Estcourt to issue the certificate. The Director contends no such formal delegation was required for the purpose of certifying one of the Inspector-General’s approved forms.
At the hearing the appellant tendered Exhibit 1 in the appeal which document was headed “Delegation of Powers and Functions of Official Receivers and Official Trustee”. That instrument was dated 3 December 2014 and included a table of delegations made by the Official Receivers and Official Trustee by reference to sections/regulations and officers by APS employment band. That instrument has no relevance to delegations by the Inspector-General in Bankruptcy; they being different officers provided for by the Act.
Section 6D (1)(a) of the Bankruptcy Act provides a document that the Act requires to be in an approved form must be in the form approved by the Inspector-General. Section 11 of the Act creates the office of the Inspector-General in Bankruptcy affording that officer the general administration of the Act and the right to exercise any powers conferred by the Act. It also provides that officer may “by signed instrument delegate to an authorised employee all or any of the powers and functions of the Inspector-General” under the Act. Plainly one of those powers is the power to approve forms.
It follows that whilst a formal delegation is required, for instance to permit an authorised employee to compose and authorise for use a form as one “approved by the Inspector-General” the requirement of a formal statement of delegation is not required for an officer to certify that a particular form was one of the forms approved by the Inspector-General.
That is the case here. The certificate does no more than certify that the Form 3 attached is in the “approved form”. For that purpose Mr Estcourt states he holds “ a delegation of the Inspector-General in Bankruptcy’s powers under regulation 11.01B”, that is to state a particular Form 3 was in the approved form. It is correct that the formal delegation of that authority to issue such certifications was not proven. However for reasons that follow it was properly received and the appellant fails on this point.
Bankruptcy Act s.11 (2) (a) provides the Inspector-General has the duty of general administration of the Act. By subsection 4 he may, by signed instrument, delegate to an authorised employee all or any of his powers. No instrument of a kind similar to Exhibit 1 in the appeal was tendered at the trial identifying either the powers or functions delegated by the Inspector General, or to whom, if any such delegations were made. Prima facie, given the statutory injunction directed to the Inspector General concerning the general administration or other functions or powers under the Act it might be thought that officer himself should then exercise those powers consistent with the maxim, delegatus non protest delegare. However that maxim is not absolute.
Commonly delegation would be effected by an instrument such as Exhibit 1 in the appeal. However in the absence of evidence the court could not proceed on the basis such had occurred.
That said, in appropriate cases, whether there be a power to delegate or not, a person in whom a statutory power is vested may be able to rely upon an implied power to delegate. That is to say in some circumstances a person in whom a power is vested can authorise another person to exercise that power for or on the putative delegator’s behalf. This is the accepted principle at common law derived from the English case of Carltona v Commissioner of Works[23] approved and applied in Australia in O’Reilly v State Bank of Victoria Commissioners[24].
[23] [1943] 2 All ER 560
[24] (1983) 153 CLR 1
As Exhibit 24, the AGS briefing note, observed insofar as it concerned Commonwealth arrangements: “In Australia, the decision in Caltona has been applied to enable senior public servants in whom powers are vested [here the Inspector- General] … to authorise more junior employees to exercise those powers for and on their behalf [here Mr Estcourt, Acting Assistant Director, Australian Financial Security Authority, Regulation and Enforcement, Delegate of the Inspector-General in Bankruptcy]”
The pre-conditions for power to authorise require two essential features:
(a)The power to be exercised is not one that must be exercised personally by the putative delegator; and,
(b)As a matter of administrative necessity that in respect of the matter the delegator acts through duly authorised delegates.
In this case it seems inconceivable that certification that a particular form is a true copy of a form approved by the Inspector–General is a matter that requires the personal exercise of the Inspector-General’s powers. Nothing in the Bankruptcy Act supports that conclusion. Further for reasons addressed below it is plain that this certification activity is of a purely administrative or procedural nature. It does not require any discretionary input from the Inspector-General.
It follows that I am satisfied there existed an implied delegation of the Inspector General’s general administrative power to Mr Estcourt to certify that forms accorded with the forms approved by the Inspector-General. Mr Estcourt stated he was a delegate of the Inspector-General and in the absence of evidence to the contrary is open to accept his statement to that effect. Accordingly I am satisfied the certificate was admissible and was open to be acted upon by the magistrate.
The second argument advanced by the appellant is premised upon the decision of Dixon v Lekich.[25] She contended that consistent with that authority the certificate, Exhibit 5 could only be admissible if supported by evidence to prove the Inspector-General has exercised the power to delegate the certifying power to Mr Estcourt. As there was no such evidence before the court, the argument proceeded, the certificate itself was in admissible.
[25] [2010] QCA 213
The Director’s response to the appellant’s submission on that point is that Regulation 11.01B was introduced to “… facilitate proof of purely technical, procedural or formal matters of fact… The certificate is prima facie evidence only and does not prevent evidence to the contrary being adduced. [Regulation] 11.01B is expected to facilitate efficiency in court proceedings”[26]. The Director submits that in these circumstances the provision is purely facilitative of a formal element and thus falls into an entirely different class of cases where the exercise of the delegated power operates to prove the offence as was the situation in Dixon.
[26] Explanatory statement, Select legislative Instrument 2010 No 195
In Dixon the court considered the basis for the admission of material permitted under delegation by operation of section 27A(4) of the Acts Interpretation Act(Q) 1954. Implicitly the Court of Appeal accepted the remarks of Judge McGill QC in concluding on this point that “…a certificate signed by the (Police) Commissioner would have been admissible as evidence of the delegation, and by subsection (15) a document purporting to be such a certificate is taken to be such a certificate unless the contrary is established, so that on the face of it such a certificate could simply have been tendered. But there is nothing in that Act by which a certificate by the delegate is made evidence of the existence of the delegation. There is certainly nothing in s 120 of the Act which permits the delegate to certify to the existence of the delegation where the Commissioner’s power has been delegated.”[27] Here if a delegation is required the same situation prevails.
[27] At [11]
In Dixon the court addressed the scheme for proving delegations following consideration in Huth v Petersen, ex parte Petersen[28]. In that case only one element of the offence was subject to the operation of the evidence provisions permitting proof by delegation. Huth presents a more analogous case with the current case than Dixon where the provisions by their proper engagement permitted proof of the entire offence thus obviating the need to call any witness at the trial. This was the point of distinction submitted by the Director supporting his contention that the provision had a purely facilitative purpose only. However in both Dixon and Huth the legislative scheme was noted to ‘constitute an elaborate code both as to substantive and to evidentiary matters’.
[28] [1975] Qd R 340
I do not think the distinction submitted necessarily supports the Director’s submission, as Huth demonstrates. There, the fact that the operation of the delegation in respect of only one matter was in issue and did not appear to determine the matter as seems apparent form the remarks in Huth at 343 where Kneipp J. with whom Stable and Douglas JJ agreed stated:
“There is the scheme of the legislation as to evidentiary matters, to which I have already referred. In particular, there is s. 16A(8)(e), providing for proof of authorization by a certificate from the Commissioner. Having regard to the presence of that provision, it is hardly reasonable to read s. 16A(15)(e)(i) as enabling the member of the police force, in substance, to certify as to his own authorization”.
Notwithstanding that submission the Director contends the certificate was properly admitted and is admissible upon the basis of a presumption that persons who have acted as public officers have been duly appointed, unless the contrary is shown. In Dixon the operation of this principle was not argued or considered[29]. In Huth the matter was considered and determined against the prosecution on the basis that:
“The legislation on the subject constitutes an elaborate code, both as to substantive matters and as to evidentiary matters…If there is a any lack of proof of matters of which proof is simple, if they can be proved, I do not think it would be right to allow reliance on a presumption which was no doubt originally designed to overcome difficulties as to proof”.
[29] At[14]
The prosecutions in both Dixon and Huth concerned the proof of highly technical scientific matters by the relatively simply process of certificate provided the certificate was issued by the Commission for Police or the Commissioner’s appointed delegate. The certificate process spared the Commissioner the trouble and expense of gathering a phalanx of witnesses each time issue was taken by a defendant of some technical issue related to speed or blood alcohol content (respectively) and the equipment used to measure those matters. In that context the Court characterised the relevant provisions of the Traffic Act 1949-1975 and Traffic regulations in the case of Huth and TORUM in the instance of Dixon as ‘elaborate codes’ when considered in conjunction with the Acts Interpretation Act (Q).
I agree with the Director’s submissions concerning the nature of Regulation 11.01B. The certificate addressing this matter is purely procedural and facilitative. There is no elaborate scheme behind it. It exists as a matter of administrative convenience and in order to ensure proper administration of the Act permitting the Director-General’s attention to be focused on more substantive matters. It would be absurd to expect the Inspector-General to complete each certificate and sensible to expect that he would delegate this purely procedural or formal matter. In my view the operation of the Regulations for this purpose do not constitute ‘an elaborate’ code as to both substantive and evidentiary matters for which it could be said the delegation permits a prosecutor to ‘overcome difficulties as to proof’.
It follows in my view that the certificate having been tendered without objection as to its admissibility the presumption of regularity applies.
Finally on this topic I am of the view the appellant by her conduct should be bound by its admission into evidence. At no time during the course of the trial did the appellant object to the admission of Exhibit 5 on the basis that the delegation was defective.[30] It was not until the respondent had closed its case that the point was taken. It was plainly a matter within the contemplation of the appellant as it formed part of a prepared submission presented to the magistrate in support of her no case submission. At that time the prosecutor foreshadowed to the Magistrate that he wished to consider the matter and if necessary adduce further evidence to address the contended deficiency.[31] However events overtook. The proceeding was adjourned and at the conclusion of the evidence the appellant made a no case submission. Once the decision was delivered on that point the prosecutor who had again foreshadowed re-opening and calling of evidence to address the matter was told by the Magistrate it not be necessary. The respondent/prosecutor would have had little difficulty obtaining a favourable exercise of the discretion to re-open in this instance to introduce evidence of the delegation, it being of a purely technical and non-contentious matter[32]. Had I thought it essential on this appeal I would have granted the respondent leave to adduce further evidence on the appeal in order to regularise this matter, if for no other reason but than to bring finality to this matter.
[30] An objection was taken at the time of its admission as to the witness Ashnar’s evidence that the Form 3 attached to the Certificate was the same as the form of statement of affairs she had attached to a letter sent to the appellant by her. That was the limit of the objection. T 1-27 Ln 27-30
[31] T 1-53 Ln 14-15
[32] R v Brown (1985) 2 Qd.R. 126 at 131
It follows for the reasons above that the appeal against the finding of guilt should be dismissed.
Sentence
The magistrate found the appellant guilty, convicted her and fined her $450 and referred the fine to SPER. She appeals against the sentence on the basis that it is manifestly excessive.
In sentencing the magistrate took into account the absence of remorse demonstrated by the not guilty plea, her prior good character she not having any previous convictions and her financial circumstances; but against her noted the longstanding refusal by the appellant to file her statement of affairs.
The principles governing the imposition of Commonwealth sentences are provided for in Part 1B Division 2 of the Crimes Act 1914 (Cth). In particular here relevant principles include the nature of the offence, the appellant’s personal circumstances, her non-co-operation with the authorities over an extended time, the need for a deterrent sentence, the appellant’s character and antecedents: ss. 16A and 16C.
A consequence of the imposition of a fine is that the appellant must be convicted. Despite this matter the appellant is a person of generally good character. She was admitted to practise as a legal practitioner and her difficulties with the Legal Services Commission appear to have no foundation in morally reprehensible conduct. Her difficulties with it relate to administrative matters. Without expressing any opinion on the matter, proceedings before QCAT concerning her issues with the LSC, as with dealings with her Trustee in Bankruptcy and these proceedings all demonstrate the appellant has underlying issues. Although it may be some years before the appellant will be able to travel, should she wish to do so, the prospects are that a conviction may cause her difficulties if she wishes to do so. I think that for a woman in her situation a conviction is a significant thing. A $450 fine is nominal. Accordingly a sentence which carries with it the stain of a conviction is a serious thing. In these circumstances where there is the option of an order discharging the appellant conditionally such ought to have been considered. It was not. In the circumstances I consider the sentence to be excessive. I consider an order pursuant to s.19B conditionally discharging the appellant without conviction should be imposed. I consider a sentence of discharging her without conviction upon her giving a recognisance fixed in the sum of $450 to be of good behaviour for 6 months an appropriate sentence.
It follows I allow the appeal on sentence and order that she be sentenced pursuant to Crimes Act 1914 s.19B to a discharge without conviction upon her giving a recognisance fixed in the sum of $450 to be of good behaviour for 6 months.
Orders.
Appeal against conviction is dismissed. Appeal against sentence is 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