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Annulled conviction may not save senator Rod Culleton, legal academic says Annulled conviction may not save senator Rod Culleton, legal academic says
(35 minutes later)
New One Nation senator Rodney Culleton is in police custody after turning himself in over an outstanding warrant related to his failure to appear in a NSW court to answer larceny charges. New One Nation senator Rodney Culleton has had his conviction on larceny charges in New South Wales annulled, clearing the way for a fresh trial.
A NSW Police spokesman confirmed a man was being dealt with by police in Armidale and would be bailed to appear before the local court on Monday afternoon. The result may improve Culleton’s chances of taking up his Senate seat but a senior legal academic, Tony Blackshield, has told Guardian Australia it may be too late because Culleton had been convicted when the result was declared on Tuesday.
The West Australian senator was convicted in his absence earlier this year for stealing a tow truck key from a driver who was trying to repossess one of his company cars in 2014.The West Australian senator was convicted in his absence earlier this year for stealing a tow truck key from a driver who was trying to repossess one of his company cars in 2014.
He’s seeking to have that conviction annulled. On Monday, Culleton turned himself in to Armidale police over an outstanding warrant related to his failure to appear in a NSW court to answer the larceny charges.
Larceny carries a maximum penalty of five years’ jail, which could deem him ineligible to be a senator. A NSW Police spokesman confirmed a man had been dealt with by police in Armidale and would be bailed to appear before the local court.
On Monday afternoon Armidale local court set aside the conviction and listed the matter for mention on 12 September to fix a hearing date.
Larceny carries a maximum penalty of five years’ jail.
Related: Potential One Nation senator fails in bid to delay trial over stealing chargeRelated: Potential One Nation senator fails in bid to delay trial over stealing charge
The constitution says anyone convicted of crime which has a punishment of at least one year’s jail can’t be a member of parliament. The constitution says anyone convicted of crime which has a punishment of one year or more jail can’t be a member of parliament.
Senator Culleton is also awaiting trial in WA later this month – the week before parliament begins – after he was arrested and charged for allegedly stealing a car being used by receivers from RSM Bird Cameron as they began foreclosure proceedings at a friend’s farm. A larceny conviction would therefore render Culleton ineligible to be a senator.
On Monday after the conviction had been set aside, Blackshield told Guardian Australia he thought it was too late for the court result to save Culleton.
“At the declaration of the polls, he was not qualified, he was incapable of being chosen,” he said.
“Even if the conviction is now cleared up, I think it’s too late. On Tuesday last week, we had the formal declaration of the Senate result and at that date he was arguably not capable of being chosen.”
There is no direct precedent for the situation.
Blackshield is a Macquarie University emeritus professor of law, visiting professorial fellow at the University of New South Wales and author of constitutional text Blackshield and Williams.
Reports have suggested that One Nation will be able to select Culleton’s replacement in the event he were found to be ineligible.
But in an analysis for Inside Story Blackshield raised the possibility ineligibility may require a recount of the Senate result because the candidate was not eligible to be elected in the first place, rather than merely vacating their position after their election.
He told Guardian Australia a recount would probably result in One Nation’s number two candidate being elected but it would require a recount.
A recount could only be triggered after a successful challenge of Culleton’s eligibility in the court of disputed returns or by the Senate itself, Blackshield said.
Culleton is also awaiting trial in WA later this month – the week before parliament begins – after he was arrested and charged for allegedly stealing a car being used by receivers from RSM Bird Cameron as they began foreclosure proceedings at a friend’s farm.
The senator won the 11th spot on the WA ballot.The senator won the 11th spot on the WA ballot.
He is expected to appear before Armidale local court again after 1400 (AEST) on Monday.