Allam v The State of Western Australia
[2021] WASC 419
•29 NOVEMBER 2021
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: ALLAM -v- THE STATE OF WESTERN AUSTRALIA [2021] WASC 419
CORAM: ARCHER J
HEARD: 25 NOVEMBER 2021
DELIVERED : 25 NOVEMBER 2021
PUBLISHED : 29 NOVEMBER 2021
FILE NO/S: CPCA 72 of 2015
BETWEEN: ASHRAF SOLIMAN ALLAM
First Plaintiff
SALMA SALEH
Second Plaintiff
SOLIMAN ALLAM
Third Plaintiff
AND
THE STATE OF WESTERN AUSTRALIA
Defendant
Catchwords:
Criminal property confiscation - First plaintiff declared drug trafficker - Application for declaration of confiscation - Objection to confiscation
Legislation:
Criminal Property Confiscation Act 2000 (WA)
Misuse of Drugs Act 1981 (WA)
Result:
Objections dismissed
Declaration of confiscation made
Representation:
Counsel:
| First Plaintiff | : | In Person |
| Second Plaintiff | : | No Appearance |
| Third Plaintiff | : | No Appearance |
| Defendant | : | Mr T Staples |
Solicitors:
| First Plaintiff | : | In Person |
| Second Plaintiff | : | In Person |
| Third Plaintiff | : | In Person |
| Defendant | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Brennan v The State of Western Australia [2018] WASC 31
Campana v The State of Western Australia [2008] WASC 230
Centurion Trust v Director of Public Prosecutions (WA) [2010] WASCA 133
Flack v Chairperson, National Crime Authority (1997) 150 ALR 153
McRobb v The State of Western Australia [2020] WASC 163
Mulholland v Winslow [2018] WASCA 19
Ranford v The State of Western Australia [2015] WASC 45
Rinaldi v The State of Western Australia [2019] WASC 420
Whittle v The State of Western Australia [2012] WASC 244
ARCHER J:
(This judgment was delivered extemporaneously on 25 November 2021 and has been edited to correct matters of grammar and to include complete references)
Introduction
In 2015, two freezing notices were issued under the Criminal Property Confiscation Act 2000 (WA) (Confiscation Act). The freezing notices related to particular property said to be owned or effectively controlled by the first plaintiff. One, WAPFN150151, was made on the ground that the first plaintiff could be declared to be a drug trafficker under s 32A of the Misuse of Drugs Act 1981 (WA). The other, WAPFN150173, was made on the ground that there were reasonable grounds for suspecting that the property covered by the notice was crime used or crime derived.
The plaintiffs and the Commonwealth Bank[1] objected to the confiscation of the property. On 14 March 2017, the first plaintiff was declared to be a drug trafficker. On 16 October 2018, consent orders were made dismissing the plaintiffs' objections in relation to freezing notice WAPFN150151. On 5 June 2019, the objection filed by the Commonwealth Bank was dismissed by consent. On 23 September 2021, consent orders were made dismissing the plaintiffs' objections in relation to freezing notice WAPFN150173. The Director of Public Prosecutions (DPP) now seeks a declaration that particular property has been confiscated.
[1] in CPCA 70 of 2015.
The plaintiffs did not seek to defend the application.
For the reasons that follow, the declaration should be made.
Legal framework[2]
[2] This section reproduces or draws on my judgment in earlier cases, including Brennan v The State of Western Australia [2018] WASC 31 and McRobb v The State of Western Australia [2020] WASC 163.
The DPP seeks the declaration under s 30 of the Confiscation Act.
Section 30 of the Confiscation Act provides:
30. Declarations of confiscation, applying for and making
(1)The DPP or the CCC may apply to the court for a declaration that property has been confiscated.
(2)On considering an application, if the court finds that the property described in the application has been confiscated under section 6, 7 or 8, the court must make a declaration to that effect.
The DPP says that the property described in the application has been confiscated under s 8(1) of Confiscation Act. That subsection provides:
8. Declared drug trafficker, certain property of confiscated
(1)When a person is declared to be a drug trafficker under section 32A(1) of the Misuse of Drugs Act 1981 as a result of being convicted of a confiscation offence that was committed after the commencement of this Act, the following property is confiscated -
(a)all the property that the person owns or effectively controls at the time the declaration is made;
(b)all property that the person gave away at any time before the declaration was made, whether the gift was made before or after the commencement of this Act.
Proof of confiscation
The DPP bears the onus of proving that the property has been confiscated.[3] The DPP must prove this on the balance of probabilities.[4]
[3] Campana v The State of Western Australia [2008] WASC 230[40].
[4] Section 102(2)(d) of the Confiscation Act.
The matters that the DPP must prove under s 8 are:
1.the first plaintiff was declared to be a drug trafficker;
2.the declaration was made as a result of the first plaintiff being convicted of a 'confiscation offence' (relevantly being an offence punishable by imprisonment for more than 2 years[5]);
3.the offence was committed after 1 January 2001, being the commencement of the Confiscation Act; and
4.at the time the drug trafficker declaration was made, the property was owned or effectively controlled by the first plaintiff.
[5] Section 141(1) of the Confiscation Act.
If a person has been convicted of a relevant confiscation offence, regard may be had to material before a court in any proceedings for the offence or sentencing.[6]
[6] See s 107 of the Confiscation Act.
If each of these matters is proved, then, pursuant to s 8(1) of the Confiscation Act, the property was automatically and immediately confiscated at the time the drug trafficker declaration was made.[7] The 'property' confiscated includes any income or other property derived from the property while a freezing notice is in force.[8]
[7] Centurion Trust Company Ltd v Director of Public Prosecutions (WA) [2010] WASCA 133 (Centurion Trust 2010) [199].
[8] Section 34(7) of the Confiscation Act.
In the absence of any third party interest, nothing else must be established before the court is compelled to make a declaration under s 30.[9]
[9] See Whittle v The State of Western Australia [2012] WASC 244 [36] ‑ [40] and Ranford v The State of Western Australia [2015] WASC 45 [22].
Property said to have been confiscated
The DPP seeks a declaration that identified property has been confiscated. The identified property comprises two amounts of cash that had been in the possession of the first plaintiff on 29 August 2015 and the first plaintiff's interest in the land at Lot 2 on Strata Plan 59495 in Certificate of Title Volume 2793, Folio 118, commonly known as 95B Arkana Road, Westminster (Land).
Evaluation
The DPP filed two affidavits of Morgan Paling[10] (Paling Affidavits) establishing the following.
[10] Affidavit of Morgan Charlotte Paling affirmed 30 March 2021 and Supplementary Affidavit of Morgan Charlotte Paling affirmed 3 June 2021.
On 10 February 2017, the first plaintiff was convicted in the District Court of numerous offences, including of possessing methylamphetamine with intent to sell or supply, contrary to s 6(1)(a) of the Misuse of Drugs Act. This offence is punishable by imprisonment for more than 2 years.[11] It is therefore a 'confiscation offence'. The offence was committed in 2015, after the commencement of the Confiscation Act.[12]
[11] Section 34(1) of the Misuse of Drugs Act.
[12] The Confiscation Act commenced on 1 January 2001.
On 14 March 2017, as a result of this conviction, the first plaintiff was declared to be a drug trafficker under s 32A of the Misuse of Drugs Act.
Accordingly, the only remaining element that the DPP must prove, in respect of each item of property the subject of the application, is that the property was owned or effectively controlled by the first plaintiff at the time the drug trafficker declaration was made.
Ownership
The Confiscation Act defines an 'owner' of property to mean a person who has a legal or equitable interest in the property.[13]
[13] Confiscation Act glossary.
'Property' is defined in the Confiscation Act to mean a legal or equitable interest in any real or personal property of any description, wherever situated, and whether tangible or intangible.[14]
[14] Confiscation Act glossary.
The first Paling Affidavit establishes that the first plaintiff was the sole registered proprietor of the Land, and had been at the time the drug trafficker declaration was made.
The first Paling Affidavit establishes that $52,000 in cash was taken from the first plaintiff in a search of the car he was driving on the date of the offence. It also establishes that a further $3,500 was taken from his home during a search later that day.
The first plaintiff's possession of the cash gave him an equitable interest in it, making him an 'owner' within the definition of the Confiscation Act.[15] He would not have lost his equitable interest when the cash was seized by the police. Until such time as the property was confiscated and vested in the State, he retained an interest in it.[16] An order for forfeiture of the cash was not made during the sentencing proceedings. The property was not confiscated and did not vest in the State until he was declared to be a drug trafficker. Accordingly, there is nothing to suggest that the plaintiff lost his equitable interest in the cash prior to the drug trafficker declaration.
[15] See Rinaldi v The State of Western Australia [2019] WASC 420 [30], referring to Flack v Chairperson, National Crime Authority (1997) 150 ALR 153, 156 ‑ 157, 162 ‑ 163.
[16] See Rinaldi [32], referring to Mulholland v Winslow [2018] WASCA 19 [34], [51], [56], where the court found that a person who had the right to possess property prior to its seizure retained that right of possession after its seizure as against everyone except the Commissioner of Police.
I am therefore satisfied, on the balance of the probabilities, that the first plaintiff had possession of the cash on 14 March 2017 when he was declared to be a drug trafficker.
Declaration of confiscation
The DPP has proved each of the necessary elements under s 8. Therefore, the property was automatically and immediately confiscated at the time the drug trafficker declaration was made.
As noted earlier, in the absence of any third party interest, nothing else must be established before the court is compelled to make a declaration under s 30 of the Confiscation Act.
Once the first plaintiff was declared to be a drug trafficker, the freezing order ceased to have any force. The property was no longer frozen; it was confiscated.
It follows that I am required to declare that that property has been confiscated.
Orders
Orders will be made in the terms of paragraph 2 of the DPP's summons filed 29 July 2021.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KJ
Associate to the Honourable Justice Archer
29 NOVEMBER 2021
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