Atkinson v The State of Western Australia
[2018] WASC 218
•20 JULY 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: ATKINSON -v- THE STATE OF WESTERN AUSTRALIA [2018] WASC 218
CORAM: VAUGHAN J
HEARD: 20 JULY 2018
DELIVERED : 20 JULY 2018
FILE NO/S: CPCA 21 of 2016
BETWEEN: DARREN ROBERT ATKINSON
Plaintiff
AND
THE STATE OF WESTERN AUSTRALIA
Defendant
Catchwords:
Criminal property confiscation - Turns on own facts
Legislation:
Criminal Property Confiscation Act 2000 (WA)
Result:
Confiscation order made
Category: B
Representation:
Counsel:
| Plaintiff | : | In person |
| Defendant | : | Mr T Staples |
Solicitors:
| Plaintiff | : | In person |
| Defendant | : | The Director of Public Prosecutions for the State of Western Australia |
Case(s) referred to in decision(s):
Brennan v The State of Western Australia [2018] WASC 31
Ranford v The State of Western Australia [2015] WASC 45
Whittle v The State of Western Australia [2012] WASC 244
VAUGHAN J:
This was a matter arising under the Criminal Property Confiscation Act 2000 (WA) (Act).
The applicant, the Director of Public Prosecutions, made application by a chamber summons dated 12 June 2018. Two orders were sought:
(1)First, an order that an objection to the confiscation of property on the part of the plaintiff, Darren Robert Atkinson, be dismissed.
(2)Second, a declaration that certain property, namely money standing to the credit of Mr Atkinson in a bank account with Westpac Banking Corporation, had been confiscated to the State of Western Australia.
Following the hearing I made orders that the objection be dismissed and made a declaration substantially in the terms as sought. I stated that I would provide brief written reasons subsequently so as not to inconvenience other matters to follow in the CPCA list. These are those reasons.
Factual background
This is a civil proceeding.[1] I was required to make findings of fact on the balance of probabilities.[2] The following findings of fact are all based on the uncontradicted evidence contained in the affidavit of Morgan Paling affirmed 6 June 2018 as filed in the proceedings.
[1] Criminal Property Confiscation Act 2000 (WA) s 102(1).
[2] Criminal Property Confiscation Act 2000 (WA) s 102(2)(d).
On 22 March 2016 a freezing notice, described as Freezing Notice WAPFN160032, was issued under s 34(3) of the Act in respect of property owned or effectively controlled by Mr Atkinson. Mr Atkinson was served with the freezing notice on 23 March 2016; it was also served on certain other persons including Westpac Banking Corporation. The freezing notice was filed in this court on 22 March 2016.
In terms of formal requirements, under s 35 of the Act, there is no reason to doubt the validity of the freezing notice.
On 23 March 2016 Mr Atkinson made a statutory declaration. I infer that the statutory declaration was made in compliance with s 37 of the Act. Among other things, Mr Atkinson disclosed property that he owned or effectively controlled. This included the money standing to the credit of Mr Atkinson in the Westpac Banking Corporation bank account which was the subject of the Director of Public Prosecutions' application. In particular, Mr Atkinson declared:
I Darren Atkinson own the bank account number [not reproduced]
Mr Atkinson filed an objection pursuant to s 79 of the Act. The objection was filed in these proceedings. No grounds of objection were specified. Westpac Banking Corporation also filed an objection. That was done in other proceedings. However, on 30 May 2018 consent orders were made dismissing Westpac Banking Corporation's objection. I note that Westpac Banking Corporation, by its solicitors Minter Ellison, has been served with the chamber summons on which the Director of Public Prosecutions moved before me. Counsel for Westpac Banking Corporation did not appear at the hearing. That is unsurprising in circumstances where its objection had already been dismissed by consent.
No other objections have been filed in relation to the freezing notice.
After issue of the freezing notice, certain property was cancelled from the freezing notice. It is not necessary to recount the property that has been removed from the operation of the freezing notice. It suffices to record that Ms Paling has detailed the property cancelled from the freezing notice and it does not include the money standing to the credit of the subject bank account with Westpac Banking Corporation. Accordingly, I accept that no cancellation has affected the property the subject of the present application.
The freezing notice was never set aside.
On 8 June 2017, in Indictment No 808 of 2016, Mr Atkinson was convicted of charges under the Misuse of Drugs Act 1981 (WA). In particular, Mr Atkinson was convicted of the following offences:
(1)An offence under s 6(1)(a) of the Misuse of Drugs Act 1981 (WA), namely, possession of prohibited drugs (cannabis) with intent to sell or supply. The offence was committed on 14 March 2016.
(2)An offence under s 7(2) of the Misuse of Drugs Act 1981 (WA), namely, cultivation of a prohibited plant. Again, the offence was committed on 14 March 2016.
(3)An offence under s 7B(6) of the Misuse of Drugs Act 1981 (WA), namely, possessing drug paraphernalia in or on which there was a prohibited drug or plant. The offence was committed on 14 March 2016.
Mr Atkinson was, following on from the first conviction on 8 June 2017, also declared on that day to be a drug trafficker pursuant to s 32A(1) of the Misuse of Drugs Act 1981 (WA) in relation to the conviction.
Ms Paling's affidavit finishes by attaching a bank statement as to Mr Atkinson's Westpac Banking Corporation bank account. The statement is dated 2 June 2016. It shows that the account, with an account number that coincides with the number in the statutory declaration, is in Mr Atkinson's name and is a 'Rocket Deposit Offset Account' to a home loan. As at 2 June 2016 the balance of the account was $61,530.42.
To the extent that, as a third party, Westpac Banking Corporation might have claimed some interest in the money standing to Mr Atkinson's credit in the subject account - for example, by way of combination of accounts - I infer that its interest has already been satisfied. I do so given: (1) the dismissal by consent of Westpac Banking Corporation's objection to the freezing notice; and (2) Westpac Banking Corporation's non‑appearance at the hearing, despite having been served with the application.
Finally, I note that Mr Atkinson was personally served with the papers relied on in the Director of Public Prosecutions' application on 26 June 2018.
Legal framework
Section 30 of the Act provides:
30. Declarations of confiscation, applying for and making
(1)The DPP 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.
Section 8(1) of the Act 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.
Section 10(1) of the Act provides:
10.Other property, time and effect of confiscation of under s 6, 7 or 8
(1)Property (except registrable real property) that is confiscated under section 6, 7 or 8 vests absolutely in the State when the section takes effect in relation to the property.
Under s 9 of the Act, registrable real property does not vest absolutely in the State unless and until the court makes a declaration under s 30 that the property has been confiscated. But here the property the subject of the application is not registrable real property; it is a chose in action. Accordingly, as provided for in s 10(1), it vests absolutely in the State when the relevant statutory provision takes effect in relation to the property.
In the context of these proceedings the matters that the Director of Public Prosecutions had to prove under s 8(1) of the Act were that:
(1)Mr Atkinson had been declared to be a drug trafficker under s 32A of the Misuse of Drugs Act 1981 (WA).
(2)The declaration was as a result of a 'confiscation offence'. (The term 'confiscation offence' is defined in s 141(1) of the Act. It includes an offence against a law in force anywhere in Australia that is punishable by imprisonment for 2 years or more.)
(3)The offence was committed after the commencement of the Act - ie after 1 January 2001, that being the date of commencement.
(4)The subject property, ie the money standing to the credit of Mr Atkinson in the nominated Westpac Banking Corporation bank account, was owned or effectively controlled by Mr Atkinson. (By the Glossary to the Act the term 'owner' means, in relation to property, a person who has a legal or equitable interest in the property. Thus the chose in action as represented by the bank account is owned by Mr Atkinson if he has the legal or equitable interest in that chose in action.)
(5)The subject property was so owned or effectively controlled at the time the drug trafficker declaration was made.
If these five things were proved then, automatically by operation of s 8(1) of the Act, the subject property was confiscated at the time the drug trafficker declaration was made; and, by s 10(1) of the Act, the property vested absolutely in the State at that time. Further, given the mandatory terms of s 30, the court was compelled to make a confiscation declaration confirming that the property had been so confiscated under s 8(1).
In short, the court was required to make a declaration that the property had been confiscated if the legislative requirements had been satisfied.[3]
[3] Ranford v The State of Western Australia [2015] WASC 45 [9].
It is only the interest of Mr Atkinson that is confiscated.[4] However, in the present case there was no suggestion that there was any relevant interest of a third party in the subject property.
[4] Whittle v The State of Western Australia [2012] WASC 244 [40].
A freezing notice comes into force when it is issued.[5] It stops being in force as soon as the property is confiscated under s 6, s 7 or s 8.[6] That has consequences for any earlier objection to the freezing notice. As the freezing notice itself is not in force, any subsisting objection is moot; the prior objection to the freezing notice must inevitably be dismissed.[7]
[5] Criminal Property Confiscation Act 2000 (WA) s 39(11).
[6] Criminal Property Confiscation Act 2000 (WA) s 39(2(a).
[7] Brennan v The State of Western Australia [2018] WASC 31 [28].
Disposition
In making orders as referred to below, I was satisfied that the Director of Public Prosecutions had established, on the balance of probabilities, the five matters that she had to prove.
In particular, as mentioned earlier, Mr Atkinson was declared to be a drug trafficker under s 32A(1) of the Misuse of Drugs Act 1981 (WA) on 8 June 2017. The declaration was as a result of the conviction under s 6(1)(a) of the Misuse of Drugs Act 1981 (WA). That offence is punishable by a term of imprisonment of more than 2 years.[8] It is therefore a 'confiscation offence'. (By contrast the offence under s 7(2) of the Misuse of Drugs Act 1981 (WA) was a simple offence punishable by a term of imprisonment not exceeding 2 years;[9] it was not a confiscation offence. Nor was the offence under s 7B(6) of the Misuse of Drugs Act 1981 (WA).)
[8] Misuse of Drugs Act 1981 (WA) s 34(2).
[9] Misuse of Drugs Act 1981 (WA) s 7(2), 34(1)(c).
Self‑evidently, given the date of the offence, the offence was committed after the commencement of the Act.
Accordingly, the first three conditions I have mentioned were established.
The last two conditions were established by Mr Atkinson's statutory declaration. Mr Atkinson confirmed his ownership of the money standing to his name in the relevant bank account with Westpac Banking Corporation. From the time of the freezing notice to the drug trafficker declaration, the property was subject to the effect of a freezing notice. Accordingly, the chose in action as represented by the bank account continued to be property owned by Mr Atkinson at the time that the drug trafficker declaration was made.
It followed that the subject property was confiscated by operation of s 8(1) of the Act with effect from 8 June 2017. Moreover, I was required to declare that the property had been confiscated. And, as the freezing notice had ceased to have force, the objection to the freezing notice was without utility and ought to have been dismissed.
For these reasons I made orders that:
(1)The plaintiff's objection by originating summons dated 11 April 2016 and taken as being filed on 16 May 2016 is dismissed.
(2)Pursuant to s 30 of the Criminal Property Confiscation Act 2000 (WA) it is declared that the following property of the plaintiff, Darren Robert Atkinson, has been confiscated to the State of Western Australia, namely, money standing to the credit of Mr Atkinson in Westpac Banking Corporation account number [not reproduced] as at 8 June 2017, together with any interest thereon.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AD
ASSOCIATE TO THE HONOURABLE JUSTICE VAUGHAN20 JULY 2018
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