Barker v Director of Public Prosecutions (WA)

[2011] WASC 299

BARKER -v- DIRECTOR OF PUBLIC PROSECUTIONS (WA) [2011] WASC 299

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2011] WASC 299
Published:	27/10/2011
Case No:	CPCA:130/2008	Heard:	6 OCTOBER 2011
Coram:	EM HEENAN J	Delivered:	6/10/11
No of pages:	4	Judgment Part:	1 of 1
Result:	Declaration that first plaintiff's property is confiscated to the State except for the second plaintiff's equitable interest in certain land
Category:	B
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Parties:	DARREN FREDERICK BARKER EILEEN BRENDA GEDEN DIRECTOR OF PUBLIC PROSECUTIONS (WA)
Catchwords:	Drug trafficker Criminal Property Confiscation Act 2000 Determination of objections
Legislation:	Criminal Property Confiscation Act 2000 (WA)
Case References:	Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : BARKER -v- DIRECTOR OF PUBLIC PROSECUTIONS (WA) [2011] WASC 299 CORAM : EM HEENAN J HEARD : 6 OCTOBER 2011 DELIVERED : 6 OCTOBER 2011 PUBLISHED : 27 OCTOBER 2011 FILE NO/S : CPCA 130 of 2008 BETWEEN : DARREN FREDERICK BARKER

First Plaintiff

EILEEN BRENDA GEDEN
Second Plaintiff

AND

DIRECTOR OF PUBLIC PROSECUTIONS (WA)
Defendant

Catchwords:

Drug trafficker - Criminal Property Confiscation Act 2000 - Determination of objections

Legislation:

Criminal Property Confiscation Act 2000 (WA)

(Page 2)

Result:

Declaration that first plaintiff's property is confiscated to the State except for the second plaintiff's equitable interest in certain land

Category: B

Representation:

Counsel:

First Plaintiff : No appearance
Second Plaintiff : Mr L Hager
Defendant : Mr M Seaman

Solicitors:

First Plaintiff : No appearance
Second Plaintiff : Metaxas & Hager
Defendant : Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Nil

(Page 3)

1 EM HEENAN J: On 7 September 2009 the first plaintiff, Darren Frederick Barker, was convicted of a series of offences under the Misuse of Drugs Act 1981 (WA) and on that date was declared to be a drug trafficker pursuant to s 32A of that Act.

2 Following his arrest and charge on those drug offences, notice of confiscation and freezing of certain property, believed to be the property of the first plaintiff, was given by the Director of Public Prosecutions. Later an objection was lodged by the first plaintiff against the freezing order and the application for confiscation of that property.

3 Those proceedings commenced on 14 October 2008 by an originating summons issued on behalf of Mr Barker seeking orders that the freezing notices be set aside, that his property be returned and claiming costs. Those proceedings have been before this court on several subsequent occasions and have resulted in the second plaintiff being joined as a party to the proceedings. It emerged that she had advanced 50% of the proceeds for the purchase of certain land at Bluegum Crescent, Gabbadah, which is registered on the land title register in the sole ownership of the first plaintiff.

4 Evidence was then lodged on behalf of the second plaintiff, Mrs Eileen Geden, to establish that she had in fact advanced 50% of the purchase price of the Gabbadah property as claimed. This has now resulted in the DPP, on behalf of the State, acknowledging that she has, by virtue of a constructive trust, a 50% proprietary interest in that land and that that interest should be excluded from the confiscation order being sought.

5 Negotiations between the State of Western Australia by the DPP and the solicitors for the second plaintiff, Mrs Geden, have proceeded to the point where consent has been reached about the terms and the disposition of these proceedings which, shortly stated, would result in all the property of the first plaintiff, the declared drug trafficker Darren Frederick Barker, being declared to be confiscated to the State with the exception of the 50% equitable interest in the Gabbadah property, which should be declared to be vested in the second plaintiff, Mrs Geden.

6 Mrs Geden and the representative of the State have agreed upon orders which would give effect to that disposition but the first plaintiff, the trafficker Mr Barker, has refused or declined to give his consent to those orders. Nevertheless, the State presses for final orders to dispose of

(Page 4)

these proceedings on that basis and I am satisfied that such orders should be granted.

7 The declaration made by the Magistrates Court that the first plaintiff is a drug trafficker means that there is no alternative but for the Court to declare that all his property be confiscated to the State. The exception - not that it is really an exception - is that a 50% interest in the Gabbadah property is in equity the property of the second plaintiff and therefore not subject to that confiscation order.