Bianchi v The State of Western Australia
[2011] WASC 221
•25 AUGUST 2011
BIANCHI -v- THE STATE OF WESTERN AUSTRALIA [2011] WASC 221
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2011] WASC 221 | |
| 25/08/2011 | |||
| Case No: | CPCA:15/2006 | 11 AUGUST 2011 | |
| Coram: | EM HEENAN J | 11/08/11 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Objection dismissed Confiscation order | ||
| B | |||
| PDF Version |
| Parties: | DAVIDE BIANCHI THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Confiscation of criminal property Declared drug trafficker Confiscation order Dismissal of objection |
Legislation: | Criminal Property Confiscation Act 2000 (WA) Misuse of Drugs Act 1981 (WA) |
Case References: | Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
THE STATE OF WESTERN AUSTRALIA
Defendant
Catchwords:
Criminal law - Confiscation of criminal property - Declared drug trafficker - Confiscation order - Dismissal of objection
Legislation:
Criminal Property Confiscation Act 2000 (WA)
Misuse of Drugs Act 1981 (WA)
Result:
Objection dismissed
Confiscation order
(Page 2)
Category: B
Representation:
Counsel:
Plaintiff : No appearance
Defendant : Mr M Seaman
Solicitors:
Plaintiff : No appearance
Defendant : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Nil
(Page 3)
1 EM HEENAN J: The Director of Public Prosecutions for Western Australia has applied for a declaration pursuant to s 31 of the Criminal Property Confiscation Act 2000 (WA) (the Act) that property has been confiscated to the State of Western Australia pursuant to s 8(1) of the Act, and for an order dismissing the applicant's objection to that confiscation.
2 The background facts are that on 20 December 2005, 28 December 2005, 5 January 2006 and 16 March 2006 Robert Lajos Gulyas was served, pursuant to s 34 of the Act, with freezing notices AISFN050160, AISFN050162, WAPFN060002 and WAPFN060031 (the freezing notices) on the basis that he had been charged with an offence and could be declared to be a drug trafficker under s 32A(1) of the Misuse of Drugs Act 1981 (WA) if convicted of that offence. The evidence supporting those facts is contained in par 2 of the affidavit of Marie Clair Normoyle sworn 15 April 2011. On 20 July 2006, Mr Gulyas was convicted in the District Court of various offences against the Misuse of Drugs Act, and pursuant to s 32A of that legislation was declared to be a drug trafficker in relation to those convictions.
3 Section 36(1) of the Act requires that as soon as practicable after a freezing notice is issued a copy must be served personally on the person from whom the property was taken and on any other person who at the time the notice was issued the claimant for the freezing notice is aware is or might be, or might claim to be, an interested party. Section (36)(4) of the Act provides that a copy of the freezing notice must be served on any person who, as a result of information contained in a statutory declaration provided pursuant to s 37, the applicant becomes aware is, or might be, or claims to be an interested party.
4 Section 37 provides that a person served with a copy of a freezing notice under s 36 must give a statutory declaration to a particular police officer stating, among other things, whether the declarant is aware if there is any other person who is or might be or claims to be an interested person and, if so, to provide details. In this context, an interested party is defined to mean 'a person who has an interest in the property that would enable the person to succeed on an objection to the confiscation of the property'.
5 Copies of the four freezing notices, already identified, have been served on the person from whom property was taken, any person who had custody of the frozen property, and all persons whom the applicant believes or is aware may be or might claim to be an interested party. The details are to be found in the same affidavit of Ms Normoyle at pars 3 to 10.
(Page 4)
6 Section (7)(1) of the Act provides that property the subject of a freezing notice is automatically confiscated unless an objection to confiscation is filed on or before the 28th day after the service cut-off date for the property. Mr Davide Bianchi commenced the current action by filing an originating summons dated 13 February 2006 which objected to the confiscation of the certain property in the freezing notice AISFN050162. Confiscation of that limited amount of property is no longer sought by the State and, accordingly, that objection can be allowed. That property will be excluded from the declarations to be made.
7 All other objections to confiscation of property the subject of the freezing notices have been dismissed or otherwise finally resolved. Subject to any effect of these objection proceedings, all property owned or effectively controlled by Mr Gulyas at the time he was declared to be a drug trafficker, namely the relevant property referred to in pars 17 to 27 of Ms Normoyle's affidavit, is automatically confiscated to the State pursuant to s 8 of the Act. If the court finds that property has been confiscated under s 8 the court must, pursuant to s 30(2) of the Act, make a declaration to that effect.
8 That being the case, I am satisfied that the court can and should declare as follows:
1. The applicant's objection to the confiscation of frozen property made by the originating summons and notice of objection dated 24 March 2006 be dismissed.
2. Subject to par 4 herein, all the property that Robert Lajos Gulyas ('Gulyas') owned or effectively controlled at the time he declared to be a drug trafficker under s 32A(1) of the Misuse of Drugs Act on 20 July 2006 and all property that Gulyas gave away at any time before that declaration was made, has been confiscated to the State of Western Australia.
3. Without limiting the generality of the declaration in paragraph 2 above, the following property has been confiscated, namely:
a. The land at lot 791 on diagram 59729 in Certificate of Title vol 1575, folio 421, commonly known as 17 Venture Rise, Ballajura;
b. 2003 Toyota Camry sedan, white in colour, registration number 1BJW832, chassis number 6T153XK360X280773, engine number 1MZ1552917;
- c. Money standing to the credit of Gulyas in ANZ Bank Progress Saver account number 5963-14325 as at 20 July 2006 and any and all interest payable on such money;
d. Money standing to the credit of Gulyas in National Australia Bank Cash Management Account number 086-131 58-727-6646 as at 20 July 2006 and any and all interest payable on such money;
e. Money standing to the credit of Gulyas in Westpac Bank Mastercard account number 5163 2300 0140 5682 as at 20 July 2006 and any and all interest payable on such money;
f. Money standing to the credit of Gulyas in Bankwest account number 040 0557364 as at 20 July 2006 and any and all interest payable on such money;
g. Money standing to the credit of Gulyas in Westpac Bank Passbook Account number 736037 510858 as at 20 July 2006 and any and all interest payable on such money;
h. Funds held by the Public Trustee in account reference TRT 33057724 EM214 in the joint names of the Director of Public Prosecutions vs Gulyas/2, pursuant to the Deed of Agreement made 14May 2007 between the Director of Public Prosecutions and Angela Srah Olifent; and
i. Cash in the following sums together with any and all interest payable on such money;
(i) $AUD$95;
(ii) $AUD$1,618;
(iii) $AUD$71,495;
(iv) $AUD$860;
(v) $AUD$33,900;
(vi) $AUD$1,150;
(vii) $AUD$50,050;
(viii) $AUD$50,000;
(Page 6)
- (ix) $AUD$50,000; and
(x) $AUD$100,000.
- 4. The following property is excluded from the declaration of confiscation made in par 2 hereof, namely:
a. Item 4 of Freezing Notice AISFN050160 being the land at lot 17 on strata plan 21006 together with a share in any common property as set out on the strata plan in Certificate of Title vol 1896, folio 144 and commonly known as 17/44 Albany Highway, Victoria Park;
b. Item 9 of Freezing Notice AISFN050160 being the money standing to the credit of Robert Lajos Gulyas as trustee for JS Trust in National Australian Bank Business Cheque account number 086131 559790533 and any and all interest payable on such money;
c. Item 1 of Freezing Notice AISFN050162 being all contractual rights and/or remedies Gulyas has arising from the agreement between Gulyas and Davide Bianchi in relation to a loan of $520,000 by Gulyas to Bianchi dated 10 May 2005, 10 June 2005, 22 June 2005 and 16 August 2005.
d. Item 2 of Freezing Notice AISFN050162 being all contractual rights and/or remedies Gulyas has arising from an agreement between Gulyas and Kingstar Nominees Pty Ltd [CAN 109 190 276] in relation to a loan of AUD$250,000 by Gulyas to Kingstar Nominees in the agreement dated 17 June 2005;
e. Item 5 of Freezing Notice AISFN050162, being the land at lot 158 on plan 39833 in Certificate of Title vol 2559 folio 368, commonly known as 2 Lynn Street, Hilton;
f. Item 6 of Freezing Notice AISFN050162, being the land at lot 158 on plan 39833 in Certificate of Title vol 2559 folio 369, commonly known as 2A Lynn Street, Hilton; and
g. Item 1 of Freezing Notice WAPFN060002 being all the shares in Starboat Pty Ltd held in the name of Gulyas.
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