Bingham v The State of Western Australia - [2025] WASC 211

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
CITATION:   BINGHAM -v- THE STATE OF WESTERN AUSTRALIA [2025] WASC 211
CORAM:   WHITBY J
HEARD:   9 APRIL 2025
DELIVERED          :   30 MAY 2025
FILE NO/S:   CPCA 14 of 2016
BETWEEN:   GEOFFREY STUART JOHN BINGHAM
First Plaintiff
WAYNES WINDSCREENS WELSHPOOL PTY LTD
Second Plaintiff
STATEWIDE CAR GLASS PTY LTD
Third Plaintiff
ROBYN SHAAN RYAN
Fourth Plaintiff
TONY GREGO
Fifth Plaintiff
AND
THE STATE OF WESTERN AUSTRALIA
Defendant

Catchwords:

Criminal law - Criminal property confiscation - Freezing notice - Application for declaration that frozen property confiscated - Objection to freezing notice

Legislation:

Criminal Property Confiscation Act 2000 (WA)
Misuse of Drugs Act 1981 (WA)

Result:

First and fifth plaintiff's objections to freezing notice No WAPFN160026 are dismissed
Declarations made pursuant to the Criminal Property Confiscation Act 2000 (WA) s 8 that some of the property the subject of freezing notice No WAPFN160026 has been confiscated

Category: B

Representation:

Counsel:

First Plaintiff	:	In person
Second Plaintiff	:	No appearance
Third Plaintiff	:	No appearance
Fourth Plaintiff	:	No appearance
Fifth Plaintiff	:	In person
Defendant	:	IS Jones

Solicitors:

First Plaintiff	:	In person
Second Plaintiff	:	No appearance
Third Plaintiff	:	No appearance
Fourth Plaintiff	:	Annabelle Hughes Barrister & Solicitor
Fifth Plaintiff	:	In person
Defendant	:	Director of Public Prosecutions (WA)

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

Centurion Trust Company Ltd v Director of Public Prosecutions (WA) [2010] WASCA 133
Director of Public Prosecutions (WA) v Centurion Trust Company Ltd (No 5) [2008] WASC 107

WHITBY J:

This is the defendant's application by summons dated 28 September 2023 (Application) seeking a declaration of confiscation pursuant to s 30 of the Criminal Property Confiscation Act 2000 (WA) (CPCA). The State of Western Australia (State) seeks orders declaring that three properties owned by Mr Geoffrey Stuart John Bingham, the first plaintiff, have been confiscated by operation of s 8(1) of the CPCA.
The State relies on the following affidavits:
(1)affidavit of Ma Theresa Mendoza sworn 14 September 2023 (Exhibit 1);
(2)affidavit of Ma Theresa Mendoza sworn 10 September 2024 (Exhibit 2); and
(3)affidavit of Christopher Michael Anderson sworn 20 September 2023 (Exhibit 3).
Mr Bingham commenced these proceedings by originating summons and notice of objection dated 29 March 2016 by which he objects to the Freezing Notice No. WAPFN160026 issued on 11 March 2016 pursuant to s 34 of the CPCA (Freezing Notice).
Mr Tony Grego, the fifth plaintiff, objects to the confiscation of one of the properties and relies upon his affidavit sworn on 24 April 2024 (Exhibit 4).
For the reasons that follow, I am satisfied that declarations sought in the Application by the State should be made.

Application

The State seeks declarations, pursuant to s 8(1) and s 30 of the CPCA, that the following property that the first plaintiff, Mr Geoffrey Stuart John Bingham owned or effectively controlled at the time he was declared to be a drug trafficker under s 32A(1) of the Misuse of Drugs Act 1981 (WA) (MDA) on 20 December 2019, or gave away at any time before that date, has been confiscated to the State:
(1)Mr Bingham's interest as sole proprietor of the land at Lot 1 on Strata Plan 33049 in Certificate of Title Volume 2110 Folio 241, commonly known as Factory 1, 77-79 John Street, Welshpool (Factory 1);
(2)Mr Bingham's interest as sole registered proprietor of the land at Lot 35 on Plan 8323 in Certificate of Title Volume 366 Folio 143A, commonly known as 7 Trevally Place, Golden Bay (7 Trevally Place); and
(3)Mr Bingham's interest as sole registered proprietor of the land at Lot 4 on Strata Plan 33049 in Certificate of Title Volume 2110 Folio 244, commonly known as Factory 4, 77-79 John Street, Welshpool (Factory 4).
(collectively the Confiscated Properties)
The State also seeks an order that Mr Bingham's and Mr Grego's objection to the confiscation of property frozen by the Freezing Notice are dismissed.

Legislative framework

Section 30 of the CPCA 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.
Section 8(1) of the CPCA states:
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.
The State has the onus of proving, on the balance of the probabilities[1], that:
(1)Mr Bingham was declared to be a drug trafficker pursuant to s 32A(1) of the MDA;
(2)the drug trafficker declaration was made as a result of Mr Bingham being convicted of a 'confiscation offence';
(3)the offence was committed after the commencement of the CPCA; and
(4)at the time the drug trafficker declaration was made, the property was owned or effectively controlled by Mr Bingham.
[1] CPCA s 102(2)(d)

Confiscation of a declared drug trafficker's property occurs automatically and immediately, by reason of s 8(1) of the CPCA, upon the drug trafficker declaration being made under s 32A(1) of the MDA.[2]
[2]Centurion Trust Company Ltd v Director of Public Prosecutions (WA) [2010] WASCA 133 [199]
I now turn to consider whether the State has proved each of these matters on the balance of probabilities.

Declaration as a drug trafficker

On 20 December 2019, Mr Bingham was convicted in the District Court of Western Australia of one count of supplying a prohibited drug contrary to s 6(1)(c) of the MDA.[3]
[3] Exhibit 3 [5(a)]; Annexure CMA1.
On the same day, Mr Bingham was declared a drug trafficker pursuant to s 32A(1) of the MDA as a result of his conviction.[4]
[4] Exhibit 3 [5(b)]; Annexure CMA1.

'Confiscation offence'

Pursuant to s 141(1)(a) of the CPCA, an offence is a 'confiscation offence' for the purposes of the CPCA if it is punishable by imprisonment for two years or more. Section 34(1)(aa) of the MDA provides that the supply of a prohibited drug contrary s 6(1)(c) of the MDA is punishable by a fine not exceeding $100,000 or to imprisonment for a term not exceeding 25 years, or both.
Therefore, the drug trafficker declaration in relation to Mr Bingham was made as a result of Mr Bingham being convicted of a 'confiscation offence'.

Offence committed after the commencement of the CPCA

The CPCA commenced on 1 January 2001. Mr Bingham committed the offence on 10 March 2016, that is after the commencement of the CPCA.

At the time the drug trafficker declaration was made, the property was owned or effectively controlled by Mr Bingham.

On 11 March 2016, the Freezing Notice was issued pursuant to s 34 of the CPCA freezing, amongst other property, Mr Bingham's interest as sole registered proprietor of the Confiscated Properties.
The Freezing Notice came into force in relation to the Confiscated Properties when a memorial of the issue of the Freezing Notice was registered with the Registrar of Titles under s 113(1) of the CPCA on the certificate of title for each of the Confiscated Properties.[5]
[5] CPCA s 38(1).
In relation to 7 Trevally Place:
(1)on 14 March 2016, a memorial of the issue of the Freezing Notice was registered against the certificate of title;[6]
(2)on 5 June 2017, that is before Mr Bingham was declared a drug trafficker, the certificate of title shows that Mr Bingham was the sole registered owner;[7] and
(3)on 28 October 2022, that is after Mr Bingham was declared a drug trafficker, the certificate of title shows that Mr Bingham was the sole registered owner.[8]
[6] Exhibit 1 [7(j)]; Annexure MTM10
[7] Exhibit 1 [7(h)]; Annexure MTM8.
[8] Exhibit 1 [7(i)]; Annexure MTM9.
In relation to Factory 1:
(1)on 14 March 2016, a memorial of the issue of the Freezing Notice was registered against the certificate of title;[9]
(2)on 5 June 2017, a certificate of title shows that Mr Bingham was the sole registered owner of Factory 1; [10] and
(3)on 28 October 2022, a certificate of title search shows that Mr Bingham was the sole registered owner of Factory 1. [11]
[9] Exhibit 1 [7(d)]; Annexure MTM4
[10] Exhibit 1[7(b)]; Annexure MTM2.
[11] Exhibit 1 [7(c)]; Annexure MTM3.
In relation to Factory 4:
(1)on 14 March 2016, a memorial of the issue of the Freezing Notice was registered against the certificate of title;[12]
(2)on 5 June 2017, a certificate of title search shows that Mr Bingham was the sole registered owner of Factory 4; [13] and
(3)on 28 October 2022, a certificate of title search shows that Mr Bingham was the sole registered owner of Factory 4. [14]
[12] Exhibit 1 [7(g)]; Annexure MTM7
[13] Exhibit 1 [(e)]; Annexure MTM5.
[14] Exhibit 1 [7(f)]; Annexure MTM6.
Given that Mr Bingham was the sole registered owner of each of the Confiscated Properties both before and after he was declared a drug trafficker, it can be inferred that he was the sole registered legal owner of each of the Confiscated Properties at the time that he was declared a drug trafficker.
Section 79 of the CPCA provides that a person may file an objection to the confiscation of frozen property. I have already outlined that the first and fifth plaintiffs have each filed such an objection.
Section 81 of the CPCA provides that on hearing an objection to the confiscation of frozen property, the court may set aside the freezing notice pursuant to s 84 of the CPA.
Section 84(2) of the CPA provides:
(2)the court may set aside a freezing notice issued for property under section 34(3) … if the court finds that it is more likely than not that the person who is … charged with the offence does not own or effectively control the property, and has not at any time given it away.
The glossary to the CPCA provides definitions of the following relevant terms:
effective control, in relation to property, has the definition given in section 156;
give, in relation to property, includes transfer for consideration that is significantly less than the greater of -
(a)the market value of the property at the time of transfer; and
(b)the consideration paid by the transferee;
owner, in relation to property, means a person who has a legal or equitable interest in the property;
property means -
(a)real or personal property of any description, wherever situated, whether tangible or intangible; or
(b)a legal or equitable interest in any property referred to in paragraph (a);
Section 156 of the CPCA provides:
156.Effective control of property
(1)For the purposes of this Act, a person has effective control of property if the person does not have the legal estate in the property, but the property is directly or indirectly subject to the control of the person, or is held for the ultimate benefit of the person.
(2)Without limiting subsection (1), when determining whether a person has effective control of any property, the following matters may be taken into account –-
(a)any shareholdings in, debentures over or directorships of any corporation that has a direct or indirect interest in the property;
(b)any trust that has a relationship to the property;
(c)family, domestic and business relationships between persons having an interest in the property;
(d)family, domestic and business relationships between persons having an interest in or in a corporation that has a direct or indirect interest in the property;
(e)family, domestic and business relationships between persons having an interest in a trust that has a relationship to the property;
(f)any other relevant matters.
Putting aside the fact that the objections will ordinarily be determined before Mr Bingham was declared a drug trafficker[15], I intend to deal with the objections by considering whether Mr Bingham owned or effectively controlled the Confiscated Properties at the time he was declared a drug trafficker on 20 December 2019 or whether Mr Bingham had given away any of the Confiscated Properties prior to that declaration being made.
[15] See Director of Public Prosecutions (WA) v Centurion Trust Company Ltd (No 5) [2008] WASC 107 (Templeman J)
I turn first to Mr Bingham’s objection to the confiscation of property the subject of the Freezing Notice. Mr Bingham has not filed any evidence in support of his objection to the Freezing Notice. He appeared in person at the hearing of the Application and elected not to give any oral evidence, or make any submissions, in opposition to the Application. There is no basis on which to uphold his objection.
I turn next to Mr Grego’s objection to the confiscation of Factory 1. Mr Grego objects to the confiscation of Factory 1 on the basis that he is the sole beneficial owner of Factory 1 pursuant to a trust.[16]
[16] Exhibit 4 [1.01] - [1.02].
Mr Grego’s affidavit filed in support of his objection comprises several volumes and is 667 pages including its annexures. The State objected to many paragraphs and annexures of his affidavit on the basis that they contained irrelevant and hearsay evidence. Rather than strike out individual paragraphs and annexures of his affidavit, I accepted the entirety of the affidavit into evidence subject to considerations of weight to be given to those portions to which objection was taken.
On a reading of his affidavit, it appears that Mr Grego asserts that he is the beneficial owner of Factory 1 because:
(1)he has been in possession of, and has had sole use of, Factory 1 since 2009;
(2)he paid the deposit for Factory 1 by way of a loan from Mr Bingham to him on 10 May 2011;[17]
(3)he received a wage of $500 per week from Mr Bingham which was directly applied towards loan repayments to the Adelaide Bank for the mortgage of Factory 1 from 2009 to 2016;[18]
(4)he has made improvements to Factory 1;
(5)he has been Mr Bingham's carer from 2009 to 2019; and
(6)since 10 March 2016, he had incurred expenses to maintain and secure Factory 1 and has not been reimbursed for those expenses.
[17] Exhibit 4 [39].
[18] Exhibit 4 [17], [28]; Annexure TG:15.
The State gave notice to Mr Grego, pursuant to the orders of Archer J made on 6 June 2024, that it wished to cross-examine him on his affidavit at the hearing of the Application.
Mr Grego was cross-examined on his affidavit by counsel for the State.
During cross-examination, Mr Grego gave evidence that:
(1)Mr Bingham took out a loan with Adelaide Bank for the purchase of Factory 1 on 14 September 2009;[19]
(2)from December 2010 to 2013 Waynes Windscreens paid $1000 per fortnight directly to the Adelaide bank loan for Factory 1;[20]
(3)these payments of $1,000 were effectively payment of Mr Grego's wages for work he was doing for Waynes Windscreens and Mr Bingham;[21]
(4)Commonwealth bank statements from 2013 to 2016 record that Waynes Windscreens Welshpool made payments to Mr Bingham of $550 on a regular basis with the annotation 'Waynes Windscree (sic) Unit 1 Rent'; [22]
(5)these payments of $550 from Waynes Windscreens to Mr Bingham were effectively wage payments to Mr Grego for work he was doing for Waynes Windscreens and Mr Bingham;[23] and
(6)Mr Bingham would then pay make regular payments to the Adelaide Bank of $500 with the annotation 'Adelaide Bank Loan Repayment' which effectively was a payment towards the loan for Factory 1 on Mr Grego's behalf;[24]
(7)the difference between the payment of $550 and $500 was attributable to GST.[25]
[19] Exhibit 4 page 172; ts 91.
[20] ts 91.
[21] ts 93.
[22] Exhibit 4 [31]; Annexure TG:17.
[23] ts 85.
[24] Exhibit 4 [31]; Annexure TG:17.
[25] ts 95.
Mr Grego gave evidence that he did not include the income he received from Waynes Windscreens in his tax returns.[26] Mr Grego did not adduce any evidence (such as a pay slip) in support of his contention that he was receiving a wage from Waynes Windscreens or Mr Bingham.
[26] ts 92.
Mr Grego gave evidence that he prepared depreciation schedules for Mr Bingham to claim depreciation for tax purposes in relation to Factory 1.[27] Mr Grego said that Mr Bingham could claim depreciation because Factory 1 was registered in his name and the tax office would consider Mr Bingham to be the owner, and that Mr Grego would not tell them otherwise.[28]
[27] Exhibit 4 [17]; Annexure TG:1.2; ts 100.
[28] ts 102.
Mr Grego prepared a 'Geoffrey Bingham group structure' document for the police which showed Factory 1 as being a property owned by Mr Bingham in his own right. In response to questions about why Factory 1 was listed as being owned by Mr Bingham, Mr Grego said that when he has repaid the loan for Factory 1 in full, that is when it would be transferred to him.[29]
[29] Exhibit 4 [59]; Annexure TG:40.03; ts 103 - 104.
Mr Grego gave evidence that he entered into a loan agreement with Mr Bingham for the deposit for Factory 1 for $150,000.[30] He produced a document headed 'Acknowledgment of Debt' which he said was the balance of that loan amount he owed to Mr Bingham as at 10 May 2011, being $50,000.[31] That document states:
[30] ts 106.
[31] Exhibit 5.
When asked why the document does not refer to Factory 1, but instead to Q Legal, Mr Grego said:[32]
Part of it is [in relation to Factory 1]. Well, what's – I don't – why do I have to be specific? I've got 10 grand from there, five grand for that. That – I owe Geoff 50,000. One month later, he owes me 150.
[32] ts 106.
Mr Grego did not adduce any independent evidence to support his assertion that he had paid back $100,000 of a loan for a deposit towards the purchase of Factory 1 to Mr Bingham.[33]
[33] ts 107.
I will first make some observation about the credibility of Mr Grego, before making findings of fact.
I did not find Mr Grego to be an honest or reliable witness. His evidence was inconsistent with the contemporaneous documents adduced in evidence, including documents which he authored. Mr Grego's evidence that he was receiving wages from Mr Bingham and/or Waynes Windscreens is implausible given that he did not declare an amount as income for tax purposes and the bank statements in evidence record payments from Waynes Windscreens as rent received by Mr Bingham. Mr Grego asserts one state of affairs for tax purposes and another state of affairs in support of his assertion that he is the beneficial owner of Factory 1. This causes me to have significant doubt about the honesty of his evidence.
Further, the depreciation schedules and corporate group structures prepared by Mr Grego are consistent with Mr Bingham being the owner, both legally and beneficially, of Factory 1.
Finally, the 'Acknowledgment of Debt' document makes no reference to Factory 1 - it is implausible that it would not do so if it did in fact relate to a loan from Mr Bingham to Mr Grego towards the purchase of Factory 1. For these reasons, I do not accept any of Mr Grego's oral evidence.
I find that Mr Grego did not, contrary to his objection, have a beneficial interest in Factory 1. I make this finding on the basis of documents that were prepared by independent third parties and documents prepared by Mr Grego himself. My reasons for making this finding are:
(1)Mr Grego did not adduce any evidence of a written document which created his beneficial interest in Unit 1 as required by s 34 of the Property Law Act 1969 (WA);
(2)the depreciation schedules and corporate group structure for Mr Bingham and his related entities, documents prepared by Mr Grego himself, record that Mr Bingham is the owner of Factory 1;
(3)the bank statements tendered into evidence record that Waynes Windscreens paid rent for Factory 1 to Mr Bingham and Mr Bingham made the loan repayments for Factory 1;
(4)the Acknowledgment of Debt is not consistent with a loan for Factory 1 from Mr Bingham to Mr Grego; and
(5)Mr Grego did not earn income from Waynes Windscreens or Mr Bingham – he did not declare any such income in his tax returns and did not produce any evidence of his income.

The evidence is entirely consistent with Mr Bingham being the legal and beneficial owner of Factory 1 at all times since Mr Bingham purchased Factory 1 in 2009, including on the date he was declared a drug trafficker.

Conclusion and orders

I am satisfied that, on the balance of probabilities, at the time the declaration that Mr Bingham was a drug trafficker was made, that being on 20 December 2019, the Confiscated Properties were owned by Mr Bingham.
Therefore, Mr Bingham's legal interest as the sole registered owner of each of the Confiscated Properties was confiscated, pursuant to s 8(1) of the CPCA, to the State upon the court declaring that he was a drug trafficker.
Having found that the Confiscated Properties have been confiscated under s 8(1) of the CPCA, the court is compelled, under s 30(2) of the CPCA, to make a declaration to that effect. I make the following orders in terms of the defendant's summons filed 28 September 2023:
(1)Pursuant to sections 8(1) and 30 of the Criminal Property Confiscation Act 2000 (WA) it is declared that the following property that Geoffrey Stuart John Bingham (Bingham) owned or effectively controlled at the time he was declared to be a drug trafficker under section 32A (1) of the Misuse of Drugs Act 1981 (WA) on 20 December 2019 or gave away at any time before that date has been confiscated to the State of Western Australia, namely:
(a)Bingham's interest as sole registered proprietor of the land at Lot 1 on Strata Plan 33049 in Certificate of Title Volume 2110 Folio 241, commonly known as Factory 1, 77-79 John Street, Welshpool;
(b)Bingham's interest as sole registered proprietor of the land at Lot 35 on Plan 8323 in Certificate of Title Volume 366 Folio 143A, commonly known as 7 Trevally Place, Golden Bay;
(c)Bingham's interest as sole registered proprietor in the land at Lot 4 on Strata Plan 33049 in Certificate of Title Volume 2110 Folio 244, commonly known as Factory 4, 77-79 John Street, Welshpool.
(Confiscated Properties)
(2)The plaintiff's objections to the confiscation of property frozen by freezing notice number WAPFN160026 made by originating summons and notice of objection dated 29 March 2016 are dismissed in relation to the Confiscated Properties only.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
CS
Associate to the Hon Justice Whitby
30 MAY 2025