Blechynden v The State of Western Australia - [2018] WASC 282

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION:   BLECHYNDEN -v- THE STATE OF WESTERN AUSTRALIA [2018] WASC 282
CORAM:   PRITCHARD J
HEARD:   17 AUGUST 2018
DELIVERED          :   Ex tempore
PUBLISHED           :   7 SEPTEMBER 2018
FILE NO/S:   CPCA 27 of 2015
BETWEEN:   LOUISE ANNE BLECHYNDEN
Plaintiff
AND
THE STATE OF WESTERN AUSTRALIA
Defendant

Catchwords:

Criminal law - Criminal Property Confiscation Act 2000 (WA) - Application for declaration that property has been confiscated - Whether property owned or effectively controlled at the time a drug trafficking declaration was made

Legislation:

Criminal Property Confiscation Act 2000 (WA), s 8

Result:

Declaration of confiscation made

Category: B

Representation:

Counsel:

Plaintiff	:	No Appearance
Defendant	:	Mr V Pelligra

Solicitors:

Plaintiff	:	Margaret River Law
Defendant	:	The Director of Public Prosecutions (Western Australia)

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

Campana v The State of Western Australia [2008] WASC 230
Centurion Trust Company Ltd v Director of Public Prosecutions (WA) [2010] WASCA 133
Ramford v The State of Western Australia [2015] WASC 45
Urbano v The State of Western Australia [2006] WASCA 147
Whittle v The State of Western Australia [2012] WASC 244

PRITCHARD J:

(These reasons were delivered extemporaneously on 17 August 2018 and have been edited from the transcript.)

This is an application brought by the State of Western Australia by summons dated 17 April 2018 (Application) seeking a declaration of the confiscation of property pursuant to the provisions of the Criminal Property Confiscation Act 2000 (WA) (Act).
These proceedings were commenced by Ms Louise Anne Blechynden. That is because she filed an objection to the confiscation of certain property the State claimed was able to be confiscated under the Act. That objection has now been resolved by agreement between the State and Ms Blechynden, and among the orders that I will make today will be orders to dismiss, by consent, that objection.
What remains for determination today is the balance of the summons filed by the State, in which the State seeks a declaration that certain property it says was owned or effectively controlled by Darrin Stuart Head, at the time he was declared to be drug trafficker under s 32A(1) of the Misuse of Drugs Act 1981 (WA), has been confiscated to the State. The property in question (Property) is:
(a)Mr Head's interest as the registered proprietor in the land at Lot 48 on Diagram 45337 in Certificate of Title Volume 1359 Folio 402, commonly known as 6 Dahlberg Street, Augusta;
(b)1972 Ford Falcon Retro Series GTHO Sedan, registration number XES351, VIN/Chassis number 82840, engine number FU143X;
(c)Cash in the sum of AUD$350 taken from Mr Head on 24 March 2015, together with any interest thereon;
(d)Cash in the sum of AUD$4000 taken from Mr Head on 24 March 2015, together with any interest thereon;
(e)All shares in Telstra Corporation Limited held in the name of Mr Head (there are said to be 600 such shares); and
(f)Money standing to the credit of Mr Head in a Bankwest account as at 21 February 2017, together with any interest thereon.
The Application is supported by a number of affidavits: the affidavit of Morgan Charlotte Paling affirmed 20 February 2018; the affidavit of Alison Margaret Gibson sworn 28 March 2018; and the affidavit of Michelle Aikin sworn 22 February 2018.
The Application is also supported by several affidavits of service, namely of Laurie Askew sworn 1 May 2018; of Nick Mason-Walshaw sworn 8 May 2018; and of Madeena Sarwari sworn 7 May 2018. Those affidavits of service confirm service on all persons thought to have an interest, or potential interest, in the Property. Those persons were served with the summons by the State for the declaration that the Property has been confiscated, and the written submissions and affidavits that the State relies upon today.
I note for completeness that apart from Ms Blechynden, the only other person to file an objection in respect of the confiscation of the Property was Mr Head himself. That objection was dismissed by consent on 25 May 2017. No other objections were filed by any other interested parties. I note that following the dismissal of his objection by consent in May 2017, there has been no indication from Mr Head that he wishes to be heard today. As I understand it, he presently in custody.
Having regard to the affidavits before the Court, it is clear that Mr Head was arrested for one count of possessing methylamphetamine with intent to sell or supply, was prosecuted for that charge in the District Court of Western Australia, and was convicted of that offence. At the time of his conviction on 21 February 2017, the Court made an order declaring him to be a drug trafficker pursuant to s 32A(1) of the Misuse of Drugs Act 1981 (WA).[1]
[1] Affidavit of Morgan Charlotte Paling affirmed 20 February 2018, Annexure MCP19.
The affidavits indicate that at the time of Mr Head's arrest, various items of the Property were seized from Mr Head, including the cash in the sum of $350; the cash in the sum of $4000;[2] and the car. The affidavit material establishes that the car is registered in Mr Head's name.[3]
[2] Affidavit of Alison Margaret Gibson sworn 28 March 2018, Annexure AMG1.
[3] Affidavit of Michelle Aikin sworn 22 February 2018, Annexure MA1.
Subsequent searches of property owned by Mr Head have revealed that he owned the other items of the Property[4] to which I have already referred. That Property is now said by the State to have been in Mr Head's possession or control at the date of the drug trafficking declaration.
[4] Affidavit of Morgan Charlotte Paling affirmed 20 February 2018, Annexures MCP20, MCP21 and MCP22.
As I have said, no objections have been made or pursued which challenge the State's contention that the Property is Mr Head's property and is amenable to the declaration now sought. In this case, I am satisfied, having regard to the affidavits before the Court, that the requirements of the Act for service on potentially interested parties[5] have been complied with. Apart from the objections to which I have referred, there has been no indication from any other interested party that they have an objection to any of the relief sought by the State.
[5] Criminal Property Confiscation Act 2000 (WA) s 36.
The provisions of the Act make very clear the consequence of a drug trafficking declaration. Pursuant to s 8 of the Act, when a person is declared to be a drug trafficker under s 32A(1) of the Misuse of Drugs Act 1981 (WA), as a result of being convicted of a confiscation offence, the property that is confiscated is all of the property that the person owned or effectively controlled at the time the declaration was made, and all property that the person gave away at any time before the declaration was made. Pursuant to s 8 of the Act, it is open now to the State to seek the relief that it does.[6]
[6] See Urbano v The State of Western Australia [2006] WASCA 147 [39]; Centurion Trust Company Ltd v Director of Public Prosecutions (WA) [2010] WASCA 133 [195], [199].
Once a person has been convicted of a confiscation offence and declared to be a drug trafficker, the result is that any property owned or effectively controlled by that person is confiscated under s 8(1) of the Act. The question for the Court on the Application, then, is whether the Court is satisfied, on the balance of probabilities, that the Property the subject of the Application was owned or effectively controlled at, or was given away by Mr Head at any time prior to, the date on which he was declared to be a drug trafficker.[7]
[7] See Campana v The State of Western Australia [2008] WASC 230 [38] - [41], Whittle v The State of Western Australia [2012] WASC 244 [36]; Ramford v The State of Western Australia [2015] WASC 45 [22].
I am satisfied that the Property which is the subject of the Application was owned or effectively controlled by Mr Head when he was declared to be a drug trafficker on 21 February 2017. The land and the car to which I have referred are registered solely in his name. The Telstra shares are also noted in the share register as being in Mr Head's name. The Bankwest bank account is in his name. The cash which was seized was taken from Mr Head at the time of his arrest in 2015. I am satisfied that all of the Property is subject to s 8(1)(a) of the Act.
In all of those circumstances I am satisfied that it is appropriate to make the declaration sought pursuant to s 8 of the Act in respect of the Property.
I will make the following orders, as set out in the State's minute of proposed orders dated 10 August 2018. They include the orders disposing of the objection by Ms Blechynden, which is to be dismissed by consent, and the costs consequences of that dismissal.
(1)The plaintiff's objection to the confiscation of frozen property made by originating summons dated 14 April 2015 is dismissed.
(2)All costs orders made in this matter between the plaintiff and the defendant are discharged.
(3)The following property that Darrin Stuart Head 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 21 February 2017 or gave away at any time before that date has been confiscated to the State of Western Australia, namely:
(a)Mr Head's interest as registered proprietor in the land at Lot 78 on Diagram 45337 in Certificate of Title Volume 1359 Folio 402, commonly known as 6 Dahlberg Street, Augusta;
(b)1972 Ford Falcon Retro Series GTHO Sedan, registration number XES351, VIN/Chassis number 82840, engine number FU143X;
(c)Cash in the sum of AUD$350 taken from Mr Head on 24 March 2015, together with any interest thereon;
(d)Cash in the sum of AUD$4000 taken from Mr Head on 24 March 2015, together with any interest thereon;
(e)All shares in Telstra Corporation Limited held in the name of Mr Head; and
(f)Money standing to the credit of Mr Head in Bankwest account number 097-041851-1 as at 21 February 2017, together with any interest thereon.
(4)There is no order as to costs.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
LF
ASSOCIATE TO THE HONOURABLE JUSTICE PRITCHARD
7 SEPTEMBER 2018