Brennan v The State of Western Australia
[2018] WASC 31
•5 FEBRUARY 2018
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: BRENNAN -v- THE STATE OF WESTERN AUSTRALIA [2018] WASC 31
CORAM: ARCHER J
HEARD: 18 JANUARY 2018
DELIVERED : 18 JANUARY 2018
PUBLISHED : 5 FEBRUARY 2018
FILE NO/S: CPCA 64 of 2014
BETWEEN: KELLY ANN BRENNAN
Plaintiff
AND
THE STATE OF WESTERN AUSTRALIA
Defendant
Catchwords:
Criminal property confiscation - Plaintiff declared a drug trafficker - Application for declaration of confiscation - Objection to confiscation
Legislation:
Criminal Property Confiscation Act 2000 (WA)
Misuse of Drugs Act 1981 (WA)
Result:
Declaration of confiscation made
Objection dismissed
Category: B
Representation:
Counsel:
Plaintiff: In person
Defendant: Mr I S Jones
Solicitors:
Plaintiff: In person
Defendant: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Campana v The State of Western Australia [2008] WASC 230
Centurion Trust Company Pty Ltd v The Director of Public Prosecutions (WA) [2010] WASCA 133
Ranford 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
ARCHER J:
(This judgment was delivered extemporaneously on 18 January 2018 and has been edited from the transcript and references added)
Introduction
In this action, the plaintiff objects to the confiscation of property the subject of a freezing notice. The Director of Public Prosecutions (DPP) seeks a declaration that particular property of the plaintiff has been confiscated. For the reasons that follow, the objection should be dismissed and the declaration made.
Procedural history
On 9 July 2014, a freezing notice WAPFN140091 (the Freezing Notice) was issued under s 34(3) of the Criminal Property Confiscation Act2000 (WA) (Confiscation Act) in respect of property believed to be owned or effectively controlled by the plaintiff. The property specified in the Freezing Notice included the land at Lot 396 on Plan 9976 in Certificate of Title Volume 1324, Folio 575, commonly known as 41 Macedon Place, Craigie (the Land).[1] The Freezing Notice was valid.[2] It was served on all necessary persons and was filed with the court.[3] A memorial of the issue of the Freezing Notice was registered with the Registrar of Titles.[4]
[1] Affidavit of Sherri Lee Stacey sworn 7 April 2017 (Stacey affidavit), SLS1.
[2] Stacey affidavit, SLS1, and s 34(3) and s 35 of the Confiscation Act.
[3] Stacey affidavit [3] ‑ [6], [13] ‑ [16] and SLS8 ‑ 11, and the affidavits of service filed by the State (and s 36 of the Confiscation Act).
[4] Stacey affidavit, SLS24, and see s 38(1) of the Confiscation Act.
On 8 August 2014, the plaintiff filed an objection to the Freezing Notice. As the Freezing Notice was issued under s 34(3) of the Confiscation Act, I take this to be an objection under s 84(2) of the Confiscation Act. By consent, orders were made appointing the plaintiff to control and manage the Land and adjourning the objection.
An objection filed by Westpac Banking Corporation was dismissed. No other objection in relation to the Land has been lodged.[5]
[5] Stacey affidavit [12].
On 22 April 2015, the plaintiff was convicted in the District Court of an attempt to possess cannabis with intent to sell or supply, contrary to s 6(1)(a) and s 33(1)(a) of the Misuse of Drugs Act 1981 (WA) (Drugs Act). The offence was committed on 14 March 2010 and involved over 22 kg.[6]
[6] Stacey affidavit, SLS16, page 53.
On 12 June 2015, the plaintiff was sentenced for that offence and declared to be a drug trafficker under s 32A of the Drugs Act.[7]
[7] Stacey affidavit, SLS17.
The plaintiff sought leave to appeal against the conviction and sentence, and appealed against the declaration that she was a drug trafficker.
On 29 January 2016, the plaintiff discontinued her application for leave to appeal against her sentence.
On 8 September 2016, the Court of Appeal dismissed the plaintiff's application for leave to appeal against her conviction and her appeal against the declaration that she was a drug trafficker.
On 27 April 2017, the State filed an application in the plaintiff's objection proceedings seeking an order dismissing the plaintiff's objection and an order declaring that the Land (being the Land identified in the Freezing Notice) has been confiscated to the State of Western Australia.
On 13 June 2017, Kenneth Martin J adjourned the proceedings for three months, to allow the State time to serve a Mr Nagi.[8] Mr Nagi had been identified as a person who may have an interest in a bank account that was then the subject of the Freezing Notice.
[8] ts 13 June 2017, page 2.
On 19 September 2017, Allanson J adjourned the proceedings to 23 November 2017, to allow the plaintiff time to obtain legal advice.[9]
[9] ts 19 September 2017, page 2.
On 23 November 2017, the matter came back before Allanson J. The plaintiff said she had not yet had the opportunity to get legal advice. Allanson J made some programming orders so that the plaintiff would know exactly what she had to do if she wanted to oppose the State's application.[10] His Honour explained to the plaintiff that she would need to file affidavits by 11 January 2018 on the basis that the matter would be dealt with on the next occasion. His Honour then adjourned the proceedings to 18 January 2018.[11] His Honour also adjourned, to a date to be fixed, an application that the State had made in relation to the management of the Land.[12]
[10] ts 23 November 2017, pages 8 ‑ 9.
[11] ts 23 November 2017, page 10, see also page 11.7.
[12] ts 23 November 2017, page 15.
The plaintiff did not file an affidavit in support of her objection by 11 January 2018, or at any time.
On 18 January 2018, today, the matter came before me and the plaintiff said that she did not intend to adduce any evidence and did not wish to maintain her objection.
Legal framework
Section 30 of the Confiscation 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 of the Confiscation 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.
Under s 9 of the Confiscation Act, the property does not vest absolutely in the State unless or until the court declares under s 30 that the property has been confiscated.
As the application under s 30 is brought by the DPP, and as the court is required to be satisfied that the property has been confiscated, the DPP bears the onus of proving that the Land was confiscated.[13] The DPP must prove it on the balance of probabilities.[14]
[13] Campana v The State of Western Australia [2008] WASC 230 [40].
[14] Section 102(2)(d) of the Confiscation Act.
The matters that the DPP must prove under s 8 are:
(1)that:
(a)the plaintiff was declared to be a drug trafficker;
(b)as a result of being convicted of a confiscation offence;
(c)that was committed after the commencement of the Act; and
(2)that the Land was owned:
(a)by the plaintiff;
(b)at the time the declaration that she was a drug trafficker was made.
If each of these matters is proved, then, pursuant to s 8 of the Confiscation Act, the Land was automatically and immediately confiscated at the time the declaration that she was a drug trafficker was made.[15] Further, if the Land was confiscated, the Freezing Notice ceased to have force from the time the Land was confiscated.[16]
[15] Centurion Trust Company Pty Ltd v The Director of Public Prosecutions (WA) [2010] WASCA 133 [199] (Buss JA, with whom Owen JA agreed [74]).
[16] Urbano v The State of Western Australia [2006] WASCA 147 [34], [39] (Pullin JA with whom Martin CJ agreed [1]).
In the absence of any third party interest, nothing else is required to be established before the court is compelled to make a declaration under s 30.[17]
[17] See Whittle v The State of Western Australia [2012] WASC 244 [36] ‑ [40] and Ranford v The State of Western Australia [2015] WASC 45 [22] (see also [25]).
Evaluation
As noted earlier, the plaintiff was declared to be a drug trafficker on 12 June 2015.[18]
[18] Stacey affidavit, SLS17.
Also as noted earlier, the plaintiff was declared to be a drug trafficker as a result of being convicted of the offence of attempting to possess cannabis with intent to sell or supply, contrary to s 6(1)(a) and s 33(1)(a) of the Drugs Act. This offence is punishable by imprisonment for more than 2 years.[19] It is therefore a 'confiscation offence'.[20]
[19] Section 33 and s 34(2) of the Drugs Act.
[20] Section 141(1) of the Confiscation Act.
The offence was committed on 14 March 2010, after the commencement of the Confiscation Act.[21]
[21] The Confiscation Act commenced on 1 January 2001.
The record of the Certificate of Title for the Land shows that the plaintiff was the registered proprietor as at the date she was declared to be a drug trafficker.[22]
[22] Stacey affidavit, SLS24.
It follows that the Land was confiscated as at that date. I am therefore required to declare that the Land has been confiscated.
Once the land was confiscated, the Freezing Notice ceased to have any force. The plaintiff's objection of the Freezing Notice must, therefore, be dismissed.
Orders
I order that the plaintiff's objection is dismissed. I declare that the Land at Lot 396 on Plan 9976 in Certificate of Title Volume 1324, Folio 575, commonly known as 41 Macedon Place, Craigie has been confiscated pursuant to s 8(1) and s 30 of the Confiscation Act.
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