Brown v The State of Western Australia
[2021] WASC 319
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: BROWN -v- THE STATE OF WESTERN AUSTRALIA [2021] WASC 319
CORAM: ARCHER J
HEARD: 25 AUGUST 2021
DELIVERED : 25 AUGUST 2021
PUBLISHED : 20 SEPTEMBER 2021
FILE NO/S: CPCA 22 of 2019
BETWEEN: SELENA ASHLEE BROWN
First Plaintiff
JULIE GAY BURTON
Second Plaintiff
JARRAD LUKE NAGTEGAAL
Third Plaintiff
AND
THE STATE OF WESTERN AUSTRALIA
Defendant
Catchwords:
Criminal Property confiscation - Third plaintiff declared drug trafficker - Application for declaration of confiscation - Turns on its own facts
Legislation:
Criminal Property Confiscation Act 2000 (WA)
Misuse of Drugs Act 1981 (WA)
Result:
Declaration of confiscation made
Category: B
Representation:
Counsel:
| First Plaintiff | : | No appearance |
| Second Plaintiff | : | No appearance |
| Third Plaintiff | : | No appearance |
| Defendant | : | Mr M Seaman |
Solicitors:
| First Plaintiff | : | In person |
| Second Plaintiff | : | In person |
| Third Plaintiff | : | In Person |
| Defendant | : | The Director of Public Prosecutions for The State of Western Australia |
Case(s) referred to in decision(s):
Brennan v The State of Western Australia [2018] WASC 31
Campana v The State of Western Australia [2008] WASC 230
Centurion Trust Company Ltd v Director of Public Prosecutions (WA) [2010] WASCA 133
McRobb v The State of Western Australia [2020] WASC 163
Ranford v The State of Western Australia [2015] WASC 45
Whittle v The State of Western Australia [2012] WASC 244
ARCHER J:
(This judgment was delivered extemporaneously on 25 August 2021 and has been edited to correct matters of grammar and to include complete references.)
Introduction
In 2019, a freezing notice was issued under the Criminal Property Confiscation Act 2000 (WA) (Confiscation Act). The freezing notice related to particular property said to be owned or effectively controlled by the third plaintiff. The freezing notice was made on the ground that the third plaintiff could be declared to be a drug trafficker under s 32A of the Misuse of Drugs Act 1981 (WA).
The plaintiffs objected to the confiscation of the property. In May 2020, the third plaintiff was declared to be a drug trafficker. On 26 March 2021, consent orders were made dismissing the objections. The Director of Public Prosecutions (DPP) now seeks a declaration that particular property has been confiscated.
The plaintiffs did not seek to defend the application.
For the reasons that follow, the declaration should be made.
Legal framework[1]
[1] This section reproduces or draws on parts of my judgments in earlier cases, including Brennan v The State of Western Australia [2018] WASC 31 and McRobb v The State of Western Australia [2020] WASC 163.
The DPP seeks the declaration under s 30 of the Confiscation Act.
Section 30 of the Confiscation Act 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.
The DPP says that the property described in the application has been confiscated under s 8(1) of the Confiscation Act. That subsection 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.
Proof of confiscation
The DPP bears the onus of proving that property has been confiscated.[2] The DPP must prove this on the balance of probabilities.[3]
[2] Campana v The State of Western Australia [2008] WASC 230[40].
[3] Section 102(2)(d) of the Confiscation Act.
The matters that the DPP must prove under s 8 are:
1.the third plaintiff was declared to be a drug trafficker;
2.the declaration was made as a result of the third plaintiff being convicted of a 'confiscation offence' (relevantly being an offence punishable by imprisonment for more than 2 years[4]);
3.the offence was committed after 1 January 2001, being the commencement of the Confiscation Act; and
4.at the time the drug trafficker declaration was made, the property was owned or effectively controlled by the third plaintiff.
[4] Section 141(1)(a) of the Confiscation Act.
If a person has been convicted of a relevant confiscation offence, regard may be had to material before a court in any proceedings for the offence or sentencing.[5]
[5] See s 107 of the Confiscation Act.
If each of these matters is proved, then, pursuant to s 8 of the Confiscation Act, the property was automatically and immediately confiscated at the time the drug trafficker declaration was made.[6]
[6] Centurion Trust Company Ltd v Director of Public Prosecutions (WA) [2010] WASCA 133 (Centurion Trust 2010) [199].
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.[7]
[7] 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].
Property said to have been confiscated
The DPP seeks a declaration that identified property (Property) has been confiscated. The Property comprises the monies standing to the credit of the third plaintiff in Commonwealth Bank of Australia account 066-174-1001-8473 (Bank Account) as at 21 May 2020, together with any interest thereon.
Evaluation
The DPP filed an affidavit of Boronia Delfen O’Connor (O’Connor Affidavit),[8] establishing the following.
[8] Affidavit filed 14 September 2020.
On 21 May 2021, the third plaintiff was convicted in the District Court of, among other things, one count of selling a prohibited drug, namely MDMA, contrary to s 6(1) of the Misuse of Drugs Act 1981 (WA). This offence is punishable by imprisonment for more than 2 years.[9] It is therefore a 'confiscation offence'. The offence was committed in 2019, after the commencement of the Confiscation Act.[10]
[9] Section 34(1) of the Misuse of Drugs Act 1981 (WA).
[10] The Confiscation Act commenced on 1 January 2001.
On the same date, as a result of these convictions, the third plaintiff was declared to be a drug trafficker under s 32A of the Misuse of Drugs Act 1981 (WA).
Accordingly, the only remaining element that the DPP must prove is that the Property was owned or effectively controlled by the third plaintiff at the time the drug trafficker declaration was made.
Ownership
The Confiscation Act defines 'owner', in relation to property, to mean a person who has a legal or equitable interest in the property.[11]
[11] Confiscation Act glossary.
'Property' is defined in the Confiscation Act to mean a legal or equitable interest in any real or personal property of any description, wherever situated, and whether tangible or intangible.[12]
[12] Confiscation Act glossary.
As I will explain, the O'Connor Affidavit establishes that the third plaintiff was an owner of the Property, and was as at the time he was declared to be a drug trafficker, being 21 May 2020.
The O'Connor Affidavit establishes that the Bank Account is held in the name of the third plaintiff and was established before 1 July 2019. There is no proof that the Bank Account continued in existence up to the date upon which he was declared to be a drug trafficker. However, the Property was frozen under the Freezing Notice, and the Notice was served on the Commonwealth Bank. In the circumstances, I infer the Bank Account was still in existence up to the date upon which the third plaintiff was declared to be a drug trafficker. He therefore was an 'owner' of the funds as at 21 May 2020. Drawing this inference could not cause any injustice. If the Bank Account no longer existed at the date upon which he was declared to be a drug trafficker, there would simply be no funds to confiscate.
Therefore, I am satisfied that the third plaintiff was an owner of the Property, and was as at the time he was declared to be a drug trafficker.
Declaration of confiscation and dismissal of objection
The DPP has proved each of the necessary elements under s 8. Therefore, the Property was automatically and immediately confiscated at the time the drug trafficker declaration was made.
As noted earlier, 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 of the Confiscation Act.
It follows that I am required to declare that that property has been confiscated.
Orders
I declare that the identified property has been confiscated.
I will make an order in the terms of the DPP's Minute of Proposed Orders filed 24 August 2021.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KJ
Associate to the Honourable Justice Archer
20 SEPTEMBER 2021
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