Burns v The State of Western Australia
[2017] WASC 173
•23 JUNE 2017
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: BURNS -v- THE STATE OF WESTERN AUSTRALIA [2017] WASC 173
CORAM: BANKS-SMITH J
HEARD: 11 MAY 2017
DELIVERED : 23 JUNE 2017
FILE NO/S: CPCA 5 of 2014
MATTER :Section 79 of the Criminal Property Confiscation Act 2000 (WA)
Freezing Notice Number WAPFN130191
BETWEEN: WARREN ROBERT BURNS
Plaintiff
AND
THE STATE OF WESTERN AUSTRALIA
Defendant
Catchwords:
Confiscation of property - Where evidence plaintiff registered proprietor at time declared drug trafficker - Where no tenable objection
Legislation:
Criminal Property Confiscation Act 2000 (WA), s 8, s 30(2)
Result:
Declaration made
Category: B
Representation:
Counsel:
Plaintiff: No appearance
Defendant: Mr T Staples
Solicitors:
Plaintiff: No appearance
Defendant: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Bennett v Western Australia [2012] WASCA 70
Hopes v Australian Securities and Investments Commission [2016] WASC 198
Palmer v City of Gosnells [2014] WASCA 102
Schagen v The Queen (1993) 8 WAR 410
BANKS-SMITH J: Mr Burns objects to the confiscation of certain real property the subject of a freezing notice. The Director of Public Prosecutions seeks a declaration that the property has been confiscated.
Relevant chronology
Mr Burns was charged on indictment that:
(a)on 4 December 2013 at Meerup he was in possession of a prohibited drug (cannabis) with intent to sell or supply, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA), and
(b)on 4 December 2013 at Meerup he cultivated a prohibited plant with intent to sell or supply, contrary to s 7(1)(a) of the Misuse of Drugs Act.
On 18 December 2013, a freezing notice was issued under s 34(3) of the Criminal Property Confiscation Act2000 (WA) in respect of various property.[1] Section 34(3) provides that a Justice of the Peace may issue a freezing notice for all or any property that is owned or effectively controlled by a person if the person has been charged with an offence (or is likely to be charged with an offence) and the person could be declared a drug trafficker under s 32A(1) of the Misuse of Drugs Act if he or she is convicted of the offence.
[1] Affidavit of Sherri Stacey filed 11 May 2016 [3].
Some of the property initially covered by the freezing notice has since been excluded from its operation in accordance with a Notification of Cancellation.[2] The property that remains the subject of the freezing notice comprises three properties, which I will refer to as the Meerup, Pemberton and Manjimup properties. Mr Burns is the sole registered proprietor of each property.[3] The full particulars of title are set out in the Director's summons.
[2] Stacey Affidavit [9] ‑ [10].
[3] Stacey Affidavit [14] ‑ [16].
On 7 January 2014, Mr Burns made a statutory declaration in which he stated that his ex‑partner, Ms Provis, may have lodged a caveat with respect to the Meerup property and that the Commonwealth Bank may have an interest as mortgagee with respect to the Manjimup property, but that otherwise he was not aware of any parties with an interest in the properties.[4]
[4] Stacey Affidavit, Attachment 'SLS 9'.
The Commonwealth Bank lodged an objection under s 79 of the Criminal Property Confiscation Act which was later dismissed by consent.[5]
[5] Stacey Affidavit [8].
On 9 January 2014, Mr Burns filed an objection under s 79 of the Criminal Property Confiscation Act. On hearing an objection to the confiscation of frozen property, the court may set aside the freezing notice to the extent permitted under s 82, 83 or 84, as applicable. Relevantly, under s 84 the court may set aside a freezing notice issued for property under s 34(3) if the court finds that it is more likely than not that the person who is or will be charged with the offence does not own or effectively control the property and has not at any time given it away.
No other objections were filed.
On 27 March 2015, and before his objection was heard, Mr Burns was convicted by jury after a trial in the District Court of the charges in the indictment and was declared a drug trafficker pursuant to s 32A(1) of the Misuse of Drugs Act.[6]
[6] Stacey Affidavit [13].
On 1 April 2015, Ms Provis died.[7] She had lodged a caveat over the Meerup property on 27 July 2007, claiming an interest as a beneficial co‑owner and in relation to Family Court proceedings.[8] Information from the Supreme Court Probate Office and the Public Trustee is to the effect that no application has been made for probate and the Public Trustee is not administering her estate.[9]
[7] Affidavit of Amanda Jackson filed 11 May 2016 [3].
[8] Stacey Affidavit [7].
[9] Jackson Affidavit [4] ‑ [5].
On 11 May 2016, the Director filed a summons to dismiss Mr Burns' objection and for a declaration of confiscation of property.
History since the Director's summons was filed.
The Director relies on the affidavits of Sherri Stacey and Amanda Jackson, both filed 11 May 2015. The Director also relies on an affidavit of service that indicates that Mr Burns was served with the summons, the two supporting affidavits and submissions on 26 May 2016. At a subsequent hearing (19 January 2017), Mr Burns said he did not recall being served but the court then facilitated the provision of copies of all documents on the file and there is no extant issue as to service.[10]
[10] ts 19.
At a directions hearing on 29 October 2016, I made orders providing for Mr Burns to file and serve any affidavit upon which he seeks to rely by 23 December 2016. Mr Burns filed an affidavit on 23 December 2016.
At a mention hearing on 19 January 2017 before Tottle J, Mr Burns sought leave to issue certain subpoenas. Justice Tottle refused leave to issue the subpoenas. His Honour considered the subpoenas were aimed at various complaints which were irrelevant to the issues to be determined by the court on this application. The matter was adjourned to 23 March 2017 for a final hearing.
On 23 March 2013, the matter came before Martino J. Mr Burns did not appear. A doctor's certificate from the Warren Hospital was provided to the court certifying that Mr Burns was unable to attend due to ill health.[11] Mr Robert Swift and Ms Lee‑Kay Tonkin‑Jones (who identified themselves as Agent Swift and Minister Lee respectively) purported to appear on Mr Burns' behalf on the basis they say they have his authority by power of attorney. However, neither are legal practitioners. Due to Mr Burns' absence, the Director agreed to the hearing being adjourned to 12 April 2017. Counsel for the Director indicated at that hearing that he would object to Mr Swift and Ms Tonkin‑Jones purporting to appear on Mr Burns' behalf at future hearings.[12]
[11] ts 32 ‑ 33.
[12] ts 36.
On 12 April 2017, the matter was listed before Chaney J. Again, Mr Swift and Ms Tonkin‑Jones purported to appear on behalf of Mr Burns. Mr Burns did not appear. Mr Swift informed the court that Mr Burns had been discharged from hospital the previous day.[13] Justice Chaney gave Ms Tonkin‑Jones limited power to appear. She agreed that there was no reason Mr Burns should not have the opportunity to appear on what is in effect his matter, concerning property registered in his name.[14] The matter was adjourned to allow Mr Burns to appear. Justice Chaney told Mr Swift and Ms Tonkin‑Jones that if they sought to appear on Mr Burns' behalf at the final hearing, they would need to file an affidavit and apply for leave.[15]
[13] ts 43.
[14] ts 47.
[15] ts 52.
At the final hearing before me on 11 May 2017 Mr Burns did not appear. Mr Swift and Ms Tonkin‑Jones attended court and sought to appear on his behalf. They did not file an affidavit as directed by Chaney J. The Director opposed them being heard on the basis there was no rare or exceptional basis upon which, as non‑lawyers, they should advocate on Mr Burns' behalf, particularly as he was not present. I accepted that submission, taking into account Schagen v The Queen[16] and Hopes v Australian Securities and Investments Commission.[17] In any event, Mr Burns had filed an affidavit which sets out the matters he considered relevant to the hearing.
[16] Schagen v The Queen (1993) 8 WAR 410, 412.
[17] Hopes v Australian Securities and Investments Commission [2016] WASC 198 [37] ‑ [38].
Accordingly, I declined to permit Mr Swift and Ms Tonkin‑Jones to make submissions on Mr Burns' behalf. I was initially minded to make final orders at the hearing and provided oral reasons. However, I was later provided with a medical certificate which indicated that Mr Burns was unable to travel to Perth and that he was in hospital and receiving palliative care. I then invited Mr Burns to provide written submissions, so that I could take into account all that he wished to say despite him being unrepresented by a legal practitioner and being unable to attend court in person.
He subsequently filed written submissions on 2 June 2017 and I have considered them.
Matters raised by Mr Burns in his affidavit.
Mr Burns raises matters that can be grouped under three general heads.
First, Mr Burns complains about an alleged lack of due process during the District Court trial after which he was convicted, and says that there should be a retrial. He did not appeal his conviction.
Second, Mr Burns complains of alleged coercion on the part of police. Those allegations are not relevant to the matters that must be established in these proceedings. The allegations are not supported by admissible evidence but, more to the point, nothing in the allegations is relevant to the issue of ownership of the three properties, the fact of Mr Burns' conviction or the fact he was declared a drug trafficker.
Third, Mr Burns complains about the jurisdiction of this court (and, it appears, any court in this state) to deal with his property. This complaint cannot easily be summarised so I will set out the relevant paragraphs of the affidavit (using its spelling and formatting):[18]
[18] Affidavit of Warren Burns sworn 23 December 2016 [14] ‑ [23], [29].
14. THE STATE OF WESTERN AUSTRALIA, DPP act-ing for the STATE obtained Unlawful Conduct orders and produced these under State Acts and Statutes instead of being Officers of the Crown sitting inside the Commonwealth held to the Constitution and the Common Law, and;
15. There are no State laws in Western Australia: only Acts and: Legislated Statutes that are rules of Government (Societies) that: only apply to Government employees and ‘PERSON-A-L and: have no Lawful authority/dictator-ship: over living Men and: Wo-men more: simply put: THE STATE OF WESTERN AUSTRALIA is: FICTITIOUS LEGAL ENTITY. by way of: trading as: Trading company: for business. Australian Business Number: 072526008,and;
16. It appears there be COLLUSION on the EQUITY GRAB with the some elements in the Judiciary, and the DPP and certain subsidiary corporations to the corporation State of WA of the parent company Cth of Australia 0000805157 registered on USSEC are Trading Companies, and;
17. LANDGATE Subsidiary Corporation to the corporation state of WA of the parent company Cth of Australia 0000805157 registered on USSEC is a TRADING COMPANY, removal of my name on Certificate of Title which has caveat. Registrar Villani overreaching her duties, and;
18. A Question of law. What is contract?
19. NO CONTRACT as governed by article:1.2 (Freedom of Contract) UNIDROIT Principles 2010 under treaty of 1973. And other applications
20. A Question of law, and;
21. Lis pendens on the validity of statutes used against me, relied upon by the 'STATE OF WESTERN AUSTRALIA' and it's a-gents, and;
22. No court can order the Seizure of Land without the LAWFUL JUDGEMENT of our peers who have the FULL Facts of the issues, not the one-sided view of the state. To have a jury not headed by an ex state employee, and;
23. For a Registrar, Magistrate or Judge to order or make application without the property owner present is contrary to Section 51 xxiv of the Commonwealth Constitution and a Crime of THEFT. To claim the right to sign is Contempt of the High Court being R v Davidson HCA 46 of 1954, and a TORT, and;
…
29. I rely on the following Applications, and; of;
Australian Commonwealth Constitution 1901UK: letters patent 1900UK:
Commonwealth statutory rules 1901 to 1956: and;
Applications of the Crimes Act 1913
Applications to the Criminal Code Act (Cth) 1995
Applications of the Corporations Act 2004(Cth)
Applications of the Fair Trading Practice Act (Cth)
UNIDROIT Principles 2010 under treaty of 1973.and:
HCA 11[2015] and;
Other applications, and;
…
The propositions are devoid of legal merit. These types of arguments challenging the operation of state legislation and the powers of this court have been raised and rejected in other matters. I refer to the Court of Appeal decision in Palmer v City of Gosnells.[19] McLure P collates the many cases in which such issues have been raised and rejected by the court. They are untenable.
[19] Palmer v City of Gosnells [2014] WASCA 102 [9].
Further, there is no evidence the Registrar of Titles has 'overreached her duties.' That is no more than a bare allegation.
Mr Burns' submissions
Mr Burns' submissions largely repeat and are to the same effect as the matters set out in his affidavit. There are some additional features, including references to passages from the Bible, a claim that cannabis cultivation or possession for medical use in Australia has been legalised by the UK parliament and a claim that Mr Burns has 'Dominium.'
Again, those submissions do not reveal any ground recognised by the law of this state that would provide reasons for refusing the Director's application.
Determination
The transcript of part of the proceedings before the District Court, including the jury verdicts and the sentencing, was before the court, together with the Form 13 Certificate of Final Outcome of Charge.[20] I am therefore satisfied that that there is evidence of Mr Burns' conviction and evidence of the declaration under s 38(2) of the Misuse of Drugs Act.[21]
[20] Stacey affidavit, 37 ‑ 63.
[21] Section 107 Misuse of Drugs Act; Rule 49(1) Criminal Procedure Rules 2005 (WA)(Form 13); Bennett v Western Australia [2012] WASCA 70 [64], [130] ‑ [132].
The effect of s 8 of the Criminal Property Confiscation Act was to confiscate all property which Mr Burns owned, or effectively controlled, when the drug trafficker declaration was made on 27 March 2015. The declaration now sought by the Director follows from the operation of s 8, subject to establishing that Mr Burns owned or effectively controlled the relevant property.
The evidence adduced by the Director established that the properties specified in the freezing notice and in the application for a confiscation declaration were owned by Mr Burns as at the date of the drug trafficker declaration. Copies of the certificates of title are before the court. He was the registered proprietor. There is no evidence to the contrary.
The effect of s 30(2) of the Criminal Property Confiscation Act is that having found that the property described in the application has been confiscated under s 8, the court must make a declaration to that effect.
Mr Burns does not have any tenable defence to the Director's application for orders that his objection be dismissed and that his interest in the frozen property has been confiscated.
I dismiss Mr Burns' objection and make a declaration in the terms of paragraphs 1 and 2 as sought by the Director in the summons.
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