Commonwealth Bank of Australia v The State of Western Australia - [2018] WASC 52

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL

CITATION: COMMONWEALTH BANK OF AUSTRALIA -v- THE STATE OF WESTERN AUSTRALIA [2018] WASC 52

CORAM: PRITCHARD J

HEARD: 31 JANUARY 2018

DELIVERED : 31 JANUARY 2018

FILE NO/S: CPCA 22 of 2015

BETWEEN: COMMONWEALTH BANK OF AUSTRALIA
Plaintiff
AND
THE STATE OF WESTERN AUSTRALIA
Defendant

Catchwords:

Criminal law - Criminal Property Confiscation Act 2000 (WA) - Declaration that property has been confiscated

Legislation:

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

Result:

Declaration made

Category: B

Representation:

Counsel:

Plaintiff: No appearance
Defendant: Mr I S Jones

Solicitors:

Plaintiff: No appearance
Defendant: Director of Public Prosecutions (WA)

Cases referred to in judgment:

Bennett & Co (a firm) v Director of Public Prosecutions (WA) [2005] WASCA 141
Director of Public Prosecutions (WA) v Thornley [2014] WASC 440
Hendricks v The State of Western Australia [2002] WASC 86
Re Smith; Ex parte Director of Public Prosecutions (WA) [No 3] [2004] WASC 157
PRITCHARD J:
(These reasons were delivered extemporaneously on 31 January 2018 and have been edited from the transcript.)

This is an application brought by the State of Western Australia (State) for orders which were set out in a summons dated 22 November 2017, seeking declarations pursuant to the provisions of the Criminal Property Confiscation Act 2000 (WA) (Act). The present proceedings were, in fact, commenced by the Commonwealth Bank (Bank). It filed an objection to the confiscation of certain property the State claimed was able to be the subject of a confiscation order under the Act, namely some land in Beckenham, of which Mr Jamie Paul Shires is the registered proprietor. That objection has now been dismissed by consent of the Bank and the State.
What remains for determination is the balance of the summons filed by the State in which it relevantly seeks two declarations (Application). The first declaration sought is that, pursuant to s 7(1) of the Act, on 14 May 2015, property the subject of a freezing notice (Freezing Notice) was confiscated to the State of Western Australia, namely:
(a)cash in the sum of $7,600, taken from Mr Shires on 10 March 2015, together with any interest thereon; and
(b)cash in the sum of $2,420, taken from Mr Shires on 10 March 2015, together with any interest thereon.
(I will refer to this property as 'the Section 7 Property'.)
The second declaration sought in the Application is that, pursuant to s 8(1) of the Act, the following property that Mr Shires owned, or effectively controlled, at the time he was declared to be a drug trafficker on 21 April 2017, or gave away at any time before that date, has been confiscated to the State of Western Australia, namely:
(a)Mr Shires' interest as a registered proprietor in the land at Lot 23 on Plan 7176 in Certificate of Title Volume 1283 Folio 978, commonly known as 15 Saturn Street, Beckenham (Land);
(b)The following jewellery taken from Mr Shires on 10 March 2015 (Jewellery):
(i)Breitling Watch, Silver Colour (IMS 0088);
(ii)Circle Shiny Stone (IMS 0089);
(iii)Circle Shiny Stone (IMS 0090);
(iv)Square Shiny Stone (IMS 0091);
(v)15 Small Clear Stones (IMS 0093);
(vi)Yellow Colour Neck Chain (IMS 0095);
(vii)Yellow Colour Neck Chain (IMS 0096);
(viii)Spiral Yellow Colour Small Chain (IMS 0097);
(ix)Small Rope Link Yellow Colour Chain (IMS 0098);
(x)Silver Colour Earrings Pair with Clear Stone (IMS 0100);
(xi)Small Silver Colour Pair of Stud Earrings with Clear Stone (IMS 0101);
(xii)Yellow Colour Heart Shape Earring with Stones (Single) (IMS 0102);
(xiii)Yellow Loop Single Colour Earring (IMS 0103);
(xiv)Small Single Yellow Colour Loop Earring (IMS 0104);
(xv)Large Yellow Loop Earring (Single) (IMS 0105);
(xvi)Yellow Rose Single Earring (IMS 0106);
(xvii)Heart Shape Yellow & Silver Colour Pendant (IMS 0107);
(xviii)Silver Stud Earring with Clear Stone (IMS 0108);
(xix)Small Clear Single Stone (IMS 0109);
(xx)Yellow Colour Pendant with 21st in Shape of Key & Love Heart (IMS 0110);
(xxi)Silver Colour Cross Pendant (IMS 0111);
(xxii)Yellow Colour Watch Metal Strap (IMS 0112);
(xxiii)Yellow Metal Ring with Intertwined Hearts (IMS 0113);
(xxiv)Yellow Metal Baby Bangle with Dolphin Pattern (IMS 0114);
(xxv)Yellow Metal Ring with Black Stones (IMS 0116);
(xxvi)Silver Colour Crab Shape Pendant (IMS 0117);
(xxvii)Yellow Metal Heart Shape Pendant with Small Stone (IMS 0118);
(xxviii)Yellow Metal Motorbike Shape Pendant (IMS 0119);
(xxix)Pair of Yellow Metal Earrings with Purple Stone (IMS 0120);
(xxx)Silver Colour Metal Bracelet with Purple Heart Stone Pendant (IMS 0121);
(xxxi)Thin Yellow Metal Necklace with Cross Pendant (IMS 0122);
(xxxii)Yellow Metal Ring with Black Stone (IMS 0123);
(xxxiii)Yellow Metal Skull Link Bracelet (IMS 0124); and
(xxxiv)9kt Thick Yellow Gold Necklace (IMS 0125).
(c)cash in the sum of $1,345, taken from Mr Shires on 15 October 2016, together with interest thereon.
The Application is supported by the affidavit of Morgan Charlotte Paling affirmed 10 November 2017, and the affidavit of Alison Margaret Gibson sworn 20 November 2017. In addition, the State relies on two affidavits of service sworn by other persons, which confirm that both Mr Shires and the Bank were served with the State's notice that it intended to pursue the Application, together with all supporting material and submissions on which the State intended to rely.

The facts

The facts giving rise to the Application can be briefly stated. On 10 March 2015, Mr Shires was apprehended driving a vehicle. The circumstances in which he was apprehended resulted in him being prosecuted and convicted for being in possession of methylamphetamine with intent to sell or supply. Property was seized from Mr Shires on that occasion, namely the sums of $7,600 in cash and $2,400 in cash which are the subject of the Application for a declaration under s 7 of the Act. The State says that the cash seized from him was his property.
Between 10 March 2015 and 21 April 2017, the State says that Mr Shires was also the owner of other property. The first is the Land to which I have already referred. Secondly, the Jewellery, which was also found in the vehicle when Mr Shires was apprehended. The State says that, by virtue of being in the possession of Mr Shires on that occasion, and in the circumstances, it can be concluded that the Jewellery did not belong to anyone else apart from Mr Shires. At the time of his arrest, Mr Shires is reported to have told police officers that certain other property in the car belonged to another party, but Mr Shires did not suggest that the Jewellery was owned by any other person. As there has been no subsequent indication that the Jewellery belonged to any other person, the State says that the Jewellery was the property of Mr Shires. Thirdly, cash in the sum of $1,345 was seized from Mr Shires on a later occasion, prior to 21 April 2017.
The State says that each of those various items of property ‑ the Land, the Jewellery and the sum of $1,345 ‑ was property that Mr Shires owned, or effectively controlled, as at 21 April 2017. That date is significant because that is the date on which the District Court, at the time of sentencing Mr Shires for the offence of possession of methylamphetamine with intent to sell or supply, made a declaration under s 32A of the Misuse of Drugs Act 1981 (WA) (drug trafficking declaration).
The affidavits before the Court disclose that the only objection made under the Act in respect of the property the subject of the State's Application was made by the Bank. I note, for completeness, that Mr Shires made a statutory declaration, but he did not proceed to make an objection in the terms required by the Act.

The Application for a declaration pursuant to s 7 and s 30 of the Act and the requirements of the legislation

The first aspect of the Application is an application for a declaration pursuant to s 7 and s 30 of the Act.
Section 7(1) of the Act provides that:
Frozen property is confiscated if an objection to the confiscation of the property is not filed on or before the 28th day after the service cut off date for the property.
Section 7(3) provides:
However, property frozen under a freezing notice is not confiscated under subsection (1) or (2) until the freezing notice is filed in accordance with section 36(6)(a).
The basis for the Freezing Notice that was made in respect of the Section 7 Property was that that property was thought to be crime‑used or crime‑derived. The 'service cut off date' in relation to property frozen under a freezing notice is the date of the last day on which a copy of the freezing notice was served on anyone under s 36(4) of the Act.[1] Where no other interested party has been identified in a statutory declaration, the 'service cut off date' is the date that the freezing notice was last served on any person under s 36(1) of the Act.[2]
[1] Criminal Property Confiscation Act 2000 (WA) s 150.
[2] Director of Public Prosecutions (WA) v Thornley [2014] WASC 440 [8].
In this case, the statutory declarations which were made in light of the Freezing Notice did not identify any parties with an interest in the property seized from Mr Shires, apart from Mr Shires himself and the Bank. The State submits that the service cut off date is 15 April 2015. That is said to be because service in accordance with the requirements of the Act was completed on that date. Having regard to the affidavit of Ms Paling, I accept that that is so.
Twenty‑eight days after the service cut off date was 13 May 2015. The only objection filed by that date was filed by the Bank. No objection was filed by Mr Shires. The objection by the Bank has now been dismissed, pursuant to orders I have already made.
I should say that there may be a question as to whether the 'objection' referred to in s 7(1) of the Act means any objection, or only an objection directed to the particular property the subject of the application for a declaration under s 7. In this case, the objection made by the Bank pertained only to the Land. That objection did not pertain to the Section 7 Property. The State's submission is that the objection referred to in s 7 must be understood as an objection with respect to the particular property the subject of the application for a declaration under s 7.
While that may well be the case, it is not necessary for me to decide the point because the objection filed by the Bank has been dismissed. The position now, therefore, is that there is, in effect, no objection in respect of the Section 7 Property. Consequently, I am satisfied that there is no objection to the confiscation of the Section 7 Property which was filed on or before the 28th day after the service cut off date.
I note, for completeness, that the Freezing Notice was filed in accordance with s 36 of the Act, as the affidavit of Ms Paling makes clear. It is, therefore, the case that s 7(1) confiscation can occur.
The position, then, is that the Section 7 Property has been confiscated under s 7(1) of the Act. Section 30(2) of the Act makes that clear.[3] It provides that
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.
[3] Hendricks v The State of Western Australia [2002] WASC 86; Bennett & Co (a firm) v Director of Public Prosecutions (WA) [2005] WASCA 141; Re Smith; Ex parte Director of Public Prosecutions (WA) [No 3] [2004] WASC 157.
I will, therefore, make a declaration of confiscation in respect of the Section 7 Property, namely cash in the sum of $7,600 and in the sum of $2,420.
That, then, leaves the application by the State for a declaration in reliance on s 8 of the Act. The consequence of s 8 of the Act is that, after a person is subject to a drug trafficking declaration, property is confiscated. The property confiscated is all the property that the person owns, or effectively controls, at the time the declaration is made, and 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 the Act.
The evidence before the Court indicates, and I am satisfied, that, at or before the drug trafficker declaration was made on 21 April 2017, Mr Shires was the owner of the Land, being the registered proprietor of the Land. I am also satisfied that he was the owner of the Jewellery, or that he was the person with the effective control of it, when it was seized. There being no other contrary evidence, I am content to conclude that it is more likely than not that the Jewellery is property that Mr Shires owned, or effectively controlled, as at 21 April 2017. Finally, in respect of the third item of cash referred to in the Application (the sum of $1,345), that property was seized from Mr Shires on an occasion subsequent to his arrest on 10 March 2015, but prior to 21 April 2017.
I am satisfied that all of that property is property within s 8(1)(a) of the Act, as it was property owned or effectively controlled by Mr Shires as of the date of the drug trafficker declaration.
As I alluded to earlier, Mr Shires is presently in custody. I am satisfied that he has been served with notice of the Application, and has not filed any document or given any indication that he wishes to be heard in respect of the Application.
For those reasons, I am satisfied that the Land, Jewellery and cash in the sum of $1,345, together with interest thereon, which are the subject of the Application for a declaration under s 8, have been confiscated pursuant to s 8 of the Act. The effect of s 30 of the Act is that, if the Court finds that the property described in the application has been confiscated under s 8, the Court must make a declaration to that effect.
Accordingly, I will make the declaration of confiscation in respect of Mr Shire's interest in the Land, the Jewellery and the cash in the sum of $1,345 with any interest thereon.