Commonwealth Bank of Australia v The State of Western Australia - [2013] WASC 232

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: COMMONWEALTH BANK OF AUSTRALIA -v- THE STATE OF WESTERN AUSTRALIA [2013] WASC 232

CORAM: HALL J

HEARD: 28 MAY 2013

DELIVERED : 28 MAY 2013

PUBLISHED : 13 JUNE 2013

FILE NO/S: CPCA 13 of 2012

MATTER :Section 79 of the Criminal Property Confiscation Act 2000 (WA)
AND
Freezing Notice Number WAPFN120046 issued against Lanh Phuoc Vo on 24 February 2012

BETWEEN: COMMONWEALTH BANK OF AUSTRALIA
First Plaintiff
LANH PHUOC VO
Second Plaintiff
OANH THI KIEU DUONG
Third Plaintiff
AND
THE STATE OF WESTERN AUSTRALIA
Defendant

Catchwords:

Criminal property confiscation - Drug trafficker declaration - Declaration that all property confiscated

Legislation:

Nil

Result:

Declaration made

Category: B

Representation:

Counsel:

First Plaintiff                :     No appearance
Second Plaintiff            :     No appearance
Third Plaintiff               :     No appearance
Defendant:     Mr T Staples

Solicitors:

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

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

Hendricks v The State of Western Australia [2002] WASC 86
Re Smith; Ex parte Director of Public Prosecutions for Western Australia (No 3) [2004] WASC 157

HALL J: By a summons filed on 10 April 2013 the State seeks orders for declarations that all of the property owned or effectively controlled by the second plaintiff has been confiscated to the State of Western Australia. A declaration is also sought that two sums of cash have been confiscated on the grounds that they are crime‑used or crime‑derived or that the owner is a drug trafficker. These declarations are sought pursuant to s 7, s 8 and s 30 of the Criminal Property Confiscation Act 2000 (WA) (CPCA).
On 28 February 2012, a freezing notice was issued on the application of a police officer numbered WAPFN120046. This notice was issued on the basis that Mr Vo, the second plaintiff, was liable to be declared a drug trafficker, having been charged with offences under the Misuse of Drugs Act 1981 (WA) (MDA). That freezing notice had the effect of freezing all property owned or effectively controlled by Mr Vo. The notice specifically referred to land at Lot 300 on Plan 19163 in Certificate of Title volume 1970 folio 201, commonly known as 54 Redcliffe Avenue, Marangaroo and to a Holden Barina hatchback vehicle.
On 6 June 2012, a second freezing notice numbered WAPFN120113 was issued. This notice again froze all of Mr Vo's property on the basis that he was liable to be declared a drug trafficker. It also froze two quantities of cash, being an amount of $42,350 and an amount of $50,000, on the basis that it was either owned by Mr Vo or was crime‑used or crime‑derived property. The cash amounts had been seized from Mr Vo's residence at the time of his arrest on 23 February 2012.
The Commonwealth Bank, the first plaintiff, was the mortgagee in respect of the property at 54 Redcliffe Avenue, Marangaroo. On 22 March 2012, the bank filed an originating summons seeking orders that freezing notice WAPFN120046 be set aside insofar as it related to the bank's interest in the Marangaroo property and that a declaration as to that interest be made. Mr Vo and Ms Duong, the third plaintiff, are the registered owners of the Marangaroo property and were added as parties to the proceedings brought by the bank.
Pursuant to consent orders made on 7 May 2012, the Marangaroo property was subsequently sold and all amounts due and payable to the bank pursuant to the registered mortgage were paid out. The balance of the sale proceeds were divided equally between Mr Vo and Ms Duong. Ms Duong was paid her share of those proceeds. The remainder was paid into an interest‑bearing account with the Public Trustee in the joint names of the Director of Public Prosecutions and Mr Vo. The consent orders also provided that in any application under the CPCA Mr Vo's share of the proceeds of the sale of the land were to be taken to be the Marangaroo property and dealt with as if it were the property subject to freezing notice WAPFN120046.
The bank had no further interest in the proceedings once the Marangaroo property was sold and its mortgage was discharged. Accordingly, on 17 August 2012, the bank's claim under the originating summons was dismissed by consent. However, the proceedings continued in respect of Mr Vo and Ms Duong.
On 10 April 2013, the State, the defendant in these proceedings, filed a summons seeking a declaration as to the confiscation of the property covered by the freezing notices. The summons was set down for hearing on 28 May 2013. Neither Mr Vo nor Ms Duong appeared either personally or by counsel. There was affidavit evidence which established that Mr Vo was served with a copy of the summons on 3 May 2013 at Hakea Prison. He was also served with a copy of an affidavit of Marie Normoyle sworn on 3 April 2013 setting out the basis upon which the declaration of confiscation was sought and a copy of the written submissions relied upon by the State. There was also affidavit evidence that Ms Duong had been served with the same documents on 19 April 2013. In each case, the served documents also included a letter from the DPP stating that the matter had been set down for a hearing on 28 May 2013 and advising that if they did not attend court a declaration of confiscation could be made in their absence.
Counsel for the State advised that no indication of the intentions of Mr Vo or Ms Duong had been received. The only reasonable inference is that neither of them wished to take any part in these proceedings. That conclusion is reinforced by the fact that they have never filed any objections or participated in any way in these proceedings. I also note that Ms Duong's interest in any jointly held property appears to have been satisfied by the payment out to her of a half share of the net proceeds on the sale of the Marangaroo property. There have also been cancellation notices in respect of monies standing to the credit of Mr Vo in two Commonwealth Bank accounts and in respect of the Holden Barina hatchback vehicle. In these circumstances, I considered it appropriate to proceed in the absence of Mr Vo and Ms Duong.
On the basis of Ms Normoyle's affidavit I am satisfied that the following facts have been established. On 23 February 2012, Mr Vo was arrested and found to be in possession of quantities of methylamphetamine, heroin and cash. As a consequence, he was charged with a number of offences including three of supplying a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another contrary to s 6(1)(c) of the MDA, two of possessing methylamphetamine with intent to sell or supply it to another contrary to s 6(1)(a) of the MDA and two of possession of heroin with intent to sell or supply it to another contrary to s 6(1)(a) of the MDA. These charges exposed Mr Vo to the possibility that on conviction he could be declared to be a drug trafficker pursuant to s 32A(1) of the MDA. Accordingly, the freezing notices referred to earlier were issued. Copies of those freezing notices were served on any person from whom the property was taken and all persons who the DPP was aware had, or may claim to have, an interest in the property.
Section 7(1) of the CPCA provides that frozen property is confiscated if an objection to confiscation is not filed on or before the 28th day after the service cut‑off date. As noted earlier, the first plaintiff filed an originating summons on 22 March 2012. As a consequence of the filing of that objection, the property was not confiscated automatically.
Pursuant to s 8 of the CPCA, when a person is declared to be a drug trafficker under s 32A(1) of the MDA as a result of being convicted of a confiscation offence that was committed after the commencement of the CPCA, all the property that the person owned or effectively controlled at the time he was declared to be a drug trafficker and all the property that he gave away at any time before the declaration was made, whether the gift was made before or after the commencement of the CPCA, is confiscated to the State.
Mr Vo pleaded guilty to all charges and was sentenced on 8 February 2013 in the District Court to a total effective sentence of 7 years' imprisonment. A declaration that he was a drug trafficker was also made. As a consequence, all of his property was automatically confiscated to the State on that date.
If the court finds that property has been confiscated under s 8 of the CPCA, the court must, pursuant to s 30(2) of the CPCA, make a declaration to that effect: Hendricks v The State of Western Australia [2002] WASC 86 [19] and Re Smith; Ex parte Director of Public Prosecutions for Western Australia (No 3) [2004] WASC 157 [15].
The orders sought by the State include an order that all of the property of Mr Vo be declared to have been confiscated to the State and also orders specifically identifying certain items of property. That property includes Mr Vo's interest in the Marangaroo property. The affidavit of Ms Normoyle establishes that that property was formerly held by Mr Vo and Ms Duong as joint tenants. Mr Vo's interest in that property has now been converted into a sum of cash and the effect of a declaration will be that that cash will be forfeited to the State.
Two quantities of cash are also referred to in the orders. These are the amounts of $42,350 and $50,000 that are the subject of freezing notice WAPFN120113. The evidence establishes that these quantities of cash were seized from Mr Vo at the time of his arrest. No party has sought to make objection to the confiscation of these sums. The only reasonable inference is that the cash is owned by Mr Vo.
Mr Vo has not sought to establish that it is more likely than not that he does not own or effectively control the property: s 79(1), s 81(1), and s 84(2) of the CPCA. Ms Duong has not sought to make any claim in respect of the remaining proceeds of the sale of the property or to the cash.
In these circumstances, I was satisfied that it was appropriate to declare that all of the property owned or effectively controlled by Mr Vo at the time he was declared to be a drug trafficker and all property that he gave away at any time before that declaration was made had been confiscated to the State of Western Australia. This includes, without limiting the generality of the declaration, Mr Vo's 50% interest in the proceeds of sale of the Marangaroo property. Consistent with cancellation notices previously made, an order was also made excluding the Holden Barina hatchback vehicle from the declaration.