Cronin v The State of Western Australia - [2011] WASC 216

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: CRONIN -v- THE STATE OF WESTERN AUSTRALIA [2011] WASC 216

CORAM: EM HEENAN J

HEARD: 11 AUGUST 2011

DELIVERED : 11 AUGUST 2011

PUBLISHED : 25 AUGUST 2011

FILE NO/S: CIV 2450 of 2004

BETWEEN: DENNIS PATRICK CRONIN
Plaintiff
AND
THE STATE OF WESTERN AUSTRALIA
Defendant

Catchwords:

Criminal law - Confiscation of criminal property - Declared drug trafficker - Confiscation order - Dismissal of objection

Legislation:

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

Result:

Confiscation order
Objection dismissed

Category: B

Representation:

Counsel:

Plaintiff: No appearance
Defendant: Mr M Seaman

Solicitors:

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 of Western Australia (No 3) [2004] WASC 157

EM HEENAN J: By a summons filed 8 June 2011 the Director of Public Prosecutions for Western Australia has made application for an order dismissing the objection by Dennis Patrick Cronin, and for a declaration pursuant to s 30 of the Criminal Property Confiscation Act 2000 (WA) (the Act) that property has been confiscated to the State of Western Australia under s 8(1) of that Act.
The application made by the Director to dismiss the plaintiff's objection is brought on the basis that the objection cannot be successful because Mr Cronin has not established, as required by s 84(2) of the Act, that it is more likely than not that he did not own or effectively control the property in question and has not at any time given it away.
The Director's application under s 30 is made on the basis that the property has been confiscated pursuant to s 8(1) of the Act upon Mr Cronin being declared to be a drug trafficker pursuant to s 32A(1) of the Misuse of Drugs Act 1981 (WA) on 12 May 2006 as a result of being convicted of a confiscation offence committed after the commencement of that Act. The details of the conviction and the offence are contained in the affidavit of Jodi Kathleen Peters sworn 15 March 2011 at par 12.
The background facts are that on 3 November 2004, pursuant to s 34 of the Act, a freezing notice was issued on the basis that Mr Cronin had been charged with an offence and could be declared to be a drug trafficker under s 32A(1) of the Misuse of Drugs Act, if convicted of the offence. Pursuant to the requirements contained in s 36(1) of the Act in relation to service of the freezing notice on the person affected or any interested party, a copy of that freezing notice was served on any person from whom property was taken, any person who had custody of frozen property, and on all persons whom the applicant was aware were or might be or who claimed to be an interested party, except for the following:
(a)Brightside Holdings Pty Ltd, which was deregistered on 21 December 2003. Both the previous directors of that company, namely Dennis Patrick Cronin and Adrian Peter Cronin, were served with a freezing notice.
(b)Westpac Banking Corporation, whose solicitors Corrs Chambers Westgarth received a copy of the freezing notice by fax on 9 June 2005.
(c)Colanne Harley Cronin, Jack Cronin, Shelby Cronin and Chelsea Cronin. Although these parties were not served with a copy of the freezing notice, they were served with a copy of the State's application for a declaration of confiscation. These details are set out in the affidavit of Ms Peters, pars 4, 5 and 7.
Section 7(1) of the Act 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 for the property. In that respect, Dennis Patrick Cronin filed a notice of originating summons and a notice of objection pursuant to s 79 on 5 November 2004, and Westpac Banking Corporation filed an originating summons and notice of objection pursuant to s 29 on 29 June 2005. As a result, the property was not confiscated automatically pursuant to s 7 of the Act.
By s 8(1) of the Act, when a person is declared to be a drug trafficker under s 32A(1) of the Misuse of Drugs Act as a result of being convicted of a confiscation offence which was committed after the commencement of that Act, namely after 1 January 2001, all the property that the person owned or effectively controlled at the time he or she was declared to be a drug trafficker, and all property that he or she might have given away at any time before the declaration was made, whether the gift was made before or after the commencement of the Act, is confiscated to the State of Western Australia.
As a result, the property in this case was automatically confiscated pursuant to s 8(1) of the Act on 12 May 2006 when Mr Cronin was declared to be a drug trafficker as previously noted. In cases where a court finds the property has been confiscated under s 8(i) of the Act, the court must, pursuant to s 30(2) make a declaration to that effect. There are prior decisions of this court binding on me to that effect. These include Hendricks v The State of Western Australia [2002] WASC 86, [19] and Re Smith; Ex parte Director of Public Prosecutions of Western Australia (No 3) [2004] WASC 157 [15].
Neither Mr Cronin nor Westpac Banking Corporation has established that it is more likely than not that the plaintiff does not own or effectively control the property and has not at any time given it away. I refer to s 79(1), s 81(1) and s 84(2) of the Act. Consequently, the State seeks an order that Mr Cronin's objection to the confiscation of frozen property made by notice of originating summons and notice of objection filed on 11 November 2004 be dismissed.
In this respect efforts have been made to serve Mr Cronin with a copy of this application and supporting documents. The details of those attempts of service are contained in an affidavit of Tiffany Denuta Nojunas sworn 3 August 2011, where Ms Nojumas deposes that service of a service copy of the summons, a minute of proposed order, a copy of an affidavit of Ms Peters of 15 March 2011, written submissions and an explanatory letter was effected on 2 August 2011 by posting copies of the documents by prepaid mail to 1 Alto Lane, Currambine. That was the last known place of residence of Mr Cronin and there are no other addresses recorded for him, or indications of his whereabouts.
Notwithstanding this, the serving person Ms Nojunas was informed by an officer at the missing persons division of the WA police force, and so believes that the plaintiff has been listed as a missing person since mid‑January 2011 and that there is no available information as to his whereabouts. It seems that his family is not aware of any known contact either.
In these circumstances, I consider that I can and should proceed, notwithstanding a strong probability that Mr Cronin has not been served with this application, because the declaration that he is a drug dealer and his convictions for these offences means that it is inevitable that a confiscation order must follow. Furthermore, if he were interested in these proceedings and in pursuing the objection which he had initiated, it would have been his responsibility to keep himself informed of the progress of the claim, and that evidently has not occurred. Therefore, notwithstanding the doubts about the sufficiency of service, I shall proceed.
I come now to the property in question. According to the affidavit evidence contained in the Peters affidavit, Dennis Patrick Cronin is the owner of a commercial fishing vessel, Charolin III, LFBF 82, formerly numbered AFBP 104, which is 17.24 metres in length and unregistered. He is also the sole registered proprietor of land at lot 474 on deposited plan 214114 and certificate of title vol 1710 folio 189, commonly known as 20 Malaga Court, Cervantes. Further, at the time of the freezing notice the plaintiff was registered as a tenant in common of the land at lot 138 on plan 17469 and certificate of title vol 1868 folio 256, commonly known as 46 Longvar Road, Moresby, which was sold on 22 January 2008, his part of the proceeds are currently held in an interest bearing account with the Public Trustee, in account numbered TRST 33068060.
The plaintiff is also recorded as a joint tenant with Adrian Peter Cronin in the land at lot 30 on plan 18395 on certificate of title vol 1928 folio 281 commonly known as 1 Alto Lane, Currambine. The effect of the confiscation order at law will be to sever the joint tenancy and, although the parties are still recorded on the title as joint tenants, the real interest between them has, since the date of the confiscation order, been a tenancy in common, because the effect of the disposition of one joint tenant's interest to a third party at law is to terminate the joint tenancy and to convert it into a tenancy in common with the new owner. That can be accommodated by appropriate applications to the land titles office, but it will have no significant effect on the entitlement of the co‑owners.
The plaintiff is the sole registered proprietor of the land at lot 755 on deposited plan 217802 on certificate of title vol 2001 folio 542 commonly known as 12 Cordoba Way, Cervantes. He is also the registered owner of a 1987 white Toyota Landcruiser tray top, registration number 8CB‑416, VIN number FJ750042021, engine number 3FO126182.
In addition, he is the registered owner of another vehicle, a 1998 white Toyota Landcruiser tray top, registration number 1AUE-245, VIN number JT711UJ8008033349, engine number 1FZ0349396. He is also the registered owner of a silver Brooker boat trailer, registration number XWW-472, VIN number W854. In addition, he is the registered owner of a Grey John Papas Box Top trailer, registration number 8WC‑648, VIN 6A4T20S0JPT0055 and he is the sole director of Brightside Holdings Pty Ltd, the company previously mentioned which has been deregistered.
At the time of the freezing order, the plaintiff was the owner of the 14 West Coast Rock Lobster unit entitlements which were purchased by Brightside Holdings Pty Ltd acting for the Cronin Family Trust on 5 September 2000. The unit entitlements are presently attached to the fishing licence of G & M Paratore Holdings Pty Ltd with a security interest presently held by the State of Western Australia, the Fisheries Department having recognised the operation of s 8(1)of the Act.
Consequently, I make the following orders and declarations which are the subject of the minute of proposed orders of 13 June 2011:
(1)the plaintiff's objection to the confiscation of frozen property made by notice of originating summons dated 5 November 2004 be dismissed;
(2)all the property that Dennis Patrick Cronin owned or effectively controlled at the time he was declared to be a drug trafficker under s 32A(1) of the Misuse of Drugs Act 1981 on 12 May 2006, and all property that Cronin gave away at any time before the drug trafficker declaration was made, has been confiscated to the state of Western Australia. There is a long list with detailed particulars of the titles, addresses and registration numbers of the various items of property which I have already mentioned.
The following property is excluded from this declaration of confiscation, namely:
(a)money standing to the credit of Brightside Holding Pty Ltd in the Bank of Western Australia Ltd, account number 3061174532151 and any or all interest accrued on such money;
(b)money standing to the credit of the plaintiff in Commonwealth Bank account number 6192101060511 and any interest accruable on such money;
(c)money standing to the credit of the plaintiff in Commonwealth Bank account number 619210156328 and any interest accrued;
(d)money standing to the credit of the plaintiff in Bank of Western Australia Ltd account number 3061170020699 and any interest accrued on that money;
(e)money standing to the credit of the plaintiff and Norman Gazeley at the Bank of Western Australia Ltd account number 3061170045116 and any interest payable on such money;
(f)1987 white Toyota Landcruiser tray top, registration number 8CB‑416; and
(g)1998 Toyota Landcruiser tray top registration number 1AUE‑245.
I further order that within seven days of being requested by the Director of Public Prosecutions or his agent to do so, Dennis Patrick Cronin deliver up or cause to be delivered up the following items:
(a)the Brooker boat; and
(b)the trailer
to such place as the Director or his agents may nominate.
There will be no order as to costs.