Daye v The State of Western Australia
[2019] WASC 102
•29 MARCH 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: DAYE -v- THE STATE OF WESTERN AUSTRALIA [2019] WASC 102
CORAM: ARCHER J
HEARD: 28 FEBRUARY 2019
DELIVERED : 28 FEBRUARY 2019
PUBLISHED : 29 MARCH 2019
FILE NO/S: CPCA 47 of 2016
BETWEEN: JESSICA ELLA PETTIT
First Plaintiff
KEVIN DAYE
Second Plaintiff
AND
THE STATE OF WESTERN AUSTRALIA
Defendant
Catchwords:
Criminal property confiscation - Plaintiffs declared drug traffickers - Application for declaration of confiscation
Legislation:
Criminal Property Confiscation Act 2000 (WA)
Misuse of Drugs Act 1981 (WA)
Result:
Declaration of confiscation made
Category: B
Representation:
Counsel:
| First Plaintiff | : | In person |
| Second Plaintiff | : | In person |
| Defendant | : | V Pelligra |
Solicitors:
| First Plaintiff | : | In person |
| Second Plaintiff | : | In Person |
| Defendant | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Campana v The State of Western Australia [2008] WASC 230
Centurion Trust Company Pty Ltd v The Director of Public Prosecutions (WA) [2010] WASCA 133
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 28 February 2019 and has been edited from the transcript and references added).
Introduction
In this action, the Director of Public Prosecutions (DPP) seeks a declaration that particular property of the plaintiffs has been confiscated, given they have been declared to be drug traffickers. For the reasons that follow, the declaration should be made.
Legal framework
Section 30 of the Criminal Property Confiscation Act2000 (WA) (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.
Section 8 of the Confiscation Act 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.
As the application under s 30 is brought by the DPP, and as the court is required to be satisfied that the property has been confiscated, the DPP bears the onus of proving that the property was confiscated.[1] The DPP must prove it on the balance of probabilities.[2]
[1] Campana v The State of Western Australia [2008] WASC 230[40].
[2] Confiscation Act s 102(2)(d).
The matters that the DPP must prove under s 8, in respect of each plaintiff, are:
(1)that:
(a)the plaintiff was declared to be a drug trafficker;
(b)as a result of being convicted of a 'confiscation offence' (relevantly being an offence punishable by imprisonment for more than 2 years);[3]
(c)that was committed after the commencement of the Confiscation Act (which commenced on 1 January 2001); and
(2)that the property was owned or effectively controlled:
(a)by the plaintiff;
(b)at the time the declaration that he or she was a drug trafficker was made.
[3] Confiscation Act s 141(1).
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 declaration that the plaintiff was a drug trafficker was made.[4]
[4] Centurion Trust Company Pty Ltd v The Director of Public Prosecutions (WA) [2010] WASCA 133 [199] (Buss JA, with whom Owen JA agreed [74]).
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.[5]
[5] 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] (see also [25]).
Evidence
The DPP tendered an affidavit of Morgan Paling.[6] It proves the following.
[6] Affidavit of Morgan Charlotte Paling affirmed 20 November 2018 (Paling Affidavit).
Each plaintiff was convicted in the District Court of, among other things, the offence of possessing methylamphetamine with intent to sell or supply, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA). For each plaintiff, the offence was committed on 30 August 2016, after the commencement of the Confiscation Act.
This offence is punishable by imprisonment for more than 2 years.[7] It is therefore a 'confiscation offence'.
[7] Misuse of Drugs Act s 34(1).
Each plaintiff was declared to be a drug trafficker under s 32A of the Misuse of Drugs Act as a result of their conviction for this offence.
The first plaintiff was declared to be a drug trafficker on 24 January 2018. The second plaintiff was declared to be a drug trafficker on 20 October 2017.
The DPP seeks a declaration that that following property of each of the plaintiffs has been confiscated:
(a)each plaintiff's interest in land at Lot 157 on Deposited Plan 45024 in Certificate of Title Volume 2627, Folio 406, commonly known as 5 Lancelot Green, Wattle Grove WA (Land); and
(b)money standing to the credit of the each plaintiff in ANZ Bank account 01 6359 5559 50683 (the ANZ account) as at 24 January 2018, and any interest payable on such money.
The record of the Certificate of Title for the Land shows that each plaintiff was a registered proprietor as a joint tenant as at the date each was declared to be a drug trafficker.[8]
[8] Paling Affidavit page 75.
The ANZ account is held in the names of both plaintiffs, and was held prior to the date on which each plaintiff was declared to be a drug trafficker.[9]
[9] Paling Affidavit page 76.
The DPP also seeks a declaration that that following property of the second plaintiff has been confiscated:
(a)money standing to the credit of the second plaintiff in Bank of Queensland account 1069309 as at 20 December 2017, and any interest payable on such money.
The Bank of Queensland account is held in the name of the second plaintiff, and was held prior to the date on which the second plaintiff was declared to be a drug trafficker.[10]
[10] Paling Affidavit page 77.
Conclusion
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.
It therefore follows that the first plaintiff's property the subject of the application for the declaration was confiscated as at the date the first plaintiff was declared to be a drug trafficker. Similarly, it follows that the second plaintiff's property the subject of the application for the declaration was confiscated as at the date the second plaintiff was declared to be a drug trafficker.
I am therefore required to declare that the property has been confiscated.
Orders
I will make orders in terms of paragraphs 1 to 3 of the Defendant's Minute of Proposed Orders filed 25 February 2018.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JS
Associate to the Honourable Justice Archer29 MARCH 2019
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