Director of Public Prosecutions for Western Australia v Boardman
[2022] WASC 406
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA -v- BOARDMAN [2022] WASC 406
CORAM: VANDONGEN J
HEARD: 21 NOVEMBER 2022
DELIVERED : 25 NOVEMBER 2022
FILE NO/S: CPCA 50 of 2016
BETWEEN: DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA
Applicant
AND
ASHLEY CONRAD BOARDMAN
Respondent
ASHLEY CONRAD BOARDMAN
Objector
THE STATE OF WESTERN AUSTRALIA
Respondent to the Objection
Catchwords:
Criminal property confiscation - Freezing notices - Application for declaration of confiscation - Respondent declared a drug trafficker
Legislation:
Criminal Property Confiscation Act 2000 (WA)
Misuse of Drugs Act 1981 (WA)
Result:
Objection dismissed
Category: B
Representation:
Counsel:
| Applicant | : | In Person |
| Respondent | : | Mr I S Jones |
| Objector | : | In Person |
| Respondent to the Objection | : | Mr I S Jones |
Solicitors:
| Applicant | : | In Person |
| Respondent | : | Director of Public Prosecutions (WA) |
| Objector | : | In Person |
| Respondent to the Objection | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Centurion Trust Company Ltd v Director of Public Prosecutions (WA) [2010] WASCA 133; (2010) 201 A Crim R 324
The Director of Public Prosecutions for Western Australia v Sanders [2022] WASC 247
The State of Western Australia v Boardman [2019] WADC 131
VANDONGEN J:
On 6 October 2016 a freezing notice was issued by a Justice of the Peace pursuant to s 34 of the Criminal Property Confiscation Act 2000 (WA) (CPC Act). One of the items of property that was the subject of the freezing notice was land located at 26 Hennessy Drive, Ashby, more particularly described as Lot 166 on Deposited Plan 41692 in Certificate of Title Volume 2572 Folio 17 (Ashby Property).[1]
[1] Affidavit of Morgan Charlotte Paling affirmed 12 August 2021, [2].
Mr Boardman is the registered proprietor of the Ashby Property.[2]
[2] Affidavit of Liana Grace Ambrose sworn 2 March 2021, [12].
On 3 November 2016 Mr Boardman filed a Notice of Originating Summons pursuant to s 79 of the CPC Act, by which he objected to the confiscation of the Ashby Property (Originating Summons).
On 24 May 2017 Acting Master Strk (as her Honour then was) made several orders in the proceedings that had been commenced by the Originating Summons. Relevantly, the Acting Master made an order pursuant to s 43(8) of the CPC Act that the Ashby Property was frozen (freezing order). A further order was made that the Originating Summons stand as Mr Boardman’s objection to the freezing order, and the parties were granted liberty to apply.[3]
[3] Affidavit of Liana Grace Ambrose sworn 2 March 2021, [3].
On 19 August 2019 Mr Boardman stood trial in the District Court of Western Australia before Goetze DCJ and a jury in relation to 12 charges on indictment 1471 of 2018 (Indictment). Those charges alleged that Mr Boardman had, on a number of occasions, committed offences contrary to various provisions of the Misuse of Drugs Act 1981 (WA) (MD Act). On 26 August 2019 the jury found Mr Boardman guilty of all 12 charges, following which judgments of conviction were entered, and Mr Boardman was remanded in custody for sentencing.[4]
[4] Affidavit of Liana Grace Ambrose sworn 2 March 2021, [11].
Before Mr Boardman was sentenced, an issue arose as to whether a declaration that he was a drug trafficker should be made pursuant to s 32A(1) of the MD Act. On 29 August 2019 Goetze DCJ made a declaration that Mr Boardman was a drug trafficker in relation to three counts on the Indictment in respect of which judgments of conviction had been entered.
By a summons filed in this court on 4 February 2022 the applicant applies for an order that the Originating Summons be dismissed. The applicant also applies for a declaration to be made pursuant to ss 8(1) and 30 of the CPC Act that Mr Boardman’s interest as registered proprietor in the Ashby Property has been confiscated (Application).[5]
[5] The Ashby Property is described in the Application.
Notwithstanding the orders sought in the summons, the applicant originally indicated that the application to dismiss the Originating Summons was not pressed save to the extent that the objection relates to the Ashby Property.[6] However, at the hearing of this matter counsel for the applicant submitted that the Originating Summons should be dismissed in its entirety because all property was cancelled from the freezing notice that is referred to in the Originating Summons on 21 August 2017.[7] Further, counsel indicated that there is no other property frozen under the freezing order. Mr Boardman did not contend otherwise.
[6] Applicant’s written submissions dated 9 August 2022, [2].
[7] Affidavit of Morgan Charlotte Paling affirmed 12 August 2021, [7].
For the following reasons I am satisfied that the declaration sought by the applicant must be made pursuant to s 30 of the CPC Act, namely that Mr Boardman’s interest as registered proprietor of the Ashby Property has been confiscated under s 8 of the CPC Act. I am also satisfied that the Originating Summons should be dismissed.
Legal Framework
The applicant seeks a declaration pursuant to s 30 of the CPC Act that Mr Boardman’s interest as registered proprietor in the Ashby Property has been confiscated under s 8(1) of the CPC Act on the basis that it is property owned or effectively controlled by a person who has been declared a drug trafficker pursuant to s 32A(1) of the MD Act.
Section 30 of the CPC 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.
Only s 8 of the CPC Act is relied on by the applicant in these proceedings. Accordingly, there is no need for me to refer to ss 6 or 7 in these reasons.
Section 8(1) provides as follows:
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.
Accordingly, s 8(1) of the CPC Act relevantly operates when:
1.a person is declared to be a drug trafficker under s 32A(1) of the MD Act;
2.that declaration was made as a result of the person being convicted of a ‘confiscation offence’; and
3.the confiscation offence was committed after the commencement of the CPC Act.
If all of those matters are established then all of the property[8] that falls within s 8(1)(a) and (b) of the CPC Act is automatically and immediately confiscated at the time a drug trafficker declaration under s 32A(1) of the MD Act is made.[9]
[8] ‘Property’ is defined in the glossary in the CPC Act to mean a legal or equitable interest in any real or personal property of any description, wherever situated, and whether tangible or intangible.
[9] Centurion Trust Company Ltd v Director of Public Prosecutions (WA) [2010] WASCA 133 [199]; (2010) 201 A Crim R 324.
The phrase ‘confiscation offence’, which is used in s 8(1), is defined in s 141 of the CPC Act. Relevantly, and for the purposes of these proceedings, it includes an offence against a law in force anywhere in Australia that is punishable by imprisonment for 2 years or more.
The CPC Act commenced on 1 January 2001.[10]
[10] Section 2 of the CPC Act and Gazette 29 December 2000, 7903.
It is now well settled that the applicant bears the onus of proving, on the balance of probabilities, that the property has been confiscated.[11] In the absence of any third-party interest, nothing else must be established before the court then must make a declaration under s 30 of the CPC Act.[12]
[11] See The Director of Public Prosecutions for Western Australia v Sanders [2022] WASC 247 [6] (‘Sanders’).
[12] Sanders [7].
In any proceedings under the CPC Act in relation to property, if a person has been convicted of a ‘relevant confiscation offence’,[13] regard may be had to the transcript of proceedings and certain materials that were before a court in any proceedings for the offence or sentencing.[14]
The Evidence
[13] The phrase ‘relevant confiscation offence’ is defined, relevantly, in the Glossary to the CPC Act to mean ‘the confiscation offence … that is relevant to bringing the property within the scope of this Act’.
[14] CPC Act, s 107.
Pursuant to orders that were made by Curthoys J on 19 April 2022, the parties were required to file and serve any affidavit material to be relied on at the hearing of the Application. An order was also made that each party was required to provide written notice of an intention to cross-examine any affidavit deponent, and in the absence of any such notice the affidavits could be tendered without the need for the witness to attend court. It remained open to the parties to raise objections about the admissibility of any affidavit evidence.
No affidavit deponents were required for cross-examination and, as a result, no witnesses gave oral evidence at the hearing of the Application. Further, neither of the parties raised any objections to the admissibility of the affidavit evidence.
The applicant tendered three affidavits in support of the Application, namely:
1.Affidavit of Liana Grace Ambrose sworn 2 March 2021.
2.Affidavit of Morgan Charlotte Paling affirmed 12 August 2021.[15]
3.Supplementary affidavit of Liana Grace Ambrose sworn 10 June 2022.
[15] Only paragraphs 1, 2 and 7, and attachments “MCP1”and “MCP7” of the affidavit of Morgan Charlotte Paling were relied on by the applicant.
Those affidavits depose, relevantly, to the following matters:
1.On 26 August 2019 Mr Boardman was convicted of:
a.one offence of selling a prohibited plant, namely cannabis, contrary to s 7(1)(b) of the MD Act, which offence was committed on 4 October 2016;
b.one offence of possessing a prohibited plant, namely cannabis, with intent to sell or supply, contrary to s 7(1)(a) of the MD Act, which offence was committed on 6 October 2016;
c.one offence of attempting to possess a prohibited plant, namely cannabis, with intent to sell or supply, contrary to s 7(1)(a) of the MD Act, which offence was committed on 7 October 2016.[16]
2.On 30 August 2019 the respondent was declared to be a drug trafficker.[17]
3.At the time the respondent was declared to be a drug trafficker he was the registered proprietor of the Ashby Property.[18]
[16] Affidavit of Liana Grace Ambrose sworn 2 March 2021, [11].
[17] Affidavit of Liana Grace Ambrose sworn 10 June 2022, [5] - [7]. See also The State of Western Australia v Boardman [2019] WADC 131.
[18] Affidavit of Liana Grace Ambrose sworn 2 March 2021, [12] and [13].
I note that there is hearsay evidence before me that suggests that the respondent has not appealed against any of the convictions referred to above, or against the making of the drug trafficker declaration (at least as at 10 June 2022).[19] There may be a question about whether a decision to make a declaration pursuant to s 30 of the CPC Act can be based on hearsay evidence or information, even if it is not objected to.[20] However, given that it is not strictly necessary for me to make any findings about whether Mr Boardman has lodged any appeals, it is not necessary for me to reach any conclusions about this issue.
[19] Affidavit of Liana Grace Ambrose sworn 10 June 2022, [9].
[20] CPC Act, s 109.
At the hearing of the Application Mr Boardman relied on an affidavit that was sworn by him on 25 May 2022. In summary, Mr Boardman deposes to the circumstances in which the freezing notice was issued. He also raises matters relating to evidence adduced at his trial in the District Court, and concerns that he has about the testing and analysis of ‘drug samples’ carried out by the Chemistry Centre of Western Australia. Mr Boardman also deposes to matters that he contends demonstrate that he should not have been declared a drug trafficker.
I am of the view that Mr Boardman’s affidavit does not assist him. This is because the various matters of fact that are deposed to in the affidavit do not engage with any of the issues that I am required to consider and determine, and it essentially contains irrelevant evidence.
Mr Boardman’s affidavit also contains a not insubstantial amount of hearsay evidence. However, given what I have just said about the affidavit, and as the applicant did not raise any objections, I do not need to reach any conclusions about the admissibility of any specific paragraphs of this affidavit.
To the extent that Mr Boardman complains in his affidavit about the fact that he was convicted, and about the fact that he was declared to be a drug trafficker, it is not open to me to make any determination about those issues. As I explained to Mr Boardman at the hearing of the Application, I do not have the power to disturb either the judgments of conviction or the declarations that were made by Goetze DCJ.
The Applicant’s Submissions
The applicant filed written submissions on 9 August 2021, and counsel for the applicant made brief oral submissions at the hearing of this matter.
The applicant submits that the unchallenged and uncontradicted evidence establishes, on the balance of probabilities, that Mr Boardman has been declared a drug trafficker. Further, the applicant contends that the declaration was made because he was convicted of three separate confiscation offences, all of which were committed after the commencement of the CPC Act. The applicant says that, as a result, and because Mr Boardman's interest as registered proprietor of the Ashby Property is property that he owned or effectively controlled at the time that declaration was made, that property has been confiscated.
The applicant submits, in effect, that even if all the evidence in the respondent’s affidavit is accepted, a declaration that Mr Boardman’s interest as registered proprietor of the Ashby Property has been confiscated to the State of Western Australia must be made in accordance with s 30(2) of the CPC Act.
Mr Boardman’s Submissions
Mr Boardman filed very brief written submissions on 14 August 2021. In those submissions Mr Boardman said that the application should be dismissed.
Mr Boardman said that because the applicant did not comply with an order made by Curthoys J on 19 April 2022 to file and serve an outline of submissions by 4:00 pm on 6 August 2022,[21] the applicant ‘cannot make any submissions to the court at any future hearing’. He went on to submit that, as a result, he cannot comply with a further order that was made by Curthoys J that he file and serve an outline of submissions by 4:00 pm on 20 August 2022. On that basis, he submitted that if neither party is able to make submissions to the court then the matter should be dismissed.
[21] The applicant filed an outline of submissions on 9 August 2022.
At the hearing of this matter, Mr Boardman essentially repeated those submissions. However, he also appeared to contend that the Ashby Property should not be confiscated because of the existence of a third-party interest. However, no third-party interest has been identified in the evidence and no other party sought to be heard at the hearing.
Consideration
Mr Boardman’s submission that the Application should be dismissed because the applicant did not comply with the orders made by Curthoys J, by filing and serving its submissions by 6 August 2022, cannot be accepted. As the applicant’s counsel correctly submitted the fact that the applicant had not complied with the order, could not preclude the applicant from being heard and could not form a proper basis to dismiss the Application.
As I have already noted, the evidence relied on by the applicant has not been objected to and is uncontested. Further, the evidence that Mr Boardman relies on, although it is also not objected to and is uncontested, is irrelevant to the issues that I must determine.
Based on the unchallenged evidence adduced by the applicant that I have referred to above I find, on the balance of probabilities, that the applicant has proved the following facts:
1.On 30 August 2019 Mr Boardman was declared to be a drug trafficker under s 32A(1) of the MD Act. This is very clearly established by the reasons for decision of Goetze DCJ in The State of Western Australia v Boardman [2019] WADC 131 (Boardman).[22]
2.The declarations were all made as a result of Mr Boardman being convicted of a ‘confiscation offence’, having particular regard to what was said by Goetze DCJ in Boardman at [14] and [24(d)]. This is because the declarations were made as a result of Mr Boardman being convicted in the District Court of Western Australia of offences relating to cannabis, contrary to s 7(1) of the MD Act, which convictions rendered him liable to be sentenced to a term of imprisonment not exceeding 10 years, pursuant to s 34(2)(a) of the MD Act.
3.The declarations were made as a result of Mr Boardman being convicted of offences that were committed after the commencement of the CPC Act on 1 January 2001.[23]
[22] Affidavit of Liana Grace Ambrose sworn 10 June 2022, attachment “LAG1”.
[23] Affidavit of Liana Grace Ambrose sworn 2 March 2021, [11].
I note that Mr Boardman did not dispute any of these matters when I asked him about them at the hearing of the Application.
I also find that at the time the drug trafficker declarations were made, Mr Boardman was the registered proprietor of the Ashby Property. He became the registered proprietor of the Ashby Property on 10 November 2005,[24] and a memorial was registered over the Ashby Property on 31 May 2017 as a result of the freezing order being made.[25] I also infer from the date that appears at the bottom of the page of the copy of the certificate of title that is attachment ‘LGA 8’ to the affidavit of Ms Ambrose sworn 2 March 2021, that Mr Boardman was the registered proprietor as at 20 November 2020.[26]
[24] Affidavit of Liana Grace Ambrose sworn 2 March 2021, [12].
[25] Affidavit of Liana Grace Ambrose sworn 2 March 2021, [13], ‘LGA 8’ and ‘LGA 9’.
[26] At no time has Mr Boardman suggested that he was not the registered proprietor of the Ashby Property at the time he was declared to be a drug trafficker.
Based on the meaning of the word ‘owner’ in the glossary to the CPC Act,[27] it follows that Mr Boardman was the owner of that property for the purposes of s 8(1)(a) of the CPC Act at the time the drug trafficker declaration was made.
[27] The word ‘owner’ means a person who has a legal or equitable interest in the property: CPC Act, Glossary.
As a result, I find that the Ashby Property has been confiscated by operation of s 8(1)(a) of the CPC Act.
Having considered the Application, and having now found that Mr Boardman’s interest as registered proprietor of the Ashby Property has been confiscated pursuant to s 8(1)(a) of the CPC Act, I am required by s 30(2) to make a declaration to that effect.
I have also concluded that the Originating Summons should be dismissed, because it seeks orders that cannot have any effect. On 21 August 2017 all property was cancelled from the freezing notice that is referred to in the Originating Summons.[28] I was also advised by counsel for the applicant, and Mr Boardman did not contend otherwise, that there is no other property frozen under the terms of the freezing order to which the Originating Summons relates. Accordingly, there is now no longer any basis to make any of the orders sought by the Originating Summons.
Orders
[28] Affidavit of Morgan Charlotte Paling affirmed 12 August 2021, [7].
Pursuant to s 30(2) of the Criminal Property Confiscation Act 2000 (WA) it is declared that the respondent’s interest as registered proprietor in the land at Lot 166 on Deposited Plan 41692 in Certificate of Title Volume 2572 Folio 17, commonly known as 26 Hennessy Drive, Ashby, has been confiscated under s 8(1) of the Criminal Property Confiscation Act 2000 (WA).
The Notice of Originating Summons is dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KB
Associate to the Judge
24 NOVEMBER 2022
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