Director of Public Prosecutions for Western Australia v Christianopoulos
[2024] WASC 106
•4 APRIL 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA -v- CHRISTIANOPOULOS [2024] WASC 106
CORAM: HOWARD J
HEARD: 28 MARCH 2024
DELIVERED : 4 APRIL 2024
FILE NO/S: CPCA 11 of 2019 & CPCA 14 of 2019
BETWEEN: DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA
Applicant
AND
ALEXANDER TERRENCE CHRISTIANOPOULOS
Respondent
ALEXANDER TERRENCE CHRISTIANOPOULOS
First Objector
T & A HOLDINGS PTY LTD
Second Objector
THE STATE OF WESTERN AUSTRALIA
Respondent to the Objection
Catchwords:
Criminal property confiscation - Freezing Notices and Orders - Respondent convicted of offences under Misuse of Drugs Act 1981 (WA) - Respondent declared a drug trafficker - Freezing Notices under s 34(3)(b) of the Criminal Property Confiscation Act 2000 (WA) - Freezing Orders made under s 43(5) of that Act - Respondent filed Objection to Freezing Orders - Application for declarations that property has been confiscated - Application to dismiss respondent's Objection - Declaration of confiscation - Respondent's Objection dismissed
Legislation:
Criminal Property Confiscation Act 2000 (WA)
Misuse of Drugs Act 1981 (WA)
Result:
Application granted
Declaration of confiscation
Objection dismissed
Category: B
Representation:
Counsel:
| Applicant | : | Mr I S Jones |
| Respondent | : | In Person |
| First Objector | : | In Person |
| Second Objector | : | In Person |
| Respondent to the Objection | : | Mr I S Jones |
Solicitors:
| Applicant | : | Director of Public Prosecutions (WA) |
| Respondent | : | In Person |
| First Objector | : | In Person |
| Second Objector | : | In Person |
| Respondent to the Objection | : | 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 Ltd v Director of Public Prosecutions (WA) [2010] WASCA 133
Urbano v The State of Western Australia [2006] WASCA 147
HOWARD J:
Introduction and background
At the conclusion of the hearing on 28 March 2024, I made Orders under the Criminal Property Confiscation Act 2000 (WA): all statutory references from here are to this Act unless otherwise indicated.
These are my reasons for making those Orders.
On 17 August 2018, Mr Christianopoulos was charged with eight counts of supplying a prohibited drug, namely methamphetamine to another and four counts of offering to sell or supply a prohibited drug, namely methamphetamine to another (PE 43005 of 2018 to PE 43015 of 2018 and PE 43019 of 2018) contrary to the Misuse of Drugs Act 1981 (WA) (MDA).
Two Freezing Notices were made under s 34(3)(b) on the basis that Mr Christianopoulos had been charged with an offence and could be declared a drug trafficker under s 32A(1) of the MDA. The Freezing Notices were:
1.Number WAPFN180141 made 5 September 2018 in relation to a property known as 230 Douglas Avenue, Kensington in this State; and
2.Number WAPFN180169 made 4 October 2018 in relation to a property known as 51 - 57 George Street, Kensington (together the Property).
On the materials before the Court, and it was not in dispute, at all material times Mr Christianopoulos was the registered proprietor of the Douglas Avenue property and T & A Holdings Pty Ltd was the registered proprietor of the George Street property.
Further, it appeared from the materials before the Court (and again was not in dispute) that at all material times, Mr Christianopoulos was the sole director of, and beneficial shareholder in, T & A Holdings Pty Ltd.
On 11 March 2019, Mr Christianopoulos was charged with a further count of offering to supply a trafficable quantity of methamphetamine (PE 11983 of 2019).
On 25 June 2019, in CPCA 11 of 2019, Freezing Orders were made by Acting Principal Registrar Whitby (as she then was) pursuant to ss 43(5), (6) and (7) over:
1.the Property;
2.all monies held on behalf of Mr Christianopoulos and/or T & A Holdings Pty Ltd by Tyler and Sons, Real Estate Agents, Auctioneers and Property Managers arising from the rental of the George Street property; and
3.any rent received from the Douglas Avenue property and/or the George St property.
On 28 June 2019 (the document is dated 10 February 2019), Mr Christianopoulos filed an originating summons in CPCA 14 of 2019 (Objection).
By Orders made on 12 August 2019:
1.CPCA 14 of 2019 was consolidated with CPCA 11 of 2019;
2.the Objection stood as an objection to the Freezing Orders made 25 June 2019; and
3.time for the objector to file an objection to the Freezing Orders was extended to 12 August 2019.
From here I will use:
1.DPP to refer both to the applicant in CPCA 11 of 2019 and to the respondent to the Objection in CPCA 14 of 2019; and
2.respondent to refer to Mr Christianopoulos and T & A Holdings Pty Ltd as respondents in CPCA 11 of 2019 and as the objectors making the Objection in CPCA 14 of 2019.
The Freezing Orders were varied on four separate occasions:[1]
1.on 5 March 2020 Order 2A was added to the Freezing Orders, which had the effect of releasing $40,000 of money held by Tyler and Sons to pay for Mr Christianopoulos' legal fees;
2.on 25 September 2020 Order 2B was added to the Freezing Order, which had the effect of releasing a further $22,000 of money held by Tyler and Sons to pay for Mr Christianopoulos' legal fees;
3.on 8 February 2021:
a.Order 2C was added to the Freezing Order, which had the effect of releasing a further $4,168.87 to pay for Mr Christianopoulos' legal fees; and
b.Order 4 was amended, which had the effect of removing Mr Christianopoulos from controlling and managing the Douglas Avenue property; and
4.on 9 December 2021, Order 4 was removed, and Mr Christianopoulos lost the ability to control or manage the George Street property.
[1] Orders made on 5 March 2020; 25 September 2020; 8 February 2021; 9 December 2021.
On 22 December 2020, Mr Christianopoulos was sentenced in the District Court following his pleas of guilty for:
1.eight counts of selling a prohibited drug, namely methamphetamine to another, contrary to the MDA; and
2.two counts of offering to sell or supply a prohibited drug, namely methamphetamine, to another contrary to the MDA.
He was sentenced to a total effective sentence of 5 years and 7 months imprisonment, backdated to 17 August 2018. A parole eligibility order was made.
On 2 March 2021, Mr Christianopoulos was declared to be a drug trafficker pursuant to s 32A(1) of the MDA.
The DPP's Application
On 9 January 2023, the DPP filed a summons which sought:
1.to dismiss the Objection;
2.a declaration that the Property had been confiscated to the State of Western Australia;
3.a declaration that monies held by Tyler & Sons to the credit of T & A Holdings Pty Ltd being monies accrued up to and including 2 March 2021 derived from the leasing of the George Street property had been confiscated to the State of Western Australia; and
4.a declaration that all monies held by the firm of Tyler & Sons accrued after 2 March 2021 and derived from the leasing of the George Street property are held for the benefit of the State of Western Australia.
The second and third sought orders (set out immediately above) were sought pursuant to s 30. The fourth was sought pursuant to s 32.
The DPP relied on affidavits of:
1.Britt Elise Hansen made 5 January 2023 and filed 10 January 2023;
2.Christopher Michael Anderson made 6 January 2023 and filed 10 January 2023;
3.(second affidavit) Mr Anderson made and filed 28 July 2023.
At the hearing, Mr Christianopoulos had no objection to those affidavits being read. Mr Christianopoulos did not seek to challenge any of the matters in the affidavits.
The Objection
An objection to the confiscation of frozen property can be filed pursuant to s 79(1) of the Act. The State is a party to the objection proceedings.[2]
[2] Criminal Property Confiscation Act 2000 (WA) s 80.
Upon hearing an objection, by s 81, the Court may set aside the Freezing Order to the extent permitted under ss 82, 83 or 84 of the Act.
The only potentially relevant ground on which the power in s 81 might be enlivened in this case is under s 84(2) because the Freezing Notices were made under s 34(3) and the Freezing Orders were made under s 43(5).
Section 84(2) provides that:
(2)The court may set aside a freezing notice issued for property under section 34(3) or a freezing order for property that was frozen under section 43(5) if the court finds that it is more likely than not that the person who is or will be charged with the offence does not own or effectively control the property, and has not at any time given it away.
Consideration
At the hearing I indicated to Mr Christianopoulos that on the DPP's Application and on the Objection there were, at most, three matters for decision under the Act, namely:
1.whether he had been convicted;
2.whether he had been declared a drug trafficker; and
3.the ownership of the Property (and so, ownership of the resulting rental monies).
The DPP had to prove on the balance of probabilities that the Property had been confiscated under s 8(1) of the Act.[3] To do so the DPP had to relevantly prove that:
1.the respondent had been declared to be a drug trafficker under s 32A(1) of the MDA;
2.the declaration was made as a result of the person being convicted of a 'confiscation offence' (an offence punishable by imprisonment for 2 years or more);[4]
3.the offence was committed after the commencement of the Act (after 1 January 2001); and
4.at the time the declaration was made, the Property was owned or effectively controlled by the person at the time the person was declared to be a trafficker.[5]
[3] Criminal Property Confiscation Act 2000 (WA) s 102(2)(d); Campana v The State of Western Australia [2008] WASC 230 [40] (Jenkins J).
[4] Criminal Property Confiscation Act 2000 (WA) s 141(1)(a).
[5] Urbano v The State of Western Australia [2006] WASCA 147 [5], [38] - [39] (Martin CJ, McLure & Pullin JJA).
Subject to the Objection, if each of the above matters was proved then the Property had automatically and immediately been confiscated at the time the drug trafficker declaration was made on 2 March 2021;[6] the declarations sought under s 30 essentially confirm what has already taken place.
[6] Centurion Trust Company Ltd v Director of Public Prosecutions (WA) [2010] WASCA 133 [199] (Buss JA).
Upon Mr Christianopoulos pleading guilty and having convictions of guilty entered he became guilty of a 'confiscation offence'. A confiscation offence is an offence within Australia by imprisonment for two years or more.[7] That lead to the declaration of being a drug trafficker.
[7] Criminal Property Confiscation Act 2000 (WA) s 141(1)(a).
Subject to the Objection, by s 8(1)(a), the property frozen by the Freezing Orders was automatically confiscated to the State on the making of the declaration.
The three affidavits relied on by the DPP proved the matters which it needed to establish for its declarations to be made. They also negatived the only possible basis for an objection under s 84(2).
There was no issue raised by Mr Christianopoulos that the respondent did not own or effectively control the Property as at 2 March 2021 (the date on which he was declared a drug trafficker). In those circumstances, the respondent could not come within s 84(2) and so the Court's power was not enlivened under s 81(1).
Although it had been previously de-registered, as at 2 March 2021, T & A Holdings Pty Ltd had been reinstated to ASIC's Register. There was no issue raised to the contrary, and I find, that Mr Christianopoulos was in effective control of the company and its assets as at 2 March 2021.
Any rental monies from the Property follow the Property's confiscation and are to the benefit of the State.
Mr Christianopoulos' concerns
Mr Christianopoulos filed submissions with the Court dated:
1.29 November 2023 (200 pages);
2.11 January 2024 (2 pages); and
3.11 January 2024 (16 pages).
He also corresponded with my Chambers on numerous occasions.[8] And, sent a USB to the Court which contained 19 sub-folders, most of which contained numerous screen shots and audio recordings.
[8] 18, 22 August 2023; 3 - 6, 8, 10, 12 - 13 September 2023; 20, 22 - 23, 26 - 27 March 2024; and after the hearing on 2 April 2024.
I have not sought to set out the matter in any detail which Mr Christianopoulos sought to raise with the Court via the above submissions, correspondence and USB.
Mr Christianopoulos had a number of concerns as to the integrity of the justice system, including the conduct of: the police, his parole officer, a psychiatrist or psychologist he consulted, the DPP lawyer in this matter and his previous lawyers.
However, leaving aside the difficulties that a period of imprisonment posed for him in preparing for the hearing which I deal with below, the topics raised might be broadly (but not exhaustively) summarised as follows:
1.complaints about the management of the Property;
2.a conspiracy which led to the allegation that he had breached parole and resulted in him being re-incarcerated (albeit at a time after the relevant drug convictions and his declaration as a drug trafficker);
3.a conspiracy to use the provisions of the mental health legislation against him to detain him which involve corrupt mental health nurse/s and psychologists/psychiatrists; and
4.an attempt on his life by a boat accident - 'the accident' being either part of a police conspiracy against him or was covered up by the police to discredit any steps taken to investigate the attempted murder.
It is obviously beyond the scope of determining the DPP's Application or the Objection for me to consider these assertions. It is plain, in my view, that none of the matters asserted are relevant to the comparatively narrow questions that I am to determine.
I confirmed with Mr Christianopoulos at the hearing that none of those matters went to any of the questions I must decide as outlined in par 25 above.
At a hearing on 15 November 2023, I made an order allowing Mr Christianopoulos to adduce oral evidence at the (final) hearing. At the final hearing I reiterated that Mr Christianopoulos could lead oral evidence if it went to one of the issues that I had to decide. Mr Christianopoulos declined to do so. Further, nothing was said by him which suggested to me that he could, or wanted, to lead any evidence relevant to: his convictions, the declaration that he was a drug trafficker, or the ownership of the Property.
During the time that I was managing CPCA 11 and 14 of 2019, Mr Christianopoulos had a period in prison. He did submit that had hampered his ability to prepare for the hearing and to retain legal representation. In all of the circumstances, however, I do not consider that proceeding with the final hearing and the determination of the DPP's Application and the Objection in the way outlined above was unfair to the respondent.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JC
Associate to the Honourable Justice Howard
4 APRIL 2024
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