Director of Public Prosecutions for Western Australia v Roth-Beirne
[2007] WASC 91
•11 APRIL 2007
DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA -v- ROTH-BEIRNE [2007] WASC 91
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2007] WASC 91 | |
| Case No: | CIV:1719/2004 | 11 APRIL 2007 | |
| Coram: | HASLUCK J | 11/04/07 | |
| 12 | Judgment Part: | 1 of 1 | |
| Result: | Confiscation order made | ||
| B | |||
| PDF Version |
| Parties: | DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA SALLY CLAIRE ROTH-BEIRNE |
Catchwords: | Criminal law Confiscation of property Respondent a declared drug trafficker Application for property confiscation declaration Significant delay of respondent in pursuing proposed appeals Application by respondent for further adjournment Court required to make mandatory order when statutory requirements met No further adjournment granted Turns on own facts |
Legislation: | Criminal Property Confiscation Act 2000 (WA), s 8, s 30, s 93 Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 32A(1) |
Case References: | Hendricks v State of Western Australia [2002] WASC 86 Re Smith ex parte Director of Public Prosecutions for Western Australia (No 3) [2004] WASC 157 Roth-Beirne v State of Western Australia [2005] WASCA 170 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Applicant
AND
SALLY CLAIRE ROTH-BEIRNE
Respondent
Catchwords:
Criminal law - Confiscation of property - Respondent a declared drug trafficker - Application for property confiscation declaration - Significant delay of respondent in pursuing proposed appeals - Application by respondent for further adjournment - Court required to make mandatory order when statutory requirements met - No further adjournment granted - Turns on own facts
(Page 2)
Legislation:
Criminal Property Confiscation Act 2000 (WA), s 8, s 30, s 93
Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 32A(1)
Result:
Confiscation order made
Category: B
Representation:
Counsel:
Applicant : Mr D J Kirchner
Respondent : Mr I T Blatchford
Solicitors:
Applicant : State Director of Public Prosecutions
Respondent : Blatchfords
Case(s) referred to in judgment(s):
Hendricks v State of Western Australia [2002] WASC 86
Re Smith ex parte Director of Public Prosecutions for Western Australia (No 3) [2004] WASC 157
Roth-Beirne v State of Western Australia [2005] WASCA 170
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- HASLUCK J:
Introduction
1 The applicant is the Director of Public Prosecutions for Western Australia ("DPP"). He has applied for a declaration and related orders that all the property of the respondent, Sally Roth-Beirne, be confiscated to the State pursuant to provisions of the Criminal Property Confiscation Act 2000 (WA).
2 The orders sought are reflected in a Notice of Originating Motion dated 27 May 2004. The application is supported by submissions and various written evidentiary materials including principally the affidavit of Mark Freeman Cunningham sworn 18 May 2004.
The proceedings
3 It emerges from the papers before me that close to three years have elapsed since these proceedings were commenced.
4 The evidentiary materials establish that on 13 May 2002, police executed a search warrant on RMB 9332, Horton Road, Torbay near Albany in the south-west of the State of Western Australia, being the home address of the respondent. At the time of the search, cash in the sum of $3440, a mobile phone, and two address books were seized from the respondent. The respondent was subsequently charged under s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) with one count of cultivation of cannabis with intent to sell or supply it to another.
5 On 16 September 2003, after trial, the respondent was convicted of the charge in question, that is, one count of cultivation of cannabis with intent to sell or supply. Further, the respondent was declared to be a drug trafficker pursuant to s 32A(1) of the Misuse of Drugs Act.
6 Exhibited to the Cunningham affidavit is a transcript of the hearing on Tuesday, 16 September 2003 before Judge French of the District Court, who presided at the trial. This evidences (at page 24 of the transcript) that at the time of her conviction the respondent was declared to be a drug trafficker.
7 For the sake of completeness, as it is a matter mentioned later, and has a bearing on the issues before me, I note in passing that the respondent had a prior conviction for a similar offence in the year 2000.
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Statutory provisions
8 Section 8 of the Criminal Property Confiscation Act provides that 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 all the property that the person owns or effectively controls at the time the declaration is made is confiscated to the State of Western Australia.
9 It follows that the respondent's property was automatically confiscated pursuant to s 8 of the Criminal Property Confiscation Act on 16 September 2003 when the respondent was declared to be a drug trafficker by the trial Judge.
10 Section 30 of the Criminal Property Confiscation Act provides that the DPP may apply to the Court for a declaration that property has been confiscated.
11 Section 30(2) reads as follows:
"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."
The motion
12 The notice of originating motion before me is directed to and relies upon these provisions.
13 Put shortly, it is said by the applicant that if, as in the present case, a court has found that the subject property has been confiscated under section 8 of the Criminal Property Confiscation Act, the Court "must" make a declaration to that effect.
14 It appears from the evidentiary materials before me that, in addition to the items of property mentioned earlier, the respondent has at all material times had a one-third interest as tenant in common in the land being Lot 249 on deposited Plan 184492 comprised in Certificate of Title Volume 2066 Folio 85, commonly known as Lot 249, Unndiup Road, Torbay. This is referred to in the Cunningham affidavit at par 9.
15 At the time she was declared to be a drug trafficker, the respondent was the registered owner of a 1999 Hyundai Excel hatchback plate
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- number 1AIG 197. This is referred to in the Cunningham affidavit at par 10.
16 I digress briefly to say that the vehicle in question was an item of property described in par 1(e) of the notice of originating motion as one of the items of property sought to be affected by the proposed order.
17 However, I have been informed by counsel that, in the meantime, the vehicle has been destroyed and for that reason no order is now sought in respect of the Hyundai hatchback vehicle.
18 For ease of reference I will call the items of property I have described (other than the Hyundai hatchback vehicle) the "subject property"; that is, the respondent's one-third interest in the subject land, the cash, the two address books and the mobile phone. The notice of motion is directed to the subject property.
Decided cases
19 There are various decided cases bearing upon the statutory provisions in question. The decided cases include Hendricks v State of Western Australia [2002] WASC 86 and Re Smith ex parte Director of Public Prosecutions for Western Australia (No 3) [2004] WASC 157.
20 These cases make it clear that the obligation imposed upon the Court by s 30 of the Criminal Property Confiscation Act is mandatory. Once the Court is satisfied that the statutory requirements have been met the Court must make a declaration. That is the specific language of the statutory provision.
Appeal proceedings
21 The notice of motion in the present case and related papers were served upon the respondent. As it happened, the matter did not proceed further immediately.
22 This was because the respondent applied for and obtained various adjournments upon the basis that she intended to pursue an appeal against her conviction, to the Court of Appeal initially, and ultimately to the High Court.
23 However, it has to be said that the respondent did not take the necessary procedural steps in a timely fashion.
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24 I note that in Roth-Beirne v State of Western Australia [2005] WASCA 170 the Court of Appeal in this State dealt with her application to extend time to institute an appeal.
25 The leading judgment was written by Pullin JA. He observed that the appeal ought to have been instituted within 21 days from the date of conviction, that is, within 21 days of 16 September 2003. However, in fact the appeal was not instituted by the respondent until 12 months later on 6 October 2004. The Court of Appeal refused to extend time.
26 In the course of dealing with the respondent's application to extend time, the Court of Appeal, and especially Pullin JA, undertook a full review of the proposed grounds of appeal. Having undertaken that review, Pullin JA was of the opinion that the proposed grounds of appeal, if the appeal proceeded, were not likely to succeed. In the end, this opinion, and the insufficiently explained delay, was said to justify the refusal by the Court of Appeal to extend time.
27 It followed from this outcome that the respondent was then obliged to look further. Accordingly, to the respondent she gave consideration to a proposed appeal to the High Court.
28 It is common knowledge that an appeal to the High Court requires special leave. There are criteria bearing upon the grant of special leave which are bound to present difficulties in a case of this kind. Nonetheless, the respondent foreshadowed, in the course of these proceedings, and in the course of other communications, that she did intend to pursue an application for special leave to the High Court.
29 It seems that in the context of her professed intention to pursue an appeal to the High Court an application was made by the respondent for legal aid.
30 It was common ground at the hearing before me that the respondent's application for legal aid was refused. It seems that the Legal Aid Commission was not satisfied that there was sufficient strength in the proposed grounds of appeal to justify an award of legal aid. Thus, for a considerable period of time the position has been that the proposed application for special leave to appeal to the High Court has not been proceeded with in that no formal step has been taken in that regard.
31 In the absence of legal aid it now lies with the respondent to progress the foreshadowed appeal by reliance upon her own resources. I am told, and I accept, that her financial position is not strong. However, I pause
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- here to note that in recent times the respondent has been represented by counsel, namely, Mr Blatchford, and he has appeared on her behalf before me this morning.
Various events
32 For the sake of completeness, I feel it is incumbent upon me to set out what has happened since the Court of Appeal in this state dismissed the respondent's appeal in the manner I referred to a moment ago.
33 It seems that on 22 September 2005, the respondent's legal advisers, Blatchfords, advised that the respondent intended to apply for leave to appeal the Court of Appeal decision to the High Court.
34 On 18 October 2005, the respondent advised the DPP in writing that she was preparing affidavits to appeal the convictions of July 2000 and September 2003.
35 On 31 January 2006, the notice of originating motion before me, being CIV 1719 of 2004, was relisted for hearing at the Supreme Court.
36 This was subsequently altered by the DPP to 8 February 2006 due to some difficulty with the availability of counsel. On that date, the matter was adjourned following a fax from the respondent's advisers, Blatchfords, dated 7 February 2006. This attached a letter from Legal Aid stating that: "The matter of your request for legal aid for a High Court appeal is in the process of review."
37 On 15 March 2006, it seems that the respondent's application for legal aid for a High Court appeal was refused.
38 On 4 April 2006, Blatchfords advised the DPP that notwithstanding the refusal of the Legal Aid Commission to grant aid, the respondent had resolved to pursue the application. She was currently considering the means by which she could do so. Blatchfords said that they had instructions to apply for a further eight week adjournment of the confiscation application.
39 On 5 April 2006, the matter was adjourned sine die by Miller J administratively. On 17 July 2006, the respondent advised the DPP by fax that she was in the process of suing a lawyer for negligence over his defence of herself in respect of the earlier proceedings in 2000.
40 On 23 October 2006, the respondent wrote to the DPP to say that she was certainly intending to pursue her appeal to the High Court.
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41 On 1 March 2007, the Supreme Court relisted the DPP's application for hearing on 28 March 2007. On that date, the matter came before Johnson J.
42 The respondent was represented on that occasion by Mr Blatchford. Counsel made an application for an adjournment on behalf of the respondent on the basis that the respondent wished to proceed with her proposed application for special leave to appeal to the High Court.
The application for an adjournment
43 It is apparent to me from the transcript of the hearing on 28 March 2007 that counsel on both sides were afforded an ample opportunity to debate the adjournment issue.
44 Having heard from both sides and having obviously given careful consideration to the matters weighing for and against an adjournment, Johnson J ruled that she was not prepared to adjourn the matter indefinitely upon the basis proposed so that the foreshadowed application for special leave could proceed.
45 It is apparent from her Honour's observations that it was of considerable concern to her that nothing with any particular effect had been done in relation to the proposed appeal in recent times. There was no information before her as to how the proposed appeal was to be progressed. She noted that it had been over a year since the decision of the Court of Appeal had been handed down. This delay would have to be explained and would be a matter weighing against the prospects of an application for special leave succeeding.
46 Her Honour was of the view that the appeal had limited prospects and she noted also, having regard to the opposing contentions, that the DPP as applicant had been exceedingly patient, given that the notice of originating motion had been filed initially on 27 May 2004.
47 Against that background, her Honour ruled that she was not prepared to allow the application for a general adjournment upon the basis proposed. However, she was prepared to allow a short adjournment of a period of two weeks so that the position could be explained clearly to the respondent and to ensure that the respondent had an opportunity to prepare her case with a view to addressing the issues raised by the notice of originating motion when it was brought on for hearing before a Judge in Chambers on 11 April 2007; that is, two weeks after the day upon which Johnson J ruled upon the application for a general adjournment.
(Page 9)
The present hearing
48 The matter came on for hearing before me against the background I have described. Counsel for the DPP made it clear that the DPP was not prepared to consent to any further adjournment and wished to press for the orders, the subject of the notice of originating motion.
49 Nonetheless, counsel for the respondent, Mr Blatchford, applied to the Court for a further adjournment. He recognised that the question of a general or indefinite adjournment had been addressed by Johnson J at the previous hearing, as I have described. However, it was put to me that counsel had now received a form signed by his client being an application for special leave to appeal.
50 The form in question was dated 10 April 2007 and purported to describe the basis upon which the respondent would be moving the High Court for the special leave. It was accepted by Mr Blatchford (and I proceed upon that basis accordingly) that this application for leave form dated 10 April 2007 had not actually been filed at the High Court. Thus it could not be said that in any formal sense proceedings have been instituted in the High Court.
51 I pause here to say that it might therefore be said that virtually nothing has changed since the description of the situation as it was before Johnson J. It was foreshadowed on that occasion that an application for special leave to appeal would be made, and that remains the position, although I now have before me a printed form signed by the respondent setting out some proposed grounds of appeal. The document has not been filed and thus, again, what is before me is a foreshadowed appeal to the High Court.
52 The only change, it might be said, is that the proposed grounds of appeal have now been made more specific, and have been set out in written form.
53 The grounds specified in the subject application for leave were in these terms: it was said by the respondent that the District Court jury did not believe or should not have believed her guilty plea. It was said by the respondent that she wishes that any prejudicial District Court comment she made be reconsidered by the High Court.
54 It was said that insufficient recognition was given to the respondent's evidence comprising her bank statements showing that she had
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- accumulated $2900 in small amounts over two years. She lived rent free and frugally. She was charged with cultivation, not possession.
55 It was said that these matters raise sufficient doubt about guilt. It was said further that the respondent was due in the Albany Magistrates Court on 28 March 2007 to sue a lawyer for negligence.
56 I must emphasise that this was not a reference to her present lawyer, but to another lawyer she had engaged some time ago and was allegedly involved in advising her to plead guilty to certain s 32 charges.
57 It was said by the respondent that the s 32 charges arose from plants she had cultivated in February 2000 purely for self-use not for intent to sell. It was said that, as a consequence of her allegations, on 28 March 2007 the Magistrate's Court adjourned the hearing until after the proposed High Court appeal. The respondent thought that her chances of winning in the High Court would be improved if the negligence claim would be heard before the High Court.
The respondent's submissions
58 It is against this background that I now return to the submissions made by counsel for the respondent. These submissions, made at the hearing before me, were, in effect, a renewal of the application for a general adjournment made previously so that the foreshadowed application for special leave to appeal to the High Court could proceed.
59 I am of the view, firstly, that I am bound by the ruling made previously by Johnson J that there was not sufficient justification for an adjournment to be granted.
60 Further, and in any event, I am of the view that the analysis undertaken by Johnson J was correct and that all relevant considerations were properly considered.
61 I do not consider that the application for special leave dated 10 April 2007 that I described a moment ago changes the situation to any significant degree. I emphasise again that this is not a document that has actually been filed at the Court so as to institute proceedings. I am dealing with what is essentially a foreshadowed application for special leave.
62 Further, and perhaps more importantly, I do not consider that the grounds expressed in the application for special leave dated 10 April
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- 2007, such as it is, indicate that the respondent has real prospects of obtaining special leave.
63 It is apparent that, as to the first of the grounds I mentioned a moment ago, these were matters considered at length by Pullin JA in the Court of Appeal. For the reasons given by him on that occasion, it appears to me that the grounds lack merit and are unlikely to justify the grant of special leave. The other matters can be characterised as narrative.
64 Accordingly, for these reasons I consider that the application for a further adjournment made by counsel for the respondent should be refused.
The substantive application
65 This then brings me to the substantive application, which is the subject of the notice of originating motion.
66 The precise terms of that motion are that the Court will be moved by the DPP for the following declaration and orders pursuant to s 30 of the Criminal Property Confiscation Act 2000 and s 93 of the Criminal Property Confiscation Act 2000 that (1) all of the property that Sally Claire Roth-Beirne owned or effectively controlled at the time she was declared to be a drug trafficker under s 32A(1) of the Misuse of Drugs Act 1981 on 16 September 2003 and all property that Roth-Beirne gave away before that declaration was made has been confiscated to the State of Western Australia, including (a) the one-third interest of Roth-Beirne as tenant in common in the land being Lot 249 on deposited Plan 184492 comprised in Certificate of Title Volume 2066 Folio 85, commonly known as Lot 249 Unndiup Road, Torbay; (b) cash in the sum of $3440, the subject of holding order number 88769; (c) two address books the subject of the holding order; (d) mobile phone the subject of the holding order.
67 I have previously noted that I can now disregard par 1(e) of the application concerning the Hyundai hatchback vehicle; likewise, I can disregard par 2 of the notice of motion which concerns the vehicle.
68 For the sake of completeness, I simply note that par 3 of the notice of motion is seeking an order that the mobile phone and two address books be destroyed.
69 It follows from earlier discussion concerning the relevant statutory provisions and the decided cases that if I am satisfied that the statutory
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- requirements have been complied with, I am required by s 30 of the Criminal Property Confiscation Act, as a mandatory obligation, to make a declaration that the property in question has been confiscated. The statutory provision is quite clear that in those circumstances an order "must" be made.
70 Counsel for the respondent, Mr Blatchford, has made it quite clear to me that the respondent does not consent to any such orders being made as those sought. However, although an opportunity has been afforded to counsel to raise any matters that might stand in the way of the orders sought being made, no such matters have been raised other than the application for an adjournment that I dealt with in earlier discussion.
71 There is evidence before me that the subject property is owned or effectively controlled by the respondent and was so at the time that she was declared to be a drug trafficker on 16 September 2003. There is no evidence to the contrary.
72 Accordingly in these circumstances, having regard to the statutory provisions and the mandatory obligation I have described, I consider that the applicant is entitled to obtain the orders sought. Accordingly, I make orders in terms of par 1 save for subpar (e) and an order in terms of par 3 of the summons.
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