Director of Public Prosecutions v Scott Warren
[2015] ACTSC 126
•11 May 2015
HUMAN RIGHTS ACT
SUPREME COURT OF THE AUSTRALIAN CAPITAL TERRITORY
Case Title: | Director of Public Prosecutions v Scott Warren |
Citation: | [2015] ACTSC 126 |
Hearing Date(s): | 11 May 2015 |
DecisionDate: | 11 May 2015 |
Before: | Refshauge J |
Decision: | 1. The defendant’s interest in Block 13 Section 96 Banks in the ACT be excluded from forfeiture in accordance with Order 1 sought in the defendant’s Application in Proceedings dated 4 September 2014; 2. The balance of the defendant’s Application in Proceedings dated 4 September 2014 be dismissed; 3. Subject to Order 1 above, the following property be forfeited to the Australian Capital Territory: a. Two fluorescent lights with orange extension cord and one red light with cord, estimated value $55; b. One white transformer with grey cord, estimated value $100; c. Two yellow and green transformers with grey cord, estimated value $200; d. One cardboard box with two fluorescent lights and digital temperature and humidity gauge, a power board, Otto air pump, cylinder temperature gauge and white timer, estimated value $80; e. One cylinder steel air filter, estimated value $80; f. One cylinder steel air filter and fan element, estimated value $80; g. Three heat lamps with white wings and white cord, estimated value $300; h. One blue transformer and one white transformer, estimated value $300; i. Two large light heat lamps with silver wings, estimated value $200; j. One white and silver scales, estimated value $50; k. Three black rectangle boxes containing insulation, estimated value $90; The total estimated value of hydroponic equipment being $1635. 4. The balance of the plaintiff’s Application in Proceedings dated 27 August 2014 be dismissed. |
Category: | Principal Judgment |
Catchwords: | PRACTICE AND PROCEDURE – Application for restraint of property – Restraint of Crown Lease subject to registered mortgage – Restraint of chattels – Consent order – Who must consent – Whether consent given |
Legislation Cited: | Confiscation of Criminal Assets Act 2003 (ACT), ss 26, 252 Criminal Code 2002 (ACT), ss 618(2), 621(1), 635 |
Parties: | ACT Director of Public Prosecutions (Plaintiff) Scott Warren (Defendant) Attorney-General of and for the Australian Capital Territory (Intervenor) |
Representation: | Counsel Mr M Reardon (Plaintiff) Mr M Kukulies-Smith (Defendant) Mr N Hancock (Attorney-General (intervening)) |
| Solicitors ACT Director of Public Prosecutions (Plaintiff) Kamy Saeedi Law (Defendant) Australian Government Solicitor (Attorney-General) | |
File Number(s): | SC 249 of 2012 |
Refshauge J:
On 8 August 2012, the ACT Director of Public Prosecutions commenced proceedings in this Court under s 26 of the Confiscation of Criminal Assets Act 2003 (ACT), seeking the restraint of certain property, including the defendant’s interest in a Crown Lease in Banks.
The offences in respect of which the application was made were offences said to have been committed by the defendant, Scott William Warren, being one count of trafficking in a traffickable quantity of cannabis and one count of possessing equipment for cultivating a controlled plant with intention of selling some or all of the cultivated plants, offences against, respectively, ss 635 and 621(1) of the Criminal Code 2002 (ACT) and also one count of artificially cultivated three or more cannabis plants contrary to s 618(2) of the Criminal Code.
The property sought to be restrained included the Crown Lease to which I have referred and also certain chattels. The Crown Lease was subject to a registered mortgage to Westpac Banking Corporation and, accordingly, that company was noted on the proceedings as an interested party and was given notice of the proceedings.
The proceedings were defended by the defendant, who sought to challenge the proceedings, inter alia, on the grounds of inconsistency with the Human Rights Act 2004 (ACT). Due notice was given to the Human Rights and Discrimination Commissioner and to the Attorney-General, as required under that Act. The Human Rights and Discrimination Commissioner declined to intervene but the Attorney-General did intervene.
Since that time, the principal parties have agreed upon the disposition of the proceedings.
The proceedings came before me on 10 April 2015 for the purpose of making consent orders. Consent orders may be made under s 252 of the Confiscation of Criminal Assets Act. That Act, however, provides that such an order may only be made:
with the consent of the applicant in the proceedings and everyone whom it [the relevant court] has reason to believe has an interest in the property, benefits, transaction document or information that is the subject of the proceeding.
At that stage, Westpac Banking Corporation had not filed a Notice of Intention to Respond and, so far as I could determine, had not appeared in the proceedings. Nevertheless, it seemed to me that Westpac Banking Corporation was a person whom the court had reason to believe had an interest in the property the subject of the proceedings. That was clear because the land titles search that was annexed to an affidavit filed by the applicant, showed that there was a registered mortgage to Westpac Banking Corporation over the Crown Lease, which was one of the subjects of the property.
I note that the resolution of the proceedings excludes the defendant’s interest in the Crown Lease from the forfeiture that is proposed under the proceedings, but it seemed to me, nevertheless, that Westpac Banking Corporation’s consent was required. Accordingly, the matter was adjourned.
I have now had tendered copies of email correspondence between the defendant’s lawyers and an officer of Westpac Banking Corporation. Although not annexed to an affidavit, no point has been taken by any of the parties before me to the receipt of that material and I admitted it. I can now make findings in accordance with it.
Inter alia, the lawyer from the Dispute Resolution Group of Compliance Legal and Secretariat of Westpac Banking Corporation wrote in one of the emails:
Westpac confirms receipt of this correspondence and proposed orders and we do apologise again for our delayed acknowledgment. Westpac’s interest in this matter is our registered mortgage numbered 1448684 over the property of 30 Kettlewell Crescent, Banks, ACT, T906 Banks Property. We understand that the Bank's property will not be subject to or affected by the proposed forfeiture orders. Westpac, therefore, has no objection to the proposed orders. Thank you for keeping us informed and affording us the opportunity to respond.
A later email, following the listing of the matter, indicated that “Westpac does not intend to enter and seek appearance.”
The Attorney-General has also attended before me in accordance with the notice of intervention filed on his behalf, however, it seems to me that it is unlikely, in the circumstances, that the Attorney-General is someone who would be required, under s 252(1) of the Confiscation of Criminal Assets Act, to consent to the proceedings.
Although the email from Westpac Banking Corporation does not use the words “consent”, it seems to me, in all the circumstances, having regard to the fact that the property the subject of the mortgage is not to be forfeited, that the terms used by the officers of Westpac Banking Corporation are sufficiently clear in these circumstances for me to find that everyone whom I have reason to believe has an interest in the property consents to the consent orders sought.
It is arguable that some of the items, being chattels, would be items that could be the subject of the mortgage that Westpac Banking Corporation has over the property but I do not consider that, in all the circumstances, including the wording of the correspondence from Westpac Banking Corporation, is a reason why I should not make the order proposed.
Accordingly, I will make an order in accordance with the general form of order handed to me, namely:
(1) The defendant’s interest in Block 13 Section 96 Banks in the ACT be excluded from forfeiture in accordance with Order 1 sought in the defendant’s Application in Proceedings dated 4 September 2014;
(2) The balance of the defendant’s Application in Proceedings dated 4 September 2014 is dismissed;
(3) Subject to Order 1 above, in accordance with Order 1 sought on the plaintiff’s Application in Proceedings dated 27 August 2014, the following property be forfeited to the Australian Capital Territory:
(a) Two fluorescent lights with orange extension cord and one red light with cord, estimated value $55;
(b) One white transformer with grey cord, estimated value $100;
(c) Two yellow and green transformers with grey cord, estimated value $200;
(d) One cardboard box with two fluorescent lights and digital temperature and humidity gauge, a power board, Otto air pump, cylinder temperature gauge and white timer, estimated value $80;
(e) One cylinder steel air filter, estimated value $80;
(f) One cylinder steel air filter and fan element, estimated value $80;
(g) Three heat lamps with white wings and white cord, estimated value $300;
(h) One blue transformer and one white transformer, estimated value $300;
(i) Two large light heat lamps with silver wings, estimated value $200;
(j) One white and silver scales, estimated value $50;
(k) Three black rectangle boxes containing insulation, estimated value $90;
The total estimated value of hydroponic equipment being $1635.
The balance of the plaintiff’s Application in Proceedings dated 27 August 2014 is dismissed.
| I certify that the preceding fifteen [15] numbered paragraphs are a true copy of the Reasons for Judgment of his Honour Justice Refshauge. Associate: Date: 2015 |
0
0
3