Director of Public Prosecutions v Tran
[2015] WASC 46
•6 FEBRUARY 2015
DIRECTOR OF PUBLIC PROSECUTIONS -v- TRAN [2015] WASC 46
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2015] WASC 46 | |
| 06/02/2015 | |||
| Case No: | CPCA:76/2012 | 5 FEBRUARY 2015 | |
| Coram: | EDELMAN J | 5/02/15 | |
| 8 | Judgment Part: | 1 of 1 | |
| Result: | Declaration made | ||
| A | |||
| PDF Version |
| Parties: | DIRECTOR OF PUBLIC PROSECUTIONS MINH TRI TRAN SIMONE TERESE VITOU |
Catchwords: | Criminal law Criminal property confiscation Required specificity for a declaration that relies on s 30(2) of the Criminal Property Confiscation Act Requirements for declaration of confiscation based upon drug trafficker declaration |
Legislation: | Criminal Property Confiscation Act 2000 (WA), s 8, s 30, s 31, s 34(4) Misuse of Drugs Act 1981 (WA), s 32A(1) |
Case References: | Bass v Permanent Trustee Co Ltd [1999] HCA 9; (1999) 198 CLR 334 Hart v JGC Accounting & Financial Services Pty Ltd [2015] WASCA 22 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
MINH TRI TRAN
First Defendant
SIMONE TERESE VITOU
Second Defendant
Catchwords:
Criminal law - Criminal property confiscation - Required specificity for a declaration that relies on s 30(2) of the Criminal Property Confiscation Act - Requirements for declaration of confiscation based upon drug trafficker declaration
Legislation:
Criminal Property Confiscation Act 2000 (WA), s 8, s 30, s 31, s 34(4)
Misuse of Drugs Act 1981 (WA), s 32A(1)
Result:
Declaration made
Category: A
Representation:
Counsel:
Plaintiff : Mr I S Jones
First Defendant : In person
Second Defendant : No appearance
Solicitors:
Plaintiff : Director of Public Prosecutions (WA)
First Defendant : In person
Second Defendant : No appearance
Cases referred to in judgment:
Bass v Permanent Trustee Co Ltd [1999] HCA 9; (1999) 198 CLR 334
Hart v JGC Accounting & Financial Services Pty Ltd [2015] WASCA 22
- EDELMAN J:
(These reasons were delivered orally at the conclusion of the hearing and have been edited for grammar, expression, syntax and inclusion of the details of authorities.)
Introduction
1 This is an application by summons for a declaration under s 30 of the Criminal Property Confiscation Act 2000 (WA) (the CPCA). The Director of Public Prosecutions for Western Australia (the DPP) seeks orders declaring that various property has been confiscated under s 8(1) of the CPCA.
2 On 10 December 2014, EM Heenan J directed that the DPP provide written notice within 21 days to Mr Tran and Ms Vitou that this matter was adjourned to 5 February 2015 and that each had the right to appear. His Honour also directed that there be a video link connection to Mr Tran (who is in prison) with a Vietnamese interpreter available at the hearing.
3 Mr Tran appeared by video link this morning with his interpreter. Ms Vitou did not appear for reasons that I explain below.
4 Orders for confiscation should be made in the particular terms of paragraph 2 of the DPP's summons, as amended.
The summons
5 The DPP seeks orders, which I summarise as follows:
(1) A declaration that all the property that Mr Tran owned or effectively controlled at the time he was declared to be a drug trafficker under s 32A(1) of the Misuse of Drugs Act 1981 (WA) on 13 March 2014 and all property that Mr Tran gave away at any time before the drug trafficker declaration was made has been confiscated to the State of Western Australia.
(2) Without limiting the generality of the declaration in paragraph 1 above, the following property has been confiscated, namely:
(a) monies held in trust in the names of Mr Tran and Ms Vitou in the Public Trustee account, together with any interest, being the balance of sale proceeds from the sale of land in Thornlie;
(b) 2007 Harley Davidson motor cycle;
(c) cash of $3,172.50, taken from Mr Tran on 23 June 2011, together with any interest;
(d) cash of $14,992.00, taken from Mr Tran on 23 June 2011, together with any interest thereon;
(e) cash of $8,381.00, taken from Mr Tran on 23 June 2011, together with any interest;
(t) cash of $7,650.00, taken from Mr Tran on 23 June 2011, together with any interest;
(g) cash of $2,200.00, taken from Mr Tran on 23 June 2011, together with any interest;
(h) cash of $3,223.00, taken from Mr Tran on 23 June 2011, together with any interest;
(i) cash of $2,085.00, taken from Mr Tran on 23 June 2011, together with any interest;
(j) cash of 175 pounds in old Australian currency, taken from Mr Tran on 23 June 2011; and
(k) cash in the sum of 110 shillings in old Australian currency, taken from Mr Tran on 23 June 2011.
7 A declaration must state the precise legal effect of the rights of the parties.1 As Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ said in Bass v Permanent Trustee Co Ltd,2 a declaration must do 'more than declare that the law dictates a particular result when certain facts in the material or pleadings are established' (such as establishing that certain things were owned or effectively controlled by Mr Tran when he was declared to be a drug trafficker or certain things were given away by Mr Tran prior to this date).
8 This basic principle concerning declarations is not abrogated by the statutory power to make declarations contained in s 30 of the CPCA. That section permits the DPP to apply to the court for a declaration that property has been confiscated. Section 30(2) then provides that in relation to 'considering an application' under s 8, 'if the court finds that the property described in the application has been confiscated ... the court must make a declaration to that effect' (italics added). The reference to the 'property described in the application' is to a particular description of property and carries duties on the DPP depending on the description.3 It is not satisfied by a general reference to 'all property owned by the drug trafficker' or 'all property given away by the drug trafficker'.
9 The words of s 30(2) contrast with the general terms of s 34(4) of the CPCA which provides that a 'freezing notice may be issued ... for all or any property that is owned or effectively controlled by the person, whether or not any of the property is described or identified in the application'. The requirement for 'description' in s 30(2) and the power in s 30(1) to make 'a declaration that property has been confiscated' also contrasts with the general terms of s 8 which automatically confiscates 'all the property that the person owns or effectively controls' and 'all property that the person gave away'.
10 The textual requirement in s 30 of the CPCA for particularity in a judicial declaration is not merely consistent with the history and scope of the general power to make declarations, discussed in Bass v Permanent Trustee Co Ltd,4 but it is consistent with the purposes of the CPCA. A general order such as (1) above would have all the consequences of a judicial order that unnamed property would be confiscated but there could be confusion about rights because it would be unclear from the declaration (i) what property rights are held in what subject matter (since owner is defined in the glossary as a person with a legal or equitable interest in the property) or (ii) what competing interest might be excluded from any declaration.
11 As I explain below, the appropriate order is to declare the confiscation of each item of property listed in (2).
The objections by Ms Vitou and Mr Tran
12 Mr Tran and Ms Vitou have objected to the orders for confiscation of the property.
Ms Vitou's objection
13 I commence with Ms Vitou's objection. She filed an affidavit which was sworn on 26 June 2013 and described as being 'in support of motion for recognition of de facto interest'. In her affidavit she describes how she cohabited with Mr Tran from July 2003 at his property in Thornlie, until the end of their relationship, following Mr Tran's arrest in 2011. She describes the manner in which they supported each other, including financially. She said that the Thornlie home, and assets within it, had been seized. She claimed a right to those assets, or their proceeds which she said was the subject of adjudication in the Family Court of Western Australia or a claim for an equitable interest.
14 The Thornlie property was subsequently sold and the proceeds are held by the Public Trustee.
15 The DPP says that Ms Vitou's objection should be dismissed on the basis of an agreement between the parties' evidenced by a deed of settlement dated 7 February 2014.
16 The DPP provided affidavit evidence from Ms Majoski-Kosteski, sworn on 15 September 2014,5 which annexes a Deed of Settlement between the State of Western Australia and Mr Tran and Ms Vitou. Amongst the terms of the Deed of Settlement is clause 3.1(a) in which Ms Vitou agrees to 'accept the sum of $20,000 in full satisfaction of her claim to an interest in the property frozen under the CPCA by reason of the Drug Offences'.
17 Ms Vitou did not appear at this hearing. In an email to the office of the DPP, included in Ms Majoski-Kosteski's affidavit, Ms Vitou said that her 'dealings with the DPP are over' and that she wished to be removed as a respondent to this application. The Court usher called outside the court and confirmed that she was not present.
18 I am satisfied that Ms Vitou has no interest in the property listed in paragraph 2 of the DPP's summons.
Mr Tran's objection
19 Mr Tran was tried for drug offences committed after 2001. He was convicted of those offences. On 13 March 2014, after his conviction, Mr Tran was declared to be a drug trafficker by Chief Judge Martino.
20 Section 8(1) of the CPCA provides as follows:
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.
21 As I have mentioned, although s 8 operates as legislative confiscation of all property, s 30 of the CPCA permits the DPP to apply for a declaration that property has been confiscated and s 30(2) provides that if the court finds that the property described in the application has been confiscated under s 8 then the court must make a declaration to that effect.
22 In the absence of any interest of a third party in the property, there are two requirements before a declaration is made under s 30 that the property has been confiscated under s 8.6 These are:
(1) a court has declared Mr Tran 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; and
(2) the property that is the subject of the declaration was owned or effectively controlled by Mr Tran at the time the court declared him to be a drug trafficker (relying on s 8(1)(a)).
23 Mr Tran appeared this morning by video link, and with the aid of an interpreter. As with his appearance on 14 October 2013, he was polite and respectful. He acknowledged that the DPP is entitled to confiscate his property. He did not have any objection to the confiscation of the items described in the summons.
24 I am satisfied that Mr Tran owned or effectively controlled each of the items described in the summons at the time that he was declared to be a drug trafficker.
25 The funds held in the Public Trustee account are the proceeds from the sale of the Thornlie property after the deduction of (i) the co-owners share, (ii) payment of Mr Tran's legal costs, (iii) settlement payment to Ms Vitou, and (iv) the Public Trustee's costs. The effect of s 8 is that Mr Tran's rights to the remaining proceeds from the Thornlie property were confiscated when he was declared a drug trafficker on 13 March 2014.
26 Mr Tran is the registered owner of the 2007 Harley Davidson motor cycle.7 Although the motorcycle has been reported stolen and its location is unknown, it was owned by Mr Tran on 13 March 2014.
27 I am also satisfied that Mr Tran owned or effectively controlled each of the amounts of cash or currency that was seized from him.8
Conclusion
28 Orders should be made in terms of par 2 of the DPP's summons declaring that each of the items of property described in that paragraph have been confiscated as property that Mr Tran owned or effectively controlled at the time he was declared to be a drug trafficker under s 32A(1) of the Misuse of Drugs Act on 13 March 2014.
1Bass v Permanent Trustee Co Ltd[1999] HCA 9; (1999) 198 CLR 334, 357 [49] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ).
2Bass v Permanent Trustee Co Ltd[1999] HCA 9; (1999) 198 CLR 334, 357 [49]. See also Hart v JGC Accounting & Financial Services Pty Ltd [2015] WASCA 22 [54] (Murphy JA; Martin CJ & Newnes JA agreeing).
3Criminal Property Confiscation Act 2000 (WA) s 10(2), s 31.
4Bass v Permanent Trustee Co Ltd[1999] HCA 9; (1999) 198 CLR 334, 357 [39] - [58] (Gleeson CJ, Gaudron, McHugh, Gummow, Hayne and Callinan JJ).
5 Affidavit of Ms Majoski-Kosteski, sworn 24 November 2014 (Majoski-Kosteski affidavit).
6Whittle v The State of Western Australia [2012] WASC 244 [36] (Allanson J).
7 Affidavit of Ms Aikin, sworn 5 August 2014.
8 Majoski-Kosteski affidavit, [26]- [30].
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