Director of Public Prosecutions (WA) v Ryan
[2012] WASC 427
•14 NOVEMBER 2012
DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- RYAN [2012] WASC 427
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASC 427 | |
| 14/11/2012 | |||
| Case No: | CPCA:42/2008 | 30 OCTOBER 2012 | |
| Coram: | HALL J | 30/10/12 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Objection dismissed Declaration made | ||
| B | |||
| PDF Version |
| Parties: | DIRECTOR OF PUBLIC PROSECUTIONS (WA) KAREN ANN RYAN TODD DALE MARSHALL THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal property confiscation Objection dismissed Declaration of confiscation made |
Legislation: | Nil |
Case References: | Hendricks v The State of Western Australia [2002] WASC 86 Re Smith; Ex parte Director of Public Prosecutions for WA (No 3) [2004] WASC 157 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- CPCA 43 of 2008
Consolidated by orders dated 28 May 2008
IN THE MATTER of Freezing Notices No WAPFN080066 and WAPFN080067
- Applicant
AND
KAREN ANN RYAN
First Objector
TODD DALE MARSHALL
Second Objector
THE STATE OF WESTERN AUSTRALIA
Respondent to the Objectors
(Page 2)
Catchwords:
Criminal property confiscation - Objection dismissed - Declaration of confiscation made
Legislation:
Nil
Result:
Objection dismissed
Declaration made
Category: B
Representation:
Counsel:
Applicant : Mr G T J Farley
First Objector : No appearance
Second Objector : No appearance
Respondent to the Objectors : Mr G T J Farley
Solicitors:
Applicant : Director of Public Prosecutions (WA)
First Objector : No appearance
Second Objector : No appearance
Respondent to the Objectors : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Hendricks v The State of Western Australia [2002] WASC 86
Re Smith; Ex parte Director of Public Prosecutions for WA (No 3) [2004] WASC 157
(Page 3)
1 HALL J: On 30 October 2012 I granted the applicant's application and made orders. These are my reasons for doing so.
2 The Director of Public Prosecutions (DPP) has applied for an order dismissing the first objector's objection and for a declaration that, subject to some specific exceptions, all of the property owned or effectively controlled by the first and second objectors has been confiscated to the State of Western Australia pursuant to s 8(1) of the Criminal Property Confiscation Act 2000 (WA) (CPCA).
3 The application for the order dismissing the first objector's objection is made on the basis that the objection cannot be successful because the criteria in s 84(2) of the CPCA have not been established. That is to say, the first objector has not established that it is more likely than not that she does not own or effectively control the frozen property.
4 The second objector's objection was dismissed by consent on 12 October 2012.
5 The application for a declaration that the property of both objectors has been confiscated is made on the basis that they were both declared to be drug traffickers pursuant to s 32A(1) of the Misuse of Drugs Act 1981 (WA) on 4 June 2010 as a result of being convicted of confiscation offences committed after the commencement of the CPCA.
6 On 31 March 2008 freezing notices WAPFN 080066 and WAPFN 080067 were issued pursuant to s 34 of the CPCA. This was done because the objectors had been charged with an offence and could be declared to be drug traffickers pursuant to s 32A(1) of the Misuse of Drugs Act if convicted of that offence. The freezing notices were subsequently converted to freezing orders on 23 May 2008 by Templeman J.
7 As soon as practicable after a freezing order is made a copy of it must be served personally on the person from whom the property was taken, if any, and on any other person who, at the time the freezing order was issued, the applicant for the freezing order is aware is, or may be, or claims to be, an interested party: s 46(1) of the CPCA. The person served with a copy of a freezing order must give a statutory declaration to the DPP stating whether the declarant is aware if there is any other person who is, or may be, or claims to be, an interested person, and if so, provide the details of that person: s 47 of the CPCA. A copy of the freezing order must then be served on any person whose possible interest is notified by
(Page 4)
- way of a statutory declaration: s 46(4) of the CPCA. Service has been properly effected in this case.
8 Both objectors filed originating summons and notices of objection pursuant to s 79 of the CPCA on 8 April 2008. Neither of them have filed any affidavits in support of their objections.
9 On 8 April 2010 both objectors were convicted after a trial in the District Court on two counts of possession of a prohibited drug within intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act. The amount of drugs involved was significant and in consequence each of the objectors was declared to be a drug trafficker pursuant to s 32A(1) of the Misuse of Drugs Act.
10 When a person is declared to be a drug trafficker as a result of being convicted of a confiscation offence that was committed after the commencement of the CPCA, namely 1 January 2001, all the property that the person owned or effectively controlled at the time he or she was declared to be a drug trafficker and all property that he or she gave away at any time before the declaration was made, whether the gift was made before or after the commencement of the CPCA, is confiscated to the State of Western Australia. As a consequence, the property of both objectors was automatically confiscated on 4 June 2010 when the objectors were sentenced and the drug trafficker declarations were formally made.
11 Where a court finds that property has been confiscated pursuant to s 8 of the CPCA the court must, pursuant to s 30(2) of the CPCA, make a declaration to that effect: Hendricks v The State of Western Australia [2002] WASC 86 [19] and Re Smith; Ex parte Director of Public Prosecutions for WA (No 3) [2004] WASC 157 [15].
12 Neither of the objectors have sought to provide any evidence which could establish that it is more likely than not that they do not own or effectively control property that would otherwise be covered by confiscation.
13 In any event, the second objector's objection has been dismissed by consent. As regards the first objector, there is evidence that she was served with a copy of the summons for an order dismissing her objection and for a declaration pursuant to s 30 on 13 July 2012 (affidavit of Paul Kaye sworn 13 July 2012). She has not sought to file any documents since that time and did not appear on the hearing of the application on
(Page 5)
- 30 October 2012. In those circumstances, there being no evidence to support it, her objection must be dismissed.
14 Without limiting the generality of the declaration sought the applicant has referred to a number of specific items of property owned by the objectors. That property is as follows; land at Lot 101, Diagram 93445, Certificate of Title Volume 2112 Folio 690 registered in the names of the objectors as tenants in common in equal shares, five industrial bins owned by a business known as MTT Service Group which is a business name owned by the objectors, money standing to the credit of MTT Service Group as trustee for the Marshall Family Trust in an ANZ Bank account as at 4 June 2010 together with any interest thereon, money standing to the credit of the second objector in a second ANZ Bank account as at 4 June 2010 together with any interest thereon, money standing to the credit of both objectors in a Westpac Bank account as at 4 June 2010 together with any interest thereon, a 2001 Toyota Landcruiser station sedan registration number 1CBH 087 last registered in the name of the second objector, a power cat multi-hull boat registration number AJ677 which was last registered in the name of the second objector, a custom craft runabout boat registration number AF971 which was last registered in the name of the second objector, a quintrex runabout boat registration number DJ972 which was last registered in the name of the second objector and cash in the sum of $600 that was seized from the objectors at their home on 31 March 2008.
15 Evidence has been provided by the applicant which establishes the ownership of the property referred to (affidavit of Zaklin Majoski-Kosteski sworn on 27 June 2012). I am satisfied on the basis of that evidence that ownership is established and that a declaration of confiscation in relation to that property should be made.
16 The applicant also sought orders that some other items of property be excluded from the declaration. An order in those terms was made.
17 The applicant also sought an order that within seven days of being requested by the applicant or his agent to do so, the second objector would deliver up or cause to be delivered up the industrial bins, the Toyota vehicle, and the three boats. Given the making of the declaration of confiscation, I considered it appropriate to make the delivery-up order.
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