Doney v The State of Western Australia
[2020] WASC 477
•10 DECEMBER 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: DONEY -v- THE STATE OF WESTERN AUSTRALIA [2020] WASC 477
CORAM: ARCHER J
HEARD: 10 DECEMBER 2020
DELIVERED : 10 DECEMBER 2020
FILE NO/S: CIV 2246 of 2018
BETWEEN: THOMAS JAMES DONEY
Plaintiff
AND
THE STATE OF WESTERN AUSTRALIA
Defendant
Catchwords:
Criminal property confiscation - Plaintiff declared drug trafficker - Application for declaration of confiscation - Objection to confiscation
Legislation:
Criminal Property Confiscation Act 2000 (WA)
Misuse of Drugs Act 1981 (WA)
Result:
Objection dismissed
Declaration of confiscation made
Representation:
Counsel:
| Plaintiff | : | No appearance |
| Defendant | : | D P Jones |
Solicitors:
| Plaintiff | : | No appearance |
| Defendant | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Brennan v The State of Western Australia [2018] WASC 31
Campana v The State of Western Australia [2008] WASC 230
Centurion Trust v Director of Public Prosecutions (WA) [2010] WASCA 133
Flack v Chairperson, National Crime Authority (1997) 150 ALR 153
McRobb v The State of Western Australia [2020] WASC 163
Mulholland v Winslow [2018] WASCA 19
Ranford v The State of Western Australia [2015] WASC 45
Rinaldi v The State of Western Australia [2019] WASC 420
Urbano v The State of Western Australia [2006] WASCA 147
Whittle v The State of Western Australia [2012] WASC 244
ARCHER J:
(This judgment was delivered extemporaneously on 10 December 2020 and has been edited from the transcript.)
Introduction
In 2018, two freezing notices were issued under the Criminal Property Confiscation Act 2000 (WA) (Confiscation Act). The freezing notices related to particular property said to be owned or effectively controlled by the plaintiff. The freezing notices were made on the ground that the plaintiff could be declared to be a drug trafficker under s 32A of the Misuse of Drugs Act 1981 (WA).
The plaintiff objected to the confiscation of the property. In November 2018, the plaintiff was declared to be a drug trafficker. The Director of Public Prosecutions (DPP) now seeks an order dismissing the objection and a declaration that the property has been confiscated.
The plaintiff subsequently filed a notice that he intended to act in person. He has not otherwise sought to participate in the DPP's application.
For the reasons that follow, the objection should be dismissed and the declaration made.
Legal framework[1]
[1] This section reproduces or draws on my judgment in earlier cases, including Brennan v The State of Western Australia [2018] WASC 31 and McRobb v The State of Western Australia [2020] WASC 163.
The DPP seeks the declaration under s 30 of the Confiscation Act.
Section 30 of the Confiscation Act provides:
30. Declarations of confiscation, applying for and making
(1)The DPP or the CCC may apply to the court for a declaration that property has been confiscated.
(2)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 DPP says that the property described in the application has been confiscated under s 8(1) of Confiscation Act. That subsection provides:
8. Declared drug trafficker, certain property of confiscated
(1)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.
Proof of confiscation
The DPP bears the onus of proving that property has been confiscated.[2] The DPP must prove this on the balance of probabilities.[3]
[2] Campana v The State of Western Australia [2008] WASC 230 [40].
[3] Section 102(2)(d) of the Confiscation Act.
The matters that the DPP must prove under s 8 are:
1.the plaintiff was declared to be a drug trafficker;
2.the declaration was made as a result of the plaintiff being convicted of a 'confiscation offence' (relevantly being an offence punishable by imprisonment for more than 2 years[4]);
3.the offence was committed after 1 January 2001, being the commencement of the Confiscation Act; and
4.at the time the drug trafficker declaration was made, the property was owned or effectively controlled by the plaintiff.
[4] Section 141(1) of the Confiscation Act.
Hearsay evidence is not admissible to prove any of these matters.[5] However, if a person has been convicted of a relevant confiscation offence, regard may be had to material before a court in any proceedings for the offence or sentencing.[6]
[5] See s 109 of the Confiscation Act, which permits hearsay in other circumstances.
[6] See s 107 of the Confiscation Act.
If each of these matters is proved, then, pursuant to s 8 of the Confiscation Act, the property was automatically and immediately confiscated at the time the drug trafficker declaration was made.[7]
[7] Centurion Trust Company Ltd v Director of Public Prosecutions (WA) [2010] WASCA 133 (Centurion Trust 2010) [199].
In the absence of any third party interest, nothing else is required to be established before the court is compelled to make a declaration under s 30.[8]
Objections
[8] See Whittle v The State of Western Australia [2012] WASC 244 [36] ‑ [40] and Ranford v The State of Western Australia [2015] WASC 45 [22].
Prior to a person being declared a drug trafficker, a freezing notice may have been issued, or a freezing order made, in relation to property. A freezing notice or order may be made on a number of prescribed grounds, including that the person could be declared to be a drug trafficker.[9]
[9] Centurion Trust 2010 [223] (Buss JA, with whom Owen JA agreed at [74]). See also Campana [38], and Urbano v The State of Western Australia [2006] WASCA 147 [34] and [39] (Pullin JA, with whom Martin CJ agreed). Further, under s 39 and s 49 of the Confiscation Act, a freezing notice or order for any property except registrable real property stops being in force as soon as, among other things, the property is confiscated under s 6, s 7 or s 8.
In this case, freezing notices were issued on the ground that the plaintiff could be declared to be a drug trafficker.
A person may file an objection to the confiscation of frozen property. The Confiscation Act gives the court power to set aside a freezing notice or order to the extent permitted by s 82 ‑ s 84, depending on the ground upon which the notice or order was made.
If the ground was that the person could be declared to be a drug trafficker, the sole source of the court's power to set aside a freezing notice or order is set out in s 84(2). If the person is declared to be a drug trafficker, their property is confiscated at the time of the declaration, by s 8. This confiscation is not linked to, or conditional upon, the adverse determination by the court of an objection to the confiscation of the frozen property. It occurs automatically on the declaration that the person is a drug trafficker.
The court has no power to release property once it has been confiscated under s 8.[10]
[10] The Confiscation Act, pt 6 ss 85 ‑ 87 gives the court the power to release property confiscated under s 6 or s 7. No such power is given in relation to property confiscated under s 8. See also Campana [38] and Centurion Trust 2010 [162].
Property said to have been confiscated
The DPP seeks a declaration that identified property has been confiscated. The identified property comprises the plaintiff's interest as registered proprietor in the land at Lot 1 on Strata Plan 15082 in Certificate of Title Volume 1788, Folio 601, commonly known as Unit 1, 42 Pearl Parade Scarborough (Land), cash that had been taken from the plaintiff on 21 April 2018, and any interest on that cash.
Evaluation
The DPP filed two affidavits, one sworn by Morgan Paling (Paling Affidavit) and the other by Daniela Ristoska (Ristoska Affidavit).[11] The affidavits establish the following.
[11] Affidavit of Morgan Charlotte Paling affirmed 20 November 2019 and the Affidavit of Daniela Ristoska sworn 18 July 2019.
On 16 November 2018, the plaintiff was convicted in the District Court of four drug offences, including possessing methylamphetamine with intent to sell or supply, contrary to s 6(1)(a) of the Misuse of Drugs Act. This offence is punishable by imprisonment for more than 2 years.[12] It is therefore a 'confiscation offence'. The offences were committed in 2018, after the commencement of the Confiscation Act.[13]
[12] Section 34(1) of the Misuse of Drugs Act.
[13] The Confiscation Act commenced on 1 January 2001.
On 16 November 2018, as a result of these convictions, the plaintiff was declared to be a drug trafficker under s 32A of the Misuse of Drugs Act.
Accordingly, the only remaining element that the DPP must prove is, in respect of each item of property the subject of the application, that the property was owned or effectively controlled by the plaintiff at the time the drug trafficker declaration was made.
Ownership
The Confiscation Act defines 'owner', in relation to property, to mean a person who has a legal or equitable interest in the property.[14]
[14] Confiscation Act glossary.
'Property' is defined in the Confiscation Act to mean a legal or equitable interest in any real or personal property of any description, wherever situated, and whether tangible or intangible.[15]
[15] Confiscation Act glossary.
The Paling Affidavit established that the plaintiff has been the registered proprietor of the Land since 6 August 2014.
In relation to the cash, the Paling Affidavit established that the police executed a search warrant at the plaintiff's home on 21 April 2018 and found several quantities of drugs in the room in which slept with his partner.[16] The Paling Affidavit attached a copy of the exhibit log for that search, showing the seizure of $2,400 from that same room.[17] From this evidence, I am satisfied, on the balance of the probabilities, that the plaintiff had possession of the cash on 21 April 2018.
[16] Paling Affidavit page 47 (transcript of sentencing proceedings).
[17] Paling Affidavit page 63.
The plaintiff's possession of the cash gave him an equitable interest in it, making him an 'owner' within the definition of the Confiscation Act.[18] He would not have lost his equitable interest when the cash was seized by the police. Until such time as the property was confiscated and vested in the State, he retained an interest in it.[19] An order for forfeiture of the cash was not made during the sentencing proceedings.[20] The property was not confiscated and did not vest in the State until he was declared to be a drug trafficker. Accordingly, there is nothing to suggest that the plaintiff lost his equitable interest in the cash prior to the drug trafficker declaration.
[18] See Rinaldi v The State of Western Australia [2019] WASC 420 [30], referring to Flack v Chairperson, National Crime Authority (1997) 150 ALR 153, 156 ‑ 157, 162 ‑ 163.
[19] See Rinaldi [32], referring to Mulholland v Winslow [2018] WASCA 19 [34], [51], [56], where the court found that a person who had the right to possess property prior to its seizure retained that right of possession after its seizure as against everyone except the Commissioner of Police.
[20] See the Paling Affidavit pages 58 ‑ 59.
Therefore, I am satisfied that the plaintiff was an owner of all of the identified property, and was as at the time he was declared to be a drug trafficker.
Declaration of confiscation and dismissal of objection
The DPP has proved each of the necessary elements under s 8. Therefore, the property was automatically and immediately confiscated at the time the drug trafficker declaration was made.
As noted earlier, in the absence of any third party interest, nothing else is required to be established before the court is compelled to make a declaration under s 30 of the Confiscation Act.
Once the plaintiff was declared to be a drug trafficker, the freezing order ceased to have any force. The property was no longer frozen; it was confiscated. The plaintiff's objection to the freezing order must, therefore, be dismissed.
It follows that I am required to declare that that property has been confiscated.
Orders
I order that the plaintiff's objection is dismissed.
I declare that the identified property has been confiscated.
I will make orders in the terms of the DPP's minute of proposed orders dated 8 December 2020.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SW
Associate to the Honourable Justice Archer22 DECEMBER 2020
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