Duby v The State of Western Australia

[2009] WASC 27

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   DUBY -v- THE STATE OF WESTERN AUSTRALIA [2009] WASC 27

CORAM:   EM HEENAN J

HEARD:   15 JANUARY 2009

DELIVERED          :   15 JANUARY 2009

PUBLISHED           :  13 FEBRUARY 2009

FILE NO/S:   CPCA 33 of 2006

BETWEEN:   JOE FRANK DUBY

Plaintiff

AND

THE STATE OF WESTERN AUSTRALIA
Defendant

Catchwords:

Criminal property confiscation - Declaration of confiscation

Legislation:

Criminal  Property Confiscation Act 2000 (WA)

Result:

Declaration that specified property had been confiscated by State

Category:    B

Representation:

Counsel:

Plaintiff:     Mr J A Smith

Defendant:     Ms F A Humphries

Solicitors:

Plaintiff:     Evangel Legal Services

Defendant:     Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Nil

1. EM HEENAN J: This is an application by the State of Western Australia under the provisions of s 30 of the Criminal Property Confiscation Act2000 (WA) that certain property, which I will describe more fully, has been confiscated under the provisions of s 7(2) of the Act. The property in question is that portion of land described as lot 31 on strata plan 14595, together with a share in any common property as set out on the strata plan and being the whole of the land comprised in Certificate of Title vol 1756 folio 443, commonly known as unit 31, number 6 Waterway Court, Churchlands.

2. The evidence before the court demonstrates that the sole registered proprietor of that land is Joe Frank Duby of that address, and that there are no encumbrances on the land other than interests notified under the relevant strata plan.  The position is that an application was made by the State for that property to be confiscated following charges and later convictions of Mr Duby for various offences; and that an objection was put in to the confiscation by Mr Duby; and a freezing notice then issued.

3. At a hearing before Hasluck J on 16 October 2008 the objection to the proposed confiscation was heard and determined and the objection was dismissed. His Honour gave reasons in a draft judgment of that date which are on the court file. The formal orders made by his Honour on that occasion were that the objection by Mr Duby to the confiscation be dismissed and there was no order as to costs. The position which then resulted is that upon the final disposition of that application the State became entitled to a declaration that the property has become automatically confiscated. That is the effect of s 7(2) of the Criminal Property Confiscation Act2000 which provides, as far as is relevant:

   If an objection to the confiscation of frozen property is filed on or before the 28th day after the service cutoff date for the property, the property is confiscated if:  (a) the objection or each objection, if there are more than one, is finally determined; (b) where the property is subject to a freezing notice, the freezing notice is not cancelled or set aside and (c) where the property is subject to a freezing order, the freezing order is not set aside.

4. In this case, by reason of the judgment and orders of Hasluck J, the objection has been finally determined.  Consequently, I am satisfied that the conditions for the grant of an order as sought have been satisfied and that there is no discretion for the court but to make such an order in the circumstances.

5. Counsel for the State has set out in the written submissions in more detail the substance of the background and the relevant provisions of the law, but the effect of those are contained in Hasluck J's reasons and in what I have just said.

6. Counsel appearing for Mr Duby acknowledges that there is no alternative but for an order to be made and has not drawn to my attention any fact or circumstance which could possibly bear otherwise on the matter.

7. It is inevitable that the implementation of this order and any taking of possession or sale of the property by the State will have grave consequences for Mr Duby, but that is the policy which is advanced by this legislation and which has been endorsed by Parliament.  The only possible hope of any recourse for Mr Duby is to make approaches to the Director or to the Minister.  It is not my function to consider the possibility of those or their outcome.

8. Accordingly, the orders and declarations which I now make as are follows: 

   (1) the land at lot 31 on strata plan 14595, together with a share in any common property as set out in the strata plan and Certificate of Title vol 1756 folio 443, commonly known as unit 31, number 6 Waterway Court, Churchlands has been confiscated to the State of Western Australia; and

   (2)that there be no order as to costs.