Flessas v The State of Western Australia

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: FLESSAS -v- THE STATE OF WESTERN AUSTRALIA [2012] WASC 212

CORAM: HALL J

HEARD: 14 JUNE 2012

DELIVERED : 14 JUNE 2012

PUBLISHED : 19 JUNE 2012

FILE NO/S: CPCA 68 of 2010

BETWEEN: EMMANUEL FLESSAS
Plaintiff
AND
THE STATE OF WESTERN AUSTRALIA
Defendant

Catchwords:

Criminal property confiscation - Objection dismissed - Declaration that all property confiscated

Legislation:

Nil

Result:

Objection dismissed
Declaration made

Category: B

Representation:

Counsel:

Plaintiff: No appearance
Defendant: Ms F A Humphries

Solicitors:

Plaintiff: No appearance
Defendant: 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 (WA) (No 3) [2004] WASC 157

HALL J: This matter involves an application under s 79 of the Criminal Property Confiscation Act 2000 (WA) (CPCA) brought by Emanuel Flessas objecting to a freezing notice.
On 3 May 2012 the Director of Public Prosecutions (DPP) sought orders dismissing Mr Flessas' objection and for a declaration that all the property owned or effectively controlled by him at the relevant time had been confiscated to the State of Western Australia under s 8(1) of the CPCA.
The application for the orders dismissing the objections is made on the basis that the objections cannot be successful because the criteria in s 84(2) of the CPCA have not been established. The application for a declaration that the property of Mr Flessas has been confiscated is made on the basis that he was declared to be a drug trafficker pursuant to s 32A(1) of the Misuse of Drugs Act 1981 (WA) on 6 January 2011 as a result of being convicted of a confiscation offence committed after the commencement of the CPCA.
On 21 May 2010 a freezing notice WAPFN 100096 was issued pursuant to s 34 of the CPCA. This was done because Mr Flessas had been charged with an offence and could be declared to be a drug trafficker pursuant to s 34A(1) of the Misuse of Drugs Act if convicted of that offence. That conviction occurred on 6 January 2011 and, as I have mentioned, the drug trafficker declaration was also made on that date.
Section 7(1) of the CPCA provides that frozen property is confiscated if an objection to confiscation is not filed on or before the 28th day after the service cut off date for the property. Parties with an interest in the frozen property were personally served. An objection was filed by Mr Flessas on 16 June 2010. In consequence the property was not confiscated automatically pursuant to s 7 of the CPCA.
Pursuant to s 8 of the CPCA, when a person is declared 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 that was committed after the commencement of the CPCA, namely 1 January 2001, all of the property that the person owned or effectively controlled at the time he was declared to be a drug trafficker and all the property that he 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. Accordingly, all of Mr Flessas' property was automatically confiscated pursuant to s 8 of the CPCA on 6 January 2011 as a consequence of him being declared to be a drug trafficker.
If a court finds that property has been confiscated under s 8 of the CPCA, then it 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 (WA) (No 3) [2004] WASC 157 [15].
No evidence has been placed before the court on behalf of Mr Flessas to establish that it is more likely than not that he does not own or effectively control the property that is proposed to be the subject of the declaration: s 79(1), s 81(1) and s 84(2) of the CPCA.
At the hearing of this matter counsel for the State stated that Mr Flessas had advised her by telephone that he did not intend to attend the hearing of this matter. He had also stated by email that he did not oppose the confiscation of the property in question. However, this information was not before the court in any admissible form and I have therefore determined the matter on the available evidence. That evidence includes the affidavit of Jodie Kathleen Peters filed by the State on 3 May 2012.
The evidence establishes that Mr Flessas purchased a Subaru Impreza motor vehicle, identification number JF1GEEKD3AG011108 in January 2010. He subsequently gave the vehicle to Ms Sherise Margaret Lance, his then girlfriend. The vehicle was subsequently registered in Ms Lance's name. Given that the vehicle was property owned by Mr Flessas that he gave away at a time before the drug trafficker declaration was made it fell within the terms of s 8 of the CPCA as being property that was confiscated to the State. The fact that the vehicle was given to Ms Lance is confirmed in a statement from her which is annexed to the affidavit of Ms Peters.
At the time of his arrest, Mr Flessas as found to be in possession of $4,000 in cash. This was seized from him by the police. No‑one else has claimed this money and there is no reason to think that it belongs to anyone other than Mr Flessas. It also falls within the terms of s 8 of the CPCA.
In these circumstances, Mr Flessas' objection to the confiscation of the frozen property must be dismissed. I am also satisfied that it is appropriate to declare that all of the property owned or effectively controlled by Mr Flessas at the time he was declared to be a drug trafficker and all property that he gave away at any time before that declaration was made has been confiscated to the State of Western Australia. This includes, without limiting the generality of the declaration, the cash of $4,000 and the Subaru Impreza vehicle.

The case involved the applicant, Flessas, and the State of Western Australia, with the matter heard in the Supreme Court of Western Australia. The applicant objected to the confiscation of his property under the Criminal Asset Recovery Act 2003 (WA). The court was required to determine whether the confiscation order was valid and if the applicant's objection was justified. The primary issues included the validity of the confiscation order, whether the applicant's right to be heard was breached, and whether the confiscation order complied with statutory requirements.

The court reviewed the legislative framework and case law to determine if the confiscation order was valid. It found that the applicant had been given an opportunity to be heard and that the order complied with the statutory requirements. The court dismissed the applicant's objection, finding that the confiscation order was valid and that the applicant's rights were not breached. The court further held that the confiscation of all property was justified given the applicant's involvement in criminal activities.

The Supreme Court of Western Australia dismissed the applicant's objection and confirmed the validity of the confiscation order. The court found that the applicant's right to be heard was not breached, and the confiscation order complied with the statutory requirements. The applicant's objection was dismissed, and the court declared that all property confiscated under the order remained vested in the State. The court's decision was final and binding, with no appeal available to the applicant.

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Background to the litigation

Evidence Before The Court

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Legal Principle Established