Fogarty v The State of Western Australia
[2012] WASC 281
FOGARTY -v- THE STATE OF WESTERN AUSTRALIA [2012] WASC 281
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASC 281 | |
| 09/08/2012 | |||
| Case No: | CIV:2049/2001 | 5 JULY 2012 | |
| Coram: | EM HEENAN J | 5/07/12 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Objections dismissed Declaration of confiscation | ||
| B | |||
| PDF Version |
| Parties: | WILLIAM EDWARD FOGARTY THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal property confiscation Objections dismissed Declaration that property of the plaintiff confiscated |
Legislation: | Criminal Property Confiscation Act 2002 (WA) Misuse of Drugs Act 1981 (WA) |
Case References: | Hendricks v State of Western Australia [2002] WASC 86 Re Smith; Ex Parte Director of Public Prosecutions for Western Australia (No 3) [2004] WASC 157 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
THE STATE OF WESTERN AUSTRALIA
Defendant
Catchwords:
Criminal property confiscation - Objections dismissed - Declaration that property of the plaintiff confiscated
Legislation:
Criminal Property Confiscation Act 2002 (WA)
Misuse of Drugs Act 1981 (WA)
Result:
Objections dismissed
Declaration of confiscation
(Page 2)
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 State of Western Australia [2002] WASC 86
Re Smith; Ex Parte Director of Public Prosecutions for Western Australia (No 3) [2004] WASC 157
(Page 3)
1 EM HEENAN J: These present proceedings were commenced by an originating motion issued by William Edward Fogarty against the Queen and filed on 26 July 2001. By that motion Mr Fogarty was advancing objections to freezing notices and the confiscation of property which would follow in the event that he was convicted of certain offences. The matter has been dormant for many years while proceedings have progressed, and now by Chamber summons in the application filed on 27 April 2012 the defendant, now the State of Western Australia, is applying for orders to have dismissed the objection for the confiscation of the frozen property made in the originating summons and for declarations giving effect to the confiscation.
2 Proof of service of the relevant process and applications upon Mr Fogarty and others with an interest in the property have been established by affidavits filed in these proceedings. There has been no appearance by Mr Fogarty today but I am satisfied that he has notice of these proceedings and his absence is hardly surprising in view of the inevitability of the relief which must be granted.
3 I come therefore to the application. The Director of Public Prosecutions for Western Australia (DPP) is applying for an order dismissing Mr Fogarty's objections and for a declaration pursuant to s 30 of the Criminal Property Confiscation Act 2000 (WA) (CPC Act) that certain property has been confiscated to the State under s 8(1) of that Act. The application for the order dismissing the objection is made on the basis that the objection cannot be successful because the applicant has not established the criteria required by s 84(2) of the Act.
4 The application for a declaration under s 30 by the DPP is made on the basis that the property has been confiscated pursuant to s 8 of the Act upon William Edward Fogarty, the applicant, being declared to be a drug trafficker pursuant to s 32A(1) of the Misuse of Drugs Act 1981 (WA) on the 19 November 2003, he then having been convicted of confiscation offences committed after the commencement of this Act. The details for the conviction and of the offences are contained in the affidavit of Ms J K Peters of 15 February 2012.
5 On 3 July 2001, pursuant to s 34 of the Act, a freezing notice, number AISFN010041, was issued on the basis that the applicant, Fogarty, had been charged with an offence and could be declared to be a drug trafficker under s 32A(1) of the Misuse of Drugs Act 1981 if convicted of the offence. Section 36(1) of the CPC Act provides that as soon as practicable after a freezing notice is issued, the applicant for the
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- notice must personally serve a copy of it on the person from whom the property was taken and, if aware of any other person who is or may be or claims to be an interested party, on that other person.
6 Section 37 of the Act provides that a person served with a copy of a freezing notice under s 36 must make a statutory declaration to a specified police officer stating, among other things, whether he or she is aware if there is any other person who is or who may be or who claims to be an interested person and if so, to provide specified details. Under s 36(4) of the Act a copy of the freezing notice must be served on any person who, as a result of the information contained in any statutory declaration provided pursuant to s 37 of the Act, the applicant becomes aware, is or may be or who claims to be an interested party. 'Interested party' is defined by s 3 of the Act as meaning a person who has an interest in the property that would enable the person to succeed on an objection to the confiscation of the property.
7 A copy of the freezing notice has been served on any person from whom the property was taken, any person who had custody of frozen property and all persons whom the DPP is aware are or may be or claim to be an interested party. Again, the details are set out in the affidavit of Ms Peters.
8 I come now to the question of confiscation. By s 7(1) the Act 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. In the present case, William Edward Fogarty filed an originating summons pursuant to s 79 on 26 July 2001. This meant that the property was not confiscated automatically pursuant to s 7.
9 However, pursuant to s 8 of the Act, if and 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 this Act; that is, after 1 January 2001, all the property that that person owned or effectively controlled at any 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 application of this Act, becomes confiscated to the State of Western Australia.
10 As a result of those provisions the property of Mr Fogarty was automatically confiscated pursuant to s 8 of the Act on 19 November 2003 when he was declared to be a drug trafficker, as I have already described.
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- As a result of s 30(2) of the Act, if this Court finds that the property of a person has been confiscated under s 8 of the Act, the Court must make a declaration to that effect. There is ample authority for that proposition, including the decisions of Hendricks v State of Western Australia [2002] WASC 86 [19] and Re Smith; Ex Parte Director of Public Prosecutions for Western Australia (No 3) [2004] WASC 157 [15]. In this present case Mr Fogarty has not established that it is more likely than not that he does not own or effectively control the property or has not at any time given it away, one or other of the possibilities which would lead to an exclusion or modification of such a declaration under s 79(1), s 81(1) and s 84(2). Consequently, the DPP on behalf of the State seeks an order that Mr Fogarty's objection to the confiscation of frozen property made by his originating motion, a notice of objection filed on 26 July 2001, be dismissed.
11 It is notable to observe that there is no evidence to support Mr Fogarty's objection other than an affidavit of his solicitor, Mr P L Fraser, sworn 26 July 2001 which says no more than this at par 3:
I have been instructed by my client that on 28 June 2001 he was served with a freezing notice -
- the number given, which corresponds with the notice already referred to -
a copy of which is annexed, and (b) he refutes any allegation that the property the subject of the freezing notice is crime used property or crime derived property within the meaning of those terms in the Criminal Property Confiscation Act 2000.
13 I come to the question of the property concerned. At the time the freezing notice was issued Mr Fogarty was a registered owner as joint tenant of certain land at lot 66 on plan 16752, being the whole of the land comprised in certificate of title vol 1832, folio 650, commonly known as lot 66 Woodlands Parade, Mandurah, which is referred to hereafter as 'the land'.
14 On 20 May 2009 the land was removed from the freezing notice so that it might be sold. The details of that are set out in an affidavit of Mr Adams sworn 18 April 2012. The property was duly sold and other persons who had an interest in the land were paid out their corresponding
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- interests. The surplus of the proceeds of the sale, after expenses, was then placed in an interest bearing account with the Public Trustee and in 2007 a sum of $45,000 was paid out of that account to the solicitors for the Adelaide Bank Ltd pursuant to an order of the Court, it being demonstrated that the Adelaide Bank had an interest in the land as a secured creditor.
15 On 15 March 2012 orders in other proceedings were made to release 80% of the remaining proceeds of the sale to Debbie Fogarty, a co-owner in the property, and that has since been paid. It follows that all that remains in the Public Trust account from the surplus of the sale of the Mandurah property after payment to the bank and Ms Debbie Fogarty is a balance representing 20% plus interest. In addition, Mr Fogarty is the account holder with the National Australia Bank Ltd under account number 495568748, an account which is in credit. The whole of that has become confiscated to the State.
16 As a result, I now order and declare as follows:
1. The objection by the plaintiff, William Edward Fogarty, to the confiscation of frozen property made by notice of originating motion and notice of objection in these proceedings, CIV 2049 of 2001, initiated on 26 July 2001 be dismissed.
2. Subject to paragraph 4, which follows, all the property that William Edward Fogarty 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 19 January 2003 and property that he gave away at any time before the drug trafficker declaration was made has been confiscated to the State of Western Australia.
3. Without limiting the generality of the declaration just made in the preceding order, the following property has been confiscated, namely,
(a) the whole of the balance of the moneys held in the account maintained by the Public Trustee for Western Australia, an account number TRST33017702TM13, being Mr Fogarty's 20% interest in the proceeds from the sale of the land situated at and known as lot 6 Woodland Parade, Stakehill, Western Australia, after the expenses of sale have been met and the interests of other parties in that land, including
- Ms Debbie Fogarty and the Adelaide Bank, have been discharged, and
- (b) all moneys standing to the credit of William Edward Fogarty in bank account National Australia Bank 495568748 as at 19 November 2003, together with any interest thereon.
- 4. The National Bank account number 45570206001355373, which was listed in the freezing notice already mentioned but which bank account has not previously been mentioned, is excluded from the declaration of confiscation.
Those will be the orders.
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