Gray v The State of Western Australia
[2013] WASC 22
•30 JANUARY 2013
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: GRAY -v- THE STATE OF WESTERN AUSTRALIA [2013] WASC 22
CORAM: HALL J
HEARD: 22 JANUARY 2013
DELIVERED : 22 JANUARY 2013
PUBLISHED : 30 JANUARY 2013
FILE NO/S: CPCA 30 of 2011
BETWEEN: ROBERT BRUCE GRAY
First Plaintiff
SARA GRAY
Second PlaintiffAND
THE STATE OF WESTERN AUSTRALIA
Defendant
Catchwords:
Criminal property confiscation - Objections dismissed - Declaration that all property confiscated
Legislation:
Nil
Result:
Objection dismissed
Declaration made
Category: B
Representation:
Counsel:
First Plaintiff : No appearance
Second Plaintiff : No appearance
Defendant: Mr M Seaman
Solicitors:
First Plaintiff : No appearance
Second 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: By summons filed on 18 October 2012 the State applies for orders that the first and second plaintiff's objections to the confiscation of the property of the first plaintiff be dismissed and that there be a declaration that that property has been confiscated to the State of Western Australia.
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 Criminal Property Confiscation Act 2000 (WA) (the CPCA) have not been established. The application for a declaration that the property of the first plaintiff 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 20 June 2012 as a result of being convicted of a confiscation offence committed after the commencement of the CPCA.
The application was originally listed to be heard on 14 December 2012 however, by consent, the application was adjourned to be heard on 22 January 2013. On that date neither the first nor second plaintiffs appeared either personally or by counsel. However counsel for the State tendered a copy of consent orders signed on behalf of the first and second plaintiffs by their solicitors. The effect of those orders was that the objections would be dismissed and a declaration that the property of the first plaintiff had been confiscated to the State would be made subject to the exclusion of monies standing to the credit of the first plaintiff in three nominated accounts. In light of the signed consent orders I considered it was appropriate to proceed with the application and, on an examination of the supporting evidence, I was satisfied that it was also appropriate that the orders should be made.
The State's application was supported by an affidavit of Chloe Alyssa Tolley sworn on 4 October 2012. I am satisfied that on the basis of Ms Tolley's affidavit the following facts are proven. On 7 April 2011 the first plaintiff was charged with one count of possessing a prohibited drug with intent to sell or supply and one count of supplying a prohibited drug, contrary to s 6 of the Misuse of Drugs Act 1981 (WA). The drug involved was cannabis and the amount was sufficiently large as to attract the possibility that on conviction the first plaintiff would be declared to be a drug trafficker. He pleaded not guilty but was convicted after a trial in the District Court on both counts. Following conviction an application was made by the State for a declaration that the first plaintiff was a drug trafficker. That application was initially opposed, however a drug trafficker declaration was made by consent on 15 June 2012.
On 13 May 2011 pursuant to s 34 of the CPCA freezing notice WAPFN110063 issued on the basis that the first plaintiff had been charged with an offence and could be declared to be drug trafficker if convicted of that offence. The freezing notice was subsequently converted to a freezing order on 10 January 2012 by Registrar Whitby. A copy of the freezing notice was served on any person from whom property was taken and all persons whom the DPP was aware had, or may have, a claim to be an interested party in respect of the property.
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. An originating summons pursuant to s 79 of the CPCA was filed by the first plaintiff on 10 June 2011. The second plaintiff also filed an originating summons on the same date. The National Australia Bank Ltd filed an originating summons' on 30 May 2011. As a consequence of the filing of those originating summons the property of the first plaintiff 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 the property of that person owned or effectively controlled at the time he or she was declared to be a drug trafficker and all the 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. Accordingly all of the first plaintiff's property was automatically confiscated pursuant to s 8 of the CPCA on 15 June 2012 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].
The orders sought by the DPP include a general declaration and also an order referring to a number of items of specific property. Those items include a 50% interest as joint tenant in the land at lot 4 on plan 78320 in certificate of title vol 6018, folio 916, known as 128 Bay Road, Moonta Bay, South Australia. There is evidence that that property is held jointly by the first and second plaintiffs. There is also a specific reference to monies standing to the credit of the first plaintiff in an Australian Central Credit Union account and a 50% interest in monies standing to the credit of two accounts held in the joint names of the first and second plaintiffs. There is also reference to cash in the sum of $24,600. It is not contested that this property was owned by the first plaintiff at the relevant time and the evidence contained in the supporting affidavits establishes that it was.
In these circumstances I am satisfied that the objections of the first and second plaintiffs to the confiscation of 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 the first plaintiff at the time he was declared to be a drug trafficker and all the property he gave away at any time before that declaration was made has been confiscated to the State of Western Australia, subject to the exclusion of the property referred to in order 5 of the minute of consent orders dated 18 January 2013. The confiscated property includes, without limiting the generality of the declaration, the first plaintiff's 50% interest in 128 Bay Road, Moonta Bay, South Australia, money standing to the credit of the first plaintiff in Australian Central Credit Union account number 0004325021 as at 20 June 2012 together with any interest thereon, the first plaintiff's 50% interest in money standing to the credit of the first and second plaintiffs in National Australia Bank account number 086‑288 86‑668‑1783 as at 20 June 2012 together with any interest thereon and the first plaintiff's 50% share interest in money standing to the credit of the first and second plaintiffs in National Australia Bank account number 085‑734 19‑144‑1924 as at 20 June 2012 together with any interest thereon and cash in the sum of $24,600 seized from the first plaintiff on 7 April 2011.
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