Griffin v The State of Western Australia
[2022] WASC 421
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: GRIFFIN -v- THE STATE OF WESTERN AUSTRALIA [2022] WASC 421
CORAM: ARCHER J
HEARD: 8 DECEMBER 2022
DELIVERED : 8 DECEMBER 2022
FILE NO/S: CPCA 21 of 2018
BETWEEN: DARRIN HUGH GRIFFIN
First Plaintiff
CINDI ANN GRIFFIN
Second Plaintiff
AND
THE STATE OF WESTERN AUSTRALIA
Defendant
Catchwords:
Criminal property confiscation - First plaintiff declared drug trafficker - Application for declaration of confiscation and dismissal of objection
Legislation:
Criminal Property Confiscation Act 2000 (WA)
Misuse of Drugs Act 1981 (WA)
Result:
Declaration of confiscation made and objection dismissed
Representation:
Counsel:
| First Plaintiff | : | No appearance |
| Second Plaintiff | : | No appearance |
| Defendant | : | I S Jones |
Solicitors:
| First Plaintiff | : | No appearance |
| Second Plaintiff | : | No appearance |
| Defendant | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Campana v The State of Western Australia [2008] WASC 230
Centurion Trust v Director of Public Prosecutions (WA) [2010] WASCA 133
Ranford v The State of Western Australia [2015] WASC 45
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 8 December 2022 and has been edited to correct matters of grammar, include complete references and add formatting)
Introduction
In 2018, Freezing Notice WAPFN180063 was issued under the Criminal Property Confiscation Act 2000 (WA) (Confiscation Act). The Freezing Notice related to the first plaintiff's interest in two properties, one in Beckenham and one in Queens Park. The Freezing Notice was made on the ground that the first plaintiff could be declared to be a drug trafficker under s 32A of the Misuse of Drugs Act 1981 (WA).
The plaintiffs objected to the confiscation of the land. On 9 August 2019, the first plaintiff was declared to be a drug trafficker.
On 13 March 2020, the Director of Public Prosecutions (DPP) filed a summons seeking an order that the plaintiffs' objection be dismissed and a declaration that the first plaintiff's interest in each of the properties has been confiscated (Declaration Summons).
On 28 October 2020, consent orders were made permitting the second plaintiff to sell both properties. The orders also provided that, in relation to each property, whatever surplus remained of the sale price after specified payments had been made would be taken to be the property subject to the Freezing Notice.
The properties were duly sold. On 15 November 2022, the DPP filed a summons seeking leave to amend its Declaration Summons to reflect that it now sought a declaration in relation to the surplus (Amendment Summons), and a minute of the proposed amended summons (Amended Declaration Minute).
On 17 November 2022, consent orders were made dismissing the second plaintiff's objection. The second plaintiff did not seek to oppose the application.[1]
[1] See the email dated 7 December 2022 from Mr Ryan, solicitor for the plaintiffs, to my associate.
The first plaintiff was served with the Amended Declaration Minute and associated documents,[2] but did not appear at the hearing. Approximately an hour before today's hearing, the DPP filed a memorandum of consent orders to dismiss the first plaintiff's objection, which was dated 26 October 2022. However, the DPP did not press for orders to be made based on this minute.
[2] See the affidavit of Brooke Pamela Munro filed 5 December 2022.
The DPP also filed, shortly before the hearing, a minute containing further amendments to the Declaration Summons (Further Amended Declaration Minute), to correct various non-substantive errors and to improve the clarity of the proposed orders. As the further amendments did not change the substance of the orders sought, I am satisfied that the first plaintiff could not be prejudiced by the late amendments, even though he has not been served with the most recent version.
The DPP also foreshadowed that it would seek to amend its Amendment Summons to reflect that it was seeking to amend its original Declaration Summons to the terms set out in the Further Amended Declaration Minute.
It is highly unsatisfactory that the errors were not detected earlier. This matter has been listed for hearing today for some time. I appreciate that counsel appearing today may not have been allocated to conduct this hearing until very recently, and may not be responsible for the multiple errors. However, this is far from the only occasion in which the DPP has produced inadequate paperwork in confiscation matters. It would greatly assist the court if the DPP could reflect upon the way in which these matters are managed. If inadequate resourcing is contributing to the inadequacies, it is hoped that the DPP will do what it can to address that.
All that being said, I would grant leave to amend the Amendment Summons and make orders in terms of that amended summons.
Further, for the reasons that follow, I would make the declaration in terms of the Further Amended Declaration Minute.
Legal framework[3]
[3] This section reproduces what I have written in previous judgments.
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 the 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 the property has been confiscated.[4] The DPP must prove this on the balance of probabilities.[5]
[4] Campana v The State of Western Australia [2008] WASC 230[40].
[5] Section 102(2)(d) of the Confiscation Act.
The matters that the DPP must prove under s 8 are:
1.the first plaintiff was declared to be a drug trafficker;
2.the declaration was made as a result of the first plaintiff being convicted of a 'confiscation offence' (relevantly being an offence punishable by imprisonment for more than 2 years[6]);
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 first plaintiff.
[6] Section 141(1) of the Confiscation Act.
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.[7]
[7] See s 107 of the Confiscation Act.
If each of these matters is proved, then, pursuant to s 8(1) of the Confiscation Act, the property was automatically and immediately confiscated at the time the drug trafficker declaration was made.[8] The 'property' confiscated includes any income or other property derived from the property while a freezing notice is in force.[9]
[8] Centurion Trust Company Ltd v Director of Public Prosecutions (WA) [2010] WASCA 133 (Centurion Trust 2010) [199].
[9] Section 34(7) of the Confiscation Act.
In the absence of any third party interest, nothing else must be established before the court is compelled to make a declaration under s 30.[10]
Objections
[10] 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.
In this case, a freezing notice was made on the ground that the first 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. [11]
[11] Centurion Trust 2010 [223] (Buss JA, as his Honour then was, 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.
The court has no power to release property once it has been confiscated under s 8.[12]
[12] The Confiscation Act, s 85 ‑ s 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
By its original Declaration Summons, the DPP sought a declaration that the following property had been confiscated:
1.The first plaintiff's interest as joint tenant in the land at Lot 289 on Plan 10522 in Certificate of Title Volume 1349 Folio 785, commonly known as 18 Weir Crescent, Beckenham WA; and
2.The first plaintiff's interest as joint tenant in the land at Lot 219 on Plan 21620 in Certificate of Title Volume 2081 Folio 818, commonly known as 15 Beard Place, Queens Park WA.
As noted earlier, consent orders were made permitting the second plaintiff to sell both properties, referred to as the 'Beckenham property' and the 'Queens Park property'. The orders also provided that, in relation to each property, whatever surplus remained of the sale price after specified payments had been made would be taken to be the property subject to the Freezing Notice. The consent orders referred to the surplus from the sale of the Beckenham property as the 'Beckenham surplus' and the surplus from the sale of the Queens Park property as the 'Queens Park surplus'
The properties were duly sold. On 15 November 2022, the DPP sought leave to amend its summons to reflect that it now sought a declaration in relation to the surpluses. By its Further Amended Declaration Minute filed today, the DPP seeks a declaration in the following terms:
Pursuant to sections 8(1) and 30 of the Criminal Property Confiscation Act 2000 (WA), it is declared that the following property that Darrin Hugh Griffin owned or effectively controlled at the time he was declared to be a drug trafficker under section 32A(1) of the Misuse of Drugs Act 1981 (WA) on 9 August 2019, or gave away at any time before that date, has been confiscated to the State of Western Australia, namely:
a.Monies held by the Public Trustee of Western Australia (Public Trustee) in Public Trustee Interest Bearing account, BSB 066 040 account number 1630 0005 (Account), with reference “DPP VS DARRIN HUGH GRIFFIN TRST 33187571 EM213” (Reference) being the net proceeds from the sale of the land at Lot 289 on Plan 10522 in Certificate of Title Volume 1349 Folio 785, commonly known as 18 Weir Crescent, Beckenham (Beckenham property), pursuant to the sale orders made by the Honourable Justice Archer on 28 October 2020 (Orders) (including any interest but less the expenses of the Public Trustee), such monies being taken to be the Beckenham property pursuant to paragraph 8 of the Orders; and
b.Monies held by the held by the Public Trustee in the Account with the Reference, being the net proceeds from the sale of the land at Lot 219 on Plan 21620 in Certificate of Title Volume 2081 Folio 818, commonly known as 14 Beard Place Queens Park (Queens Park property), pursuant to the Orders (including any interest but less the expenses of the Public Trustee), such monies being taken to be the Queens Park property pursuant to paragraph 16 of the Orders.
Evaluation
The DPP filed an affidavit of Maria Eleonora Ingles[13] (Ingles Affidavit) and an affidavit of Brooke Pamela Munro[14] (Munro Affidavit). The affidavits establish the following.
[13] Filed 13 March 2020.
[14] Filed 15 November 2022.
On 15 May 2019, the first plaintiff was convicted in the District Court of possessing cannabis 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.[15] It is therefore a 'confiscation offence'. The offence was committed in 2018, after the commencement of the Confiscation Act.[16]
[15] Section 34(1) of the Misuse of Drugs Act.
[16] The Confiscation Act commenced on 1 January 2001.
On 9 August 2019, as a result of this conviction, the first 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, in respect of each of the two properties, is that the property was owned or effectively controlled by the first plaintiff at the time the drug trafficker declaration was made.
Ownership[17]
[17] Parts of this section reproduce what I have written in previous judgments.
The Confiscation Act defines an 'owner' of property to mean a person who has a legal or equitable interest in the property.[18]
[18] 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.[19]
[19] Confiscation Act glossary.
The Ingles affidavit establishes that the first plaintiff was a joint tenant of each of the properties, and was at the time the drug trafficker declaration was made.
The Munro Affidavit sets out what happened to the properties after it was frozen.
Pursuant to my orders on 28 October 2020, the surplus from the sale of each property is to be dealt with as if it was the property.
Declaration of confiscation
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 must be established before the court is compelled to make a declaration under s 30 of the Confiscation Act.
Once the first plaintiff was declared to be a drug trafficker, the freezing notice ceased to have any force. The property was no longer frozen; it was confiscated. The first plaintiff's objection to the freezing order must, therefore, be dismissed.
It follows that I am required to declare that the property has been confiscated.
Orders
I will make the orders set out in the DPP's minute of proposed orders filed today.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KH
Associate to the Honourable Justice Archer
8 DECEMBER 2022
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