Head v Director for the Public Prosecutions (WA) - [2019] WASCA 157

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA
TITLE OF COURT :   THE COURT OF APPEAL (WA)
CITATION:   HEAD -v- DIRECTOR FOR THE PUBLIC PROSECUTIONS (WA) [2019] WASCA 157
CORAM:   MURPHY JA
MITCHELL JA

HEARD:   7 & 9 OCTOBER 2019
DELIVERED          :   9 OCTOBER 2019
PUBLISHED           :   9 OCTOBER 2019
FILE NO/S:   CACV 119 of 2019
BETWEEN:   DARRIN STUART HEAD
Appellant
AND
DIRECTOR FOR THE PUBLIC PROSECUTIONS (WA)
Respondent

ON APPEAL FROM:
Jurisdiction              :   DISTRICT COURT OF WESTERN AUSTRALIA
Coram:   DAVIS DCJ
File Number             :   BUN IND 177 of 2015

Catchwords:

Criminal property confiscation - Where appeal instituted against conviction supporting a drug trafficker declaration - Where appeal against drug trafficker declaration seeks setting aside of the declaration if the appeal against conviction is successful - Where State intends to sell real property the subject of the drug trafficker declaration prior to the determination of the appeals - Whether interlocutory injunction should issue to restrain sale pending determination of the appeal

Legislation:

Criminal Property Confiscation Act 2000 (WA), s 8, s 9, s 30, s 31, s 113
Misuse of Drugs Act 1981 (WA), s 6(2)(a), s 6(3)(b), s 32A(1)

Result:

Interlocutory injunction granted

Category: B

Representation:

Counsel:

Appellant	:	Mr E W L Greaves
Respondent	:	Ms A L Forrester SC & Mr V J Pelligra

Solicitors:

Appellant	:	Legal Aid (WA)
Respondent	:	Director of Public Prosecutions (WA)

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

Ardrey v Bartlett [2004] WASCA 256
Ardrey v The State of Western Australia [No 2] [2017] WASCA 41; (2017) 265 A Crim R 317
Easterday v The State of Western Australia [2005] WASCA 105; (2005) 30 WAR 122
Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308
Jebb v Superior Lawns Australia Pty Ltd [2018] WASCA 123
Saldanhah v City of Belmont [2018] WASCA 7
Secure Parking (WA) v Wilson [2008] WASCA 268; (2008) 38 WAR 350
Trajkoski v DPP [2010] WASCA 119; (2010) 41 WAR 105
White v Tomasel [2004] QCA 89; [2004] 2 Qd R 438

REASONS OF THE COURT:

At the conclusion of the hearing of the appellant's application in an appeal filed on 4 October 2019, we made the following orders on the appellant's undertaking as to damages filed on 7 October 2019:
(1)The respondent, the State of Western Australia and any parties acting on its behalf are restrained from proceeding with the sale of the land at 6 Dahlberg Street, Augusta, being Lot 78 on Diagram 45337 and being the whole of the land contained in Certificate of title vol 1359 folio 402 (Augusta property), until the determination of this appeal or further order.
(2)The parties have liberty to apply to vary or discharge order 1 on 72 hours' notice to the other party.
(3)The appellant's application for an extension of time in which to appeal is referred to the hearing of this appeal.
(4)The appellant's obligation to file and serve his appellant's case in this appeal…

Grounds of appeal

[14] The appellant contends that the primary judge erred in finding that the respondent had discharged the onus of establishing the matters required under the relevant provision.

[15] It was submitted that his Honour failed to give adequate weight to the evidence of the second witness, and that the findings of fact were not reasonably open on the material before the Court.

[16] The respondent, for its part, submits that no error is disclosed, and that the conclusions reached were well within the range of outcomes available to the primary judge.

Consideration

[17] It is convenient to deal first with the question of construction, as the resolution of that issue informs the remaining grounds advanced by the appellant.

[18] For the reasons that follow, we are of the view that the appeal should be allowed in part and the matter remitted for further determination.

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Details

Case: [2019] WASCA 157
Decision Date: 9 OCTOBER 2019

CaseChat Overview and Summary

Louise Anne Blechynden appealed against a Supreme Court decision to confiscate her interest in the Augusta property under the Confiscation Act, and sought an interlocutory injunction to restrain the State from selling the property pending the outcome of the appeal. The State, represented by the Director for the Public Prosecutions, opposed the application for an interlocutory injunction. The primary issue before the court was whether an interlocutory injunction should issue to restrain the State from selling the Augusta property pending the determination of the appeal against the confiscation order. A secondary issue was the appropriate terms of any interlocutory injunction that might be granted.

The court noted that the confiscation order had been made on 17 August 2018 and the State had been registered as the proprietor of the property on 5 September 2018. The appellant had instituted an appeal against her conviction on 6 May 2019. The appeal against the conviction was being considered for listing in January or February 2020. The court found that the appellant had established a serious question to be tried on the merits of the confiscation appeal, and that there was a real prospect of success on the confiscation appeal. The court found that the appellant had not established that there was no real prospect of success on the appeal against the conviction, or that the balance of convenience favoured the grant of the interlocutory injunction. The court found that, in all the circumstances, it was appropriate to grant the interlocutory injunction sought by the appellant. The court made an interlocutory injunction restraining the State from selling the Augusta property pending the determination of the appeal against the confiscation order.

Orders

Orders of the court

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Background

Background to the litigation

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Evidence

Evidence Before The Court

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Decision

Reasons for decision

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Ratio Decidendi

Legal Principle Established

On 17 August 2018, in proceedings between Louise Anne Blechynden and the State, the Supreme Court declared that the appellant's interest as registered proprietor in the Augusta property had been confiscated to the State (s 30 declaration). Section 31(1) of the Confiscation Act provides that, when the court declares under s 30 that registerable real property has been confiscated, the applicant must lodge a memorial of confiscation with the Registrar of Titles. Section 113(1) of the Confiscation Act provides that, when a memorial is lodged under that Act with the Registrar of Titles, the Registrar is to register the memorial. Section 113(2)(a) of the Confiscation Act requires the Registrar, in the case of a memorial lodged under s 31(1), to also register the State of Western Australia as registered proprietor of the property. Section 113(2)(b) requires the Registrar to endorse the certificate of title with a statement to the effect that, when the memorial was registered, the property ceased to be subject to or affected by any interests recorded on the certificate of title. A memorial under s 31 of the Confiscation Act was registered, and the State was registered as proprietor of the property, on 5 September 2018.[2] [2] Annexure F to the affidavit of V J Pelligra sworn 7 October 2019. On 6 May 2019, the appellant instituted an appeal against his conviction of offences against s 6(1)(a) of the Drugs Act. The Appellant filed his appellant's case on 29 July 2019. On 5 August 2019, the appellant's applications for an extension of time to appeal, and for leave to appeal, were referred to the hearing of the appeal. The respondent's answer was filed on 1 October 2019. The appellant has been advised that the conviction appeal is being considered for listing in January or February 2020. It is sufficient for present purposes to note ground 1 of the conviction appeal. Ground 1 contends that there was a miscarriage of justice when the trial judge failed to direct the jury on a defence under s 6(3)(b) of the Drugs Act which arose on the evidence. Section 6(3) relevantly provides:A person does not commit a crime under subsection (1) … by reason only of the person having in his or her possession a prohibited drug if the person proves that - …(b) he or she had possession of the drug only for the purpose of delivering it to a person authorised to possess the drug under this Act … and he or she took all reasonable steps to deliver the drug to the personA police officer is authorised to seize and detain a prohibited drug under s 26(1)(a) of the Drugs Act. It appears, from the submissions filed in the conviction appeal, to be common ground that the appellant gave evidence at trial that, at about 3 am on the day of the offence, he found a bag of drugs on his doorstep which he wanted to give to police. Because it was 3 am, he decided to contact police in the morning. He went to bed and was woken when police raided his house, and located the drugs on the Augusta property. It appears to be common ground that, if this evidence had been accepted, it would have established a defence under s 6(3)(b) of the Drugs Act. It also appears to be common ground that the defence under s 6(3)(b) was not referred to by either counsel or the trial judge during the course of the trial.