Head v Director for the Public Prosecutions (WA)
[2019] WASCA 157
•9 OCTOBER 2019
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 is suspended until the determination of the appeal in CACR 64 of 2019 or further order.
(5)This appeal be listed for mention at the hearing of the appeal in CACR 64 of 2019.
(6)The costs of the application in an appeal filed on 4 October 2019 be reserved.
These are our reasons for making those orders.
Background
On 21 February 2017, the appellant was convicted in the District Court of Western Australia of a number of offences, including possessing methylamphetamine with intent to sell or supply it to another. That is an offence contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA) (Drugs Act).
Immediately following conviction, the prosecutor sought and obtained a drug trafficker declaration under s 32A of the Drugs Act. Section 32A(1) relevantly provides:
If a person is convicted of:
…
(b) a serious drug offence in respect of -
(i) a prohibited drug in a quantity which is not less than the quantity specified in Schedule VII in relation to the prohibited drug
…
the court convicting the person of … the serious drug offence referred to in paragraph (b) … shall on the application of the Director of Public Prosecutions … declare the person to be a drug trafficker.
An offence against s 6(1) of the Drugs Act is a 'serious drug offence' for this purpose. The quantity specified in sch VII in relation to the prohibited drug methylamphetamine is 28 grams. The State alleged, and the trial judge subsequently found, that the appellant possessed a total of 28.98 g of methylamphetamine.
Sections 8 and 9 of the Criminal Property Confiscation Act 2000 (WA) (Confiscation Act) provide for the legal consequences of making a declaration under s 32A of the Drugs Act.
Section 8(1) of the Confiscation Act relevantly provides:
When a person is declared to be a drug trafficker under section 32A(1) of the [Drugs Act] 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;
Section 9(1) of the Confiscation Act relevantly provides:
Registrable real property that is confiscated under section … 8 vests absolutely in the State when -
(a)the court declares under section 30 that the property has been confiscated; and
(b)a memorial of the making of the declaration is registered under section 113(1).
For this purpose, 'registerable real property' means property to which the Transfer of Land Act 1893 (WA) (TLA) applies.[1]
[1] Glossary to the Confiscation Act (definition of 'registrable real property').
Section 30(1) of the Confiscation Act relevantly provides for the respondent (DPP) to apply to the Supreme Court for a declaration that property had been confiscated. Under s 30(2) if, on considering the application, the court finds that the property described in the application has been confiscated under s 8 of the Confiscation Act, the court must make a declaration to that effect.
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.
The conviction appeal (CACR 64 of 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 person
A 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.
The issue between the State and the appellant in the conviction appeal would appear to be whether the overall effect of the trial judge's direction was that the State had to satisfy the jury that the appellant did not intend to deliver the prohibited drugs to police before he could be found guilty of an offence against s 6(1)(a) of the Drugs Act.
The present appeal and application
The appellant commenced the present appeal on 4 October 2019. The appeal is against the drug trafficker declaration made by the trial judge, referred to at [4] above. This court's jurisdiction to hear such an appeal is provided for by s 79 of the District Court of Western Australia Act 1969 (WA).[3]
[3] Section 79(1) relevantly provides that a party to an 'action or matter' may appeal to this court. By s 79(3) this court has jurisdiction to hear and determine the appeal accordingly. See Trajkoski v DPP [2010] WASCA 119; (2010) 41 WAR 105 [37] - [54].
Also on 4 October 2019, the appellant instituted an appeal against the s 30 declaration. That appeal is CACV 121 of 2019 (s 30 appeal).
By application in the present appeal, also filed on 4 October 2019, the appellant seeks an urgent hearing of the application, an extension of time in which to appeal, a stay of the drug trafficker declaration and an order restraining the State from selling property confiscated under s 8 of the Confiscation Act until the conclusion of this appeal.
The urgency arose from the State's indication that it intended to execute a contract for the sale of the Augusta property at midday on 7 October 2019. As a result, the application was listed at 10 am on 7 October 2019. For the reasons explained below, an interim injunction was granted at that time and the matter adjourned to 9 October 2019.
The appellant seeks a stay or injunction on the following basis. If the conviction appeal succeeds and the appellant's conviction of the methylamphetamine offence is set aside, the basis for the making of a drug trafficker declaration will be removed. In that event, this court will be able to set aside the drug trafficker declaration either in the present appeal or as a consequential order in the conviction appeal. It would then follow that the s 30 declaration made on the basis of the drug trafficker declaration could be set aside either in the s 30 appeal, or as a consequential order in this appeal or the conviction appeal. The appellant claims that he could then also obtain a restitutionary order requiring the State to transfer the Augusta property back to him.
However, it is common ground between both parties that if the State, as registered proprietor, sells the Augusta property to a third party then the appellant will not be able to secure a return of the Augusta property if his conviction appeal is successful.
The appellant therefore submits that an order with the effect of preventing the sale of the Augusta property is required to preserve the subject matter of the present appeal.
Appellant's explanation of delay
The above chronology indicates that there has been considerable delay in the appellant instituting the conviction appeal, the s 30 appeal and the present appeal. The following explanation for that delay emerges from the affidavit of Emma Ruth Zillessen, a solicitor employed by Legal Aid, affirmed on 3 October 2019.
On 10 March 2017,[4] the appellant was sentenced to a total effective sentence of 4 years' immediate imprisonment, backdated to 19 September 2016, with eligibility for parole.
[4] Ms Zillessen's affidavit indicates that the sentence date was 21 February 2017. This was the date that the appellant was convicted and the drug trafficker declaration made, but the District Court transcript and the Certificate of Final Outcome of Charge indicate that he was sentenced on 10 March 2017.
While in prison, the appellant was sick and spent most of his time in the infirmary where his movements were very limited. While in custody he took unspecified steps to seek some legal advice, but nothing came of it. On 18 September 2018, the appellant was released on parole. He applied for legal aid to assess the prospects of appealing his drug convictions on 31 October 2018, and his first appointment with Ms Zillessen was on 7 December 2018.
In February 2019, Ms Zillessen wrote to the Office of the DPP asking them to consider not putting the Augusta property on the market pending the outcome of an appeal against his convictions. The appellant became aware later in the year that the Augusta property had been placed on the market.
As noted above, the conviction appeal was instituted on 6 May 2019.
On 20 September 2019, the Office of the DPP wrote to Legal Aid advising that, on 11 September 2019, the State received an offer to purchase the Augusta property for $374,000. The letter indicated that the DPP was considering whether it would be appropriate to delay the sale until after the appeal, and invited the appellant's submissions on the question by 26 September 2019.
The appellant did not receive a grant of legal aid to challenge the drug trafficker declaration or declaration under s 30 of the Confiscation Act until 3 October 2019. The Office of the DPP advised that a contract for the sale of the Augusta property would be signed at midday on 7 October 2019.
The Augusta property
Ms Zillessen described the Augusta property as a four bedroom home on a large block with an ocean view and a large shed.
She also asserts that the Augusta property is 'unique', that the appellant instructs her that it is not 'very similar to any other property'. She asserts that the appellant cannot replace the Augusta property 'for value or otherwise'. We do not accept these statements, which are not in an admissible form and are not supported by any evidence.
Ms Zillessen also deposes that, prior to its confiscation, the appellant had equity in the Augusta property, which was subject to a mortgage securing a debt of approximately $80,000. The State's evidence is that the bank has indicated that the amount due and secured under the former mortgage as at 4 October 2019 was $89,500.79.[5]
[5] Par 18 of the affidavit of Mr Pelligra sworn 7 October 2019.
There is no direct evidence in this appeal as to whether the Augusta property was the appellant's residence at the time of its confiscation. However, the evidence at the criminal trial was that he was residing there at the time it was raided by police and the drugs which are the subject of the convictions were located. He has presumably been residing elsewhere since being released from custody.
The prospective purchasers' offer to purchase the Augusta property remains open. However, when the matter came on before this court on 7 October 2019, there was evidence that the prospective purchasers may consider their options if the offer were not accepted by the close of business on 7 October 2019.
There is evidence that the State entered into a settlement deed with the appellant's former wife, Ms Blechynden, which resulted in the s 30 declaration being made by consent. Although a copy of the settlement deed is not in evidence, there is secondary evidence that the Deed required the State to use its best endeavours to sell the Augusta property, and that the settlement sum was to be paid to Ms Blechynden from the sale proceeds.[6]
[6] Par 16 of the affidavit of Mr Pelligra sworn 7 October 2019.
Although notice of the injunction application had been given to Ms Blechynden's solicitors, it was not sufficient notice to allow the solicitors to take instruction and potentially brief counsel to attend the hearing on 7 October 2019. Since it seemed that Ms Blechynden may have an interest in the matter, we issued an interim injunction and adjourned the hearing until 9 October 2019. On 9 October 2019, we dealt with the question of whether the injunction should be extended until the determination of this appeal or further order. As events transpired, Ms Blechynden indicated, through her solicitors, that she did not seek to participate in these proceedings.
Disposition
Power to grant a stay or injunction
We have some reservations as to the court's power to order a stay of the drug trafficker declaration. Section 32A required the trial court to make the declaration when it was sought by the prosecutor, there being no suggestion that the preconditions for the making of the declaration were not satisfied. The only basis which is suggested for setting aside the drug trafficker declaration is the prospect that the conviction appeal will be successful and the conviction supporting the drug trafficker declaration will be set aside. While the conviction stands, there is no clear basis for this court to act inconsistently with the requirements of s 32A of the Drugs Act.
However, the court does have power to protect the effective exercise of its jurisdiction by the grant of injunctive or other relief.[7] Ultimately, that was the only relief sought by the appellant.[8]
Prospects of success in the appeal
[7] See the discussion in Jebb v Superior Lawns Australia Pty Ltd [2018] WASCA 123 [60] - [63].
[8] Appellant's submissions filed on 9 October 2019, par 4.
In the present case it appears to us, on a preliminary basis having regard to the appellant's case and respondent's answer in the conviction appeal, that the conviction appeal has some reasonable prospect of succeeding. The appellant's success in the present appeal would appear to follow if the judgment of conviction were set aside in the conviction appeal.
Prospects of the appellant obtaining a restitutionary order
In our view, it is at least reasonably arguable that, if the appellant's conviction is set aside, he may then be able to obtain an order requiring the State to transfer the Augusta property to him in the manner described at [21] above. Ordinarily, when a judgment of a court is set aside on appeal in either a criminal or a civil matter, the appellate court has the power to make orders having the effect of restoring the successful appellant to what was lost under the reversed order.[9] The appellate jurisdiction ordinarily extends to declaring orders depending on a conviction to be null and void, following which the orders are taken never to have had effect.[10]
[9] See Easterday v The State of Western Australia [2005] WASCA 105; (2005) 30 WAR 122 [31] - [39]; Secure Parking (WA) v Wilson [2008] WASCA 268; (2008) 38 WAR 350 [108] - [113].
[10] Ardrey v The State of Western Australia [No 2] [2017] WASCA 41; (2017) 265 A Crim R 317 [105] - [113], [124] - [125], [162].
It is at least arguable that a claim for such a restitutionary order is an in personam claim which may be advanced consistently with the indefeasibility provisions of the TLA.[11] The authority of the Registrar of Titles to register a memorial under s 113 of the Confiscation Act, and to register the State as proprietor of the Augusta property, depended on a memorial having been lodged under the Confiscation Act. The power and duty of the DPP to lodge a memorial only arose under s 31(1) of the Confiscation Act if the court declared the Augusta property to have been confiscated under s 30 of that Act. In this case, the making of the declaration under s 30(2) depended on the court's finding that the Augusta property had been confiscated under s 8 of the Act. The confiscation of the Augusta property under s 8 depended on the appellant being declared to be a drug trafficker under s 32A(1) of the Drugs Act. If the drug trafficker declaration is set aside in this appeal, it is arguable that the court could declare the s 30 declaration to be set aside ab initio. There would then have been no authority for the memorial to be registered, and the court would arguably be able to exercise a power, which is not abrogated the provisions of the Confiscation Act or the TLA, to restore the appellant to the position he was in before the orders to be set aside on appeal were made.
[11] White v Tomasel [2004] QCA 89; [2004] 2 Qd R 438 [55] - [59], [69] - [73]; Ardrey v Bartlett [2004] WASCA 256 [24] - [35] (per Murray ACJ, Steytler and Templeman JJ not deciding). As to the concept of immediate indefeasibility and in personam claims which are compatible with indefeasibility, see Saldanhah v City of Belmont [2018] WASCA 7 [82] - [91] and cases there cited.
If a restitutionary order were to be made, it would be necessary for the court making the order to consider the position of the mortgagee whose mortgage was extinguished by the s 30 declaration and the registration of the memorial under s 113 of the Confiscation Act. However, the existence of the former mortgage does not necessarily preclude an order requiring the State to return the Augusta property to the appellant on appropriate terms.
Whether refusal of injunction would render appeal nugatory
The Augusta property represents a significant part of the subject matter of the drug trafficker declaration, and is therefore a significant part of the subject matter of the present appeal. An injunction would appear necessary to preserve the subject matter of the appeal, and to avoid practical difficulties in respect of the relief which may be granted on appeal. If the Augusta property is sold prior to the determination of the current appeal, then the current appeal will be rendered nugatory, in the sense that term is usually employed in this context.[12] The State has in effect indicated that it will sell the Augusta property prior to the determination of the appeal unless it is restrained from doing so. If the State does so, the indefeasibility provisions of the TLA will prevent the appellant from asserting a right to the return of his property from the prospective purchaser. If the State is restrained from selling the property, the appellant will retain his arguable right to the return of the Augusta property by the State if he succeeds in having his conviction and the drug trafficker declaration set aside.
Balance of convenience
[12] See Eastland Technology Australia Pty Ltd v Whisson [2003] WASCA 307; (2003) 28 WAR 308 [9].
The balance of convenience would also favour the grant of interlocutory injunctive relief.
If an interlocutory injunction is granted and the appeals do not succeed, the State will still have title to the Augusta property and the capacity to sell it. There is no evidence before us suggesting that the contemplated sale is on particularly advantageous terms from the seller's perspective.
The risk to the State if an injunction is granted is that the prospective purchasers may withdraw their offer, and the State may incur further costs while holding the land pending further offers. While this is a risk, the quantum of the State's loss is likely to be relatively modest. The only evidence before us as to the extent of those holding costs is to the effect that interest is accruing at a daily rate of $12.24 on the loan previously secured by the mortgage over the Augusta property. We note that, at this stage, it appears likely that the criminal appeal will be listed for hearing in early February 2020.
On the other hand, the appellant will be prejudiced if the Augusta property is sold and the appeals succeed, as he will not then be able to secure its return to him. While we do not accept the assertion that the Augusta property is unique, it is not clear that a restitutionary order for the State to give the appellant the proceeds of the sale of the Augusta property (if such an order were available) would be adequate compensation for the compulsory taking of his former residence.
There is no evidence of any prejudice to Ms Blechynden if an injunction is granted. Absent evidence as to the terms of the settlement deed between Ms Blechynden and the State, it cannot be concluded that the amount payable to Ms Blechynden under that deed will be reduced if an injunction is granted. There is no evidence that the settlement amount payable under that deed will be reduced by holding costs or if the current offer to purchase is withdrawn and the Augusta property is subsequently sold at a lesser price than that currently offered by the prospective purchasers.
While the appellant concedes that he will have little capacity to pay damages if his conviction appeal is unsuccessful, it is still appropriate to require an undertaking as to damages which is the ordinary price of an interlocutory injunction. An undertaking in an appropriate form was filed on 7 October 2019.
Delay
While there has been considerable delay in instituting the appeal, an explanation for that delay has been offered. Further, it was reasonable for the appellant, after instituting his conviction appeal, to delay instituting this appeal until his conviction was set aside. If the conviction were set aside, a consequential order setting aside the drug trafficker declaration might be made without the need for a separate appeal. The present appeal was evidently instituted as a response to the State's advice that it intended to sell the Augusta property. The present appeal was instituted relatively rapidly after the appellant received that advice from the Office of the DPP.
Conclusion
In all of the circumstances of this case, we were satisfied that an interlocutory injunction was necessary to preserve the integrity of this appeal, and that it was appropriate for the court to exercise its discretion to grant that relief.
Procedural issues
We did not consider it to be appropriate to determine the appellant's application for an extension of time to commence this appeal at this stage. That application was referred to the hearing of this appeal.
As the success of this appeal depends on the methylamphetamine conviction being set aside in the conviction appeal, there is little to be gained by requiring the appellant to file and serve an appellant's case in this appeal before the conviction appeal is determined. We therefore suspended the obligation to file and serve an appellant's case in this appeal until the determination of the conviction appeal or further order.
The question of restitution may arise on both the conviction appeal and this appeal if the conviction appeal succeeds. If the conviction appeal fails, then the dismissal of the present appeal would seem to follow. In these circumstances, we directed that this appeal be listed for mention at the hearing of the conviction appeal, which will facilitate orders consequent on the disposition of the criminal appeal being made in both appeals.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ZMM
Research Associate/Orderly to the Honourable Justice Mitchell9 OCTOBER 2019
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