Hendricks v The State of Western Australia
[2002] WASC 86
HENDRICKS -v- THE STATE OF WESTERN AUSTRALIA [2002] WASC 86
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2002] WASC 86 | |
| Case No: | CIV:2591/2001 | 11 APRIL 2002 | |
| Coram: | ROBERTS-SMITH J | 11/04/02 | |
| 7 | Judgment Part: | 1 of 1 | |
| Result: | Objection dismissed Confiscation Declaration made | ||
| B | |||
| PDF Version |
| Parties: | TANYA HENDRICKS THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal law Freezing notice Objection to freezing notice Crime-used property Declaration that person a drug trafficker Objection must be made out on both grounds to succeed |
Legislation: | Criminal Property Confiscation Act 2000 (WA), s 6, s 7, s 8, s 30, s 34, s 81, s 82(3)(a) to (g), s 84 Misuse of Drugs Act 1981 (WA), s 32A(1) |
Case References: | Nil Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Criminal law - Freezing notice - Objection to freezing notice - Crime-used property - Declaration that person a drug trafficker - Objection must be made out on both grounds to succeed
Legislation:
Criminal Property Confiscation Act 2000 (WA), s 6, s 7, s 8, s 30, s 34, s 81, s 82(3)(a) to (g), s 84
Misuse of Drugs Act 1981 (WA), s 32A(1)
Result:
Objection dismissed
Confiscation Declaration made
(Page 2)
Category: B
Representation:
Counsel:
Applicant : No appearance
Respondent : Mr J A Gray
Solicitors:
Applicant : No appearance
Respondent : State Director of Public Prosecutions
Case(s) referred to in judgment(s):
Nil
Case(s) also cited:
Nil
(Page 3)
1 ROBERTS-SMITH J: This is the hearing of an objection to the confiscation of certain freehold land seized pursuant to a freezing notice under the Criminal Property Confiscation Act 2000 (WA) ("the Act") and also a hearing of an application by the Director of Public Prosecutions for a declaration pursuant to s 30 of the Act that the seized property has been confiscated under s 8 of the Act.
2 It is convenient to begin with the Director's Chamber summons, which was dated 28 February 2002 and filed on 5 March 2002. By that Chamber summons the Director sought a declaration pursuant to s 30 of the Act, that (a) all the property owned or effectively controlled by Graham Frederick Smith as at 26 October 2001 and all that property given away at any time prior to 26 October 2001 by Graham Frederick Smith and the subject of the freezing notice number AISFN010091 issued on 19 September 2001 has been confiscated under s 8 of the Act and (b) the property referred in the schedule to that freezing notice, namely, the estate in fee simple, in portion of Jandakot Agricultural Area lot 299 and being lot 759 on plan 14494 and being all that land comprised in Certificate of Title volume 1662 folio 139, and known as 26 Mudlark Way, Yangebup, has been confiscated under s 8 of the Act.
3 The objection is made by way of notice of originating motion which had been filed on 15 October 2001, which refers to an objection of behalf the applicant Tanya Hendricks, to the making of a confiscation declaration as sought by the Director. When the matter was called on before me this morning, Mr Gray appeared for the respondent State of Western Australia, to the applicant's objection; there was no appearance on behalf of the applicant.
4 The matter has previously been before the court at which time the applicant was represented by Mr Wells of the firm Pryles and Defteros. According to the court file, notification of today's hearing was given to that firm by letter dated 28 March 2002. There is no explanation for Mr Wells' failure to appear on behalf of the applicant and under the circumstances it seemed to me appropriate to deal with both the objection and the application notwithstanding.
5 The application by the Director is made on the basis that the property the subject of the seizing order has been confiscated under s 8 because Graham Frederick Smith was declared to be a drug trafficker on 26 October 2001.
(Page 4)
6 The affidavit material before me establishes that on 3 August 2001 Smith was arrested and charged with three counts of cultivating a prohibited drug, namely cannabis, with intent to sell or supply it to another, and one count of possession of a prohibited drug, namely cannabis, with intent to sell or supply it to another.
7 On 19 September 2001, pursuant to s 34 of the Act, a freezing notice was issued on the basis that there were reasonable grounds for suspecting that the property was crime-used and that Smith had been charged with offences and could be declared to be a drug trafficker under s 32A(1) of the Misuse of Drugs Act, 1981 (WA) if he was convicted of those offences. In fact it appears that on 26 October Graham Frederick Smith was declared to be a drug trafficker pursuant to s 32A(1) of the Misuse of Drugs Act.
8 Tanya Hendricks filed an objection to the confiscation of the property frozen on 20 November 2001. The affidavit subsequently filed in support of that application is relatively brief.
9 In it she deposes that she was born in June 1984 and left high school before completing the third term in year 10. She says that she left home in 1999, to commence a relationship with her fiancée Wayne Daniel Smith and that she and he have since 1999 lived in a de facto relationship at 26 Mudlark Way, Yangebup, which is of course the property the subject of the freezing notice. She goes on in her affidavit to depose that she does not work outside the home and is fully dependent upon Wayne Smith for assistance and that he and she are in turn largely dependent upon the help and assistance of Graham Smith for accommodation and for help to live generally. She says they are "very dependent" upon Graham Smith.
10 Significantly, at par 6 of her affidavit she acknowledges that Graham Smith is the owner of the freehold premises of the property. She goes on then to acknowledge that he was charged, as at the date of her affidavit (which was 20 November 2002), with cultivating cannabis with intent to sell and supply and that the property is the subject of a freezing notice, as being crime-used property. She further acknowledges that on 26 October 2001 following his conviction in the District Court Graham Smith was sentenced to a suspended term of imprisonment of 15 months.
11 She then says in par 9 that she is seeking an order under s 82 of the Act for relief against confiscation of the property because confiscation would inevitably lead to her eviction by the State of Western Australia, as
(Page 5)
- well as of Wayne Smith and Graham Smith himself. Finally, she states that she is innocent of the drug charge, has been usually resident at the property and was ordinarily resident there when the notice of originating motion in respect of the objection was filed, that she has no other residence and that is likely to be the case for the indefinite future and that she will suffer undue hardship if the property is confiscated because she and Wayne Smith have literally nowhere else to live and no resources to pay for a bond for private accommodation.
12 She states that the two of them are totally dependent upon Graham Smith for his continued support in providing accommodation. She expresses her understanding that Graham Smith is a widower and that although his late wife is still on the title to the property, she acknowledges that by operation of law he is entitled to become registered as the sole proprietor because there was a joint tenancy in existence between himself and his late wife and she concludes with the statement that it is not practical for Mr Smith to make any other provision for her by any other means.
13 Against that lightly-sketched factual background underlying the application and the objection, it is I think not necessary for me to canvass the material set out in the affidavits filed in support of the respondent's application for a declaration and its opposition to the objection. The position is clearly governed by the relevant statutory provisions. Section 8 of the Act provides:
"When a person is declared to be a drug trafficker under Section 32A(1) of the Misuse of Drugs Act, as a result of been convicted of a confiscation of offence that was committed after the commencement of the Act, all of the property that the person owns or effectively controls at the time the declaration is made and 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 the Act, is confiscated."
14 There is no contest in terms of fact that the registered proprietors of the property, that is to say the real estate, are Graham Smith and Charlotte Emma Smith. Charlotte Emma Smith is deceased. Graham Smith has himself filed a statutory declaration stating that he is the owner of the property, that it is unencumbered and that there is no other person who has an interest in it. So much appears to be expressly acknowledged by the objector Ms Hendricks.
(Page 6)
15 Section 81 of the Act makes it clear that where property is frozen by a freezing notice or freezing order on two or more grounds, then where objection is taken it cannot succeed unless the freezing notice or order is set aside in relation to each of the grounds upon which it was originally issued. As I have noted, the freezing notice here was issued on two grounds: first, that the property was crime-used and, secondly, in reliance upon a declaration under the Misuse of Drugs Act that Graham Smith is a drug trafficker; that is to say that in the expectation that such a declaration would be made. Again there is no contest to the fact that such a declaration was made.
16 The material in Ms Hendricks' affidavit expressly goes to the considerations, or some of them, set out in s 82 of the Act which deals with the release of crime-used property seized under a freezing notice or freezing order. Specifically, her objection appears to be based on each of subsections 3(a) to (g) inclusive, of s 82. It is, I think, not necessary for me to reach any particular conclusion or make any specific finding about that because I accept the submission put to me by Mr Gray that even were the objection to be made out in respect of or under s 82 of the Act, it must still be dismissed because there is nothing in it which goes to the considerations relating to the second limb upon which the freezing notice was issued; namely, those considerations which pertain to setting aside other orders in respect of frozen property under s 84.
17 There, for Ms Hendricks to succeed, she must show that it is more likely than not that Graham Smith does not own or effectively control the property and, as I have already observed, not only does she not contest that he does in fact own the property, she expressly concedes it. Under those circumstances it seems to me the objection cannot succeed and it must be dismissed.
18 That brings me then to the application for the declaration. That application is made pursuant to s 30 of the Act, which provides that the Director may apply to the Court for a declaration that property has been confiscated and if, on considering such an application, the Court finds that the property described in the application has been confiscated under s 6, s 7 or s 8 of the Act, the Court must make a declaration to that effect.
19 Clearly then, if the finding of fact is made that the property described in the application has been confiscated under one of those sections, the Court has no discretion - a declaration to that effect must be made. The material before me demonstrates clearly that the property has been so confiscated and I will accordingly make a declaration to that effect. The
(Page 7)
- objection will be dismissed and there will otherwise be orders as sought in the respondent's Chamber summons filed on 5 March 2002.
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