Houghton v The State of Western Australia
[2010] WASC 347
•16 SEPTEMBER 2010
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: HOUGHTON -v- THE STATE OF WESTERN AUSTRALIA [2010] WASC 347
CORAM: JENKINS J
HEARD: 16 SEPTEMBER 2010
DELIVERED : 16 SEPTEMBER 2010
FILE NO/S: CPCA 94 of 2007
BETWEEN: THE ESTATE OF KEITH HOUGHTON
First Plaintiff
PATRICIA MAY HOUGHTON
Second PlaintiffMICHAEL GWILLIAM
Third PlaintiffAND
THE STATE OF WESTERN AUSTRALIA
Defendant
Catchwords:
Criminal property confiscation - Person charged with serious drug offence - Meaning of 'offence likely to have been committed after the commencement of the Act' - Person dying before charge finally dealt with taken to be a declared drug trafficker
Legislation:
Crimes (Confiscation of Profits) Act 1988 (WA)
Criminal Property Confiscation Act 2000 (WA), s 7(1), s 8, s 8(2), s 30(2), s 34, s 84(2), s 159(2), s 160(2)
Misuse of Drugs Act 1981 (WA), s 1(a), s 32A(1), s 32A(3), sch 7
Result:
Order and declaration made
Category: B
Representation:
Counsel:
First Plaintiff : No appearance
Second Plaintiff : No appearance
Third Plaintiff : No appearance
Defendant: Mr M Seaman
Solicitors:
First Plaintiff : No appearance
Second Plaintiff : No appearance
Third Plaintiff : No appearance
Defendant: Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Silbert v Director of Public Prosecutions for the State of Western Australia (2004) 217 CLR 181
JENKINS J: (These reasons were delivered orally and have been edited from transcript). This is the hearing of a summons filed 24 May 2010 by the Director of Public Prosecutions on behalf of the State of Western Australia, the defendant, for orders and a declaration that:
(1)The name of the first plaintiff be amended by inserting 'The Estate of' before 'Keith Houghton'.
(2)The plaintiffs' objection to the confiscation of frozen property made by originating summons dated 26 November 2007 be dismissed.
(3)All property that Keith Houghton owned or effectively controlled at the time he was taken to be a declared drug trafficker on 9 January 2009 and all property that he gave away before that date has been confiscated to the State of Western Australia.
(4)Without limiting the generality of the declaration in paragraph (3), the following property has been confiscated, namely:
(a)cash in the sum of $14,950;
(b)cash in the sum of $2,000; and
(c)money standing to the credit of Keith Houghton as at 9 January 2009 in a numbered bank account and any and all interest payable on such money.
The first and second plaintiffs have been served. I have already dealt with the reasons why I am prepared to proceed in their absence today. Similarly, I have dealt with the reasons why I am prepared to proceed in the absence of the third plaintiff.
The application for an order dismissing the plaintiffs' objection is made on the basis that the objection cannot be successful because the plaintiff has not established the criteria in the Criminal Property Confiscation Act 2000 (WA) (the Act) s 84(2) and, moreover, because the property the subject of freezing notice WAPFN070114 has been confiscated to the State of Western Australia by reason of the Act, s 8(2).
The application for the declaration is made on the basis that the property the subject of the freezing notice has been confiscated under the Act, s 8, on Keith Houghton being taken to be declared a drug trafficker.
The summons is supported by the affidavits of Jeffrey Joseph Beros sworn 27 April 2010, Adam Blakich sworn 14 May 2010 and Trevor Ross Leach sworn 15 April 2010.
The affidavit material before me establishes that on 12 September 2007 Keith Houghton was charged under the Misuse of Drugs Act 1981 (WA), s 1(a), with a charge that alleged on 11 September 2007 he had in his possession a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another.
The charge arose from the execution of a search warrant at Mr Houghton's premises on 11 September 2007. During the search Mr Houghton directed the police to the location of a black camera case. DNA analysis showed Mr Houghton was the only recognisable source of DNA on the camera case. The certificate of an approved analyst showed that the material in the camera case was 74 g of methylamphetamine, with a purity of 10%.
On 11 and 25 September 2007, pursuant to the Act, s 34, the freezing notice was issued on the basis that Mr Houghton had been charged with an offence and could be declared a drug trafficker under the Misuse of Drugs Act, s 32A(1), if convicted of the offence. The freezing notice was served on the plaintiffs and others who may have had an interest in the frozen property.
From the affidavits I conclude that there were two freezing notices issued, the one that I have just mentioned and also WAPFN070109, issued on the same basis. They were served on the person from whom the property was taken and all persons who the defendant is aware are or may be or claim to be an interested party, as that term is defined in the Act.
In these circumstances, the Act, s 7(1), provides that frozen property is confiscated to the State if an objection to confiscation is not filed on or before the 28th day after the service cut‑off date for the property.
Objections to the freezing notice by the plaintiffs were filed within time. Permanent Custodians Ltd also filed an objection based on their interest as a secured mortgagee of certain real property. On 12 December 2008 that freezing notice was cancelled in respect of that real property. On 28 June 2010 its objection was dismissed by consent.
Although Permanent Custodians have not been served with a copy of this summons, as their interest in the property the subject of the freezing notice was limited to the real property, which is no longer subject to the freezing notice, I am prepared to proceed in its absence.
A number of other persons filed statutory declarations to the effect that they or others may have an interest in the property the subject of the freezing notices. However, these were not followed up by the lodging of objections. Consequently, they would not establish that the person who made those declarations, or any other person, had an interest in the property the subject of this application.
The Act, s 8(2), provides that when a person is taken to be a declared a drug trafficker under s 159(2) all of his property that he owned at the time he absconded and all property that he gave away at any time before he absconded is confiscated. A person is taken to be a declared drug trafficker under s 159(2) relevantly if:
(a)the person is charged with a serious drug offence within the meaning of section 32A(3) of the Misuse of Drugs Act 1981;
(b)the offence was committed, or is more likely than not to have been committed, after the commencement of this Act;
(c)the person could be declared to be a drug trafficker under section 32A(1) if he or she is convicted of the offence;
(d)the charge is not disposed of or finally determined; and
(e)the person absconds in connection with the offence.
Pursuant to s 160(2) of the Act:
A person charged with an offence absconds in connection with the offence if ‑
(a)a warrant for the person's arrest for the offence is in force, or the person is arrested for the offence without warrant (whether before or after being charged with the offence);
(b)the charge has neither been disposed of nor finally determined; and
(c)the person dies.
I am satisfied that Mr Houghton was charged with a serious drug offence within the meaning s 32A(3) of the Misuse of Drugs Act. As to whether the offence was committed, or is more likely than not to have been committed, after the commencement of the Act, there is an issue as to whether this criterion simply requires me to be satisfied that Mr Houghton was charged after the Act commenced or whether it requires me to be satisfied that he committed the offence after that time or is more likely than not to have committed the offence after that time.
In my opinion, the latter is what I am required to be satisfied of. If Parliament had intended simply that the Court be satisfied that the person was charged with an offence which was alleged to have been committed after a certain date, it could have clearly said so. I should assume that Parliament deliberately chose the words that it did. Thus, at the very least, I must be satisfied on the balance of probabilities that Mr Houghton committed the offence after the commencement of the Act.
I note in this respect that I am not required to be satisfied that the property the subject of the freezing notice is in any way connected with the offence. In this respect, I am satisfied of the following matters.
The Act commenced on 1 January 2001. On 11 September 2007, 74 g of methylamphetamine, with a purity of approximately 10%, was found in a plastic clipseal bag in a camera case in Mr Houghton's home. Mr Houghton was asked by the police at that time whether he had any drugs to declare. He directed the police to the camera case, which was in the study, and told the police that he thought it contained 'speed'. He told the police it was not his and that it did not belong to anyone else in the house.
Mr Houghton also showed the police $2,000 in $50 notes. He told the police they were not going to find anything else in the house. Police also located a quantity of small plastic bags, a spoon with traces of white powder on it and a set of scales, also with white powder on them. The scales were suitable for weighing small amounts. Mr Houghton said those items were his to weigh and store gold.
Police also located $14,950 in the bottom of a vase in the home. Mr Houghton said that the money was for two repayments on his house. He said the money was from his scrap business. Cannabis and other drug‑related paraphernalia were also found in a bedroom occupied by Mr Houghton's son.
Mr Houghton's DNA was found on the camera case. No other identifiable DNA was found on the case, although there was mixed DNA on the clipseal bag.
The weight of the methylamphetamine found in Mr Houghton's camera case was not less than the quantity specified in the Misuse of Drugs Act sch 7. This amount gives rise to a rebuttable presumption of an intention to sell or supply the same.
I am satisfied on the balance of probabilities that Mr Houghton possessed the methylamphetamine that the police found at his premises on 11 September 2007. It was in his home, in a container which had his DNA on it. He knew the location of the drugs and knew that they were 'speed', a slang term for methylamphetamine.
Given the amount of the drug, a rebuttable presumption arises that he possessed the drug for the purposes of sale or supply. The only evidence to rebut this presumption is Mr Houghton's self‑serving comment to the police that the drugs were not his. Even if this was true, it does not mean that he did not possess the drug or that he did not do so for the purposes of sale or supply. In addition, there is evidence of the location of large sums of money in Mr Houghton's house and the presence of the bag and scales with traces of white powder.
Having regard to the presumption that arises from possession of such a large quantity of the drug, I am satisfied on the balance of probabilities that Mr Houghton committed the offence of possession of methylamphetamine, with the intent to sell or supply, after the commencement of the Act.
I am further satisfied that Mr Houghton could have been declared to be a drug trafficker under s 32A(1) of the Misuse of Drugs Act if he had been convicted of the offence. I am also satisfied that the charge has not been disposed of or finally determined and that Mr Houghton has absconded in connection with the offence, as that phrase is defined in the Act; that is, he was arrested for the offence without warrant, the charge has neither been disposed of nor finally determined and Mr Houghton has died. The evidence before me discloses that he died on 9 January 2009.
In coming to these findings, I have considered the case of Silbert v Director of Public Prosecutions for the State of Western Australia (2004) 217 CLR 181. In that case the High Court considered provisions in the Crimes (Confiscation of Profits) Act 1988 (WA), repealed, which provided that, where a person was convicted of a serious offence, an appropriate officer may apply to the court for a forfeiture order in respect of particular property or a pecuniary penalty order and that a person was taken to have been convicted of a serious offence if the person had absconded before the charge was finally determined.
As in the current Act, the repealed Act provided that a person was taken to have absconded if they died before the charge was finally determined. The High Court found that the repealed provision did not involve a legislative determination of guilt, which may have then rendered the provisions invalid. The plurality of the High Court found that, if the repealed Act enabled a party to contend that the offence in reliance of which the application was made had not been committed, then the provisions would not be invalid.
In the case of the Act I have found that the provisions enable a party to contend that the relevant offence was not committed. Indeed, the onus is on the applicant to persuade me, on the balance of probabilities, that the offence has been committed after the commencement of the Act.
Thus, no question of invalidity arises, although I note that the High Court held that, even if the provisions did not permit such a challenge, the provisions would still have been valid on the basis that the repealed provisions described the circumstances in which the operative provisions of the Act may be enlivened and they did not involve a legislative conviction of, relevantly, a deceased person.
Taking all these matters into account, Mr Houghton's property was automatically confiscated pursuant to s 8(2) when he was taken to be a declared drug trafficker on his death on 9 January 2009. If a court finds that property has been confiscated under s 8, the Court must, pursuant to s 30(2) of the Act make a declaration to that effect.
I am satisfied that the property the subject of the application was Mr Houghton's property. Consequently, I make the orders as sought.
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