Hutchings v The State of Western Australia
[2019] WASC 402
•6 NOVEMBER 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: HUTCHINGS -v- THE STATE OF WESTERN AUSTRALIA [2019] WASC 402
CORAM: TOTTLE J
HEARD: 22 OCTOBER 2019
DELIVERED : 22 OCTOBER 2019
PUBLISHED : 6 NOVEMBER 2019
FILE NO/S: CPCA 43 of 2016
BETWEEN: BRIAN DOULTON HUTCHINGS
Plaintiff
AND
THE STATE OF WESTERN AUSTRALIA
Defendant
Catchwords:
Criminal property confiscation - Application for orders dismissing objections - Declarations of confiscation
Legislation:
Criminal Property Confiscation Act 2000 (WA), s 8, s 9, s 10, s 30, s 36, s 141(1)
Result:
Objections to confiscation dismissed
Confiscation declarations made
Category: B
Representation:
Counsel:
| Plaintiff | : | No appearance |
| Defendant | : | Mr T Staples |
Solicitors:
| Plaintiff | : | No appearance |
| Defendant | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Nil
TOTTLE J:
The application
By summons filed on 28 May 2019 the Director of Public Prosecutions (DPP) seeks the following orders:
1.The Plaintiff's Objections to the confiscation of frozen property made by Originating Summons dated 30 August 2016 be dismissed.
2.The following property that Brian Doulton Hutchings ('HUTCHINGS') 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 on 8 June 2017 or gave away at any time before that date has been confiscated to the State of Western Australia, namely:
(a)HUTCHINGS's interest as sole registered proprietor, in […] 16 Tambulam Way, Armadale;
(b)Monies standing to the credit of HUTCHINGS in National Australia Bank account numbered [redacted] as at 8 June 2017 together with any interest thereon; and
(c)Cash in the following sums taken from HUTCHINGS on 2 August 2016:
i.AUD $140.00, together with any interest thereon;
ii.AUD $10.00, together with any interest thereon;
iii.AUD $135.00, together with any interest thereon;
iv.AUD $1,450.00, together with any interest thereon;
v.AUD $2,000.00, together with any interest thereon;
vi.AUD $800.00, together with any interest thereon;
vii.AUD $615.00, together with any interest thereon; and
viii.AUD $253,850.00, together with any interest thereon.
The DPP submits:
(a)the objections cannot succeed because the property the subject of the objections and listed in the summons has been confiscated to the State pursuant to s 8(1) of the Criminal Property Confiscation Act 2000 (WA) (the Act) as a consequence of Mr Hutchings being declared to be a drug trafficker pursuant to s 32A(1) of the Misuse of Drugs Act 1981 on 8 June 2017 as a result of being convicted of a confiscation offence committed after the commencement of the Act; and
(b)the declaration under s 30 of the Act must be made on the basis that the property listed in the summons has been confiscated under s 8(1).
The summons was heard on 22 October 2019. Mr Hutchings did not attend the hearing nor was he represented. At the conclusion of the hearing I made orders in terms of the summons. These are my reasons for doing so.
Legal principles
Section 8(1) is in the following terms:
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.
Section 30 of the Act is as follows:
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.
Owner, in relation to property, means a person who has a legal or equitable interest in the property.[1] A confiscation offence is an offence against a law in force anywhere in Australia that is punishable by imprisonment for two years or more.[2]
[1] Criminal Property Confiscation Act 2000 (WA) Glossary.
[2] Criminal Property Confiscation Act 2000 (WA) s 141(1)(a).
Under s 9 of the Act, registrable real property that is confiscated under s 8 vests absolutely in the State when the court declares under s 30 that the property has been confiscated and the memorial of the making of the declaration is registered under s 113(1).
Under s 10(1) of the Act property other than registrable real property that is confiscated under s 6, s 7 or s 8 vests absolutely in the State when the section takes effect in relation to the property.
The property the subject of the declarations sought in pars 2(b) and 2(c) of the summons is not registrable real property; each amount of money is a chose in action. Consequently, that property vests in the state when the relevant statutory provision – s 8 - takes effect in relation to the property.
The matters to be established by the DPP
The DPP must prove the following:
(1)Mr Hutchings has been declared a drug trafficker under s 32A(1) of the Misuse of Drugs Act.
(2)The declaration was made as a result of a 'confiscation offence'.
(3)The offence was committed after the commencement of the Act (being 1 January 2001).
(4)Mr Hutchings owned or effectively controlled the property listed in the summons.
(5)The property was so owned or effectively controlled by Mr Hutchings at the time the drug trafficker declaration was made.
Factual background
The following factual findings are derived from the affidavit of Morgan Charlotte Paling affirmed 2 April 2019, this evidence was not contradicted.
On 2 August 2016:
(a)six amounts of cash totalling $4,535.00 were taken from Mr Hutchings at 16 Tambulam Way, Armadale;
(b)three bundles of cash totalling $253,850.00 were taken from Mr Hutchings at 3 Herriad Road, Armadale; and
(c)$615.00 was taken from Mr Hutchings at Armadale Police Station.
On 9 August 2016 two freezing notices (WAPFN160091 and WAPFN160092) were issued by the Western Australian Police Force under s 34(3) of the Act. The property listed in the summons was the subject of the freezing notices.[3]
[3] The $253,850 referred to in par 2(c)(viii) of the summons was the subject of freezing notice WAPFN160092. All the other property referred to in the summons was the subject of the freezing notice WAPFN160091.
The freezing notices comply with the formal requirements stipulated in s 35 of the Act.
On 10 August 2016 both of the freezing notices were filed in this court.[4] On 12 August 2016 the freezing notices were served on Mr Hutchings and on various dates the notices were served on certain other persons, including the National Australia Bank (NAB).[5] Ms Paling's affidavit attaches the affidavits of service which were filed in this court in respect of the freezing orders.[6]
[4] Criminal Property Confiscation Act 2000 (WA) 36(6).
[5] Criminal Property Confiscation Act 2000 (WA) 36(1).
[6] Criminal Property Confiscation Act 2000 (WA) 36(6).
On 22 August 2019 NAB filed an objection pursuant to s 79 of the Act in another action in this court.
On 7 September 2016 Mr Hutchings filed objections to the freezing notices.
No other objections had been filed at the court in relation to the freezing notices.
Pursuant to s 37(1) and s 37(3) of the Act, on 9 September 2016 Mr Hutchings made a statutory declaration in response to the freezing notice numbered WAPFN160091. The declaration was in the following terms:
1.I have an interest [in] all of the property included under Freezing Notice WAPFN160091;
2.The property at 16 Tambulam Way is mortgaged with National Australia Bank, and there is currently an outstanding amount of approximately $106,000;
3.Brian Hutchings (grandfather) and Silvia Hutchings (grandmother) have assisted me in renovations on the property at 16 Tambulam Way;
4.My mother, Christine Hutchings, and her partner, Brett Skillin, lived at 16 Tamulam Way with me for approximately 5-6 years and assisted me financially to pay for the property;
5.I have a son who lives at the property with me on the weekends, and I intended the property to be a gift to my son;
6.My friend Alyce Page lived at 16 Tambulam Way with me for approximately 12 months and assisted me financially to pay for the property.
On the same date Mr Hutchings made a statutory declaration in response to freezing notice WAPFN160092:
1.I have an interest [in] all of the property included under Freezing Notice WAPFN160092;
2.My co-accused, Bojan BARBIS, has an interest in approximately $70,000 of the cash found at 3 Herriard Road, Armadale.
No other persons on whom the freezing notices were served made a statutory declaration claiming an interest in the property listed in the freezing notices.
On 8 June 2017 Mr Hutchings was convicted in the District Court of the following two offences committed on 2 August 2016:
(a)one count of possessing cannabis with intent to sell or supply to another contrary to s 6 of the Misuse of Drugs Act; and
(b)one count of being in possession of a sum of money that was reasonably suspected to be unlawfully obtained contrary to s 417(1) of the Criminal Code (WA).
Each of these offences is punishable by imprisonment of more than two years and therefore each constitute a 'confiscation offence'.
On the same day Mr Hutchings was declared to be a drug trafficker pursuant to s 32A(1) of the Misuse of Drugs Act.
On 4 September 2018 the NAB's objection was dismissed by consent.
On 3 July 2019 the DPP received a letter from Mrs Sylvia Hutchings which stated that she did not have a claim on the money or property of Mr Hutchings and did not wish to attend court on 25 July 2019 (being an earlier date on which the application had been listed).
The Certificate of Title in respect of the property known as 16 Tambulam Way, Armadale, lists Mr Hutchings as the sole registered proprietor and shows that a memorial of the issue of the freezing notice was lodged on 10 August 2016 in compliance with s 36(2) of the Act.
A copy of the NAB Account Balance Summary for the period 23 July 2016 to 23 January 2017 in respect of the bank account specified in par 2(b) of the summons shows that the account number coincides with the number in the freezing notice and the summons and that the account is held in Mr Hutchings' sole name.[7]
[7] Affidavit of Morgan Charlotte Paling affirmed 2 April 2019, 74.
Analysis and disposition
I am satisfied that the evidence adduced by the DPP establishes, on the balance of probabilities, the five matters referred to at [10].
First, Mr Hutchings was declared to be a drug trafficker under s 32A(1) of the Misuse of Drugs Act on 8 June 2017.
Second, that declaration was made as a result of Mr Hutchings being convicted of a 'confiscation offence', being an offence against a law in force anywhere in Australia that is punishable by imprisonment for two years or more.
Third, the offence was committed on 2 August 2016, being after 1 January 2001 (the date of commencement of the Act).
Fourth, the relevant property was owned or effectively controlled by Mr Hutchings. Ownership of the Armadale property and NAB bank account is established by the evidence summarised in [27] and [28], the statutory declarations made by Mr Hutchings and the fact that no other party on whom the freezing order was served, other than the NAB, claimed an interest in the property. I find that Mr Hutchings was the owner of the cash. I infer that this was so first, because the cash referred to at par 2(c)(i) - (vii) was found at Mr Hutchings' house and second, because he admitted that he was in possession of the cash found at the other Armadale address.[8]
[8] Affidavit of Morgan Charlotte Paling affirmed 2 April 2019, 65.
Fifth, that property was owned or effectively controlled by Mr Hutchings at the time he was declared a drug trafficker. In the absence of any evidence to the contrary this finding flows from the findings made by me in the preceding paragraph.
Consequently, pursuant to s 8(1) of the Act all the property listed in the summons was confiscated to the State on 8 June 2017 when the drug trafficker declaration was made. Pursuant to s 30(2) having found that the property was confiscated the court was obliged to make a declaration that effect.
The cash and the money in the bank account (more accurately the chose in action) vested in the State when the drug trafficker declaration was made. The real property referred to in par 2(a) of the summons was confiscated when the drug trafficker declaration was made and it vested in the State on the making of the declaration to that effect made at the hearing on 22 October 2019. It followed from these conclusions that an order dismissing Mr Hutchings' objections was required.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
JB
Associate to the Honourable Justice Tottle6 NOVEMBER 2019
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