Jeffery v The State of Western Australia
[2021] WASC 142
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: JEFFERY -v- THE STATE OF WESTERN AUSTRALIA [2021] WASC 142
CORAM: ARCHER J
HEARD: 9 MARCH 2021
DELIVERED : 9 MARCH 2021
PUBLISHED : 5 MAY 2021
FILE NO/S: CPCA 23 of 2019
BETWEEN: BLAIR JEFFERY
Plaintiff
AND
THE STATE OF WESTERN AUSTRALIA
Defendant
Catchwords:
Criminal property confiscation – Plaintiff declared drug trafficker – Application for declaration of confiscation – Objection to confiscation
Legislation:
Criminal Property Confiscation Act 2000 (WA)
Misuse of Drugs Act 1981 (WA)
Result:
Objections dismissed
Declaration of confiscation made
Category: B
Representation:
Counsel:
| Plaintiff | : | No appearance |
| Defendant | : | T A Staples |
Solicitors:
| Plaintiff | : | In person |
| Defendant | : | Director of Public Prosecutions (WA) |
Cases referred to in decision:
Brennan v The State of Western Australia [2018] WASC 31
Campana v The State of Western Australia [2008] WASC 230
Centurion Trust v Director of Public Prosecutions (WA) [2010] WASCA 133
Flack v Chairperson, National Crime Authority (1997) 150 ALR 153
McRobb v The State of Western Australia [2020] WASC 163
Mulholland v Winslow [2018] WASCA 19
Ranford v The State of Western Australia [2015] WASC 45
Rinaldi v The State of Western Australia [2019] WASC 420
Urbano v The State of Western Australia [2006] WASCA 147
Whittle v The State of Western Australia [2012] WASC 244
ARCHER J:
(This judgment was delivered extemporaneously on 9 March 2021 and has been edited to correct matters of grammar and to include complete references.)
Introduction
On 10 July 2019, a freezing notice was issued under the Criminal Property Confiscation Act 2000 (WA) (Confiscation Act). The freezing notice related to particular property said to be owned or effectively controlled by the plaintiff. It was made on grounds including that the plaintiff could be declared to be a drug trafficker under s 32A of the Misuse of Drugs Act 1981 (WA).
The plaintiff objected to the confiscation of the property. On 7 May 2020, the plaintiff was declared to be a drug trafficker. The Director of Public Prosecutions (DPP) now seeks an order dismissing the objection and a declaration that the property has been confiscated.
For the reasons that follow, the objection should be dismissed and the declaration made.
Legal framework[1]
[1] This section reproduces or draws on my judgment in earlier cases, including Brennan v The State of Western Australia [2018] WASC 31 and McRobb v The State of Western Australia [2020] WASC 163.
The DPP seeks a declaration under s 30 of the Confiscation Act.
Section 30 of the Confiscation Act provides:
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.
The DPP says that the property described in the application has been confiscated under s 8(1) of the Confiscation Act. That subsection provides:
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.
Proof of confiscation
The DPP bears the onus of proving that the property has been confiscated.[2] The DPP must prove this on the balance of probabilities.[3]
[2] Campana v The State of Western Australia [2008] WASC 230[40].
[3] Section 102(2)(d) of the Confiscation Act.
The matters that the DPP must prove under s 8 are:
(1)the plaintiff was declared to be a drug trafficker;
(2)the declaration was made as a result of the plaintiff being convicted of a 'confiscation offence' (relevantly being an offence punishable by imprisonment for more than 2 years[4]);
(3)the offence was committed after 1 January 2001, being the commencement of the Confiscation Act; and
(4)at the time the drug trafficker declaration was made, the property was owned or effectively controlled by the plaintiff.
[4] Section 141(1) of the Confiscation Act.
If a person has been convicted of a relevant confiscation offence, regard may be had to material before a court in any proceedings for the offence or sentencing.[5]
[5] See s 107 of the Confiscation Act.
If each of these matters is proved, then, pursuant to s 8(1) of the Confiscation Act, the property was automatically and immediately confiscated at the time the drug trafficker declaration was made.[6]
[6] Centurion Trust Company Ltd v Director of Public Prosecutions (WA) [2010] WASCA 133 (Centurion Trust 2010) [199].
In the absence of any third party interest, nothing else must be established before the court is compelled to make a declaration under s 30.[7]
Objections
[7] See Whittle v The State of Western Australia [2012] WASC 244 [36] ‑ [40] and Ranford v The State of Western Australia [2015] WASC 45 [22].
Prior to a person being declared a drug trafficker, a freezing notice may have been issued, or a freezing order made, in relation to property. A freezing notice or order may be made on a number of prescribed grounds, including that the person could be declared to be a drug trafficker.
A person may file an objection to the confiscation of frozen property. The Confiscation Act gives the court power to set aside a freezing notice or order to the extent permitted by ss 82 ‑ 84, depending on the ground upon which the notice or order was made.
If the ground was that the person could be declared to be a drug trafficker, the sole source of the court's power to set aside a freezing notice or order is set out in s 84(2). If the person is declared to be a drug trafficker, their property is confiscated at the time of the declaration, by s 8. This confiscation is not linked to, or conditional upon, the adverse determination by the court of an objection to the confiscation of the frozen property. It occurs automatically on the declaration that the person is a drug trafficker. [8]
[8] Centurion Trust 2010 [223] (Buss JA, with whom Owen JA agreed at [74]). See also Campana [38], and Urbano v The State of Western Australia [2006] WASCA 147 [34] and [39] (Pullin JA, with whom Martin CJ agreed). Further, under ss 39 and 49 of the Confiscation Act, a freezing notice or order for any property except registrable real property stops being in force as soon as, among other things, the property is confiscated under ss 6, 7 or 8.
The court has no power to release property once it has been confiscated under s 8.[9]
[9] The Confiscation Act, pt 6 ss 85 ‑ 87 gives the court the power to release property confiscated under s 6 or s 7. No such power is given in relation to property confiscated under s 8. See also Campana [38] and Centurion Trust 2010 [162].
Property said to have been confiscated
The DPP seeks a declaration that identified property has been confiscated. The identified property comprises money standing to the plaintiff's credit in a bank account as at the date he was declared to be a drug trafficker (and any interest on that money), cash that had been taken from him on 5 June 2019 and any interest on that cash, and his interest in the land at Lot 464 on Plan 8278 in Certificate of Title Volume 1295, Folio 263, commonly known as 41 Noreena Avenue, Golden Bay WA (Land).
Evaluation
The DPP filed an affidavit of Sherri Stacey[10] (Stacey Affidavit) establishing the following.
[10] Affidavit of Sherri Lee Stacey sworn 13 October 2020.
On 7 May 2020, the plaintiff was convicted in the District Court of numerous offences, including of possessing cannabis (5.21 kg) with intent to sell or supply, contrary to s 6(1)(a) of the Misuse of Drugs Act. This offence is punishable by imprisonment for more than 2 years.[11] It is therefore a 'confiscation offence'. The offence was committed in 2019, after the commencement of the Confiscation Act.[12]
[11] Section 34 of the Misuse of Drugs Act.
[12] The Confiscation Act commenced on 1 January 2001.
On the same day as the conviction was recorded, 7 May 2020, and as a result of this conviction, the plaintiff was declared to be a drug trafficker under s 32A of the Misuse of Drugs Act.
Accordingly, the only remaining element that the DPP must prove, in respect of each item of property the subject of the application, is that the property was owned or effectively controlled by the plaintiff at the time the drug trafficker declaration was made.
Ownership
The Confiscation Act defines an 'owner' of property to mean a person who has a legal or equitable interest in the property.[13]
[13] Confiscation Act glossary.
'Property' is defined in the Confiscation Act to mean a legal or equitable interest in any real or personal property of any description, wherever situated, and whether tangible or intangible.[14]
[14] Confiscation Act glossary.
The Stacey Affidavit established that the plaintiff had been the registered proprietor of the Land since April 2002.
The Stacey Affidavit established that the plaintiff had money standing to his credit in a bank account as at the date he was declared to be a drug trafficker.
In relation to the cash, the Stacey Affidavit established that the police executed a search warrant at the plaintiff's home on 5 June 2019 and found $4,180 in the main bedroom. The Stacey Affidavit attached a copy of the exhibit log for that search, showing the seizure of that cash. From this evidence, I am satisfied, on the balance of the probabilities, that the plaintiff had possession of the cash on 5 June 2019.
The plaintiff's possession of the cash gave him an equitable interest in it, making him an 'owner' within the definition of the Confiscation Act.[15] He would not have lost his equitable interest when the cash was seized by the police. Until such time as the property was confiscated and vested in the State, he retained an interest in it.[16] An order for forfeiture of the cash was not made during the sentencing proceedings. The property was not confiscated and did not vest in the State until he was declared to be a drug trafficker. Accordingly, there is nothing to suggest that the plaintiff lost his equitable interest in the cash prior to the drug trafficker declaration.
[15] See Rinaldi v The State of Western Australia [2019] WASC 420 [30], referring to Flack v Chairperson, National Crime Authority (1997) 150 ALR 153, 156 ‑ 157, 162 ‑ 163.
[16] See Rinaldi [32], referring to Mulholland v Winslow [2018] WASCA 19 [34], [51], [56], where the court found that a person who had the right to possess property prior to its seizure retained that right of possession after its seizure as against everyone except the Commissioner of Police.
Accordingly, I am satisfied that, at the time the drug trafficker declaration was made, the plaintiff owned all of the identified property.
Declaration of confiscation and dismissal of objections
The DPP has proved each of the necessary elements under s 8. Therefore, the property was automatically and immediately confiscated at the time the drug trafficker declaration was made.
As noted earlier, in the absence of any third party interest, nothing else must be established before the court is compelled to make a declaration under s 30 of the Confiscation Act.
Once the plaintiff was declared to be a drug trafficker, the freezing notice ceased to have any force. The property was no longer frozen; it was confiscated. The plaintiff's objection to the freezing notice must, therefore, be dismissed.
It follows that I am required to declare that that property has been confiscated.
Orders
I order that the plaintiff's objection is dismissed.
I declare that the identified property has been confiscated.
These orders will be made in the terms of paragraphs 1 and 2 of the DPP's summons filed 15 October 2020.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AG
Research Associate to the Honourable Justice Archer
5 MAY 2021
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