Kelly v The State of Western Australia
[2019] WASC 488
•14 FEBRUARY 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CIVIL
CITATION: KELLY -v- THE STATE OF WESTERN AUSTRALIA [2019] WASC 488
CORAM: HILL J
HEARD: 18 DECEMBER 2019
DELIVERED : 18 DECEMBER 2019
PUBLISHED : 14 FEBRUARY 2020
FILE NO/S: CPCA 11 of 2014
BETWEEN: JENNIFER LEE KELLY
MAXWELL NOEL SPARK
ELLYCE TARA KELLY
ASHLEE JOYCE CATCHPOLE
AMY BEVERLY CATCHPOLE CATCHPOLE
Plaintiffs
AND
THE STATE OF WESTERN AUSTRALIA
Defendant
Catchwords:
Criminal property confiscation - Whether objections to the confiscation of property should be dismissed - Declaration of confiscation of property following a declaration that a person is a drug trafficker - Turns on own facts
Legislation:
Criminal Property Confiscation Act 2000 (WA), s 8, s 30
Misuse of Drugs Act 1981 (WA), s 32A(1)
Result:
Objections to confiscation of property dismissed
Declarations made
Category: B
Representation:
Counsel:
| Plaintiffs | : | No apparance |
| Defendant | : | T Staples |
Solicitors:
| Plaintiffs | : | In Person |
| Defendant | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Barns v Barns [2003] HCA 9; (2003) 214 CLR 169
Bennett v The State of Western Australia [2012] WASCA 70
Fremantle Lawyers Pty Ltd v Sarich [2019] WASCA 48; (2019) 54 WAR 113
Mickelberg v Director of Perth Mint [1986] WAR 365
HILL J:
This is an application arising under the Criminal Property Confiscation Act 2000 (WA) (Act) for the dismissal of objections lodged by the plaintiffs in 2014. This is a civil proceeding on which I am required to make findings on the balance of probabilities.[1]
[1] Criminal Property Confiscation Act 2000 (WA) s 102(1), s 102(2)(d).
On 18 December 2013, the first plaintiff was charged with one count of possession of heroin with intent to sell or supply contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA).
Three freezing notices were issued (on 19 December 2013,[2] 20 March 2014[3] and 24 November 2014[4]) pursuant to s 34(3) of the Act on the basis that the first plaintiff had been charged with an offence which, if convicted, could lead to a declaration that she was a drug trafficker. The first notice, inter alia, froze the land at Lot 1239 on Deposited Plan 75737 in Certificate of Title Volume 2811 Folio 753, commonly known as 34 Ashwood Parkway, Lakelands and the land at Lot 1240 on Deposited Plan 75737 in Certificate of Title Volume 2811 Folio 754, commonly known as 36 Ashwood Parkway, Lakelands (collectively, the Lakelands Properties).
[2] Affidavit of Sherri Lee Stacey filed 2 November 2017 'SLS1'.
[3] Affidavit of Sherri Lee Stacey filed 2 November 2017 'SLS19'.
[4] Affidavit of Sherri Lee Stacey filed 2 November 2017 'SLS23'.
Copies of the freezing notices were served by the defendant on all persons who are, may be, or may claim to be an interested party in the Lakelands Properties.[5]
[5] Affidavit of Sherri Lee Stacey filed 2 November 2017 'SLS2' - 'SLS11'.
On 15 January 2014, the first plaintiff filed an objection to the first freezing notice pursuant to s 79 of the Act. On 31 July 2014, Justice Corboy ordered that the 2nd to 5th plaintiffs be joined to the proceedings and that the time for them to file an objection be extended until that date.
The plaintiffs' objections can only succeed if the plaintiffs can establish that it is more likely than not that the Lakelands Properties the subject of the freezing notices were not owned or effectively controlled by the first plaintiff or had been given away by her at any time.[6]
[6] Criminal Property Confiscation Act s 84(2).
On 14 June 2016, the first plaintiff was convicted after a plea of guilty to the offence she was charged with. She was sentenced to one year and 11 months' imprisonment and declared to be a drug trafficker pursuant to s 32A of the Misuse of Drugs Act.
By summons dated 2 November 2017 (summons), the Director of Public Prosecutions (WA) applied for orders that:
1.The Plaintiffs' Objections to the confiscation of frozen property made by Originating Summons and Notice of Objection dated 14 January 2014 be dismissed.
2.The following property that Jennifer Lee Kelly (“KELLY”) owned or effectively controlled at the time she was declared to be a drug trafficker under section 32A(1) of the Misuse of Drugs Act 1981 on 14 June 2016 and property that KELLY gave away at any time before that date has been confiscated to the State of Western Australia, namely:
(a)KELLY's interest as registered proprietor in the Land at Lot 1 on Strata Plan 22215 in Certificate of Title Volume 1924 Folio 474, commonly known as 17A Dundee Close, Warnbro;
(b)KELLY's interest as registered proprietor in the Land at Lot 1239 on Deposited Plan 75737 in Certificate of Title Volume 2811 Folio 753, commonly known as 34 Ashwood Parkway, Lakelands; and
(c)KELLY's interest as registered proprietor in the Land at Lot 1240 on Deposited Plan 75737 in Certificate of Title Volume 2811 Folio 754, commonly known as 36 Ashwood Parkway, Lakelands.
On 5 December 2017, the defendant filed an affidavit of service of Bruce Robert Maxwell Wimbridge confirming that a letter to the plaintiffs' then solicitors, the summons, the defendant's submissions and the affidavit of Sherri Lee Stacey had been served on the plaintiffs' solicitors on 29 November 2017.[7]
[7] Affidavit of Bruce Robert Maxwell Wimbridge sworn 4 December 2017.
The defendant's chamber summons has come before the court on numerous occasions since February 2018. Relevantly, on 13 June 2019, Justice Archer ordered that any affidavits to be relied upon by the plaintiffs in support of their objections to the freezing notices or in opposition to the defendant's summons be filed and served by 27 June 2019. Her Honour also ordered that, except with the leave of the court, no party may rely on any affidavit that has not been filed and served.
On 21 June 2019, the defendant filed a chambers summons seeking the dismissal of the second plaintiff's objection on the basis that the second plaintiff died on 11 December 2015. On 19 September 2019, Justice Curthoys ordered that the second plaintiff's objection be dismissed.
On 16 December 2019, the defendant filed a minute of proposed orders amending the relief sought by its summons. Specifically, by this minute, the defendant no longer sought orders in respect of the Warnbro property.
This matter was listed for hearing before me on 18 December 2019. Prior to the hearing, on 5 December 2019, the defendant received an email from Tracy Anne Spark on behalf of herself and her brother, Maxwell John Spark.[8] Ms Spark asserted that she was an interested party in the Lakelands property on the basis that her father had passed away. No further details were provided as to the basis of the claimed interest.
[8] Affidavit of Christopher Michael Anderson filed 10 December 2019 'CMA1'.
None of the plaintiffs nor either of Ms Spark or Mr Spark were present when the matter was called on for hearing on 18 December 2019. In addition, none of them filed any evidence in support of the objections.
For the reasons set out below, the evidence filed by the defendant established that the Lakelands Properties were owned by the first plaintiff at the date she was declared to be a drug trafficker. As there was no evidence filed by the plaintiffs which contradicted this evidence, the plaintiffs could not establish that it was more likely than not that the Lakelands Properties were not owned by the first plaintiff at that time.
For that reason, on 18 December 2019, I ordered the objections filed by the first and third to fifth plaintiffs be dismissed and declared that the Lakelands Properties have been confiscated to the State of Western Australia. These are my reasons for that decision.
Relevant Provisions of Act
Pursuant to s 8 of the Act, when a person is declared to be a drug trafficker under s 32A(1) of the Misuse of Drugs Act as a result of being convicted of a confiscation offence that was committed after the commencement of the Act, all property that the person owned or effectively controlled at the time they were declared to be a drug trafficker and all property that the person gave away at any time before the declaration was made is confiscated to the State of Western Australia.
The key issue for my determination is whether the court is satisfied on the balance of probabilities that the Lakelands Properties, which are the subject of the application for a declaration of confiscation, were owned, effectively controlled, or given away at any time by the first plaintiff at the time she was declared to be a drug trafficker.
The facts
At the hearing, the defendant relied upon the affidavit of Sherri Lee Stacey sworn 28 April 2017 and the affidavit of Christopher Michael Anderson sworn 10 December 2019.
The affidavit of Ms Stacey annexed copies of the freezing notices, the certificates of title of the Lakelands Properties and the certificate of final outcome of the prosecution. The affidavit of Mr Anderson annexed the correspondence that had passed between the Office of the Director of Public Prosecutions and Ms Spark.
Evidence of a conviction is admissible as prima facie evidence of the facts giving rise to the conviction in subsequent civil proceedings between the convicted person and another party.[9] Pursuant to the Evidence Act 1906 (WA), s 47(1), the conviction can be proved by producing a record or extract of the conviction and proving that the plaintiff is the person convicted.
[9] Mickelberg v Director of Perth Mint [1986] WAR 365; Bennett v The State of Western Australia [2012] WASCA 70 [64].
The certificate of final outcome of the prosecution was in evidence before me.[10] From this certificate, I accept that on 14 June 2016, the first plaintiff was convicted and declared to be a drug trafficker pursuant to s 32A of the Misuse of Drugs Act.
[10] Affidavit of Sherri Lee Stacey filed 2 November 2017 'SLS48'.
The certificates of title for the Lakelands Property were also in evidence before me. [11] It is clear from the certificates of title that since 25 June 2013, the first plaintiff has been the registered proprietor of the Lakelands Properties.
[11] Affidavit of Sherri Lee Stacey filed 2 November 2017 'SLS50', 'SLS51'.
Disposition
I accept that on the evidence before me, the first plaintiff is the registered proprietor of the Lakelands Properties.
None of the plaintiffs appeared at the hearing before me on 18 December 2019. Nor did they or anyone else file any evidence in relation to the application. Accordingly, there is no basis upon which I could conclude that it is more likely than not that the first plaintiff did not own or effectively control the Lakelands Properties or at any time give them away.
On this basis, I find that the Lakelands Properties have been confiscated under s 8 of the Act as and from 14 June 2016. As a consequence of this finding, I am required, pursuant to s 30(2) of the Act to make a declaration to this effect.
While neither Ms Spark nor Mr Spark appeared at the hearing on 18 December 2019 nor filed any evidence in relation to this matter, I set out below my observations in respect of the interest claimed by them.
The interest claimed by Ms Spark and Mr Spark appears to be based on an assertion that, as children of the second plaintiff, they are beneficiaries of the second plaintiff's estate. It is not clear whether the second plaintiff had a will or died intestate. No executor or administrator has been appointed in respect of the second plaintiff's deceased estate.
Prior to the completion of the administration of a deceased estate, a beneficiary (or a person entitled to take on intestacy) does not have an equitable interest in any particular asset of the deceased estate.[12] At most, a beneficiary has the right to apply for the administration of the estate, the right to require the due administration of the estate, and an entitlement to an appropriate share of any residual estate upon completion of the administration.[13]
[12] Fremantle Lawyers Pty Ltd v Sarich [2019] WASCA 48; (2019) 54 WAR 113 [211].
[13] Administration Act 1903 (WA), s 14 and s 25(1); Barns v Barns [2003] HCA 9; (2003) 214 CLR 169 [50].
For these reasons, I am satisfied that neither Ms Spark nor Mr Spark have an interest in the Lakelands properties.
In any event, the second plaintiff's objection to the freezing notice was dismissed on 19 September 2019. Accordingly, any rights that Ms Spark and Mr Spark might have had through the second plaintiff were similarly dismissed on this date.
I am satisfied on the evidence before me that Ms Spark and Mr Spark were informed of the hearing on 18 December 2019 but did not appear.[14]
[14] Affidavit of Christopher Michael Anderson filed 10 December 2019 'CMA2' - 'CMA3'.
For these reasons I ordered that the plaintiffs' objections to the freezing notices should be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MG
Research Orderly to the Honourable Justice Hill14 FEBRUARY 2020
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