Khankhaeng v The State of Western Australia
[2019] WASC 361
•8 OCTOBER 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: KHANKHAENG -v- THE STATE OF WESTERN AUSTRALIA [2019] WASC 361
CORAM: SMITH J
HEARD: 2 OCTOBER 2019
DELIVERED : 2 OCTOBER 2019
PUBLISHED : 8 OCTOBER 2019
FILE NO/S: CPCA 2 of 2017
BETWEEN: POM KHANKHAENG
First Plaintiff
LESLEY BOYD
Second Plaintiff
AND
THE STATE OF WESTERN AUSTRALIA
Defendant
Catchwords:
Criminal property confiscation - Interest in property frozen property of declared drug trafficker - Application for declaration of confiscation
Legislation:
Criminal Property Confiscation Act 2000 (WA)
Interpretation Act 1984 (WA)
Misuse of Drugs Act 1981 (WA)
Result:
Declaration of confiscation made
Category: B
Representation:
Counsel:
| First Plaintiff | : | No appearance |
| Second Plaintiff | : | No appearance |
| Defendant | : | Mr V J Pelligra |
Solicitors:
| First Plaintiff | : | No appearance |
| Second Plaintiff | : | No appearance |
| Defendant | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Atkinson v The State of Western Australia [2018] WASC 218
Centurion Trust Co Ltd v Director of Public Prosecutions (WA) [2010] WASCA 133; (2010) 201 A Crim R 324
SMITH J:
The application
By summons filed on 16 July 2019, the Director of Public Prosecutions (DPP) seeks declarations that property has been confiscated, pursuant to s 7(1) and s 8(1) of the Criminal Property Confiscation Act 2000 (WA) (Confiscation Act), as follows:
1.Pursuant to section 7(1) of the Act on 20 December 2016 the property the subject of Freezing Notice WAPFN160129 has been confiscated to the State of Western Australia, namely:
(a)Cash in the sum of AUD $2,250.00, taken from John Charles Dey ('DEY') on 22 September 2016, together with any interest thereon;
(b)Cash in the sum of AUD $1,739.55, taken from DEY on 22 September 2016, together with any interest thereon;
(c)Cash in the sum of AUD $10,400.00, taken from DEY on 22 September 2016, together with any interest thereon;
(d)Cash in the sum of AUD $6,680.00, taken from DEY on 22 September 2016, together with any interest thereon;
(e)Cash in the sum of AUD $7,500.00, taken from DEY on 22 September 2016, together with any interest thereon; and
(f)Cash in the sum of AUD $6,050.00, taken from DEY on 22 September 2016, together with any interest thereon.
2.Pursuant to section 8(1) of the Act the following property that DEY 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 18 July 2017 or gave away at any time before that date has been confiscated to the State of Western Australia, namely DEY'S interest as joint tenant in the land at Lot 185 on Deposited Plan 68120 in Certificate of Title Volume 2760 Folio 345, commonly known as 21 Kennedia Entrance, Dayton.
The application was heard on 2 October 2019. At the conclusion of the hearing, I made the declarations sought by the DPP. These are my reasons for making the declarations.
Legal framework
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.
Section 7 of the Confiscation Act provides:
7. When frozen property is confiscated automatically
(1)Frozen property is confiscated if an objection to the confiscation of the property is not filed on or before the 28th day after the service cut off date for the property.
(2)If an objection to the confiscation of frozen property is filed on or before the 28th day after the service cut off date for the property, the property is confiscated if ‑
(a)the objection, or each objection if there are more than one, is finally determined; and
(b)where the property is subject to a freezing notice ‑ the freezing notice is not cancelled or set aside; and
(c)where the property is subject to a freezing order ‑ the freezing order is not set aside.
(3)However, property frozen under a freezing notice is not confiscated under subsection (1) or (2) until the freezing notice is filed in accordance with section 36(6)(a).
Section 7(1) applies to property frozen on crime‑use grounds and/or crime‑derived grounds.[1] Pursuant to s 34(2), a justice of the peace may issue a freezing notice for any property if there are reasonable grounds for suspecting that the property is crime‑used or crime‑derived.
[1] See Centurion Trust Co Ltd v Director of Public Prosecutions (WA) [2010] WASCA 133; (2010) 201 A Crim R 324 [111] ‑ [118].
The property the subject of the declarations sought in [1] of the summons is not registrable real property, each amount of money is a chose in action. Accordingly, as provided for in s 10(1) of the Confiscation Act, the money vests absolutely in the State when it is confiscated under s 7.
The effect of s 7(1) of the Confiscation Act is that frozen properties are confiscated if an objection to confiscation is not filed on, or before, the 28th day after the 'service cut off date' for the property, provided that, pursuant to s 7(3), the freezing notice has been filed in the court specified in the freezing notice in accordance with s 36(6)(a).
Section 150(a) provides that the 'service cut off date' for property frozen under a freezing notice is 'the date of the last day on which a copy of the freezing notice was served on anyone under s 36(4)'.
Section 36(1) requires that, as soon as practicable after a freezing notice is issued, the notice must be served personally on:
(a)the person covered by the notice if the property was taken from a person; and
(b)an interested party if, at the time the freezing notice is issued, the applicant is aware of any other person who is, or may be, or claims to be, an interested party.
Pursuant to s 36(4), if, as a result of information in the statutory declaration given, in accordance with s 37, by a person who was served with a copy of the freezing notice, the applicant becomes aware that any other person is or may be or claims to be an interested party, then the applicant must arrange for a copy of the notice to be served on the person personally, as soon as practicable.
Section 36(2) requires that if the property (the subject of the freezing notice) is registrable real property, the applicant must lodge a memorial of the issue of the notice with the Registrar of Titles.
Section 36(6) requires that the applicant ensure that:
(a)the freezing notice is filed in the court specified in the notice; and
(b)an affidavit of service is endorsed on a copy of each copy of the freezing notice that is served on a person; and
(c)each endorsed copy is filed in the court.
The property that is the subject of the declarations sought in [2] of the summons is registrable real property and is sought to be confiscated pursuant to s 8 of the Confiscation Act.
Section 8 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.
(2)When a person is taken to be a declared drug trafficker under section 159(2), the following property is confiscated ‑
(a)all the property that the person owned or effectively controlled at the time that the person absconded;
(b)all property that the person gave away at any time before the person absconded, whether the gift was made before or after the commencement of this Act.
(3)Nothing in subsection (1) or (2) prevents the confiscation of crime‑derived property or crime‑used property owned, effectively controlled or given away by a person, whether the relevant confiscation offence was committed, or is likely to have been committed, before or after the commencement of this Act.
(4)Nothing in subsection (1) or (2) prevents a criminal benefits declaration from being made against a person, whether the relevant confiscation offence was committed, or is likely to have been committed, before or after the commencement of this Act.
(5)Nothing in subsection (1) or (2) prevents an unexplained wealth declaration from being made against a declared drug trafficker or a person who has been charged with an offence that may lead to his or her being declared a drug trafficker.
Under s 9 of the Confiscation 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).
Before a declaration is made pursuant to s 8(1) of the Confiscation Act, the DPP must prove:[2]
(a)that the person who is said to have owned or effectively controlled the property has been declared a drug trafficker pursuant to s 32A(1) of the Misuse of Drugs Act 1981 (WA) (Misuse of Drugs Act);
(b)the declaration was as a result of a 'confiscation offence', as defined in s 141(1) of the Confiscation Act. That term includes an offence against a law in force anywhere in Australia that is punishable by imprisonment for 2 years or more;
(c)the offence was committed after the commencement of the Confiscation Act, that is, after 1 January 2001; and
(d)the subject property was owned, that is, the person had a legal or equitable interest in the property[3] or effectively controlled by the person declared to be a drug trafficker at the time the drug trafficker declaration was made.
[2] Atkinson v The State of Western Australia [2018] WASC 218 [21] ‑ [23] (Vaughan J).
[3] Per the definition of 'subject property' in the glossary to the Confiscation Act.
Relevant factual circumstances
On 22 September 2016, cash in the following sums was taken from Mr Dey at 21 Kennedia Entrance, Dayton:
(a)AUD $2,250;
(b)AUD $1,739.55;
(c)AUD $16,400;
(d)AUD $6,680;
(e)AUD $7,500; and
(f)AUD $6,050.
On 27 October 2016, a justice of the peace, Judith Louise Cargill, issued freezing notice WAPFN160129, pursuant to s 34 of the Confiscation Act, over property including that money and the land at lot 185 on deposited plan 68120 in certificate of title vol 2760, folio 345, commonly known as 21 Kennedia Entrance, Dayton (21 Kennedia Entrance) on grounds that included that there were reasonable grounds to suspect that the property was crime‑used and crime‑derived.[4]
[4] Affidavit of Sherri Lee Stacey, sworn 3 July 2019, SLS1, pages 8 ‑ 18.
The freezing notice specified the court in which an objection is to be filed as the Supreme Court of Western Australia.[5]
[5] Affidavit of Sherri Lee Stacey, sworn 3 July 2019, SLS1, page 16.
On 31 October 2016, the freezing notice was filed in the court.[6]
[6] Exhibit 1.
The freezing notice was served on Mr Dey on 31 October 2016, on the first plaintiff, Ms Pom Khankhaeng (who is Mr Dey's wife), on 16 November 2016, and on the second plaintiff, Ms Lesley Boyd (who is Mr Dey's ex‑wife), on 19 November 2016.[7]
[7] Affidavit of Sherri Lee Stacey, sworn 3 July 2019, SLS2, SLS4 ‑ SLS5, pages 19, 21 ‑ 22.
In or about November 2016, the proceeds of crime unit received statutory declarations from Mr Dey,[8] Ms Boyd and Ms Khankhaeng, respectively, which claimed that:[9]
(a)$11,000 of the cash the subject of the freezing notice was owned by Ms Boyd; and
(b)Ms Khankhaeng had a 50% interest in the land known as 21 Kennedia Entrance.
[8] It appears, from Mr Dey's statutory declaration, that Ms Khankhaeng and Ms Boyd may have had an interest in the frozen property. Consequently, it appears that, as a result of that information, Ms Khankhaeng and Ms Boyd were served with the freezing notice.
[9] Affidavit of Sherri Lee Stacey, sworn 3 July 2019 [5], SLS7 ‑ SLS10, pages 25 ‑ 28.
On 27 January 2017, and out of time, Ms Khankhaeng and Ms Boyd filed objections, in this court, pursuant to s 79 of the Confiscation Act, to the confiscation of the frozen property.[10]
[10] Affidavit of Sherri Lee Stacey, sworn 3 July 2019 [7](a).
Mr Dey and Ms Khankhaeng are the registered proprietors of 21 Kennedia Entrance as joint tenants, having first been registered as the proprietors of the land on 25 January 2011.[11]
[11] Affidavit of Sherri Lee Stacey, sworn 3 July 2019 [17], SLS18, page 55.
By consent orders, made on 1 May 2017, Ms Khankhaeng's objection was upheld to the extent of her interest as joint tenant in the land at 21 Kennedia Entrance, and was otherwise dismissed.[12]
[12] Order made by Principal Registrar Strk on 27 November 2017.
By consent orders, made on 19 March 2018, the sum of $6,000, (being the part of the cash referred to in the freezing notice) was released to Ms Boyd, and her objection was otherwise dismissed.[13]
[13] Order made by Principal Registrar Strk on 19 March 2018.
No other objections have been filed in the court in relation to the confiscation of the frozen property.
On 18 July 2017, Mr Dey was convicted in the District Court of, among other offences, two offences under s 6(1)(a) of the Misuse of Drugs Act, namely:[14]
(a)1 count of possessing a prohibited drug, namely cocaine, with intent to sell or supply on 22 September 2016; and
(b)1 count of possessing a prohibited drug, namely methylamphetamine, with intent to sell or supply on 22 September 2016.
Each offence is punishable by imprisonment for more than 2 years.[15] Therefore, both offences are 'a confiscation offence'.
[14] Affidavit of Sherri Lee Stacey, sworn 3 July 2019 [13], SLS15 ‑ SLS16, pages 34 ‑ 53.
[15] Misuse of Drugs Act 1981 (WA) s 34(1).
On the same day Mr Dey was convicted of the offences, he was declared to be a drug trafficker.[16]
[16] Affidavit of Sherri Lee Stacey, sworn 3 July 2019 [13], SLS15 ‑ SLS16, pages 34 ‑ 53.
On 31 October 2016, a memorial of freezing notice was lodged in relation to the freezing notice with the Registrar of Titles in respect of the land at 21 Kennedia Entrance and given document number N471621. The stated interest, notified in the memorial, notes the interests of John Charles Dey only. [17]
[17] Affidavit of Sherri Lee Stacey, sworn 3 July 2019, SLS19, pages 56 ‑ 57.
Conclusion
In all the circumstances, I am satisfied that the DPP has established, on the balance of probabilities, the four matters identified in [15] of these reasons.
As the four matters have been proved I am satisfied that, by operation of s 8(1) of the Confiscation Act, the land at 21 Kennedia Entrance was confiscated, automatically, at the time the drug trafficker declaration was made. Given the mandatory terms of s 30, the court is compelled to make a confiscation declaration as sought by the DPP in [2] of the summons.
In relation to the money the subject of [1] of the summons, I am satisfied that this property had been confiscated under s 7(1) of the Confiscation Act, as more than 28 days had expired prior to the objections of Ms Khankhaeng and Ms Boyd being filed in the court.
Pursuant to the requirements of s 36 of the Confiscation Act:
(a)the service cut off date for the filing of objections was 19 November 2016, being the date the freezing notice was served on Ms Boyd; and
(b)the 28th day after the service cut off date was Saturday, 17 December 2016 (which pursuant to s 61(1)(e) and s 61(2) of the Interpretation Act 1984 (WA) is an excluded day).
Consequently, any objection was required to be filed by Monday, 19 December 2016. Ms Khankhaeng and Ms Boyd did not file their objections until 27 January 2017.
I note, however, despite their objections being filed out of time, that their objections have been finally determined by consent orders and that:
(i)more than 28 days have expired after the objections of Ms Khankhaeng and Ms Boyd had been finally determined; and
(ii)no other objections to the confiscation of the money have been filed pursuant to s 79 of the Confiscation Act.
In these circumstances, the mandatory terms of s 30 require the court to make a confiscation declaration in respect of the property, that is the money referred to in [1] of the summons filed on 16 July 2019, which excludes the $6,000 previously released to Ms Boyd.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
VV
Associate to the Honourable Justice Smith8 OCTOBER 2019
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