Kuklinski v The State of Western Australia
[2012] WASC 239
•21 JUNE 2012
KUKLINSKI -v- THE STATE OF WESTERN AUSTRALIA [2012] WASC 239
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASC 239 | |
| Case No: | CPCA:14/2011 | 21 JUNE 2012 | |
| Coram: | HALL J | 21/06/12 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Objections dismissed Declaration made | ||
| B | |||
| PDF Version |
| Parties: | NILLA MARIE KUKLINSKI STEPHAN PATRICK KUKLINSKI JACOB JAMES KUKLINSKI AMELIA ELLEN KUKLINSKI THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal property confiscation Objections dismissed Declaration that all property of the first plaintiff confiscated |
Legislation: | Nil |
Case References: | Hendricks v The State of Western Australia [2002] WASC 86 Re Smith; Ex parte Director of Public Prosecutions (WA) [No 3] [2004] WASC 157 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- First Plaintiff
STEPHAN PATRICK KUKLINSKI
Second Plaintiff
JACOB JAMES KUKLINSKI
Third Plaintiff
AMELIA ELLEN KUKLINSKI
Fourth Plaintiff
AND
THE STATE OF WESTERN AUSTRALIA
Defendant
Catchwords:
Criminal property confiscation - Objections dismissed - Declaration that all property of the first plaintiff confiscated
(Page 2)
Legislation:
Nil
Result:
Objections dismissed
Declaration made
Category: B
Representation:
Counsel:
First Plaintiff : In person
Second Plaintiff : In person
Third Plaintiff : No appearance
Fourth Plaintiff : No appearance
Defendant : Mr G T J Farley
Solicitors:
First Plaintiff : In person
Second Plaintiff : In person
Third Plaintiff : No appearance
Fourth Plaintiff : No appearance
Defendant : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Hendricks v The State of Western Australia [2002] WASC 86
Re Smith; Ex parte Director of Public Prosecutions (WA) [No 3] [2004] WASC 157
(Page 3)
1 HALL J: This is an application by the State, which is the defendant in these proceedings, for objections by the second, third and fourth plaintiffs to be dismissed and for a declaration pursuant to s 30 of the Criminal Property Confiscation Act 2000 (WA) (the CPCA) that property has been confiscated to the State of Western Australia under s 8(1) of the CPCA.
2 The application for orders dismissing the objections is made on the basis that the objections cannot be successful because the criteria in s 84(2) of the CPCA have not been established. The application for a declaration that the property of the first plaintiff has been confiscated is made on the basis that she was declared to be a drug trafficker pursuant to s 32A(1) of the Misuse of Drugs Act 1982 (WA) on 27 September 2011 as a result of being convicted of a confiscation offence committed after the commencement of the CPCA.
3 The background facts are as follows. On 25 March 2011 and 28 March 2011 freezing notices WAPFN110033 and WAPFN110034 were issued pursuant to s 34 of the CPCA on the basis that the first plaintiff had been charged with an offence and could be declared to be a drug trafficker under s 32A(1) of the Misuse of Drugs Act if convicted of an offence. Copies of the freezing notices were served on persons from whom the property was taken and any person who was believed to have an interest in the property in accordance with the requirements of the CPCA (affidavit of Jodi Kathleen Peters sworn 4 November 2011 pars 4, 5 and 8). The property frozen under the freezing notices included cash in the sum of $7,453.35 and a property at 51 Dirk Road, Bullsbrook. The Bullsbrook property was registered in the names of the first and second plaintiffs, Mr and Mrs Kuklinski, who are husband and wife. They are registered on the title as joint tenants.
4 Section 7(1) of the CPCA provides that frozen property is confiscated if an objection to confiscation is not filed on or before the 28th day after the service cut off date for the property. An objection was filed by Mr and Mrs Kuklinski by way of an originating summons pursuant to s 79 of the CPCA on 13 April 2011. In consequence, the property was not confiscated automatically pursuant to s 7 of the CPCA.
5 Pursuant to s 8 of the CPCA 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 CPCA, namely after 1 January 2001, all the property that the person owned or effectively controlled at the time she was declared to be a drug trafficker and all the property that she gave
(Page 4)
- away at any time before the declaration was made, whether the gift was made before or after the commencement of the CPCA, is confiscated to the State of Western Australia.
6 On 27 September 2011 Mrs Kuklinski was convicted of one count of possession of a prohibited drug, namely cannabis, with intent to sell or supply contrary to s 6(1)(a) of the Misuse of Drugs Act. The quantity of drugs exceeded the amount referred to in sch 7 of the Misuse of Drugs Act and was therefore a serious drug offence within the meaning of s 32A(1)(b)(i) of that Act. In consequence a declaration that Mrs Kuklinski was a drug trafficker was made. Accordingly, all of Mrs Kuklinski's property was automatically confiscated pursuant to s 8 of the CPCA on 27 September 2011.
7 If a court finds the property has been confiscated under s 8 of the CPCA then it must, pursuant to s 30(2) of the CPCA, make a declaration to that effect: Hendricks v The State of Western Australia [2002] WASC 86 [19] and Re Smith; Ex parte Director of Public Prosecutions (WA) [No 3] [2004] WASC 157 [15].
8 On 24 February 2012 a memorandum of consent orders was filed by which Mrs Kuklinski consented to the objection being dismissed insofar as it applied to her. Orders to that effect were made on 13 March 2012. Thereafter, Mrs Kuklinski continued to attend the proceedings by video link, but only as an observer.
9 The matter then came before me on 21 May 2012. On that occasion Mr Kuklinski said that his initial concern had been that his half-share in the Bullsbrook property would be forfeited. He then said that whilst he now appreciated that that was not the case he believed that his two children, being a daughter aged 14 and a son aged 15, also had an interest in the property. I pointed out to him that no such interest appeared on the certificate of title and no objection had been filed by or on behalf of his children. Nevertheless, and bearing in mind that Mr Kuklinski was self represented, I joined the children as third and fourth plaintiffs, gave leave to Mr Kuklinski to represent them in these proceedings and required him to file an affidavit setting out the nature of the interest of the children in the property.
10 On 21 June 2012 the matter came back before me. The only evidence to support the claim of the children was an affidavit filed by Mr Kuklinski on 19 June 2012. That affidavit had annexed to it a letter from Mr Kuklinski and letters from each of the children. Those letters
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- stated that at the time the property had originally been bought it was in a run down state. It was a semi-rural property with two houses that had been neglected. Since the time of purchase Mr Kuklinski had done considerable work in clearing the property, removing rocks and restoring the buildings. The children had assisted with this work.
11 At the hearing I advised Mr Kuklinski that whilst I accepted the contents of the affidavit they did not establish the existence of either a legal or equitable interest by the children in the Bullsbrook property, and in particular in their mother's half share of it. It was not established that it was more likely than not that Mrs Kuklinski did not own or effectively control her share of the Bullsbrook property or had at any time given it away: s 79(1), s 81(1) and s 84(2) of the CPCA.
12 Mr Kuklinski expressed a concern that recent efforts by him to improve the property for sale would benefit the State as the owner of his wife's former half share. This was not an issue that went to the question for determination in these proceedings. I pointed out that Mr Kuklinski would also benefit from any improvement in value but that if he believed that the costs of any such work should be shared by the State he should discuss this with the Public Trustee.
13 In the circumstances the objections of Mr Kuklinski and his children to the confiscation of the frozen property were dismissed. I was also satisfied that it was appropriate to declare that all the property owned or effectively controlled by Mrs Kuklinski at the time she was declared to be a drug trafficker and all property that she gave away at any time before the declaration was made had been confiscated to the State of Western Australia. This included, without limiting the generality of the declaration, the cash of $7,453.35 that was seized from Mrs Kuklinski at the time of her arrest.
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