Main v The State of Western Australia

[2014] WADC 107

MAIN -v- THE STATE OF WESTERN AUSTRALIA [2014] WADC 107

Jurisdiction:	DISTRICT COURT OF WESTERN AUSTRALIA	Citation No:	[2014] WADC 107
Published:	22/08/2014
Case No:	CPC:20/2008	Heard:	24 JANUARY 2013 & 7 AUGUST 2014
Coram:	SLEIGHT DCJ	Delivered:	7/08/14
Location:	PERTH
No of pages:	8	Judgment Part:	1 of 1
Result:	Objections dismissed Property confiscation
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Parties:	BRUCE TERRANCE WAYNE MAIN JANINE MARY HANDFORD THE STATE OF WESTERN AUSTRALIA
Catchwords:	Criminal confiscation Objection lodged to properly frozen First plaintiff declared a drug trafficker Application by the State for declaration of confiscation Property owned or effectively controlled by the first plaintiff.
Legislation:	Criminal Property Confiscation Act 2000
Case References:	Campana v The State of Western Australia [2008] WASC 230 Hendricks v The State of Western Australia [2002] WASC 86 Re Smith; Ex parte Director of Public Prosecutions (WA) (No 3) [2004] WASC 157 Smith v The State of Western Australia [2009] WASC 189 Whittle v The State of Western Australia [2012] WASC 244

JURISDICTION : DISTRICT COURT OF WESTERN AUSTRALIADISTRICT COURT OF WESTERN AUSTRALIA

IN CHAMBERS

LOCATION : PERTH CITATION : MAIN -v- THE STATE OF WESTERN AUSTRALIA [2014] WADC 107 CORAM : SLEIGHT DCJ HEARD : 24 JANUARY 2013 & 7 AUGUST 2014 DELIVERED : 7 AUGUST 2014 PUBLISHED : 22 AUGUST 2014 FILE NO/S : CPC 20 of 2008 MATTER : IN THE MATTER of Criminal Property Confiscation Act 2000 BETWEEN : BRUCE TERRANCE WAYNE MAIN

JANINE MARY HANDFORD

AND

THE STATE OF WESTERN AUSTRALIA

Catchwords:

Criminal confiscation - Objection lodged to properly frozen - First plaintiff declared a drug trafficker - Application by the State for declaration of confiscation - Property owned or effectively controlled by the first plaintiff.

Legislation:

Criminal Property Confiscation Act 2000

Result:

Objections dismissed

Property confiscation

Representation:

Counsel:

First plaintiff : No appearance
Second plaintiff : No appearance
The State of Western Australia : Ms F A Humphries

Solicitors:

First plaintiff : Not applicable
Second plaintiff : Not applicable
The State of Western Australia : State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Campana v The State of Western Australia [2008] WASC 230
Hendricks v The State of Western Australia [2002] WASC 86
Re Smith; Ex parte Director of Public Prosecutions (WA) (No 3) [2004] WASC 157
Smith v The State of Western Australia [2009] WASC 189
Whittle v The State of Western Australia [2012] WASC 244

1 SLEIGHT DCJ: This decision concerns an application of the defendant by chamber summons under the Criminal Property Confiscation Act 2000 (the Act) seeking the following orders:

1. The plaintiffs' objection to the confiscation of frozen property made by originating summons and a notice of objection dated 4 December 2008 be dismissed.

2. All the property that Bruce Terrance Wayne Main (Main) owned or effectively controlled at the time he was declared to be a drug trafficker under s 32A(1) of the Misuse of Drugs Act 1981 on 18 January 2010 and all property that Main gave away at any time before the drug trafficker declaration was made has been confiscated to the State of Western Australia.

3. Without limiting the generality of the declaration in the paragraph above, the following property has been confiscated, namely:


(a) cash in the sum of $AUD5,850 together with any interest thereon;

(b) cash in the sum of $AUD5,200 together with any interest thereon;

(c) Toyota Landcruiser personnel carrier, registration number BM21265, engine number 1VD0028656, chassis number JTERV73J609000310; and

(d) cash in the sum of $AUD535 together with any interest thereon.


4. Such other orders as the court thinks fit.

2 The chamber summons was returnable before me on 7 August 2014. On return of the chamber summons Counsel for the State amended par 3(d) of the application, substituting the amount of $AUD535 with the sum of $AUD210. I made orders in terms of the amended pars 1 – 3 of the chamber summons, with written reasons to be published at a later date. The reasons are as follows.

Material lodged by the State in support of application

3 The State has lodged a number of affidavits in support of its application. These affidavits are as follows:

1. Affidavit of Marie Claire Normoyle sworn 3 May 2012.

2. Affidavit of Scott Allan Davis sworn 8 June 2012.

3. Affidavit of Alison Margaret Gibson sworn 21 November 2012.

4. Affidavit of Darren Connor sworn 8 January 2013.

5. Affidavit of service sworn 3 July 2014.

6. Affidavit of service sworn 3 July 2014.

7. Affidavit of Godfrey Harmer sworn 9 July 2013.

Background

1. On 11 November 2008 the Australian Federal Police intercepted five packages at the Perth Airport destined for Broome, containing 23.775 kg of compressed, vacuum-sealed cannabis. The packages were deconstructed, the cannabis removed and substituted with another substance. The packages were eventually collected by the first plaintiff Mr Main and on 14 November 2008 he was charged with attempting to possess cannabis with an intent to sell or supply to another. He was also charged with a separate offence of possession of cannabis with an intent to sell or supply to sell or supply to another in relation to a further quantity of cannabis found in his possession.

2. Pursuant to s 34 of the Act, the police applied to a Justice of the Peace for the issue of a freezing notice. The freezing notice related to the items of property which are listed in par 3 of the orders sought in the unamended chamber summons by the State, that is, three sums of cash and a Toyota Landcruiser.

3. A person may file an objection to the confiscation of frozen property (s 79 of the Act). The objection is to be in the form of an originating summons. The first and second plaintiffs filed an objection in the District Court on 4 December 2008 to 'confiscation of property where they are based on freezing notice WAPFN080241 or any subsequent freezing notice or otherwise'.

The originating summons was filed by solicitors, Julia Barber & Co, as solicitors on behalf of the plaintiffs. The chamber summons filed by the State came on for hearing before me on 24 January 2013 and there was neither an appearance by the plaintiffs personally or by their solicitors. The plaintiffs' solicitors had incorrectly sought to be removed from the record by filing a notice under the Criminal Procedure Act 2004. These proceedings, being civil proceedings, required the plaintiffs' solicitors to make an application under O 8 of the Rules of the Supreme Court 1971(RSC). Subsequently the plaintiffs, Mr Main and Ms Handford, filed pursuant to O 8 of the RSC notices dated 10 May 2013 of an intention to act in person.

4. On 19 January 2010 Mr Main was convicted under s 6 of the Misuse of Drugs Act 1981 of one count of attempting to possess cannabis with intent to sell or supply and one count of possession of cannabis with an intent to sell or supply. Mr Main was also declared, pursuant to s 32A(1) of the Misuse of Drugs Act, to be a drug trafficker. By virtue of the declaration that Mr Main is a drug trafficker, the property of Mr Main is confiscated pursuant to s 8 of the Act. Only the interest of the drug trafficker is confiscated: see, for example, Whittle v The State of Western Australia [2012] WASC 244 [40] (Ellison J); Smith v The State of Western Australia [2009] WASC 189 [4], [10] (McKechnie J).

5. If a court finds that property has been confiscated under s 8 of the Act the court must, pursuant to s 30(2) of the Act, make a declaration to that effect: Hendricks v The State of Western Australia [2002] WASC 86 [19] (Roberts-Smith J); Re Smith; Ex parte Director of Public Prosecutions (WA) (No 3) [2004] WASC 157 [15] (Roberts-Smith J).

6. The DPP may apply to the court for a declaration that property has been confiscated (s 30(1) of the Act). This has been done in this case in the form of the chamber summons previously mentioned. The objections by the plaintiffs and the application by the State can be heard together: Campana v The State of Western Australia [2008] WASC 230 [38] - [40] (Jenkins J).

7. If the objection to the confiscation of frozen property is finally determined and the freezing order is not cancelled or set aside then the property is confiscated (s 7(2) of the Act).

8. The affidavits of service dated 3 July 2014 confirm that on 2 July 2014 both Mr Main and Ms Handford were served with a letter from the Director of Public Prosecutions dated 16 June 2014 advising of the relisting of the chamber summons on 7 August 2014 and stating that if they do not appear then the State will seek to have their objections dated 4 December 2008 dismissed.

Conclusions

1. The plaintiffs have not filed any affidavits in support of their objections to the freezing notice. Also, the plaintiffs have not attended on the hearing of the chamber summons by the State. In those circumstances I dismiss the plaintiffs' objections.

2. By virtue of the drug trafficker declarations all property a person owns or effectively controls at the time of the declaration is made is confiscated. Section 156 defines what is meant by 'effective control of property'. The section provides as follows:


(1) For the purposes of this Act, a person has effective control of property if the person does not have the legal estate in the property, but the property is directly or indirectly subject to the control of the person, or is held for the ultimate benefit of the person.

(2) Without limiting subsection (1), when determining whether a person has effective control of any property, the following matters may be taken into account —


(a) any shareholdings in, debentures over or directorships of any corporation that has a direct or indirect interest in the property;

(b) any trust that has a relationship to the property;

(c) family, domestic and business relationships between persons having an interest in the property;

(d) family, domestic and business relationships between persons having an interest in or in a corporation that has a direct or indirect interest in the property;

(e) family, domestic and business relationships between persons having an interest in a trust that has a relationship to the property;

(f) any other relevant matters.

3. On 13 November 2008, the police executed a Misuse of Drugs Act search warrant and located at the premises of Mr Main two bundles of cash, one of $5,850 and the other of $5,200. A further sum of $535 was found in the seat of the vehicle driven by Mr Main at the time of his apprehension and a further sum of $210 on his person. When interviewed by the police, the plaintiff Mr Main admitted that the sums of $5,850 and $5,200 found during the search of his premises were proceeds of the sale of cannabis by him. I am satisfied that these sums of cash are owned by the plaintiff Mr Main and are therefore confiscated under the Act. The State concedes that on further enquiry the $535 found in the vehicle belongs to another person. I am satisfied the $210 found on Mr Main's person belonged to him.

4. The matter requiring closest attention in this matter is the question of whether the Landcruiser motor vehicle is owned or effectively controlled by Mr Main. On the affidavit material before me I make the following findings:

(a) The vehicle is registered in the name of Janine Mary Handford (see par 13 of the affidavit of MC Normoyle).

(b) As at 14 November 2008 when the vehicle was seized, Ms Handford did not hold a driver's licence (see par 2 of the affidavit of Godfrey Harmer).

(c) During the course of a police interview conducted on 14 November 2008, Mr Main stated (see par 6 of the affidavit of Godfrey Harmer):


(i) That a de facto relationship between Mr Main and Ms Handford had ceased a couple of years earlier.
(ii) That Mr Main and Ms Handford had both contributed to the purchase of the vehicle.
(iii) That Ms Handford never drove the vehicle.
(iv) That Mr Main primarily used the vehicle for his work.
(d) At the time of Mr Main's arrest the police located in the Toyota Landcruiser an extraordinary licence which issued on 3 December 2007 and was due to expire on 2 December 2009. It was a condition of the licence that Mr Main carry the licence with him whilst driving and to make it available to any police officer on demand. He was also to carry a log book completed in advance showing times and purpose of each journey and make it available to any police officer on demand. Also in the vehicle with the extraordinary licence was a log book recording in the details of driving between 3 December 2008 and November 2008. The log book itself does not contain any entry as to the registration number of the vehicle used but its presence in the vehicle together with Mr Main's admission to the police that the vehicle was used primarily for his work leads me to the conclusion that the log book related to the use of the Landcruiser.

4 On the basis of the above evidence, and without any contrary evidence presented by the plaintiffs, I am satisfied on the balance of probabilities that, within the meaning of the Act, the Landcruiser vehicle was under the effective control of Mr Main and is thereby confiscated.