Mancuso v The State of Western Australia

[2011] WASC 217

MANCUSO -v- THE STATE OF WESTERN AUSTRALIA [2011] WASC 217

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2011] WASC 217
Published:	25/08/2011
Case No:	CPCA:29/2005	Heard:	11 AUGUST 2011
Coram:	EM HEENAN J	Delivered:	11/08/11
No of pages:	6	Judgment Part:	1 of 1
Result:	Objection dismissed Confiscation order
Category:	B
PDF Version

Parties:	ADRIANO MANCUSO THE STATE OF WESTERN AUSTRALIA
Catchwords:	Criminal law Confiscation of criminal property Third party a declared drug trafficker Confiscation order Dismissal of objection
Legislation:	Criminal Property Confiscation Act 2000 (WA) Misuse of Drugs Act 1981 (WA)
Case References:	Nil

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : MANCUSO -v- THE STATE OF WESTERN AUSTRALIA [2011] WASC 217 CORAM : EM HEENAN J HEARD : 11 AUGUST 2011 DELIVERED : 11 AUGUST 2011 PUBLISHED : 25 AUGUST 2011 FILE NO/S : CPCA 29 of 2005 BETWEEN : ADRIANO MANCUSO

Plaintiff

AND

THE STATE OF WESTERN AUSTRALIA
Defendant

Catchwords:

Criminal law - Confiscation of criminal property - Third party a declared drug trafficker - Confiscation order - Dismissal of objection

Legislation:

Criminal Property Confiscation Act 2000 (WA)

Misuse of Drugs Act 1981 (WA)

Result:

Objection dismissed

Confiscation order

(Page 2)

Category: B

Representation:

Counsel:

Plaintiff : No appearance
Defendant : Mr M Seaman

Solicitors:

Plaintiff : No appearance
Defendant : Director of Public Prosecutions (WA)

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

Nil

(Page 3)

1 EM HEENAN J: The Director of Public Prosecutions for Western Australia has applied pursuant to s 30(1) of the Criminal Property Confiscation Act 2000 (WA) for a declaration that certain property has been confiscated pursuant to s 7(2) of that Act.

2 The background facts are that on 9 June 2005, pursuant to s 34 of that Act, a freezing notice AISFN050061 was issued on the basis that there were reasonable grounds to suspect that specified property was crime used and crime derived within the meaning of s 146 and s 147 of the Act and on the basis that Adriano Giuseppe Mancuso could be declared to be a drug trafficker under s 32A(1) of the Misuse of Drugs Act 1981 (WA) if he were convicted of an offence.

3 The facts supporting that conclusion are contained in the affidavit of Marie Clair Normoyle sworn 2 June 2011 in par 2. On 9 June 2005, pursuant to s 34 of the Act, another freezing notice, AISFN050062, was issued on the basis that Mr Mancuso could be declared to be a drug trafficker under s 32A(1) of the Misuse of Drugs Act if he were to be convicted of an offence. The details of that are set out in the same affidavit of Ms Normoyle at par 6.

4 Then on 17 June 2005, pursuant to s 34 of the Act, a third freezing notice, AISFN050063, was issued on the basis that there were reasonable grounds to suspect that specified property was crime-used and crime-derived, again within the meaning of s 146 and s 147 of the Act, on the basis that Jade Edward Fisher could be declared to be a drug trafficker under s 32A of the Misuse of Drugs Act if convicted of a relevant offence. The supporting facts are contained again in the affidavit of Ms Normoyle, this time in paragraph 11.

5 Section 36(1) of the Act requires that as soon as practicable after a freezing notice is issued, a copy must be served personally on the person from whom the property was taken and on any other person the claimant for the freezing notice is aware, at the time the notice is issued, is or might be, or might claim to be, an interested party. Section 36(4) of the Act provides that a copy of the freezing notice must be served on any person who as a result of information contained in a statutory declaration provided pursuant to s 37, the claimant becomes aware is, or might be, or claims to be an interested party.

6 Section 37 provides that a person served with a copy of a freezing notice under s 36 must give a statutory declaration to a particular police officer stating, among other things, whether the declarant is aware if there

(Page 4)

is any other person who is, or might be, or claims to be, an interested person and, if so, to provide details. In this context an 'interested party' is defined in the glossary of the Act to mean:

a person who has an interest in the property that would enable the person to succeed on an objection to the confiscation of the property.

7 Copies of the three freezing notices already identified have been served on any person from whom property was taken, any person who had custody of the frozen property, and all persons whom the applicant believes, or is aware, may be, or might claim to be, an interested party. The details are in the same affidavit of Ms Normoyle at pars 4, 8, 9, 13 and 15.

8 Coming now to the confiscation of property. Section 7(1) of the Act provides that property the subject of a freezing notice is automatically confiscated unless an objection to confiscation is filed on or before the 28th day after the service cut-off date for the property. In this case, Mr Mancuso filed an originating summons in one of the consolidated actions, CPCA 29 of 2005, which objected to the confiscation of the property in two of the freezing notices, AISFN050061 and AISFN050062.

9 A person named Ryslink filed an originating summons and notice of objection in another action, CPCA 41 of 2005, which objected to the confiscation of item 5 in freezing notice AISFN050063. Mr Mancuso filed a second originating summons in CPCA 43 of 2007, which is the other of the consolidated actions, objecting to the confiscation of items 1 and 2 in freezing notice AOSFN060063. All these facts are verified again in the affidavit of Ms Normoyle at par 16.

10 The two originating summonses filed by Mr Mancuso were consolidated on 26 July 2007 by orders made by Johnson J that day. No other objections have been filed. This property was not automatically confiscated pursuant to s 7(1), but s 7(2) of the Act provides:

If an objection to the confiscation of frozen property is filed on or before the 28^th 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;

(b) where the property is subject to a freezing notice - the freezing notice is not cancelled or set aside; and

(Page 5)

(c) where the property is subject to a freezing order - the freezing order is not set aside.

11 By s 7(3) the Act provides:

However, property frozen under a freezing notice is not confiscated under subsection (1) or (2) until a freezing notice is filed in accordance with section 36(6)(a) -

12 Relevantly, s 36(6)(a) in turn provides:

… the applicant must ensure that -

(a) the freezing notice is filed in the court specified in the notice …

13 Consequently, it is necessary, before any confiscation can be made, for the court to make a declaration in respect of property described in the application, and for this the court needs to be satisfied that:

(a) that the objection or each objection is finally determined;

(b) the freezing notice was not cancelled or set aside; and

(c) the court is satisfied the freezing notice has been filed in accordance with s 36(6)(a).

14 These freezing notices were filed in accordance with that subsection. Again I refer to the affidavit of Ms Normoyle at pars 3, 7 and 12. Two of the freezing notices, AISFN050061 and AISFN050063, have not been set aside and have not been cancelled in respect of the property which the applicant now seeks to be confiscated. Again, I refer to the affidavit of Ms Normoyle at pars 22 and 23.

15 One of the freezing notices, AISFN050062, was cancelled on 6 April 2006 as set out in the affidavit of Ms Normoyle at par 20, thus leaving two remaining.

16 On 10 March 2011 Mr Mancuso's objection to the confiscation of frozen property in action number CPCA 29 of 2005, the first of the two consolidated actions, was dismissed. Consequently, that objection has been finally determined.

17 On 14 April 2011, Mr Mancuso's objection to the confiscation of frozen property in the second consolidated action, CPCA 43 of 2007, was also dismissed, meaning that that objection had been finally determined.

(Page 6)

18 The property remaining, namely cash to the total value of $97,260, has therefore been automatically confiscated pursuant to s 7(2) of the Act upon the dismissal of the two objection proceedings initiated by Mr Mancuso. That being the case, it is obligatory for the court to find that the property has been confiscated under s 7(2) and it is also obligatory for the court to make a declaration to that effect under s 32.

19 As to ownership of the property, in a statutory declaration dated 5 August 2005, one of the persons from whom money was taken, Mr Fisher, stated that he is the only party who had an interest in the cash in the sum of $720 and cash in the sum of $50,000. That money was later confiscated to the State on 21 February 2008 as set out in the affidavit of Ms Normoyle at pars 14 and 21. Later, on 2 February 2006, Mr Fisher was declared to be a drug trafficker and a declaration of confiscation was made pursuant to s 30 of the Act by Templeman J on 21 February 2008.

20 The effect of this last declaration, among other things, was to confiscate items 3 and 4 in freezing notice number AISFN050063. This leaves two amounts of cash seized from Mr Mancuso. The first is an amount of $1,130 seized from him on 10 May 2005 at the Perth domestic airport. The second is an amount of $96,130 in cash seized from Mr Mancuso, again on the same date, 10 May 2005, at the Perth domestic airport. That is the property in terms of which the declaration is now sought.

21 That being the case, I am satisfied that the court can and should declare as follows:

That on 14 April 2011 the following property the subject of freezing notice AISFN050061 and AISFN050063 has been confiscated to the State of Western Australia, namely:

(a) cash in the sum of $AUD1,130 together with any interest accrued thereon; and

(b) cash in the sum of $AUD96,130 together with any interest thereon.

22 The applicant does not seek any order as to costs. Those will be the orders of the court.