McLeod v The State of Western Australia

[2012] WASC 345

McLEOD -v- THE STATE OF WESTERN AUSTRALIA [2012] WASC 345

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2012] WASC 345
Published:	24/09/2012
Case No:	CPCA:120/2010	Heard:	8 AUGUST 2012
Coram:	EM HEENAN J	Delivered:	8/08/12
No of pages:	5	Judgment Part:	1 of 1
Result:	Objection dismissed Declaration of confiscation
Category:	B
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Parties:	YVONNE McLEOD THE STATE OF WESTERN AUSTRALIA
Catchwords:	Crimes Confiscation of Property Freezing Orders Objection
Legislation:	Criminal Property Confiscation Act 2000 (WA) Misuse of Drugs Act 1981 (WA)
Case References:	Hendricks v The State of Western Australia [2002] WASC 86 Re Smith; Ex Parte Director of Public Prosecutions for Western Australia (No 3) [2004] WASC 157

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : McLEOD -v- THE STATE OF WESTERN AUSTRALIA [2012] WASC 345 CORAM : EM HEENAN J HEARD : 8 AUGUST 2012 DELIVERED : 8 AUGUST 2012 PUBLISHED : 24 SEPTEMBER 2012 FILE NO/S : CPCA 120 of 2010 MATTER : Criminal Property Confiscation Act 2000 BETWEEN : YVONNE McLEOD

Plaintiff

AND

THE STATE OF WESTERN AUSTRALIA
Defendant

Catchwords:

Crimes - Confiscation of Property - Freezing Orders - Objection

Legislation:

Criminal Property Confiscation Act 2000 (WA)

Misuse of Drugs Act 1981 (WA)

Result:

Objection dismissed

Declaration of confiscation

(Page 2)

Category: B

Representation:

Counsel:

Plaintiff : No appearance
Defendant : Ms F A Humphries

Solicitors:

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 for Western Australia (No 3) [2004] WASC 157


(Page 3)

1 EM HEENAN J: These proceedings were commenced by an originating summons dated 25 October 2010 issued by Yvonne McLeod (Ms McLeod), against the State of Western Australia objecting to the confiscation of property the subject of freezing notices WAPFN100213 and WAPFN100216 issued in October 2010 (Freezing Notices). The history is that on 9 October 2010 Ms McLeod was charged under s 6 of the Misuse of Drugs Act 1981 (WA) (MDA) of one count of possessing a prohibited drug, namely cannabis, with the intent to sell or supply it to another. On 15 and 18 October 2010 respectively, pursuant to s 34 of the Criminal Property Confiscation Act 2000 (WA) (CPCA), the Freezing Notices were issued on the basis that Ms McLeod had been charged with an offence under s 6 of the MDA and could be declared a drug trafficker under s 32A of the MDA if convicted of that offence. Ms McLeod was subsequently convicted in the District Court of Western Australia of the offence and on 20 March 2012 was declared to be a drug trafficker pursuant to s 32A of the MDA in relation to that conviction.

2 Section 36(1) of the CPCA provides that as soon as practicable after a freezing notice is issued, the applicant for the notice must personally serve a copy of it on the person from whom the property was taken and, if aware of any other person who is or may be or claims to be an interested party, on that person. Section 37 of the CPCA provides that a person served with a copy of a Freezing Notice under s 26 must make a statutory declaration to a specified police officer stating, among other things, whether he or she is aware of there is any other person who is or who may be or who claims to be an interested person and of so to provide specified details. Under s 36(4) of the CPCA a copy of the freezing notice must be served on any person who, as a result of the information provided pursuant to s 37, is an interested party. 'Interested party' is defined in s 3 as meaning 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.

3 Copies of the Freezing Notices were served on Ms McLeod and other parties claiming to have interests in the property – the ANZ Banking Group, the National Australia Bank and BankWest. The details are set out in the affidavit of Ms J K Peters sworn on 28 May 2012.

4 By s 7 of the CPCA, 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. In the present case Ms McLeod filed the originating summons on 25 October 2010 objecting to the freezing notices, so the property was not confiscated automatically pursuant to s 7.

(Page 4)

5 By summons in these proceedings dated 6 June 2012 the Director of Public Prosecutions for Western Australia (DPP) applied for an order dismissing Ms McLeod’s objections and for a declaration pursuant to s 30 of the CPCA that certain property has been confiscated to the State under s 8(1) of the CPCA. Proof service of the relevant process and applications upon Ms McLeod and other parties with interests in the property has been established by affidavits filed in these proceedings. Although there has been no appearance by Ms McLeod, I am satisfied that she has had notice of these proceedings.

6 The application for the order dismissing the objection is made on the basis that the objection cannot be successful because the applicant has not established the criteria required by s 84(2) of the CPCA

7 In this case, Ms McLeod has not established that it is more likely than not that she does not own or effectively control the property or has not at any time given it away, one or other of the possibilities which would lead to an exclusion or modification of the declaration under s 79(1), s 81(1) or s 84(2).

8 Pursuant to s 8 of the CPCA, if and when a person is declared to be a drug trafficker under s 32A(1) of the MDA, as a result of being convicted of a confiscation offence that was committed after the commencement of the Act, that is, after 1 January 2001, all the property that that person owned or effectively controlled at any time he or she was declared to be a drug trafficker and all property that he or she gave away at any time before the declaration was made becomes confiscated to the State of Western Australia: Hendricks v The State of Western Australia [2002] WASC 86 [19]; Re Smith; Ex Parte Director of Public Prosecutions for Western Australia (No 3) [2004] WASC 157 [15].

9 As a result of those provisions, the property of Ms McLeod was automatically confiscated pursuant to s 8 of the CPCA on the20 March 2012 when she was declared to be a drug trafficker. As a result of s 30(2) of the CPCA, if this Court finds that the property of a person has been automatically confiscated under s 8, the Court must make a declaration to that effect.

10 The orders will be:

1. The Plaintiff's Objection to the confiscation of frozen property made by Originating Summons dated 25 October 2010 be dismissed.

(Page 5)

2. All the property that the plaintiff owned or effectively controlled at the time she was declared to be a drug trafficker under s 32A(1) of the MDAon 20 March 2012 and all the property that Yvonne McLeod ('McLeod') gave away at any time before the Drug Trafficker declaration was made has been confiscated to the State of Western Australia.

3. Subject to par 4 hereof, but otherwise without limiting the generality of the declaration in par 2 above, the following property has been confiscated, namely:


(a) The land at Lot 131 on Diagram 94822 in Certificate of Title Vol 2127, Folio 99, commonly known as Lot 131 Walter Road, Bridgetown;

(b) Money standing to the credit of McLeod in BankWest Savings account number 306-002 0017859 as at 20 March 2012 together with any interest thereon;

(c) Money standing to the credit of McLeod in ANZ cheque account number 01 65605256-68783 and any and all interest payable on such money;

(d) Money standing to the credit of McLeod in ANZ online saver account number 01 6560 5256-70525 and any and all interest payable on such money; and

(e) McLeod's 50% interest in the money standing to the credit of McLeod and Kenneth George McLeod in National Australia Bank trading account number 6-918 63-137-2775 and any and all interest payable on such money.


4. The following property is excluded from the declaration or confiscation made in par 2 hereof, namely:

(a) Money standing to the credit of McLeod in ANZ home loan account number 01 6002 3678-01699 and any and all interest payable on such money; and

(b) Money standing to the credit of McLeod in ANZ residential investment home loan account number 01 6002-3678-01883 and any and all interest payable on such money.