McRobb v The State of Western Australia
[2020] WASC 163
•15 MAY 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: MCROBB -v- THE STATE OF WESTERN AUSTRALIA [2020] WASC 163
CORAM: ARCHER J
HEARD: ON THE PAPERS
DELIVERED : 15 MAY 2020
FILE NO/S: CPCA 16 of 2013
BETWEEN: DIRECTOR OF PUBLIC PROSECUTIONS
Applicant
WESS DAVID MCROBB
First Plaintiff
FARRAR JO SYMONDS
Second Plaintiff
AND
THE STATE OF WESTERN AUSTRALIA
Defendant
Catchwords:
Criminal property confiscation - First plaintiff declared drug trafficker - Application for declaration of confiscation - Objection to confiscation
Legislation:
Criminal Property Confiscation Act 2000 (WA)
Misuse of Drugs Act 1981 (WA)
Result:
Objections dismissed
Declaration of confiscation made
Category: B
Representation:
Counsel:
| Applicant | : | No appearance (on the papers) |
| First Plaintiff | : | No appearance (on the papers) |
| Second Plaintiff | : | No appearance (on the papers) |
| Defendant | : | No appearance (on the papers) |
Solicitors:
| Applicant | : | Director Of Public Prosecutions (WA) |
| First Plaintiff | : | Holborn Lenhoff Massey |
| Second Plaintiff | : | Holborn Lenhoff Massey |
| Defendant | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Campana v The State of Western Australia [2008] WASC 230
Centurion Trust Company Ltd v Director of Public Prosecutions (WA) [2010] WASCA 133
Ranford v The State of Western Australia [2015] WASC 45
Urbano v The State of Western Australia [2006] WASCA 147
Whittle v The State of Western Australia [2012] WASC 244
ARCHER J:
Introduction
In 2013 and 2014, various freezing notices were issued under the Criminal Property Confiscation Act 2000 (WA) (Confiscation Act). The freezing notices related to particular property said to be owned by the first plaintiff. In 2014, the freezing notices were replaced with a freezing order. The freezing notices and the order were made on the ground that the first plaintiff could be declared to be a drug trafficker under s 32A of the Misuse of Drugs Act 1981 (WA).
The plaintiffs objected to the confiscation of the property. In June 2015, the first plaintiff was declared to be a drug trafficker. The Director of Public Prosecutions (DPP) now seeks an order dismissing the objections and a declaration that particular property of the first plaintiff has been confiscated. Ultimately, the plaintiffs indicated that they did not oppose the DPP's application. With the consent of the parties, I made orders that the DPP's application would be determined on the papers, subject to further order.
For the reasons that follow, the objections should be dismissed and the declaration made.
Legal framework
The DPP seeks the declaration under s 30 of the Confiscation Act.
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.
The DPP says that the property described in the application has been confiscated under s 8(1) of Confiscation Act. That subsection 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.
Proof of confiscation
The DPP bears the onus of proving that property has been confiscated.[1] The DPP must prove this on the balance of probabilities.[2]
[1] Campana v The State of Western Australia [2008] WASC 230[40].
[2] Section 102(2)(d) of the Confiscation Act.
The matters that the DPP must prove under s 8 are:
1.the first plaintiff was declared to be a drug trafficker;
2.the declaration was made as a result of the first plaintiff being convicted of a 'confiscation offence' (relevantly being an offence punishable by imprisonment for more than 2 years[3]);
3.the offence was committed after 1 January 2001, being the commencement of the Confiscation Act; and
4.at the time the drug trafficker declaration was made, the property was owned or effectively controlled by the first plaintiff.
[3] Section 141(1) of the Confiscation Act.
Hearsay evidence is not admissible to prove any of these matters.[4] However, if a person has been convicted of a relevant confiscation offence, regard may be had to material before a court in any proceedings for the offence or sentencing.[5]
[4] See s 109 of the Confiscation Act, which permits hearsay in other circumstances.
[5] See s 107 of the Confiscation Act.
If each of these matters is proved, then, pursuant to s 8 of the Confiscation Act, the property was automatically and immediately confiscated at the time the drug trafficker declaration was made.[6]
[6] Centurion Trust Company Ltd v Director of Public Prosecutions (WA) [2010] WASCA 133 (Centurion Trust 2010) [199].
In the absence of any third party interest, nothing else is required to be established before the court is compelled to make a declaration under s 30.[7]
Objections
[7] See Whittle v The State of Western Australia [2012] WASC 244 [36] ‑ [40] and Ranford v The State of Western Australia [2015] WASC 45 [22].
Prior to a person being declared a drug trafficker, a freezing notice may have been issued, or a freezing order made, in relation to property. A freezing notice or order may be made on a number of prescribed grounds, including that the person could be declared to be a drug trafficker.
In this case, freezing notices were issued, and subsequently replaced by a freezing order. The freezing notices and the order were made on the ground that the first plaintiff could be declared to be a drug trafficker.
A person may file an objection to the confiscation of frozen property. The Confiscation Act gives the court power to set aside the freezing notice or order to the extent permitted by s 82 – s 84, depending on the ground upon which the notice or order was made.
If the ground was that the person could be declared to be a drug trafficker, the sole source of the court's power to set aside a freezing notice or order is set out in s 84(2). If the person is declared to be a drug trafficker, their property is confiscated at the time of the declaration, by s 8. This confiscation is not linked to, or conditional upon, the adverse determination by the court of an objection to the confiscation of the frozen property. It occurs automatically on the declaration that the person is a drug trafficker. [8]
[8] Centurion Trust 2010 [223] (Buss JA, with whom Owen JA agreed at [74]). See also Campana [38], and Urbano v The State of Western Australia [2006] WASCA 147 [34] and [39] (Pullin JA, with whom Martin CJ agreed). Further, under s 39 and s 49 of the Confiscation Act, a freezing notice or order for any property except registrable real property stops being in force as soon as, among other things, the property is confiscated under s 6, s 7 or s 8.
The court has no power to release property once it has been confiscated under s 8.[9]
[9] The Confiscation Act, pt 6 ss 85 ‑ 87 gives the court the power to release property confiscated under s 6 or s 7. No such power is given in relation to property confiscated under s 8. See also Campana [38] and Centurion Trust 2010 [162].
Property said to have been confiscated
The DPP seeks a declaration that identified property of the first plaintiff has been confiscated. The identified property comprises money standing to his credit in a bank account (and the interest payable on that money), half[10] of the balance of the money in another bank account (and the interest payable on that money), shares in his name, and his interest in shares held in his name and the name of the second plaintiff.
[10] The DPP's original summons, filed 30 December 2019, was amended by order 1 of the orders I made on 24 March 2020.
Evaluation
The DPP filed an affidavit of Alison Gibson (Gibson Affidavit)[11] establishing the following.
[11] Affidavit of Alison Margaret Gibson sworn 9 December 2019.
On 11 February 2015, the first plaintiff was convicted in the District Court of two counts of possessing cannabis with intent to sell or supply, contrary to s 6(1)(a) of the Misuse of Drugs Act.[12] This offence is punishable by imprisonment for more than 2 years.[13] It is therefore a 'confiscation offence'. The offences were committed in 2013,[14] after the commencement of the Confiscation Act.[15]
[12] Gibson Affidavit [25(a)] and AMG27.
[13] Section 34(1) of the Misuse of Drugs Act.
[14] Gibson Affidavit [25(a)] and AMG28.
[15] The Confiscation Act commenced on 1 January 2001.
On 2 June 2015, as a result of these convictions, the first plaintiff was declared to be a drug trafficker under s 32A of the Misuse of Drugs Act.[16]
[16] Gibson Affidavit [25(b)] and AMG28.
Accordingly, the only remaining element that the DPP must prove is, in respect of each item of property the subject of the application, that the property was owned or effectively controlled by the first plaintiff at the time the drug trafficker declaration was made.
Ownership
The Confiscation Act defines 'owner', in relation to property, to mean a person who has a legal or equitable interest in the property.[17]
[17] Confiscation Act glossary.
'Property' is defined in the Confiscation Act to mean a legal or equitable interest in any real or personal property of any description, wherever situated, and whether tangible or intangible.[18]
[18] Confiscation Act glossary.
The Gibson Affidavit established that the first plaintiff was an owner of all of the identified property, with the exception of the shares in 'Kentor Gold Ltd'.[19] The Gibson Affidavit established that the first plaintiff owned shares in KGL Resources Limited, but did not establish that this company was connected to 'Kentor Gold Ltd'.
[19] Gibson Affidavit [26] ‑ [32] and AMG29-AMG36.
The Gibson Affidavit established that at the time the drug trafficker declaration was made, being 2 June 2015, the first plaintiff owned all of the identified property except for the shares in Alacer Gold Corp and KGL Resources Limited. The Gibson Affidavit proved only that he owned those shares in 2018.
I raised these deficiencies with the parties, inviting submissions. The DPP sought leave to tender an additional affidavit of Ms Gibson, sworn 9 April 2020. This affidavit remedied the deficiencies in relation to the date of ownership and proved that the former name of KGL Resources Limited was Kentor Gold Ltd.
I gave the DPP leave to adduce the additional evidence as there was no prejudice to the plaintiffs, the plaintiffs did not oppose the application to adduce additional evidence, and the plaintiffs did not oppose the DPP's substantive application. However, it is obviously unsatisfactory that proper proof was not provided in the first instance. This is not the only confiscation case I have dealt with in which the evidence adduced by the DPP did not initially establish the necessary matters. The DPP should be on notice that it will not always be permitted to remedy deficiencies in the evidence. It may be particularly unlikely to be given permission when it had sought an order that the matter be dealt with on the papers.
Declaration of confiscation and dismissal of objections
The DPP has proved each of the necessary elements under s 8. Therefore, the property was automatically and immediately confiscated at the time the drug trafficker declaration was made.
As noted earlier, in the absence of any third party interest, nothing else is required to be established before the court is compelled to make a declaration under s 30 of the Confiscation Act.
Once the first plaintiff was declared to be a drug trafficker, the freezing order ceased to have any force. The property was no longer frozen; it was confiscated. The plaintiffs' objections to the freezing order must, therefore, be dismissed.
It follows that I am required to declare that that property has been confiscated.
Orders
I order that the plaintiffs' objections are dismissed.
I declare that the identified property has been confiscated.
These orders will be made in the terms of par 1 and 2 of the DPP's summons filed 30 December 2019, as amended by my order of 24 March 2020.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SW
Associate to the Honourable Justice Archer15 MAY 2020
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