Mercer v The State of Western Australia
[2013] WASC 23
•30 JANUARY 2013
MERCER -v- THE STATE OF WESTERN AUSTRALIA [2013] WASC 23
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2013] WASC 23 | |
| 30/01/2013 | |||
| Case No: | CPCA:9/2011 | 22 JANUARY 2013 | |
| Coram: | HALL J | 22/01/13 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Objections dismissed Declaration made | ||
| B | |||
| PDF Version |
| Parties: | GRANT ALEXANDER MERCER HEATHER LORRAINE McINTOSH THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal property confiscation Objections dismissed Declaration that all property confiscated |
Legislation: | Nil |
Case References: | Hendricks v The State of Western Australia [2002] WASC 86 Re Smith; Ex parte Director of Public Prosecution (WA) [No 3] [2004] WASC 157 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- First Plaintiff
HEATHER LORRAINE McINTOSH
Second Plaintiff
AND
THE STATE OF WESTERN AUSTRALIA
Defendant
Catchwords:
Criminal property confiscation - Objections dismissed - Declaration that all property confiscated
Legislation:
Nil
(Page 2)
Result:
Objections dismissed
Declaration made
Category: B
Representation:
Counsel:
First Plaintiff : No appearance
Second Plaintiff : In person
Defendant : Mr M Seaman
Solicitors:
First Plaintiff : No appearance
Second Plaintiff : In person
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 Prosecution (WA) [No 3] [2004] WASC 157
(Page 3)
1 HALL J: By a summons filed on 2 November 2012 the State seeks orders that the first and second plaintiffs' objections to the confiscation of the first plaintiff's property pursuant to the Criminal Property Confiscation Act 2000 (WA) (the CPCA) be dismissed and that there be a declaration that all of the property owned or effectively controlled by the first plaintiff has been confiscated to the State of Western Australia.
2 The application for the 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 he was declared to be a drug trafficker pursuant to s 32A(1) of the Misuse of Drugs Act 1981 (WA) on 6 July 2012 as a result of being convicted of a confiscation offence committed after the commencement of the CPCA.
3 The summons was set down for hearing on 22 January 2013. The second plaintiff appeared in person. The first plaintiff did not appear either personally or by counsel. There was affidavit evidence which established that the first plaintiff was served with a copy of the summons on 26 November 2012 at Hakea Prison. He was also served with a copy of an affidavit of Marie Normoyle sworn on 29 October 2012 setting out the basis upon which the declaration of confiscation was sought and a copy of the written submissions relied upon by the State.
4 There is nothing before the court to indicate that the first plaintiff wished to be heard in opposition to the application. The second plaintiff stated that she was aware that the first plaintiff had discussed the matter with his lawyers and had accepted that there was nothing that could be done to oppose the application. In these circumstances I was satisfied that it was appropriate to proceed with the hearing of the application.
5 On the basis of Ms Normoyle's affidavit I am satisfied that the following facts have been established. On 8 February 2011 the first plaintiff was apprehended and found to be in the possession of significant quantities of methylamphetamine and LSD. As a consequence he was charged with a number of offences including two of possessing a prohibited drug, namely methylamphetamine, with intent to sell or supply it to another contrary to s 6 of the Misuse of Drugs Act. This exposed the first plaintiff to the possibility that on conviction he could be declared to be a drug trafficker pursuant to s 32A(1) of the Misuse of Drugs Act. Accordingly on 8 February 2011, 10 February 2011 and 8 February 2012 freezing notices WAPFN110008, WAPFN110011 and WAPFN120007
(Page 4)
- were issued. Copies of those freezing notices were served on any person from whom property was taken and all persons who the DPP was aware had, or may claim to have, an interest in the property.
6 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. The first plaintiff filed an originating summons and a notice of objection pursuant to s 79 of the CPCA on 3 March 2011. RHG Mortgage Corporation Ltd, a mortgagee in respect of property owned by the first and second plaintiffs, filed an originating summons and notice of objection on 18 February 2011. I was informed by counsel for the State that the objection of RHG Mortgage Corporation has since been dismissed by consent. As a consequence of the filing of the objections the property was not confiscated automatically.
7 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 all the property that the person owned or effectively controlled at the time he was declared to be a drug trafficker and all the property that he gave 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. On 6 July 2012 the first plaintiff pleaded guilty to the charges and a drug trafficker declaration was made in the District Court. As a consequence all of the first plaintiff's property was automatically confiscated to the State on that date.
8 If the court finds that the property has been confiscated under s 8 of the CPCA the court 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 Prosecution (WA) [No 3] [2004] WASC 157 [15].
9 The orders sought by the State include an order that all of the property of the first plaintiff be confiscated to the State and also an order specifically identifying certain items of property. That property includes a 50% interest as joint tenant in land at lot 2629 on plan 23927 in certificate of title vol 2185, folio 491, commonly known as 7 Leopold Turn, Ellenbrook. The affidavit of Ms Normoyle establishes that that property is held by the first and second plaintiff's as joint tenants. Eight quantities of cash are also referred to in the orders. There is evidence to establish that these quantities of cash were seized from the first plaintiff on 9 February 2011 and 4 January 2012.
(Page 5)
10 The first plaintiff has not sought to establish that it is more likely than not that he does not own or effectively control the property: s 79(1), s 81(1) and s 84(2) of the CPCA. The second plaintiff did not seek to make any claim to the first plaintiff's share of the real property or to the cash. She did not present any evidence or basis upon which the orders sought by the State could be property opposed. It was explained to her that her own share in the property was not at risk, but that as a consequence of the confiscation the property must be sold.
11 In these circumstances the first and second plaintiffs' objections to the confiscation of the frozen property must be dismissed. I am also satisfied that it is appropriate to declare that all the property owned or effectively controlled by the first plaintiff at the time he was declared to be a drug trafficker and all property that he gave away at any time before that declaration was made has been confiscated to the State of Western Australia. This includes, without limiting the generality of the declaration, the first plaintiff's 50% share in 7 Leopold Turn, Ellenbrook and the cash amounts specified in the summons.
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