JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA CITATION : MINARZSKY -v- THE STATE OF WESTERN AUSTRALIA [2012] WASC 315 CORAM : HALL J HEARD : 30 AUGUST 2012 DELIVERED : 30 AUGUST 2012 PUBLISHED : 3 SEPTEMBER 2012 FILE NO/S : CPCA 27 of 2011 BETWEEN : ANDREW WALTER MINARZSKY Objector
AND
THE STATE OF WESTERN AUSTRALIA
Respondent
Catchwords:
Criminal property confiscation - Drug-trafficker declaration - Objection dismissed - Property confiscated
Legislation:
Criminal Property Confiscation Act 2000 (WA)
Result:
Objection dismissed
Declaration of confiscation made
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Category: B
Representation:
Counsel:
Objector : No appearance
Respondent : Ms F A Humphries
Solicitors:
Objector : No appearance
Respondent : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):Hendricks v The State of Western Australia [2002] WASC 86Re Smith; Ex parte Director of Public Prosecutions (WA) (No 3) [2004] WASC 157
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1 HALL J: This matter involves an application under s 79 of the Criminal Property Confiscation Act 2000 (WA) (CPCA) brought by Andrew Walter Minarzsky objecting to a freezing order made on 28 July 2011 in respect of his property.
2 On 9 July 2012 the Director of Public Prosecutions (DPP) sought orders dismissing Mr Minarzsky's objection and for a declaration that all the property owned or effectively controlled by him, subject to nominated exceptions, had been confiscated to the State of Western Australia pursuant to s 8(1) of the CPCA.
3 On 30 August 2012 I granted the orders sought by the DPP. These are my reasons for doing so.
4 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 Mr Minarzsky 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 March 2012 as a result of being convicted of a confiscation offence committed after the commencement of the CPCA.
5 On 28 July 2011 a freezing order was made pursuant to s 41 of the CPCA on the basis that Mr Minarzsky had been charged with an offence and could be declared to be a drug-trafficker under s 32A(1) of the Misuse of Drugs Act if convicted of the offence.
6 On 6 March 2012 Mr Minarzsky appeared in the District Court and entered a plea of guilty to possessing a prohibited drug, namely cannabis, with intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act. Pursuant to s 32A of the Misuse of Drugs Act the court before which a person is convicted of a serious drug offence in respect of a prohibited drug in a quantity which is not less than the quantity specified in sch 7 of the Misuse of Drugs Act is required to declare that the person is a drug-trafficker. A serious drug offence includes a crime under s 6(1) of the Act. The amount of cannabis that attracts the requirement to make a drug-trafficker declaration is 3 kgs. The total amount of cannabis to which Mr Minarzsky's offence related was 6.337 kgs. Accordingly, a drug-trafficker declaration was made on 6 March 2012.
7 Section 7(1) of the CPCA provides that frozen property is confiscated if an objection to confiscation is not filed on or before the
(Page 4) 28th day after the service cut off date for the property. Parties with an interest in the frozen property were personally served. An objection was filed by Mr Minarzsky, by way of an originating summons, on 7 June 2011. The Westpac Banking Corporation also filed an objection to confiscation on 16 May 2011. In consequence the property was not confiscated automatically pursuant to s 7 of the CPCA.
8 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, namely 1 January 2001, all of 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 of Western Australia. Accordingly, all of Mr Minarzsky's property was automatically confiscated pursuant to s 8 of the CPCA on 6 March 2012 as a consequence of him being declared to be a drug-trafficker. 9 If a court finds that property has been confiscated under s 8 of the CPCA then it 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 Prosecutions (WA)(No 3) [2004] WASC 157 [15].
10 Mr Minarzsky is the registered proprietor of land in South Australia, being Lot 255 Main North Road, Wilmington, South Australia. As a consequence of investigations by the DPP it was determined that Patricia Mary Queale had a claim to an equitable interest in the land. Ms Queale was in a de facto relationship with Mr Minarzsky and claimed an equitable interest on the basis of contributions she had made to the purchase price for the land.
11 Ms Queale has not been joined as a party in these proceedings but a copy of an affidavit that she provided to the DPP has been annexed to an affidavit of a DPP officer filed in these proceedings. Ms Queale has stated that she made an initial contribution to the purchase price and has been primarily responsible for maintenance of the property in subsequent years and has made a contribution to maintaining a joint household. The house on the land has been her principal place of residence for the last 12 years. She claims that she has at least equal ownership of the land with Mr Minarzsky.
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12 The DPP has accepted the existence of Ms Queale's equitable interest and has sought an order that Mr Minarzsky holds a 50% share of his interest in the land as trustee for Ms Queale and has so held that share since the date of his registration as proprietor of the land. The effect of such an order is that the 50% equitable interest of Ms Queale will not form part of the property of Mr Minarzsky that is confiscated to the State.
13 At the hearing of this matter on 30 August 2012 counsel for the DPP tendered an email from Ms Queale's solicitor confirming that she had no objection to the order for confiscation given that her 50% interest in the land had been recognised.
14 As regards the objection of Westpac, that is the subject of separate proceedings being CPCA 19 of 2011. Westpac's interest is primarily that of mortgagee in respect of the South Australian land. In those circumstances copies of the relevant documents in these proceedings have been served on Westpac. It has not sought to be heard in opposition to the orders sought by the DPP.
15 As regards Mr Minarzsky, he too has been served with relevant papers. No evidence has been placed before the court by him to establish that it is more likely than not that he does not own or effectively control the property proposed to be the subject of the declaration: s 79(1), s 81(1) and s 84(2) of the CPCA. He did not appear at the hearing.
16 The evidence establishes that Mr Minarzsky is the registered owner of the South Australian land and is the beneficial owner of a 50% interest in it. It also establishes that Mr Minarzsky is the account holder of a Westpac Banking Corporation account number 58-4956. I am satisfied that Mr Minarzsky's 50% in the land and the money held in the Westpac Bank account fall within the terms of s 8 of the CPCA.
17 The DPP has sought that two items of property be excluded from a declaration of confiscation. These are moneys standing to the credit of Westpac Banking Corporation account number 37-4826 together with any interest thereon and money standing to the credit of an account in Australia Central Credit Union account number 0061280985 together with any interest thereon. As regards to the Westpac Bank account I note that this is described in a statutory declaration of a Westpac Bank officer, which is in turn annexed to the affidavit of the DPP officer of 4 July 2012, as being the mortgage account. Counsel for the DPP advised at the hearing of this matter that that account was now in credit and I infer from
(Page 6) this that any interest of Westpac in the South Australian land has now been discharged.
18 In these circumstances, Mr Minarzsky's objection to the confiscation of the frozen property must be dismissed. I am also satisfied that it is appropriate to declare that all of the property owned or effectively controlled by Mr Minarzsky at the time he was declared to be a drug-trafficker and all the property that he gave away at any time before that declaration was made has been confiscated to the State of Western Australia, subject to the exceptions that have been referred to. The confiscated property includes, without limiting the generality of the declaration, Mr Minarzsky's 50% interest in the South Australian land and money standing to the credit of the Westpac Bank account number 58-4956 as at 6 March 2012 together with any interest thereon.