Mitchell v The State of Western Australia
[2012] WASC 183
•31 MAY 2012
MITCHELL -v- THE STATE OF WESTERN AUSTRALIA [2012] WASC 183
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASC 183 | |
| 31/05/2012 | |||
| Case No: | CPCA:118/2009 | 21 MAY 2012 | |
| Coram: | HALL J | 21/05/12 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Objections dismissed Declaration made | ||
| B | |||
| PDF Version |
| Parties: | CASEY PAUL MITCHELL THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal property confiscation Objections dismissed Declaration that all property confiscated subject to stated exceptions |
Legislation: | Nil |
Case References: | Hendricks v The State of Western Australia [2002] WASC 86 Re Smith; Ex parte Director of Public Prosecutions (WA) (No 3) [2004] WASC 157 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CRIMINAL
- CPCA 119 of 2009
- Plaintiff
AND
THE STATE OF WESTERN AUSTRALIA
Defendant
Catchwords:
Criminal property confiscation - Objections dismissed - Declaration that all property confiscated subject to stated exceptions
Legislation:
Nil
Result:
Objections dismissed
Declaration made
(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 (WA) (No 3) [2004] WASC 157
(Page 3)
1 HALL J: This matter involves two applications under s 79 of the Criminal Property Confiscation Act 2000 (WA) (CPCA) brought by Casey Paul Mitchell objecting to freezing notices and a subsequent application by the State of Western Australia for a declaration of confiscation of property sought under s 30 of the CPCA.
2 On 21 May 2012 the Director of Public Prosecutions (DPP) sought orders dismissing Mr Mitchell's objections and for a declaration that property belonging to Mr Mitchell had been confiscated to the State of Western Australia under s 8(1) of the CPCA.
3 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 Mitchell 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 13 December 2010 as a result of being convicted of confiscation offences committed under the commencement of the CPCA.
4 On 18 November 2009 and 24 November 2009 freezing notices WAPFN 090206 and WAPFN 090207 were issued pursuant to s 34 of the CPCA. This was done on the basis that Mr Mitchell had been charged with an offence and could be declared a drug trafficker pursuant to s 32A(1) of the Misuse of Drugs Act if convicted of that offence. That conviction occurred on 13 December 2010 and, as I have mentioned, the drug trafficker declaration was also made on that date.
5 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 for the property. Parties with an interest in the frozen property were personally served. As regards WAPFN 090206, objections were filed by Mr Mitchell on 8 December 2009, by Karen Laurel Mitchell (Mr Mitchell's ex-wife) on 1 December 2009 and the National Australia Bank on 4 December 2009. In consequence the property was not confiscated automatically pursuant to s 7 of the CPCA.
6 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
(Page 4)
- to be a drug trafficker and all 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 Mitchell's property was automatically confiscated pursuant to s 8 of the CPCA on 13 December 2010 as a consequence of him being declared to be a drug trafficker.
7 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].
8 No evidence has been placed before the court on behalf of Mr Mitchell to establish that it is more likely than not that he does not own or effectively control the property that is proposed to be the subject of the declaration: s 79(1), s 81(1), s 84(2) of the CPCA. This is no doubt because, as the court has been advised by counsel for the DPP, Mr Mitchell has since died. There is no confirmation of this in the affidavit material, though there is ample evidence of previous attempts to serve Mr Mitchell. Further, it would appear that the only person with any interest in the estate of Mr Mitchell is his ex-wife. Mrs Mitchell has formerly been a party to these proceedings and has not sought to be heard in opposition to the orders that the DPP now seeks.
9 The evidence establishes that Mr Mitchell was the owner of a park home situated at 161 Maida Vale Road, High Wycombe which was sold at auction on 12 February 2011. The proceeds from the sale of the park home were deposited with the Public Trustee. He was also a registered proprietor as a joint tenant of land at Lot 2 on Strata Plan 14723 in Certificate of Title Volume 1763 Folio 89 and commonly known as 90B Adrian Street, Palmyra. Further, there is evidence that he is the registered holder of shares in Consolidated African Resources SPRL. There is also money standing to the credit of Mr Mitchell in two National Australia Bank accounts.
10 There have been negotiations between the DPP, Mrs Mitchell and the National Australia Bank. In consequence, the DPP has accepted that Mr Mitchell's 50% interest in 90B Adrian Street, Palmyra and his interest in the money in the two National Australia Bank accounts should be excluded from the declaration of confiscation. Accordingly, there will be a declaration made that the balance of any property owned, effectively controlled or given away by Mr Mitchell before the drug trafficker
(Page 5)
- declaration was made has been confiscated to the State. The plaintiff's objections to both freezing notices will be dismissed.
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