Nguyen v The State of Western Australia
[2022] WASC 408
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: NGUYEN -v- THE STATE OF WESTERN AUSTRALIA [2022] WASC 408
CORAM: TOTTLE J
HEARD: 28 NOVEMBER 2022
DELIVERED : 29 NOVEMBER 2022
FILE NO/S: CPCA 26 of 2015
BETWEEN: THANH SANG NGUYEN
First Plaintiff
ANH THI THUY DUONG
Second Plaintiff
AND
THE STATE OF WESTERN AUSTRALIA
Defendant
Catchwords:
Criminal property confiscation - First plaintiff declared drug trafficker - Application for declarations of confiscation - Turns on own facts
Legislation:
Criminal Code Act Compilation Act 1913 (WA), s 417(1)
Criminal Property Confiscation Act 2000 (WA), s 7, s 8, s 9, s 10, s 30, s 32(6), s 34(1), s 35, s 37, s 113(1), s 141(1)
Misuse of Drugs Act 1981 (WA), s 6(1), s 32A
Result:
Confiscation declarations made
Category: B
Representation:
Counsel:
| First Plaintiff | : | In Person |
| Second Plaintiff | : | No appearance |
| Defendant | : | M Seaman |
Solicitors:
| First Plaintiff | : | In Person |
| Second Plaintiff | : | N/A |
| Defendant | : | The Director of Public Prosecutions for The State of Western Australia |
Case(s) referred to in decision(s):
Nil
TOTTLE J:
The application
The Director of Public Prosecutions (DPP) applies for a declaration under s 30 of the Criminal Property Confiscation Act 2000 (WA) in the following terms:
The property specified in paragraph 2 of the Originating Summons dated 16 December 2021 ('the DT Property') has been confiscated under s 8(1) of the CPCA on the basis that it is property owned or effectively controlled by a person who has been declared a drug trafficker pursuant to s 32A of the Misuse of Drugs Act 1981 ('MDA').
The property specified in par 2 of the Originating Summons is as follows:
(a)Cash in the sum of AUD $250.00, taken from NGUYEN on 9 February 2015, together with any interest thereon;
(b) Cash in the sum of AUD $4,020.00, taken from NGUYEN on 9 February 2015, together with any interest thereon;
(c) NGUYEN's interest as registered proprietor in the land at Lot 26 on Strata Plan 51589 in Certificate of Title Volume 2736 Folio 626, commonly known as Unit 26 880-882 Canning Highway, Applecross;
(d) Cash in the sum of AUD $96,350.00, taken from NGUYEN on 19 February 2013, together with any interest thereon; and
(e) Cash in the sum of AUD $450.00, taken from NGUYEN on 19 February 2013, together with any interest thereon.
The application was heard on 28 November 2022. At the conclusion of the hearing I made orders in the terms sought by the DPP and said that I would publish reasons later. These are those reasons
Legal principles
Section 8(1) of the Criminal Property Confiscation Act states:
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.
Section 30 of the Criminal Property Confiscation Act states:
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.
Owner, in relation to property, means a person who has a legal or equitable interest in the property.[1] A confiscation offence is an offence against a law in force anywhere in Australia that is punishable by imprisonment for two years or more.[2]
[1] Criminal Property Confiscation Act 2000 (WA) Glossary.
[2] Criminal Property Confiscation Act 2000 (WA) s 141(1)(a).
Under s 9 of the Criminal Property Confiscation Act, registrable real property that is confiscated under s 8 vests absolutely in the State when the court declares under s 30 that the property has been confiscated and the memorial of the making of the declaration is registered under s 113(1).
Under s 10(1) of the Criminal Property Confiscation Act property other than registrable real property that is confiscated under s 6, s 7 or s 8 vests absolutely in the State when the section takes effect in relation to the property.
The property the subject of the declarations sought in pars 2(a), 2(b), 2(d) and 2(e) of the Originating Summons is not registrable real property; each amount of money is a chose in action. Consequently, that property vests in the State when the relevant statutory provision - s 8 - takes effect in relation to the property.
The matters to be established by the DPP
The DPP must prove the following:
(1) Mr Nguyen has been declared a drug trafficker under s 32A(1) of the Misuse of Drugs Act 1981 (WA).
(2) The declaration was made as a result of a 'confiscation offence'.
(3) The offence was committed after the commencement of the Criminal Property Confiscation Act (being 1 January 2001).
(4) Mr Nguyen owned or effectively controlled the property.
(5) The property was so owned or effectively controlled by Mr Nguyen at the time the drug trafficker declaration was made.
Factual background
The following account of the factual background is derived from the affidavit evidence relied on by the DPP.[3] On 18 February 2015, a freezing notice (WAPFN150017) was issued by the Western Australian Police Force under s 34(1) of the Criminal Property Confiscation Act. The property listed was the subject of the freezing notice.
[3] Affidavit of Robert Grubisa sworn 19 August 2020; Affidavit of Nicholas Matt Perich sworn 10 November 2021; Affidavit of Maria Eleonora Ingles sworn 16 December 2021.
The freezing notice complies with the formal requirements stipulated in s 35 of the Criminal Property Confiscation Act.
On 18 February 2015, the freezing notice was filed in this court and served on Mr Nguyen.[4]
[4] Affidavit of Maria Eleonora Ingles sworn 16 December 2021, 2, Attachment MEI2, 16.
Pursuant to s 37(1) and s 37(3) of the Criminal Property Confiscation Act, Mr Nguyen made a statutory declaration in response to the freezing notice and listed six persons who have or may have a claim to be an interested party within in the meaning defined in the Criminal Property Confiscation Act in respect of the property described in the freezing notice. One of those persons was the second plaintiff, Ms Duong.[5]
[5] Affidavit of Maria Eleonora Ingles sworn 16 December 2021, Attachment MEI10, 24.
From 19 February 2015 to 27 July 2015, the six persons were served freezing notices. Ms Ingles' affidavit attaches the affidavits of service which were filed in this court in respect of the freezing notices.[6]
[6] Affidavit of Maria Eleonora Ingles sworn 16 December 2021, Attachments MEI2 - MEI9, 16 - 23.
On 14 April 2015, Mr Nguyen together with the second plaintiff, Ms Duong, filed objections to the freezing notices.
No other objections had been filed at the court in relation to the freezing notices.
On 25 August 2020, in accordance with a minute of consent orders from the parties, Ms Duong's objection was dismissed by Archer J.
On 5 October 2018, Mr Nguyen was convicted in the District Court of Western Australia of one count of possession of a prohibited drug with intent to sell or supply (methylamphetamine) under s 6(1)(a) of the Misuse of Drugs Act. The offence is punishable by imprisonment of more than two years and therefore constitutes a 'confiscation offence'.
On 14 November 2019, the District Court declared Mr Nguyen to be a drug trafficker pursuant to s 32A(1) of the Misuse of Drugs Act.
The offence was committed on 9 February 2015, several years after the commencement of the Criminal Property Confiscation Act.
The Certificate of Title in respect of the property commonly known as Unit 26, 880-882 Canning Highway, Applecross lists Mr Nguyen as the sole registered proprietor and shows that a memorial of the issue of the freezing notice was lodged on 18 February 2015 in compliance with s 32(6) of the Criminal Property Confiscation Act.[7]
[7] Affidavit of Maria Eleonora Ingles sworn 16 December 2021, Attachment MEI19, 75.
On 19 February 2013, cash in the sum of $450 was part of the cash taken from Mr Nguyen as part of a police search conducted at Mr Nguyen's property of Unit 26, 880-882 Canning Highway, Applecross. Attached to the affidavit of Maria Eleonora Ingles was an Exhibit Log which recorded cash amounts of $3,100 and $1,250 which were obtained by the police during their search.[8]
[8] Affidavit of Maria Eleonora Ingles sworn 16 December 2021, 3, 5, Attachment MEI22, 81.
On 19 February 2013, cash in the sum of $96,350 was taken from Mr Nguyen during a police search of Mr Nguyen and his luggage at the Sydney Kingsford Smith Airport.[9]
[9] Affidavit of Robert Grubisa sworn 19 August 2020.
On 9 February 2015, cash in the sum of $4,270 was taken from Mr Nguyen as he was convicted under s 417(1) of the Criminal Code Act Compilation Act 1913 (WA) for possessing money that was then reasonably suspected to be unlawfully obtained.[10]
[10] Affidavit of Maria Eleonora Ingles sworn 16 December 2021, 4.
Plaintiff's submissions
On 20 October 2022, the court received submissions from Mr Nguyen opposing the declaration sought by the DPP.
Mr Nguyen's submissions against the declaration were as follows:
(a)the property was obtained in 2011, prior to his drug charges in 2015;
(b)the property was bought with legitimate money from sales of previous properties; and
(c)family members had lent him $200,000 to purchase the property.
Mr Nguyen has not filed any affidavit evidence in support of his submissions.
Analysis and disposition
If the five matters referred to at [10] are established then, in accordance with s 8(1)(a) of the Criminal Property Confiscation Act it is all the property the person owns or effectively controls at the time the declaration is made under the Misuse of Drugs Act which is confiscated. As explained to Mr Nguyen at the hearing, s 8(1) includes the confiscation of property accumulated prior to the declaration and that may not have been acquired through the proceeds of Mr Nguyen's criminal activities. I am satisfied that the evidence adduced by the DPP establishes, on the balance of probabilities, the five matters referred to at [10].
First, Mr Nguyen was declared to be a drug trafficker under s 32A(1) of the Misuse of Drugs Act on 14 November 2019.
Second, that declaration was made as a result of Mr Nguyen being convicted of a 'confiscation offence', being an offence against a law in force anywhere in Australia that is punishable by imprisonment for two years or more.
Third, the offence was committed on 9 February 2015, being after 1 January 2001 (the date of commencement of the Criminal Property Confiscation Act).
Fourth, the relevant property was owned or effectively controlled by Mr Nguyen. Ownership of the Applecross property was established by the evidence in [22]. I find that Mr Nguyen was the owner of the cash. I infer that this was so because the cash referred to on the Originating Summons was found on Mr Nguyen, in his luggage or at Mr Nguyen's apartment.
Fifth, that property was owned or effectively controlled by Mr Nguyen at the time he was declared a drug trafficker. In the absence of any evidence to the contrary, this finding flows from the findings made by me in the preceding paragraph.
Consequently, pursuant to s 8(1) of the Criminal Property Confiscation Act all the property listed in the Originating Summons was confiscated to the State on 14 November 2019 when the drug trafficker declaration was made. Pursuant to s 30(2) having found that the property was confiscated the court was obliged to make a declaration to that effect.
The cash vested in the State when the drug trafficker declaration was made. The real property referred to in par 2(c) of the Originating Summons was confiscated when the drug trafficker declaration was made and it vested in the State on the making of the declaration to that effect made at the hearing on 28 November 2022.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
OK
Associate to the Honourable Justice Tottle
29 NOVEMBER 2022
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