Nicholson v The State of Western Australia
[2021] WASC 130
•30 APRIL 2021
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: NICHOLSON -v- THE STATE OF WESTERN AUSTRALIA [2021] WASC 130
CORAM: ARCHER J
HEARD: 25 FEBRUARY 2021
DELIVERED : 25 FEBRUARY 2021
PUBLISHED : 30 APRIL 2021
FILE NO/S: CPCA 26 of 2016
BETWEEN: COREY CHARLES NICHOLSON
First Plaintiff
TRUDY LEE MCCLUAND
Second Plaintiff
FREDRICK ROBERT PASTOR
Third 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 – Ownership
Legislation:
Criminal Property Confiscation Act 2000 (WA)
Misuse of Drugs Act 1981 (WA)
Result:
Objections dismissed
Declaration of confiscation made
Category: B
Representation:
Counsel:
| First Plaintiff | : | |
| Second Plaintiff | : | |
| Third Plaintiff | : | |
| Defendant | : | T Staples |
Solicitors:
| First Plaintiff | : | In Person |
| Second Plaintiff | : | In Person |
| Third Plaintiff | : | In Person |
| Defendant | : | Director of Public Prosecutions (WA) |
Cases referred to in decision:
Brennan v The State of Western Australia [2018] WASC 31
Campana v The State of Western Australia [2008] WASC 230
Centurion Trust Company Ltd v Director of Public Prosecutions (WA) [2010] WASCA 133
Flack v Chairperson, National Crime Authority (1997) 150 ALR 153
McRobb v The State of Western Australia [2020] WASC 163
Mulholland v Winslow [2018] WASCA 19
Ranford v The State of Western Australia [2015] WASC 45
Rinaldi v The State of Western Australia [2019] WASC 420
Urbano v The State of Western Australia [2006] WASCA 147
Whittle v The State of Western Australia [2012] WASC 244
ARCHER J:
(This judgment was delivered extemporaneously on 25 February 2021 and has been edited to correct matters of grammar and to include complete references.)
Introduction
In 2016, a freezing notice was issued under the Criminal Property Confiscation Act 2000 (WA) (Confiscation Act). The freezing notice related to particular property said to be owned or effectively controlled by the first plaintiff. The freezing notice was made on grounds which included 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 2019, 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 has been confiscated.
It seems that all of the plaintiffs initially advised the DPP that they did not oppose the DPP's application.[1] In a directions hearing, the first plaintiff advised that he consented to it.[2]
[1] See the affidavit of Christopher Michael Anderson sworn 21 February 2020 [3] ‑ [4], [6] ‑ [7] and [9] ‑ [11].
[2] See the transcript of 27 February 2020.
The plaintiffs were initially represented. Subsequently, the first and third plaintiffs filed notices of their intention to act in person.
The matter was set down for hearing on 19 November 2020. Before the hearing date, the lawyers for the second plaintiff ceased to act for her.
On 19 November 2020, the second plaintiff sought an adjournment of the hearing to enable her to seek legal aid. I adjourned the hearing, and made orders. The orders included that the second plaintiff file a notice of acting in person within seven days. The second plaintiff did not do this, and did not subsequently communicate or attend court at the next mention date. The matter was listed for hearing today. None of the plaintiffs attended.
For the reasons that follow, the objections should be dismissed and the declaration made.
Legal framework[3]
[3] This section reproduces or draws on parts of my judgments in earlier cases, including Brennan v The State of Western Australia [2018] WASC 31 and McRobb v The State of Western Australia [2020] WASC 163.
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.[4] The DPP must prove this on the balance of probabilities.[5]
[4] Campana v The State of Western Australia [2008] WASC 230[40].
[5] 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[6]);
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.
[6] Section 141(1)(a) of the Confiscation Act.
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.[7]
[7] 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.[8]
[8] 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.[9]
Objections
[9] 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 a 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. [10]
[10] 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.[11]
[11] The Confiscation Act, s 85 ‑ s 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 has been confiscated. The identified property comprises two amounts of cash that had been taken from the first plaintiff on 19 May 2016 and any interest on that cash, and the first plaintiff's interest in the land at Lot 931 on Plan 14714 in Certificate of Title Volume 1681, Folio 437, commonly known as 14 Yule Street, Heathridge (Land).
Evaluation
The DPP filed an affidavit of Faith Emily Hearn (Hearn Affidavit),[12] establishing the following.
[12] Affidavit of Faith Emily Hearn filed 5 December 2019.
On 24 January 2019, the first plaintiff was convicted in the District Court of, among other things, one count of supplying methylamphetamine contrary to s 6(1)(c) of the Misuse of Drugs Act and one count of possessing methylamphetamine with intent to sell or supply, contrary to s 6(1)(a) of that Act. These offences are punishable by imprisonment for more than 2 years.[13] Each is therefore a 'confiscation offence'. The offences were committed in 2016, after the commencement of the Confiscation Act.[14]
[13] Section 34(1) of the Misuse of Drugs Act.
[14] The Confiscation Act commenced on 1 January 2001.
On 21 June 2019, 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.
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.[15]
[15] 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.[16]
[16] Confiscation Act glossary.
As I will explain, the Hearn Affidavit establishes that the first plaintiff was an owner of all of the identified property, and was as at the time he was declared to be a drug trafficker, being 21 June 2019.
The Hearn Affidavit establishes that the first plaintiff is the registered proprietor of the Land, and had been as at 21 June 2019.
The Hearn Affidavit establishes that the first plaintiff was convicted of being in possession of the two amounts of cash on 19 May 2016 which was then reasonably suspected to be unlawfully obtained, contrary to s 417(1) of the Criminal Code (and another amount of cash not the subject of these proceedings).[17] It does not establish what happened to the cash after that date, but I infer that it would have been seized by the police pending the outcome of the criminal proceedings and the confiscation proceedings.
[17] Hearn Affidavit [11].
The first plaintiff's possession of the cash gave him an equitable interest in it, making him an 'owner' within the definition of the Confiscation Act.[18] He would not have lost his equitable interest even if, as I infer, the cash was seized by the police. Until such time as the property was confiscated and vested in the State, he retained an interest in it.[19] An order for forfeiture of the cash was not made during the sentencing proceedings.[20] The property was not confiscated and did not vest in the State until he was declared to be a drug trafficker. Accordingly, there is nothing to suggest that the first plaintiff lost his equitable interest in the cash prior to the drug trafficker declaration.
[18] See Rinaldi v The State of Western Australia [2019] WASC 420 [30], citing Flack v Chairperson, National Crime Authority (1997) 150 ALR 153, 156 ‑ 157, 162 ‑ 163.
[19] And see Rinaldi [32], citing Mulholland v Winslow [2018] WASCA 19 [34], [51], [56], where the court found that a person who had the right to possess property prior to its seizure retained that right of possession after its seizure as against everyone except the Commissioner of Police.
[20] See the Hearn Affidavit [11] ‑ [12] and pages 34 and 54.
Therefore, I am satisfied that the first plaintiff was an owner of all of the identified property, and was as at the time he was declared to be a drug trafficker.
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 notice 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 5 December 2019.
I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.
KJ
Associate to the Honourable Justice Archer
30 APRIL 2021
0
4
2