Powell v The State of Western Australia

[2014] WASC 435

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CIVIL

CITATION:   POWELL -v- THE STATE OF WESTERN AUSTRALIA [2014] WASC 435

CORAM:   MITCHELL J

HEARD:   20 NOVEMBER 2014

DELIVERED          :   20 NOVEMBER 2014

PUBLISHED           :  21 NOVEMBER 2014

FILE NO/S:   CPCA 89 of 2009

BETWEEN:   JOHN WILLIAM POWELL

First Plaintiff

PAULA KAY MURPHY
Second Plaintiff

AND

THE STATE OF WESTERN AUSTRALIA
Defendant

Catchwords:

Criminal property confiscation - Objection to confiscation of property - Crime­used property - Innocent party - Turns on own facts

Legislation:

Criminal Property Confiscation Act 2000 (WA)

Result:

Application dismissed

Category:    B

Representation:

Counsel:

First Plaintiff                :     In person

Second Plaintiff            :     No appearance

Defendant:     Mr M Seaman

Solicitors:

First Plaintiff                :     In person

Second Plaintiff            :     No appearance

Defendant:     Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Attorney‑General (WA) v Glew [2014] WASC 107

BJF v Western Australia [2011] WASC 163; (2011) 210 A Crim R 262

Centurion Trust Co Ltd v DPP [2010] WASCA 133; (2010) 201 A Crim R 324

White v DPP [2011] HCA 20; (2011) 243 CLR 478

1. MITCHELL J:  By originating summons dated 9 September 2009, the plaintiffs seek orders to set aside freezing notice WAPFN090164 dated 28 August 2009 (Notice).  The Notice was issued, and the application to set the Notice aside is made, under the Criminal Property Confiscation Act 2000 (WA) (Act). For the reasons which follow, the plaintiffs' application must be dismissed.

Background

1. On Friday 28 October 2009, police officers executed a search warrant on residential property at 12 Navarre Way, Greenfields (Property).  The first plaintiff has, at all material times, been the sole registered proprietor of the Property under the Transfer of Land Act 1893 (WA). The first plaintiff has, at all material times, resided at the Property with the second plaintiff, who is his de facto partner.

2. At the Property, police located three cannabis growing rooms in a large shed.  Two of the rooms had plants growing at different stages of maturity in a hydroponic setup.  The third room contained equipment used to grow cannabis.  Police seized 21 cannabis plants from the shed.  Also located in the shed were two vacuum sealed bags containing 877 g of processed cannabis head, six cannabis plants (weighing a total of 1.331 kg) in the process of being dried, a further bag containing 20 g of cannabis material and a black plastic bag containing cannabis leaf and stem which was unusable.  In the master bedroom of the residence police found a plastic box containing 15 individual sealed bags, each containing approximately 28 g of cannabis head material.  A small tin containing 0.67 g of cannabis head material and a small pipe with traces of cannabis were located on a table on the porch of the residence.

3. On the same date, the Notice was issued by a Justice of the Peace (JP). The JP relied on two grounds for the issue of the Notice, so far as it concerned the Property. The first was that there were reasonable grounds for suspecting that the Property was crime‑used property. That was an available ground for the issue of a freezing notice under s 34(2) of the Act. The second ground was that the Property was owned or effectively controlled by the first plaintiff who was likely to be charged with an offence within 21 days, and could be declared to be a drug trafficker under s 32A(1) of the Misuse of Drugs Act 1981 (WA) if convicted of the offence. In that respect, the JP sought to invoke the ground for the issue of a freezing notice provided for by s 34(3) of the Act.

4. On 9 September 2009, the plaintiffs filed their objections to the confiscation of the property frozen by the Notice.  Those objections, contained in the originating summons by which these proceedings were commenced, were filed within the period required by s 79 of the Act.

5. On 22 October 2009, this court ordered that the first plaintiff be appointed to control and manage his interest in the Property, pursuant to s 91(2)(a) of the Act.

6. On 5 November 2009, the Notice was cancelled in relation to all items referred to in the Notice other than the Property.  The Notice was also cancelled in relation to the Property so far as it relied on the second ground identified above. 

7. On 12 January 2010, the District Court convicted the first plaintiff, on his plea of guilty, of cultivating a prohibited plant (cannabis) and possessing a prohibited drug (cannabis), both with intent to sell or supply to another, as well as a number of other offences.  Those were offences contrary to s 6(1)(a) and s 7(1)(a) of the Misuse of Drugs Act.  The total effective sentence imposed on the first plaintiff on that occasion was imprisonment for 18 months suspended for 2 years.

Legislative provisions

1. The general scheme of the Act is complex and has been described in detail elsewhere.[1]  In these reasons I propose to directly refer to only the most relevant provisions for present purposes, recognising that those provisions must be read, understood and construed in the context of the provisions of the Act as a whole.

   [1] See, for example, Centurion Trust Co Ltd v DPP [2010] WASCA 133; (2010) 201 A Crim R 324 [100] ‑ [181].

2. Section 34(2) of the Act empowers a JP to issue a freezing notice for any property if there are reasonable grounds for suspecting that the property is crime‑used.

3. The term 'crime-used' is defined by s 146(1) of the Act in the following manner:

   For the purposes of this Act, property is crime‑used if -

   (a)the property is or was used, or intended for use, directly or indirectly, in or in connection with the commission of a confiscation offence, or in or in connection with facilitating the commission of a confiscation offence; or

   (b)the property is or was used for storing property that was acquired unlawfully in the course of the commission of a confiscation offence; or

   (c)any act or omission was done, omitted to be done or facilitated in or on the property in connection with the commission of a confiscation offence.

4. Section 146(2) of the Act provides, inter alia, that property described in s 146(1) is crime‑used whether or not the property is also used, or intended or able to be used, for another purpose, and whether or not anybody has been charged with, or convicted of, the relevant confiscation offence.

5. For these purposes a 'confiscation offence' includes an offence against a law in force anywhere in Australia that is punishable by imprisonment for 2 years or more.[2]

   [2] See s 141(1)(a) of the Act.

6. As soon as practicable after a freezing notice is issued, the applicant for the notice must arrange for the notice to be served personally on any person from whom property covered by the notice was taken and any other person the applicant is aware is, may be or claims to be an interested party.  In the case of registrable real property, the applicant must also lodge a memorial of the issue of the notice with the Registrar of Titles.[3]

   [3] Section 36 of the Act.

7. A freezing order for registrable real property comes into force when a memorial of the issue of the notice is registered on the title, and ceases to be in force when the freezing notice is cancelled or set aside, or when the property is confiscated under s 6, s 7 or s 8 of the Act.[4]

   [4] Section 38 of the Act.

8. If a freezing notice is issued under s 34(2) of the Act and an objection is not filed on or before the 28^th day after the 'service cut off date' for the frozen property, then the property is confiscated by operation of s 7(1) of the Act.  That provision is not applicable where, as here, an objection is lodged within time.  However, property subject to a freezing notice issued under s 34(2) to which objection is taken will be confiscated by force of s 7(2) of the Act if the objections are determined and the freezing notice is not cancelled or set aside.

9. Section 79 of the Act provides for a person to file an objection to the confiscation of frozen property.  Section 81(1) provides that, on hearing an objection to the confiscation of frozen property, the court may set aside the freezing notice or freezing order to the extent permitted under s 82, s 83 or s 84 of the Act.

10. The only potentially applicable provision in the present case is s 82 of the Act.  Section 82(1) ‑ s 82(4) provide:

    (1)The court may set aside a freezing notice or freezing order for property that was frozen on the ground that it is crime‑used if the objector establishes that it is more likely than not that the property is not crime‑used.

    (2)If the court finds that the property is crime‑used, or is not required to decide whether the property is crime‑used, the court may make an order under subsection (3) or (4).

    (3)The court may set aside the freezing notice or freezing order for the property if the objector establishes that it is more likely than not that -

    (a)the objector is the spouse, a de facto partner or a dependant of an owner of the property; and

    (b)the objector is an innocent party, or is less than 18 years old; and

    (c)the objector was usually resident on the property at the time the relevant confiscation offence was committed, or is most likely to have been committed; and

    (d)the objector was usually resident on the property at the time the objection was filed; and

    (e)the objector has no other residence at the time of hearing the objection; and

    (f)the objector would suffer undue hardship if the property is confiscated; and

    (g)it is not practicable to make adequate provision for the objector by some other means.

    (4)The court may set aside the freezing notice or freezing order if the objector establishes that it is more likely than not that -

    (a)the objector is the owner of the property, or is one of 2 or more owners of the property; and

    (b)the property is not effectively controlled by a person who made criminal use of the property; and

    (c)the objector is an innocent party in relation to the property; and

    (d)each other owner (if there are more than one) is an innocent party in relation to the property.

11. The term 'innocent party' is relevantly defined by s 153(1) and s 153(2) of the Act in the following terms:

    (1)A person is an innocent party in relation to crime‑used property if the person -

    (a)was not in any way involved in the commission of the relevant confiscation offence; and

    (b)did not know, and had no reasonable grounds for suspecting, that the relevant confiscation offence was being or would be committed, or took all reasonable steps to prevent its commission.

    (2)A person is an innocent party in relation to crime‑used property if the person -

    (a)did not know, and had no reasonable grounds for suspecting, that the property was being or would be used in or in connection with the commission of the relevant confiscation offence; or

    (b)took all reasonable steps to prevent its use.

12. Section 82(7) of the Act provides that, on the application of the Director of Public Prosecutions (DPP) or an owner of the property, the court may set aside the freezing notice for the property if it also orders the objector to pay to the State an amount equal to the value of the property.  No such application has been made in the present case so this ground is also not applicable.

13. Section 84 of the Act deals with the circumstances in which the court may set aside a freezing notice made under a number of provisions, including s 34(3) of the Act.  In the present case s 84 does not apply, given that the Notice has been cancelled so far as it was issued in reliance upon s 34(3) of the Act.

Crime-used property

1. On the affidavits filed by the plaintiffs in this case it is not open to dispute that the Property has the status of crime‑used property by reason of the use of the Property to cultivate the cannabis plants hydroponically, grown in the shed on the Property, and store other cannabis located on the Property.  The whole of the Property, and not merely the areas used for cannabis cultivation and storage, is to be regarded as crime‑used.[5]  It follows that, on any view of the facts, I cannot set aside the Notice on the ground provided for in s 82(1) of the Act.

   [5] BJF v Western Australia [2011] WASC 163; (2011) 210 A Crim R 262 [19] ‑ [20].

2. The Property is also crime‑used property for another reason.  Both plaintiffs filed affidavits dated 2 October 2013 in which they deposed that the first plaintiff supplied the second plaintiff with cannabis at the Property about six times a day during the time when she was suffering the effects of chemotherapy treatment for hepatitis C.[6] That supply of cannabis by the first plaintiff to the second plaintiff constitutes the commission of a crime contrary to s 6(1)(c) of the Misuse of Drugs Act.  As the maximum penalty for that offence is a fine not exceeding $100,000 or 25 years' imprisonment or both,[7] that supply constituted the commission of a confiscation offence for the purposes of the Act.

   [6] See paragraphs [5] ‑ [6] of the first plaintiff's affidavit sworn on 2 October 2013 and paragraphs [13] ‑ [16] of the second plaintiff's affidavit sworn on 2 October 2013.

   [7] Section 34(1)(a) of the Misuse of Drugs Act.

3. The first plaintiff's act of supplying the cannabis to the second plaintiff was an act done on the property in connection with the confiscation offence provided for by s 6(1)(c) of the Misuse of Drugs Act.[8] The fact that the supply of a prohibited drug, contrary to s 6(1)(c) of the Misuse of Drugs Act, occurred on the Property is sufficient to give the Property the character of crime‑used property for the purposes of the Act. The fact that neither plaintiff has been charged with or convicted of an offence under s 6(1)(c) does not prevent the Property from having the status of crime‑used property.[9]

   [8] See White v DPP [2011] HCA 20; (2011) 243 CLR 478 [23], [33], [38].

   [9] Section 146(2)(d) of the Act.

Innocent party

1. To establish any of the potentially applicable grounds for setting aside the Notice in s 82 of the Act it is necessary for the objector to establish that it is more likely than not that he or she is an 'innocent party' in relation to the relevant confiscation offence. 

2. The first plaintiff is not an innocent party as he is the principal offender in relation to all of the offences which give the Property its crime‑used status.

3. The second plaintiff will not be an innocent party within the meaning of s 153(1) or s 153(2) of the Act if she knew that the relevant confiscation offence was being committed or that the Property was being used in connection with the commission of that offence, and did not take all reasonable steps to prevent the commission of the offence or the use of the Property.  The relevant confiscation offences in the present case include not only the confiscation offences of which the first plaintiff has been convicted but also the offences of supply of cannabis disclosed by the plaintiffs' affidavits.

4. On the evidence contained in her own affidavits, the second plaintiff was not an innocent party in relation to the supply offences.  She knew of the facts and circumstances constituting the commission of those offences on the Property, and there is no evidence that she did anything to attempt to prevent the commission of the offences or the use of the Property for that purpose.  To the contrary, the plaintiffs' evidence is that the second plaintiff accepted the cannabis repeatedly supplied to her by the first plaintiff.  The second plaintiff has no prospect of establishing that it is more likely than not that she is an innocent party.  This is, in my view, a fatal flaw in the second plaintiff's objection under s 82 of the Act.  In the absence of any other tenable basis for contending that the Notice should be set aside, on the second plaintiff's own evidence it is inevitable that her objection must also be dismissed.

Procedural matters

1. These proceedings have been on foot for over five years, having been commenced on 9 September 2009.  It has been four years and 11 months since the first plaintiff was convicted of the confiscation offences with which he was charged.

2. The matter was listed for hearing on 20 August 2013 for one day.  On 14 August 2013, the former solicitors for the plaintiffs applied to vacate that hearing day, so as to give the plaintiffs an opportunity to file further evidence.  Orders vacating the hearing were made on 14 August 2013.

3. On 15 October 2013, the plaintiffs' former solicitors were advised by the court that the matter was listed for a special appointment on 4 December 2013.  At that time the defendant was granted leave to adduce oral evidence and issue subpoenas.

4. On 1 August 2014, the DPP wrote to the court requesting that the matter be listed for a hearing of two days' duration.  The DPP advised of his unavailable dates and advised that the plaintiffs' former solicitors had indicated that they no longer acted for the plaintiffs.  The DPP indicated that the plaintiffs had written to the DPP asking that he list the matter for hearing.

5. On 22 October 2014, the court wrote to the plaintiffs at the Property advising that the matter had been listed for hearing on 20 ‑ 21 November 2014.

6. At some time the court received a letter from the first plaintiff indicating that he was unavailable in November and December 2014 and January 2015 and stating:

   Would you please forward your available dates as I have work commitments and will require to have time to notify and fit around my work program.

7. A second copy of that letter was received by the court on 17 November 2014.

8. On 18 November 2014, my associate wrote to the plaintiffs indicating that the matter had been listed for a two day trial and that, if the plaintiffs wished to reschedule the trial, they would need to apply for an adjournment at the beginning of the hearing.  The letter was sent by post as the plaintiffs had not provided the court with any telephone or email contact details.

9. On 19 September 2014, the court was advised by an email from the DPP that the first plaintiff had called at 5.15 pm that afternoon.  The first plaintiff told the DPP's solicitor that he was not ready to proceed and could not attend today.  The DPP's solicitor said that he advised the first plaintiff that the hearing would commence today and that he would need to attend in person if he wished to seek an adjournment.

10. The first plaintiff did attend the hearing today.  He did not apply for an adjournment.  Rather, he firmly indicated that he intended to confine his submission to a contention that the Act was invalid and that this court had no authority to deal with the matter as it was not sitting under the Crown.  He did not advance any substantive reasons why the Act was invalid.  Despite being invited to elaborate upon his position on more than one occasion, he declined to do so.

11. The argument advanced by the first plaintiff as to the status of the Crown would appear to reflect a submission which has been rejected by this court on many occasions: see, for example, Attorney‑General (WA) v Glew[10] and cases referred to in that decision.

    [10] Attorney‑General (WA) v Glew [2014] WASC 107.

12. Notwithstanding that there has been no application for an adjournment, I would have been reluctant to finally dispose of the matter in the absence of the second plaintiff if I considered her to have a reasonable argument for setting aside the Notice.  However, it is significant that the plaintiffs' objections have, on the plaintiffs' own evidence, no prospect of succeeding for the reasons I have explained.  The fatal flaw in the plaintiffs' objections is not a matter to which the other evidence they have in the past sought to adduce is directed.

13. Any adjournment of the matter would mean that two days of the court's time, which have been set aside to deal with the application, would be lost when it is too late to list another matter at this time.  If the plaintiffs' case were to be adjourned, another two hearing days would need to be devoted to the matter, at the expense of other cases awaiting hearing.  That would occur in circumstances where the second plaintiff has been given notice of the hearing and has chosen not to attend without offering any explanation for her absence.

1. In circumstances where the plaintiffs' application does not have any reasonable prospect of success there is, in my view, no warrant for devoting additional public resources to the resolution of this matter in order to give the plaintiffs a further opportunity to adduce evidence and make submissions. 

Orders

1. For the reasons explained above, the plaintiffs' application to set aside the Notice must be dismissed.  The effect of that order is that the Property is confiscated by force of s 7(2) of the Act on the making of the order, if a memorial of the issue of the Notice was registered under s 113(1) of the Act.