RAJAKOVIC v The State of Western Australia

[2013] WASC 24

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   RAJAKOVIC -v- THE STATE OF WESTERN AUSTRALIA [2013] WASC 24

CORAM:   HALL J

HEARD:   22 JANUARY 2013

DELIVERED          :   22 JANUARY 2013

PUBLISHED           :  30 JANUARY 2013

FILE NO/S:   CPCA 47 of 2011

BETWEEN:   ZORAN RAJAKOVIC

Plaintiff

AND

THE STATE OF WESTERN AUSTRALIA
Defendant

Catchwords:

Criminal property confiscation - Objection dismissed - Declaration that all property confiscated

Legislation:

Nil

Result:

Objection dismissed
Declaration made

Category:    B

Representation:

Counsel:

Plaintiff:     No appearance

Defendant:     Mr M Seaman

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

1. HALL J: This matter involves an application by the State for orders dismissing an objection by the plaintiff to the confiscation of his property and for a declaration pursuant to s 30 of the Criminal Property Confiscation Act 2000 (WA) (the CPCA) that the plaintiff's property has been confiscated to the State of Western Australia pursuant to s 8(1) of the CPCA.

2. The application for the order dismissing the objection is made on the basis that the objection cannot be successful because the plaintiff has not established the criteria in s 84(2) of the CPCA. The application for a declaration that the property of the plaintiff 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 27 July 2012 as a result of being convicted of a confiscation offence committed after the commencement of the CPCA.

3. The application came on for hearing on 22 January 2013.  The plaintiff did not appear either personally or by counsel on that date.  There was affidavit evidence that a copy of the summons for an order dismissing the objection and for the declaration of confiscation was served on the plaintiff's solicitors on 5 December 2012.  The summons specified that the application would be heard at 10.30 am on 22 January 2013. 

4. The plaintiff was also served with a copy of an affidavit of Jodi Kathleen Peters sworn on 21 November 2012 and a copy of the written submissions of the State in support of the application.  The affidavit of Ms Peters sets out the evidence on which the application for a declaration is reliant.  In the circumstances I was satisfied that the appellant had been given adequate opportunity to appear and be heard in opposition to the application and that it was appropriate to proceed with the hearing.

5. On the basis of the affidavit of Ms Peters I am satisfied that the following facts have been proven. On 21 June 2011 freezing notice WAPFN110079 was issued on the basis that the plaintiff had been charged with an offence and could be declared to be a drug trafficker pursuant to s 32A(1) of the Misuse of Drugs Act if convicted of the offence.  A copy of the freezing notice was served on all persons from whom property was taken or who the DPP was aware had, or may have, a claim to be an interested party.  This included the plaintiff. 

6. On 8 July 2011 the plaintiff filed an originating summons pursuant to s 79 of the CPCA.  The originating summons sought that the freezing notice 'be deferred' pending the hearing of criminal charges.  An objection to confiscation was also filed by the plaintiff. 

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 28th day after the service cut off date.  In consequence of the filing of the objection the plaintiff's property was not confiscated automatically.

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 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, it is confiscated to the State of Western Australia.  Accordingly, all of the plaintiff's property was automatically confiscated pursuant to s 8 of the CPCA on 27 July 2012 as a consequence of him being declared to be a drug trafficker following his conviction in the District Court on that date.

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. The orders sought by the State include a declaration that all of the property of the plaintiff has been confiscated to the State of Western Australia.  An order is also sought that, without limiting the generality of the declaration relating to all of the property of the plaintiff, there be a declaration that the plaintiff's interest in the land at lot 5 on strata plan 17024, certificate of title vol 1828, folio 869 commonly known as 5/3 Burgundy Crescent, Spearwood has been confiscated to the State.  The affidavit of Ms Peters establishes that the plaintiff is the sole registered proprietor of the property referred to.

11. No evidence has been placed before the court on behalf of the plaintiff 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) and s 84(2) of the CPCA.

12. In these circumstances the plaintiff's objection to the confiscation of the frozen property must be dismissed.  I am also satisfied that it is appropriate to declare that all the property owned or effectively controlled by the plaintiff at the time he was declared to be a drug trafficker and all property that he gave away at any time before that declaration was made has been confiscated to the State of Western Australia.  This includes, without limiting the generality of the declaration, the property at 5/3 Burgundy Crescent, Spearwood.