Ricciardo v The State of Western Australia - [2011] WASC 40

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: RICCIARDO -v- THE STATE OF WESTERN AUSTRALIA [2011] WASC 40

CORAM: EM HEENAN J

HEARD: 10 FEBRUARY 2011

DELIVERED : 10 FEBRUARY 2011

PUBLISHED : 18 FEBRUARY 2011

FILE NO/S: CPCA 89 of 2007
Consolidated by Orders dated 19 September 2008

BETWEEN: JOHN RICCIARDO
First Plaintiff
MARIA RICCIARDO
Second Plaintiff
AND
THE STATE OF WESTERN AUSTRALIA
Defendant

FILE NO/S :CPCA 92 of 2008

MATTER :The Criminal Property Confiscation Act 2000 (WA)
AND
Freezing Notice Number WAPFN070093 and Freezing Notice WAPFN0801512

BETWEEN :MARIA RICCIARDO
Plaintiff
AND
THE STATE OF WESTERN AUSTRALIA
Defendant

Catchwords:

Criminal property confiscation - Directions - Joinder of parties - Dismissal of objection - Declaration of partial confiscation - Directions for trial of remaining issues

Legislation:

Criminal Property Confiscation Act 2000 (WA), s 7(2), s 7(3), s 36(6)(a)
Misuse of Drugs Act 1981 (WA)

Result:

Order for partial confiscation
Directions for trial of remaining issues

Category: B

Representation:

CPCA 89 of 2007

Consolidated by Orders dated 19 September 2008

Counsel:

First Plaintiff                :     No appearance
Second Plaintiff            :     No appearance
Defendant:     Ms F Humphries

Solicitors:

First Plaintiff                :     No appearance
Second Plaintiff            :     No appearance
Defendant:     Director of Public Prosecutions (WA)

CPCA 92 of 2008

Counsel:

Plaintiff: No appearance
Defendant: Ms F Humphries

Solicitors:

Plaintiff: No appearance
Defendant: Director of Public Prosecutions (WA)

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

Nil

EM HEENAN J: The proceedings presently before the court comprise an originating summons issued by John Ricciardo on 9 October 2007 against the State of Western Australia, objecting to the confiscation of his property pursuant to a nominated freezing notice or otherwise and for incidental orders. The originating summons was later amended by consent in November 2007 to seek further relief and there is a further amendment proposed today, to join a third plaintiff, Giovanni Ricciardo, who, with the second plaintiff, Maria Ricciardo, will constitute the three plaintiffs in the proceedings.
Since the proceedings were commenced, the first plaintiff, John Ricciardo, was prosecuted in the District Court of Western Australia and, after a trial before a jury and McCann DCJ, was convicted of some, but not all, of the offences charged against him. On 7 August 2009, on application by the prosecution, McCann DCJ declared John Ricciardo to be a drug trafficker. As a consequence, subject to the resolution of objections, all property owned, controlled or given away by him becomes forfeited to the State of Western Australia.
The objections which were raised by the originating summons as subsequently amended remain on foot and the purpose of the hearing today is to dispose as far as possible of those objections. The declaration of being a drug trafficker against the first plaintiff means that he is subject to the confiscation of all his property and that will now take effect. In relation to objections on behalf of the two remaining plaintiffs, the proposals before the court are contained in a minute of consent orders signed by their solicitors. These entail a series of orders and directions which will involve the determination of those objections, or those of them which remain active, at a date specified later this year.
There is one other remaining matter and it relates to a sum of $10,000 cash which was located with drugs in a vehicle of which John Ricciardo and a person named Ms Dillon were the only occupants when found by the police. That cash was frozen on a crime‑used, crime‑derived and drug trafficker basis and reference to it was made in one of the charges against Ricciardo at his trial. In relation to that count, he was acquitted in relation to the charge which involved the seizure of the $10,000.
As McCann DCJ in his sentencing remarks said, the jury were not satisfied beyond reasonable doubt that those drugs and the $10,000 in the car were, in fact, connected to him. Counsel for the prosecution proceeded on the basis that everything in the camera case was property of the co‑accused Ms Dillon. As a result, the State of Western Australia does not seek to prove that $10,000 cash is property owned or effectively controlled by Ricciardo, which otherwise is the subject of the confiscation orders. However, the State does seek a declaration that the $10,000 is confiscated on the basis that all objections have been dismissed under s 7(2) of the Act.
The Criminal Property Confiscation Act 2000 (WA) s 7(2) provides:
If an objection to the confiscation of frozen property is filed on or before the 28th day after the service cut-off date for the property, the property is confiscated if
(a)the objection, or each objection if there are more than one, is finally determined;
(b)where the property is subject to a freezing notice, the freezing notice is not cancelled or set aside; and
(c)where the property is subject to a freezing order, the freezing order is not set aside.
Subsection (3) provides:
However, property frozen under a freezing notice is not confiscated under subsection (1) or (2) until a freezing notice is filed in accordance with section 36(6)(a).
That subsection in turn provides:
The applicant must ensure that ‑
(a)the freezing notice is filed in the Court specified in the notice.
As a consequence, this court must make a declaration in respect of the property described in the application upon being satisfied of the following matters: (a) the objection or each objection is finally determined; (b) the freezing notice was not cancelled or set aside; and (c) the court is satisfied the freezing notice has been filed in accordance with s 36(6)(a).
In this case, the freezing notice has not been set aside and has not been cancelled in respect of this $10,000 cash. That is established by the affidavit of Marie Clare Normoyle sworn 2 November 2010 in support of the defendant's summons and there is no contrary evidence. The freezing notice itself has been filed in accordance with s 36(6)(a) and all objections in relation to this $10,000 cash have been finally determined, or will be when the remaining objections by Maria Ricciardo and Perpetual Trustees are dismissed. None of those remaining objections relates to the $10,000 cash.
That being the case, I am satisfied that an order as sought should be made in respect of the $10,000 cash. Consequently, that disposes of all the matters which need to be established against the first plaintiff, Mr John Ricciardo, and the remaining orders, so far as they affect the second plaintiff and the newly joined third plaintiff, are matters of consent.
Consequently, I will make orders as sought by the consent memorandum handed to me today to the following effect:
(1)that Giovanni Ricciardo be joined in these proceedings and be named as the third plaintiff;
(2)subject to paragraph 7, the first plaintiff's objection made by originating summons and notice of objection dated 9 October 2007 and 21 August 2008 be dismissed;
(3)subject to paragraph 6, the second and third plaintiffs' objections to the confiscation of frozen property made by originating summons and notice of objection dated 9 October 2007 and 21 August 2008 be dismissed to the extent of paragraph 4(a), (c) and (d) of the summons dated 25 November 2010;
(4)except as provided by paragraph 5 and paragraph 6 hereof, all the property that John Ricciardo owned or effectively controlled at the time he was declared to be a drug trafficker under s 32A(1) of the Misuse of Drugs Act 1981 (WA) on 7 August 2009 and all property that Ricciardo gave away at any time before the drug trafficker declaration was made has been confiscated to the State of Western Australia;
(5)without limiting the generality of the declaration in paragraph 4 above, the following property has been confiscated, namely:
(a)cash in the sum of $1560, together with any interest thereon;
(b)moneys standing to the credit of Ricciardo in Westpac Bank account 036039113883 as at 7 August 2009, together with any interest thereon;
(c)cash in the sum of $9750, together with any interest thereon;
(6)the following property is excluded from the declaration of confiscation made in paragraph 2 hereof, namely, moneys standing to the credit of Ricciardo Challenger Mortgage Management Pty Ltd account number (specified) which is set out in the minute.
(7)paragraph 4(b) of the summons for a declaration of confiscation pursuant to s 8(1) and s 30 of the Criminal Property Confiscation Act 2000 (the Act) dated 25 November 2010, namely, that Ricciardo's interest in the land at lot 5 on plan 34815 in certificate of title vol 42 folio 221A, commonly known as 14 Homestead Road, Gosnells (the land), be confiscated to the State of Western Australia, be adjourned until 9 June 2011;
(8)the property listed at item 7 of freezing notice (specified number) namely, $10,000
(this is the $10,000 cash of which I have been speaking earlier)
together with any interest thereon, is confiscated to the State of Western Australia pursuant to s 7(2) of the Act;
(9)the second and third plaintiffs file and serve any affidavits upon which they intend to rely in support of their claim over the land by 4.00 pm on 10 April 2011;
(10)the defendant file and serve any affidavits in reply within 28 days of filing and service of the plaintiffs' affidavits under par 9 above;
(11)subject to paragraph 12 of this order, there be leave to cross‑examine deponents at the hearing of the summons;
(12)within 14 days thereafter each party advise the other in writing of the following:
(a)which of the affidavits filed by the opposing party may be tendered into evidence by consent;
(b)in respect of the remaining affidavits, which parts of the affidavits filed by the opposing party are objected to as inadmissible and to State in writing the grounds of objection;
(c)which deponents of any affidavits are required to attend the hearing of the originating summons for the purpose of cross‑examination. Upon receipt of that advice, the parties shall ensure that the required deponent attends the hearing;
(13)the matter be listed for a special appointment before a judge on 9 June 2011, after the parties advise each other of the matters in paragraph 12 above;
(14)there be liberty to apply on 48 hours' notice;
(15)costs be in the cause.