Rinaldi v The State of Western Australia
[2019] WASC 420
•31 OCTOBER 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: THE DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA -v- THE STATE OF WESTERN AUSTRALIA [2019] WASC 420
CORAM: ARCHER J
HEARD: 31 OCTOBER 2019
DELIVERED : 31 OCTOBER 2019
FILE NO/S: CPCA 33 of 2014
BETWEEN: THE DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA
Applicant
JUSTIN GLEN RINALDI
First Plaintiff
SAMANTHA-JO RINALDI
Second Plaintiff
BRIAN GEORGE GUNDERSON
Third Plaintiff
AND
THE STATE OF WESTERN AUSTRALIA
Defendant
FILE NO/S: CPCA 32 of 2014
BETWEEN: SAMANTHA-JO RINALDI
First Plaintiff
BRIAN GEORGE GUNDERSON
Second Plaintiff
AND
THE STATE OF WESTERN AUSTRALIA
Defendant
Catchwords:
Criminal property confiscation - Plaintiffs declared drug traffickers - Application for declaration of confiscation - Objection to confiscation
Legislation:
Criminal Property Confiscation Act 2000 (WA)
Misuse of Drugs Act 1981 (WA)
Result:
Declaration of confiscation made
Objection dismissed
Category: B
Representation:
CPCA 33 of 2014
Counsel:
| Applicant | : | V J Pelligra |
| First Plaintiff | : | E W L Greaves |
| Second Plaintiff | : | No appearance |
| Third Plaintiff | : | No appearance |
| Defendant | : | V J Pelligra |
Solicitors:
| Applicant | : | Director of Public Prosecutions (WA) |
| First Plaintiff | : | Kingdom Legal |
| Second Plaintiff | : | Chelmsford Legal |
| Third Plaintiff | : | Chelmsford Legal |
| Defendant | : | Director of Public Prosecutions (WA) |
CPCA 32 of 2014
Counsel:
| First Plaintiff | : | No appearance |
| Second Plaintiff | : | No appearance |
| Defendant | : | V J Pelligra |
Solicitors:
| First Plaintiff | : | Chelmsford Legal |
| Second Plaintiff | : | Chelmsford Legal |
| Defendant | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
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
Mulholland v Winslow [2018] WASCA 19
Ranford v The State of Western Australia [2015] WASC 45
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 31 October 2019 and has been edited from the transcript.)
Introduction
In the first action, the first plaintiff Mr Rinaldi objects to the confiscation of property the subject of a freezing order. The Director of Public Prosecutions (DPP) seeks a declaration that particular property of Mr Rinaldi has been confiscated, given that he has now been declared to be a drug trafficker.
For the reasons that follow, the objection should be dismissed and the declaration made.
Legal framework
Section 30 of the Criminal Property Confiscation Act2000 (WA) (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.
Section 8(1) of the Confiscation Act 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.
Objections
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, a freezing notice was issued, and subsequently replaced by a freezing order. The freezing order was made on the ground that Mr Rinaldi could be declared to be a drug trafficker.
On receiving a copy of a freezing notice or order, the person may file an objection to the confiscation of frozen property. The Confiscation Act gives the court power to set aside the freezing notice or order to the extent permitted by s 82, s 83 and 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.[1]
[1] Centurion Trust Company Ltd v Director of Public Prosecutions (WA) [2010] WASCA 133 (Centurion Trust 2010) [223] (Buss JA, with whom Owen JA agreed at [74]). See also Campanav The State of Western Australia [2008] WASC 230[38], and Urbano v The State of Western Australia [2006] WASCA 147 [34] and [39] (Pullin JA, with whom Martin CJ agreed). Further, under ss 39 and 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 ss 6, 7 or 8.
The court has no power to release property once it has been confiscated under s 8.[2]
Proof of confiscation
[2] The Confiscation Act, pt 6 ss 85 ‑ 87 gives the court the power to release property confiscated under ss 6 or 7. No such power is given in relation to property confiscated under s 8. See also Campana [38] and Centurion Trust 2010 [162].
As the application under s 30 is brought by the DPP, and as the court is required to be satisfied that the property has been confiscated, the DPP bears the onus of proving that the property was confiscated.[3] The DPP must prove this on the balance of probabilities.[4]
[3] Campana [40].
[4] Section 102(2)(d) of the Confiscation Act.
Hearsay evidence is not admissible for the purposes of determining what property was owned,[5] but regard may be had to material from the court below.[6]
[5] See s 109 of the Confiscation Act, which permits hearsay in other circumstances.
[6] See s 107 of the Confiscation Act.
The matters that the DPP must prove under s 8 are:
(1)that:
(a)Mr Rinaldi was declared to be a drug trafficker;
(b)the declaration was made as a result of Mr Rinaldi being convicted of a 'confiscation offence' (relevantly being an offence punishable by imprisonment for more than 2 years[7]); and
(c)the offence was committed after the commencement of the Confiscation Act (which commenced on 1 January 2001); and
(2)that, at the time the declaration that he was a drug trafficker was made, the property was owned or effectively controlled by Mr Rinaldi.
[7] Section 141(1) 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 declaration that Mr Rinaldi was a drug trafficker was made.[8]
[8] 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]
[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] (see also [25]).
Property said to have been confiscated
The DPP seeks a declaration that the following property of Mr Rinaldi has been confiscated:
(1)two Harley Davidson motorcycles;
(2)Mr Rinaldi's interest in land at Lot 27 on Plan 6609 in Certificate of Title Volume 569, Folio 150A, commonly known as 62 Williamson Avenue, Belmont WA (the Land);
(3)twelve amounts of cash totalling $337,670;
(4)funds held by ASIC to the credit of Mr Rinaldi in three unclaimed money accounts; and
(5)five $100 casino chips.
Evaluation
The DPP tendered affidavits of Michelle Aikin,[10] Narita Amin,[11] Alison Gibson,[12] Glenn Robinson,[13] Sherri Stacey,[14] and Bruce Wimbridge.[15]
[10] Affidavit of Michelle Aikin sworn 26 May 2016 (Aikin Affidavit).
[11] Affidavit of Narita Amin sworn 30 March 2017 (First Amin Affidavit) and Supplementary Affidavit sworn 11 April 2019.
[12] Affidavit of Alison Margaret Gibson sworn 18 May 2018 (Gibson Affidavit).
[13] Affidavit of Glenn Robinson sworn 27 March 2019 (Robinson Affidavit).
[14] Affidavit of Sherri Lee Stacey sworn 30 October 2019 (Stacey Affidavit).
[15] Affidavit of Bruce Robert Maxwell Wimbridge sworn 22 March 2019 (First Wimbridge Affidavit), Supplementary Affidavit sworn 11 April 2019, Further Supplementary Affidavit sworn 29 April 2019 and Further Affidavit sworn 30 October 2019.
On 14 December 2015, Mr Rinaldi was convicted in the District Court of multiple offences, including of possessing methylamphetamine with intent to sell or supply, contrary to s 6(1)(a) of the Misuse of Drugs Act 1981 (WA). This offence is punishable by imprisonment for more than 2 years.[16] It is therefore a 'confiscation offence'. The offence was committed on 21 February 2014, after the commencement of the Confiscation Act.
[16] Section 34(1) of the Misuse of Drugs Act.
On 13 May 2016, as a result of this conviction, Mr Rinaldi was declared to be a drug trafficker under s 32A of the Misuse of Drugs Act.
Accordingly, the only remaining elements that the DPP must prove are, in respect of each item of property the subject of the application, that:
(1)the property was owned or effectively controlled by Mr Rinaldi; and
(2)that it was owned or effectively controlled by Mr Rinaldi at the time the declaration that he was a drug trafficker 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.[17]
[17] 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.[18]
The Land
[18] Confiscation Act glossary.
The record of the Certificate of Title for the Land shows that Mr Rinaldi is the sole registered proprietor, and was so as at the date he was declared to be a drug trafficker.[19] I am therefore satisfied that he owned the Land as at the date he was declared to be a drug trafficker.
The motorcycles
[19] First Amin Affidavit [14] and page 95.
The two motorcycles were licenced to Mr Rinaldi prior to the date on which he was declared to be a drug trafficker. Mr Rinaldi made a statutory declaration dated 19 March 2014 to the effect that he owned each of them. The vehicle licences of each motorcycle expired in August 2014.[20] There is no evidence to suggest that Mr Rinaldi divested himself of his ownership before he was declared to be a drug trafficker. I am therefore satisfied that he owned the motorcycles as at the date he was declared to be a drug trafficker.
The ASIC funds
[20] Aikin Affidavit [6] ‑ [14] and attachments.
The ASIC funds held to the credit of Mr Rinaldi were received by ASIC under s 668B of the Corporations Act 2001 (Cth) from the compulsory acquisition of a company. But for the confiscation proceedings, ASIC would have paid the funds to Mr Rinaldi.[21]
[21] Robinson Affidavit.
The funds were received by ASIC in three tranches.
The first two were received by ASIC in 2014, prior to the date on which Mr Rinaldi was declared to be a drug trafficker.[22] I am satisfied, on the balance of probabilities, that Mr Rinaldi owned those funds within the meaning of the Confiscation Act at the time he was declared to be a drug trafficker.[23]
[22] Robinson Affidavit.
[23] See the below discussion on the meaning of ownership under the Confiscation Act.
There is a discrepancy in the evidence as to whether the third tranche was received by ASIC in 2015, before Mr Rinaldi was declared to be a drug trafficker, or in 2018, after that date. ASIC has produced two records showing different years.[24] It appears that a typographical error was made in one of those records. I am satisfied on the balance of probabilities that the third tranche was received by ASIC in 2015. The affidavit of Narita Amin sworn 30 March 2017 annexes a letter from ASIC which showed the third tranche was received in 2015. The affidavit was sworn in 2017. Accordingly, that letter had to have been sent prior to 2018, and the 2018 date must, therefore, be a typographical error. Further, it is implicit from Mr Robinson's affidavit[25] that the claim lodged on behalf of Mr Rinaldi was in relation to all three sums. That claim was lodged prior to 2018. I am therefore satisfied on the balance of probabilities that Mr Rinaldi owned those funds within the meaning of the Confiscation Act at the time he was declared to be a drug trafficker.
The cash and casino chips
[24] Robinson Affidavit.
[25] See [10], [13] and [14].
The police seized the cash on 21 February 2014. There were some discrepancies in the records as to the individual amounts, but these have been explained satisfactorily by additional evidence.[26] I am satisfied that the police found and seized the amounts sought to be declared to have been confiscated. The police also seized five $100 casino chips.[27]
[26] The evidence is well summarised in the DPP's submissions filed 30 October 2019 [7.0].
[27] First Wimbridge Affidavit (attaching the exhibit log, which is a business record of the police).
The cash and casino chips were found by the police in the home on the Land. Mr Rinaldi lived there and was the registered proprietor of the Land. The trial judge found that Mr Rinaldi knew the cash was in the home. In addition, Mr Rinaldi exercised control over the premises, to the extent of fortifying it.
In those circumstances, Mr Rinaldi had, at least, possessory title to the cash and casino chips. Possessory title is as good as absolute title of ownership against all the world except the true owner.[28]
[28] See Flack v Chairperson, National Crime Authority (1997) 150 ALR 153, 156 ‑ 157, 162 ‑ 163.
Mr Rinaldi's interest in the cash and casino chips made him an 'owner' of that property within the meaning of the Confiscation Act.
The police seized the cash and casino chips prior to the date on which Mr Rinaldi was declared to be a drug trafficker. However, Mr Rinaldi did not cease to be an 'owner' of the property within the meaning of the Confiscation Act after the property was seized. Until such time as the property was confiscated and vested in the State, he retained an interest in it.[29] The property was not confiscated and vested in the State until he was declared to be a drug trafficker. I am therefore satisfied that, on the balance of probabilities, Mr Rinaldi owned the cash and the casino chips within the meaning of the Confiscation Act at the time he was declared to be a drug trafficker.
The filed objections
[29] And see 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.
There were a number of objections in this case, all but one of which have been dismissed. Mr Rinaldi's objection remains. However, as explained earlier, once Mr Rinaldi was declared to be a drug trafficker, the freezing order ceased to have any force. The property was no longer frozen.
Mr Rinaldi's objection to the freezing order must, therefore, be dismissed.
Declaration of confiscation
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.
It follows that the property was confiscated as at the date Mr Rinaldi was declared to be a drug trafficker. I am therefore required to declare that that property has been confiscated.
Orders
I order that Mr Rinaldi's objection is dismissed.
I declare that the property has been confiscated.
I will make orders in terms of pars 1 and 2 of the DPP's minute, titled 'Applicant's Minute of Proposed Orders', filed 25 February 2019.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SW
Research Orderly to the Honourable Justice Archer18 NOVEMBER 2019
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