The Director of Public Prosecutions for Western Australia v Thornley
[2014] WASC 440
•25 NOVEMBER 2014
THE DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA -v- THORNLEY [2014] WASC 440
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2014] WASC 440 | |
| 25/11/2014 | |||
| Case No: | CPCA:100/2013 | 13 NOVEMBER 2014 | |
| Coram: | EM HEENAN J | 13/11/14 | |
| 5 | Judgment Part: | 1 of 1 | |
| Result: | Declaration of confiscation of specified property | ||
| B | |||
| PDF Version |
| Parties: | THE DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA LESLIE BRUCE THORNLEY |
Catchwords: | Criminal property confiscation |
Legislation: | Criminal Property Confiscation Act 2000 (WA), s 7, s 8, s 30, s 34, s 36, s 150 Misuse of Drugs Act 1981 (WA), s 32A(1) |
Case References: | Nil |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- Plaintiff
AND
LESLIE BRUCE THORNLEY
Defendant
Catchwords:
Criminal property confiscation
Legislation:
Criminal Property Confiscation Act 2000 (WA), s 7, s 8, s 30, s 34, s 36, s 150
Misuse of Drugs Act 1981 (WA), s 32A(1)
Result:
Declaration of confiscation of specified property
Category: B
Representation:
Counsel:
Plaintiff : Mr M Seaman
Defendant : No appearance
Solicitors:
Plaintiff : Director of Public Prosecutions (WA)
Defendant : No appearance
Case(s) referred to in judgment(s):
Nil
1 EM HEENAN J: The Director of Public Prosecutions (DPP) sought a declaration pursuant to s 30 of the Criminal Property Confiscation Act 2000 (WA) (the Act) that the property of the defendant specified in par 1 of the notice of originating motion (the Property) has been automatically confiscated under s 7(1) of the Act. This declaration was sought on the basis that the Property was confiscated as no objection to confiscation was filed within the relevant time frame. The Director also sought a declaration pursuant to s 30 of the Act that the property of the defendant specified in par 2 and par 3 of the notice of originating motion (the DT property) was confiscated to the State of Western Australia under s 8(1) of the Act.
2 The declaration in par 2 and par 3 of the notice of originating motion was sought on the basis that the DT Property was confiscated pursuant to s 8(1) of the Act, when the defendant Leslie Bruce Thornley was declared to be a drug-trafficker on 7 November 2012, pursuant to s 32A(1) of the Misuse of Drugs Act 1981 (WA), as a result of being convicted of confiscation offences committed after the commencement of the Act.
3 The facts are that on 11 April 2012 and 11 May 2012, pursuant to s 34 of the Act, freezing notices numbered WAPFN120078 and WAPFN120098 were issued on the ground that Mr Thornley had been charged with an offence 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.
Ownership of property
4 Cash in the sum of AUD $1,065.00 seized from Mr Thornley on 10 April 2012, and his ownership of the cash arises by inference from the fact that he had it in his possession and further because that no person has filed any claim or objection.
5 Mr Thornley is also the registered owner of:
(a) a 1981 Chevrolet Coupe, registered number LA3007, Engine Number T1121DHU, VIN number 1G1AP87H9BL125048;
(b) a 1976 Harley Davidson motorcycle, registered number 1FA760, Engine Number 920019S, VIN number N927514P (insured with Suncorp Group, policy number SCM005742620);
(c) a 1983 Chevrolet Coupe, registered number 1DEW262, Engine Number V1013ZFC1E512368, VIN number 1C1AY0788E5121368;
(d) a 1984 Chevrolet Coupe, registered number 1DPM676, Engine Number V0817773, VIN number 1G1AY0785E5148625; and
(e) one of two joint holders of Commonwealth Bank account number 066159 1046 4155. A declaration is sought in respect of Thornley's half-share in this account.
6 The evidence is and I find that the DPP served a copy of the freezing notice in accordance with s 36 of the Act, namely:
(1) As soon as practicable after a freezing notice is issued, the applicant for the notice must arrange for a copy of it to be served personally on each of the following persons -
(a) if the property covered by the notice was taken from a person - that person;
(b) if, at the time that the freezing notice is issued, the applicant is aware of any other person who is, or may be, or claims to be, an interested party - that person.
…
(4) If, as a result of information in a statutory declaration given, in accordance with section 37, by a person who was served with a copy of the freezing notice under subsection (1), the applicant becomes aware that any other person is or may be or claims to be an interested party, then the applicant must arrange for a copy of the notice to be served on the person personally, as soon as practicable.
- An 'interested party' is defined in the Glossary of the Act as 'a person who has an interest in the property that would enable the person to succeed on an objection to the confiscation of the property'.
Confiscation of property
7 Subject to s 7(3) of the Act, where a freezing notice has been filed in the court in accordance with s 36(6)(a), s 7(1) provides that the frozen property is confiscated if an objection to confiscation is not filed on or before the 28 day limit after service.
8 Section 150(a) provides that the service cut-off date in relation to property frozen under a freezing notice is 'the date of the last day on which a copy of the freezing notice was served on anyone under section 36(4)'. But if no interested party is identified in a statutory declaration, the effects of the Act is that the service cut-off date is the date when the freezing notice was last served on any person under s 36(1).
9 In this case, I am satisfied that all persons identified in the statutory declarations given to the Police have been served on or before the service cut-off date, which was 5 June 2012, and that this was the date that service was completed, as required by s 36.
10 No objection to the confiscation of the property was filed within 28 days after the copy of the notice was served, which was 4 July 2012. The evidence is that the freezing notice was filed in accordance with s 36(6)(a) of the Act, and that no applications have been made on behalf of any interested persons to contest or to vary the effects of the freezing notices. Accordingly, I am satisfied that the Property has been confiscated under s 7(1) of the Act, which means that the Court is required by s 30(2) of the Act to make a declaration to that effect.
11 Under s 8(1) of the Act, when a person is declared to be a drug-trafficker under s 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 the Act, all property that the person owned or effectively controlled at the time he was declared to be a drug-trafficker and all 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 Act, is confiscated to the State of Western Australia.
12 Since there has been no evidence nor any application by Mr Thornley to establish that he does not own or effectively control the DT Property, and has not at any time given it away, the DT Property was automatically confiscated on 7 November 2012, pursuant to s 8(1), when he was declared to be a drug-trafficker. There will be a declaration to that effect.
13 For these reasons orders will be made in terms of the plaintiff's minute 8 August 2014 at pars 1, 2 and 3, namely, that all of the properties owned by Mr Thornley be declared confiscated.
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