The Director of Public Prosecutions for Western Australia v Ward

[2012] WASC 195

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   THE DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA -v- WARD [2012] WASC 195

CORAM:   EM HEENAN J

HEARD:   19 APRIL 2012

DELIVERED          :   19 APRIL 2012

PUBLISHED           :  11 JUNE 2012

FILE NO/S:   CPCA 92 of 2009

BETWEEN:   THE DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA

Applicant

AND

EDWARD JAMES WARD
First Objector

SAMANTHA JANE BROWN
Second Objector

THE STATE OF WESTERN AUSTRALIA
Respondent to the Objectors

Catchwords:

Crimes confiscation of profits

Legislation:

Misuse of Drugs Act 1981 (WA)

Result:

Declaration of confiscation of property
Order for delivery up of motor vehicles

Category:    B

Representation:

Counsel:

Applicant:     Mr M Seaman

First Objector               :     No appearance

Second Objector           :     No appearance

Respondent to the Objectors :     No appearance

Solicitors:

Applicant:     Director of Public Prosecutions (WA)

First Objector               :     No appearance

Second Objector           :     No appearance

Respondent to the Objectors :     No appearance

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

Nil

1. EM HEENAN J:  In this matter a freezing notice was issued on 16 September 2009 against certain property alleged to belong to the first objector, Edward James Ward ('Mr Ward').  That was converted to a freezing order by order of Registrar Powell on 12 January 2010.  Copies of the freezing notice were subsequently served upon Mr Ward, the Commonwealth Bank, the mortgagee of one of the properties, and Samantha Jane Brown ('Ms Brown'), as second objector.

2. Statutory declarations have since been lodged by Mr Ward, an officer of the Commonwealth Bank, and by Ms Brown.  I shall put to one side the statutory declaration of the bank officer which asserts what is accepted by the DPP, that the Commonwealth Bank has an interest in one of the properties as mortgagee.

3. In the statutory declaration of Mr Ward made on 18 September 2009, he declares that all the property in question - three items of land, a Harley‑Davidson motorcycle and a Toyota Landcruiser - are owned by him alone.  Subsequently, after having received legal advice, he made a second statutory declaration in which he said that Ms Brown had an interest in all of the property on the basis that she had been in a de facto relationship with him for approximately three years.

4. Ms Brown has made her own statutory declaration that no one other than she or Ward has any interest in the properties.  There has been no evidence to quantify or support the alleged interest in the properties by Ms Brown arising from the alleged de facto relationship and, that being the case, the Court can only work on the basis that the title to these properties is according to the instruments of title.

5. The three certificates of title for the land, first at 24 Valley Brook Road, Caversham, second at 112 Wittenoom Street, Collie, and third at 98 Mandurah Terrace, Mandurah, show that Edward James Ward is the sole proprietor of each lot.  Extracts from the Government of Western Australia Department of Transport licensing records show that Mr Ward is the sole proprietor of the Toyota table‑top vehicle and of the Harley‑Davidson motorcycle.  These proceedings were subsequently commenced for confiscation of the property.  Nothing has been done to set aside the freezing orders.

6. In the District Court of Western Australia, Mr Ward was convicted under s 6 of the Misuse of Drugs Act 1981 (WA) of one count of possessing a prohibited drug, namely cannabis, with intent to sell or supply, committed on 16 September 2009. He was also declared to be a drug trafficker pursuant to s 32A of the Misuse of Drugs Act in relation to those convictions.  The evidence before the Court shows that the declaration was made on 23 April 2010.

7. It follows, therefore, that all the property owned by Mr Ward has been confiscated to the State and that his objection to the freezing order should be dismissed. There being no evidence to support the objections by Samantha Jane Brown, her objection should also be dismissed. It will be declared that all the property that James Edward Ward 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 on 23 April 2010 and all property that Mr Ward gave away at any time before the drug trafficker declaration was made has been confiscated to the State of Western Australia.

8. Thirdly, without limiting the generality of the declaration just made, the following property has been so confiscated:  namely, the land at 24 Valley Brook Road, Caversham, more particularly described in the chamber summons issued by the State of Western Australia on 4 April 2011; the land at 112 Wittenoom Street, Collie, more fully described in the same summons; the unit and land at 98 Mandurah Terrace, Mandurah, also described in the summons; the Toyota Landcruiser referred to in the summons; and the Harley‑Davidson motorcycle referred to in the summons.

9. It will also be ordered that within seven days of being requested by the DPP or his agent to do so, Edward James Ward shall deliver up or cause to be delivered up the following items to such a place as is nominated by the DPP or his agent:  firstly, the Landcruiser, and secondly, the Harley‑Davidson motorcycle.