The State of Western Australia v Gittos

[2011] WASC 62

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   THE STATE OF WESTERN AUSTRALIA -v- GITTOS [2011] WASC 62

CORAM:   EM HEENAN J

HEARD:   17 FEBRUARY 2011

DELIVERED          :   17 FEBRUARY 2011

PUBLISHED           :  11 MARCH 2011

FILE NO/S:   CPCA 125 of 2009

BETWEEN:   THE STATE OF WESTERN AUSTRALIA

Plaintiff

AND

LYNETTE JOY GITTOS
First Defendant

RAYMOND JOHN GITTOS
Second Defendant

Catchwords:

Confiscation of the proceeds of crime - Declared drug trafficker - Objection to confiscation - Claim to ownership by second defendant - Turns on own facts

Legislation:

Misuse of Drugs Act 1981 (WA), s 32A(1)

Result:

Confiscation order

Category:    B

Representation:

Counsel:

Plaintiff:     Mr M Seaman

First Defendant              :     No appearance

Second Defendant         :     No appearance

Solicitors:

Plaintiff:     Director of Public Prosecutions (WA)

First Defendant              :     No appearance

Second Defendant         :     No appearance

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

Nil

1. EM HEENAN J:  This is a special appointment to hear an originating motion issued in this matter on 18 December 2009 by the Director of Public Prosecutions for the State of Western Australia.

2. The Director seeks orders essentially providing that all the property owned or effectively controlled by Lynette Joy Gittos, the first defendant, at the time when she was declared to be a drug trafficker under s 32A(1) of the Misuse of Drugs Act 1981 (WA) on 28 July 2009 and all the property that Mrs Gittos gave away at any time before the drug trafficker declaration was made has been confiscated to the State of Western Australia. Further orders are sought providing that, without limiting the generality of that proposed declaration, cash in the sum of $28,925 has been confiscated, and that the land Lot 764 on Plan 11458 in Certificate of Title vol 1428 folio 964 commonly known as 6 Woodford Court, Koondoola is excluded from the declaration of confiscation being sought, and such other orders as the court thinks fit.

3. The proceedings have had a lengthy history, resulting in several interlocutory orders, including an order for the joinder of the second defendant, Raymond John Gittos, either the husband or former husband of the first defendant, and affidavits have been filed.

4. The motion has been listed for hearing on several previous occasions and adjourned for various reasons, but when last before the court it was adjourned to a date to be fixed.  The date was later fixed for today and I am satisfied that written notice of the date has been given to both defendants.  Raymond John Gittos was joined in March 2010 as a second defendant as a result of a claim by him that the money in question, or a large part of it, belonged to him.

5. Among the affidavits is a manuscript affidavit from Mrs Gittos sworn 20 April 2010 and a manuscript affidavit from Mr Raymond John Gittos sworn 8 July 2010.  The substance of those affidavits, although they have not been put in evidence at this hearing, is that the money in question found at the house where Mrs Gittos was living during the course of a search by the police was not in fact her money, but is money belonging to Mr Gittos, which she was holding for Mr Gittos for safe keeping.  The affidavits assert that it is an accumulation of a large number of smaller payments made by Mr Gittos to Mrs Gittos over a series of years in circumstances where he was accustomed to give her large parts of his money or earnings for safe keeping because of his alcoholism, as a precaution to keep the money safe.  Details of how this came about and records of payment are not included, but Mr Gittos makes claim to the money as his own.  I mention that to indicate the nature of the claim to the money which has been made by the second defendant and the objection to the forfeiture or the objection to the confiscation foreshadowed by Mrs Gittos.

6. In fact, because neither defendant is present today, although I am satisfied that each has had notice of these proceedings, they are not in a position to present these affidavits and there is no evidence put before the court today in support of the claim which Mr Gittos is making. 

7. In fact, the only material formally before me as a result of tender by counsel for the State are affidavits for the plaintiff. There is an affidavit of Mr Marrapodi sworn 7 December 2009 which refers to the conviction of Lynette Joy Gittos in the District Court of Western Australia in July 2008 which shows that she was convicted under s 32 of the Misuse of Drugs Act of one count of possessing a prohibited drug; namely, cannabis, with intent to sell or supply it to another committed between 18 July 2006 and 3 August 2006 and that following that conviction, and again on 28 July 2008, Mrs Gittos was declared to be a drug trafficker pursuant to s 32A(1) of the Misuse of Drugs Act.  That affidavit also deposes to the fact that on 2 August 2006 cash in the sum of $28,925 was seized from Lynette Joy Gittos.  In a second affidavit tendered on behalf of the plaintiff by Peter Malcolm Fleming sworn 14 September 2010, there is evidence from Mr Fleming, a police officer who was present at the house at 222 Ravenswood Drive, Nollamara occupied by Mrs Gittos during the execution of a search warrant on 2 August 2006.  Detective Fleming deposes to the fact that a DVD video search was conducted and a transcript of conversations was recorded over the course of the search. 

8. That transcript, a lengthy document running to some 35 pages, is annexed to Detective Fleming's affidavit and verified.  I have been taken to a passage at page 30 of the transcript where there is a discussion between one of the officers conducting the search and Mrs Gittos about whether or not there are any sums of money in the house which she wishes to disclose.  There then follows a series of questions and answers from which it emerges that Mrs Gittos says that the only money which she has is her life savings which she had put away, being money she had got as a result of a car accident and a large sum payout from Social Security.  She was asked how much she was talking about.  The answer was $24,000.  'That's my life savings.'  Then there were questions about where it was and why she had not disclosed its existence before.  In respect of that latter question, her answer was, 'I didn't think to at the time that - that is my life savings and you can check in my bank book where the moneys from Social Security and that and stuff ‑ when I've taken it out and put it away' ‑ a plain indication that in the explanation given to the police officer Mrs Gittos was asserting that the money was her personal property.

9. That being the state of the evidence, and there being no evidence to the contrary, I am satisfied that the money in question referred to in the transcript as being about $24,000, but in fact as sworn to by Mr Marrapodi being a larger sum of $28,925, is the property of the first defendant and is therefore confiscated as a result of the drug trafficking declaration.