The State of Western Australia v Proffitt
[2023] WASC 74
•13 MARCH 2023
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: THE STATE OF WESTERN AUSTRALIA -v- PROFFITT [2023] WASC 74
CORAM: ARCHER J
HEARD: 13 MARCH 2023
DELIVERED : 13 MARCH 2023
FILE NO/S: CPCA 10 of 2021
BETWEEN: THE STATE OF WESTERN AUSTRALIA
Applicant
AND
PENELOPE JULIANNE PROFFITT
Respondent
PENELOPE JULIANNE PROFFITT
Objector
THE STATE OF WESTERN AUSTRALIA
Respondent to the Objector
Catchwords:
Criminal property confiscation - Respondent declared drug trafficker - Application for declaration of confiscation and dismissal of objection
Legislation:
Criminal Property Confiscation Act 2000 (WA)
Misuse of Drugs Act 1981 (WA)
Result:
Declaration of confiscation made and objection dismissed
Category: B
Representation:
Counsel:
| Applicant | : | V J Pelligra |
| Respondent | : | In person |
| Objector | : | In person |
| Respondent to the Objector | : | V J Pelligra |
Solicitors:
| Applicant | : | Director of Public Prosecutions (WA) |
| Respondent | : | In person |
| Objector | : | In person |
| Respondent to the Objector | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Campana v The State of Western Australia [2008] WASC 230
Centurion Trust v Director of Public Prosecutions (WA) [2010] WASCA 133
Flack v Chairperson, National Crime Authority (1997) 150 ALR 153
Lordianto v Commissioner of the Australian Federal Police [2018] NSWCA 199
Mulholland v Winslow [2018] WASCA 19
Ranford v The State of Western Australia [2015] WASC 45
Rinaldi v The State of Western Australia [2019] WASC 420
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 13 March 2023 and has been edited to correct matters of expression, include complete references, and add formatting.)
Introduction
On 23 April 2021, Freezing Notice WAPFN210044 (Freezing Notice) was issued under the Criminal Property Confiscation Act 2000 (WA) (Confiscation Act).[1] The Freezing Notice related to the respondent's interest in various property (Frozen Property). The Frozen Property included several amounts of cash that had been seized by the police, the money in a bank account (Bank Account money), and a property in Duncraig (Duncraig Property).
[1] Affidavit of Adrian Yates filed 6 December 2022 (Yates Affidavit), Attachment 'AY1'.
The Freezing Notice was made on grounds including that the respondent could be declared to be a drug trafficker under s 32A of the Misuse of Drugs Act 1981 (WA).
On 6 May 2021, the respondent made a statutory declaration in which she said that she was not aware of any other person who was, or may be, an interested party in the Frozen Property.[2]
[2] Yates Affidavit, Attachment 'AY5'.
On 17 May 2021, the respondent filed an originating summons, objecting to the confiscation of the Frozen Property.
On 6 August 2021, I made consent orders in relation to the Bank Account money. The effect of these orders was to permit that money to be placed in the respondent's solicitors' trust account (Solicitors' Trust Account), and for some amounts to be paid to the respondent for living expenses and to meet legal fees and disbursements. I will say more about these orders later.
On 18 February 2022, the respondent was declared to be a drug trafficker.
On 6 December 2022, the Director of Public Prosecutions (DPP) filed a summons seeking an order that the respondent's objection be dismissed and a declaration that some of the Frozen Property has been forfeited (Summons). The property in respect of which this declaration was sought was the respondent's interest in three amounts of cash (Cash), the remaining money in the Solicitors' Trust Account, and the Duncraig Property (collectively, the 'Property').
For the reasons that follow, I would make those orders.
Legal framework[3]
[3] This section reproduces what I have written in previous judgments.
The DPP seeks the declaration under s 30 of the Confiscation Act.
Section 30 of the 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.
The DPP says that the Property described in the application has been confiscated under s 8(1) of the Confiscation Act. That subsection 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.
Proof of confiscation
The DPP bears the onus of proving that the Property has been confiscated.[4] The DPP must prove this on the balance of probabilities.[5]
[4] Campana v The State of Western Australia [2008] WASC 230[40].
[5] Section 102(2)(d) of the Confiscation Act.
The matters that the DPP must prove under s 8 are:
1.the respondent was declared to be a drug trafficker;
2.the declaration was made as a result of the respondent being convicted of a 'confiscation offence' (relevantly being an offence punishable by imprisonment for more than 2 years[6]);
3.the offence was committed after 1 January 2001, being the commencement of the Confiscation Act; and
4.at the time the drug trafficker declaration was made, the Property was owned or effectively controlled by the respondent.
[6] Section 141(1) of the Confiscation Act.
If a person has been convicted of a relevant confiscation offence, regard may be had to material before a court in any proceedings for the offence or sentencing.[7]
[7] See s 107 of the Confiscation Act.
If each of these matters is proved, then, pursuant to s 8(1) of the Confiscation Act, the Property was automatically and immediately confiscated at the time the drug trafficker declaration was made.[8] The 'property' confiscated includes any income or other property derived from the Property while a freezing notice is in force.[9]
[8] Centurion Trust Company Ltd v Director of Public Prosecutions (WA) [2010] WASCA 133 (Centurion Trust 2010) [199].
[9] Section 34(7) of the Confiscation Act.
In the absence of any third party interest, nothing else must be established before the court is compelled to make a declaration under s 30.[10]
Objections
[10] 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].
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 made on the ground that the respondent could be declared to be a drug trafficker.
A person may file an objection to the confiscation of frozen property. The Confiscation Act gives the court power to set aside a freezing notice or order to the extent permitted by s 82 to 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.[11]
[11] Centurion Trust 2010 [223] (Buss JA, as his Honour then was, with whom Owen JA agreed at [74]). See also Campana [38], and Urbano v The State of Western Australia [2006] WASCA 147 [34] and [39] (Pullin JA, with whom Martin CJ agreed). Further, under s 39 and s 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 s 6, s 7 or s 8.
The court has no power to release property once it has been confiscated under s 8.[12]
[12] Sections 85 to 87 of the Confiscation Act give the court the power to release property confiscated under s 6 or s 7. No such power is given in relation to property confiscated under s 8. See also Campana [38] and Centurion Trust 2010 [162].
Property said to have been confiscated
By its Summons, the DPP sought a declaration that the following property had been confiscated:
1.Money in the following values in Australian currency held in Commonwealth Bank of Australia Western Australia Police Force Seized Money Trust Account arising from the seizure of cash from Proffitt by Western Australia Police Force on 2 February 2021, and any interest thereon as of 18 February 2022:
a)AUD $300.00;
b)AUD $400.00; and
c)AUD $250.00.
2.Monies held in general trust account, account number [redacted], BSB [redacted], styled Kingdom Legal, transferred from the Commonwealth Bank Limited bank account, account number 615700665454 in the name of Proffitt [(Bank Account)], pursuant to paragraph 5(a) of the Freezing Order made 6 August 2021 by the Honourable Justice Archer, together with any interest thereon as of 18 February 2022.
3.Proffitt's interest as registered proprietor in the land at Lot 881 on Plan 10072 in Certificate of Title Volume 1740 Folio 994, commonly known as 126 Lilburne Road, Duncraig.
I refer to these as the Cash, the Solicitors' Trust Account money and the Duncraig Property respectively.
Evaluation
The DPP filed an affidavit of Maria Eleonora Ingles,[13] an affidavit of Adrian Yates,[14] and an affidavit of Valentin Charles Hubert Carraz.[15] The affidavits establish the following.
[13] Filed 6 December 2022 (Ingles Affidavit).
[14] Yates Affidavit.
[15] Filed 6 December 2022 (Carraz Affidavit).
On 18 February 2022, the respondent was convicted in the District Court of cultivating cannabis with intent to sell or supply, contrary to s 7(1)(a) of the Misuse of Drugs Act. This offence is punishable by imprisonment for more than 2 years.[16] It is therefore a 'confiscation offence'. The offence was committed in 2021, after the commencement of the Confiscation Act.[17]
[16] Section 34(2)(a) of the Misuse of Drugs Act.
[17] The Confiscation Act commenced on 1 January 2001.
On 18 February 2022, as a result of this conviction, the respondent was declared to be a drug trafficker under s 32A of the Misuse of Drugs Act.
Accordingly, the only remaining element that the DPP must prove, in respect of each component of the Property, is that the Property was owned or effectively controlled by the respondent at the time the drug trafficker declaration was made.
Ownership[18]
[18] Parts of this section reproduce what I have written in previous judgments.
The Confiscation Act defines an 'owner' of property to mean a person who has a legal or equitable interest in the property.[19]
[19] 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.[20]
Cash seized on 2 February 2021
[20] Confiscation Act glossary.
Ms Ingles' affidavit establishes that the police executed a search warrant at the Duncraig Property on 2 February 2021. The police found the Cash in the respondent's bedroom. The affidavit attached a copy of the exhibit logs for that search, showing the seizure of, among other things, the Cash.[21] The Cash was subsequently banked by the police into the WA Police Force Seized Money Trust Account on 2 February 2021.[22]
[21] Ingles Affidavit [11] - [13] and Attachments 'MEI1' and 'MEI2'.
[22] Ingles Affidavit [14] - [16] and Attachment 'MEI3'.
From this evidence, I am satisfied, on the balance of probabilities, that the respondent had possession of the Cash on 2 February 2021. It was found in her bedroom. During the hearing, the respondent admitted this.
The respondent's possession of the Cash gave her an equitable interest in it, making her an 'owner' within the definition of the Confiscation Act.[23] She would not have lost her equitable interest when the Cash was seized by the police. Until such time as the property was confiscated and vested in the State, she retained an interest in it.[24]
[23] See Rinaldi v The State of Western Australia [2019] WASC 420 [30], referring to Flack v Chairperson, National Crime Authority (1997) 150 ALR 153, 156 ‑ 157, 162 ‑ 163.
[24] See Rinaldi [32], referring to 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.
An order for forfeiture of the Cash was not made during the sentencing proceedings. The property was not confiscated and did not vest in the State until she was declared to be a drug trafficker (on 18 February 2022). Accordingly, there is nothing to suggest that the respondent lost her equitable interest in the Cash prior to the drug trafficker declaration.
Therefore, I am satisfied that, at the time the drug trafficker declaration was made, the respondent owned (in the defined sense) all of the Cash.
Solicitors' Trust Account money
It will be recalled that the Bank Account money was, by order, transferred into the Solicitors' Trust Account. The order also permitted some amounts to be paid to the respondent for living expenses and to meet legal fees and disbursements.
The evidence shows that the respondent was the account holder for the Bank Account from which the money came on 27 April 2021 and 11 August 2021.[25] A bank account holder has a chose in action, being a right to recover from the bank the balance standing to the credit of the account on demand.[26]
[25] Commonwealth Bank of Australia Limited bank account number 615700665454. See Yates Affidavit, Attachment 'AY6'; Carraz Affidavit, Attachment 'VCHC6'.
[26] Lordianto v Commissioner of the Australian Federal Police [2018] NSWCA 199 [48] ‑ [53].
The Bank Account was frozen by the Freezing Notice which was issued on 23 April 2021.[27] Although there is no direct evidence that the respondent was the holder of the Bank Account on that date, there is evidence that she was the holder at least by 27 April 2021. As the Freezing Notice was in force between those dates, it is reasonable to infer that she was the holder as at 23 April 2021.[28]
[27] Yates Affidavit [7] and Attachment 'AY1', item 7.
[28] Section 50 of the Confiscation Act prohibits any dealing with frozen property other than in specific circumstances, none of which apply here.
On 6 August 2021, I made orders in relation to the Bank Account money (August Orders). Paragraph 4 of those orders was a freezing order over the Bank Account (Freezing Order). By paragraph 5, the Bank Account was excluded from the Freezing Order subject to various conditions. The first condition was that the money be transferred from the Bank Account to the Solicitors' Trust Account.
On 23 August 2021, $26,398.79 was transferred from the Bank Account to the Solicitors' Trust Account.[29]
[29] Carraz Affidavit [18] - [19] and Attachments 'VCHC9' and 'VCHC10'.
There is no direct evidence that the respondent was still the account holder of the Bank Account as at the date of transfer. The evidence showed that she was the account holder as late as 11 August 2021, but did not directly prove she remained the account holder from 12 August 2021 to the date of the transfer 13 days later. However, the Freezing Notice was in force over the money in the Bank Account from 23 April 2021[30] to after the date of the transfer.[31] Accordingly, I would infer that, up to the time of the transfer, the respondent continued to be the account holder of the money in the Bank Account.[32]
[30] See s 38(4) of the Confiscation Act.
[31] Yates Affidavit [7] and [16] and Attachments 'AY1', item 7 and 'AY7'.
[32] Section 50 of the Confiscation Act prohibits any dealing with frozen property other than in specific circumstances, none of which apply here. See also s 51.
The money in the Bank Account was transferred pursuant to my August Orders. Those orders placed limits on the manner in which the money could be dispersed. The respondent continued to have an interest in the money that remained in the Solicitors' Trust Account, up to the date on which the declaration of drug trafficking was made (on 18 February 2022). During the hearing, the respondent did not deny she had an interest in that money.
Accordingly, I am satisfied that, at the time the drug trafficker declaration was made, the respondent owned (in the defined sense) the money in the Solicitors' Trust Account.
Duncraig Property
The evidence shows that the respondent was the registered proprietor of the Duncraig Property on 20 May 2021 and on 8 September 2022.[33] On 4 May 2021, a memorial of the issue of the Freezing Notice was lodged with Landgate.[34] During the hearing, the respondent admitted to owning this property.
[33] Ingles Affidavit [20] - [21] and Attachments 'MEI5' and 'MEI6'.
[34] Ingles Affidavit [22] - [23] and Attachment 'MEI7'.
Accordingly, I am satisfied that, at the time the drug trafficker declaration was made, the respondent owned the Duncraig Property.
Declaration of confiscation
The DPP has proved each of the necessary elements under s 8 of the Confiscation Act. Therefore, the property was automatically and immediately confiscated at the time the drug trafficker declaration was made.
As noted earlier, in the absence of any third party interest, nothing else must be established before the court is compelled to make a declaration under s 30 of the Confiscation Act.
Once the respondent was declared to be a drug trafficker, the Freezing Notice and Freezing Order ceased to have any force. The Property was no longer frozen; it was confiscated. The respondent's objection to the Freezing Notice and Freezing Order must, therefore, be dismissed.
It follows that I am required to declare that the Property has been confiscated.
Orders
I will make orders in terms of proposed orders 1 and 2 in the DPP's minute of proposed orders filed 10 March 2023.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
NL
Associate to the Judge
15 MARCH 2023
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