Tsalikis v The State of Western Australia
[2021] WASC 477
•22 DECEMBER 2021
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: TSALIKIS -v- THE STATE OF WESTERN AUSTRALIA [2021] WASC 477
CORAM: ARCHER J
HEARD: 25 NOVEMBER 2021 and 16 DECEMBER 2021
DELIVERED : 16 DECEMBER 2021
PUBLISHED : 22 DECEMBER 2021
FILE NO/S: CPCA 17 of 2016
BETWEEN: CHRISTOPHER TSALIKIS
First Plaintiff
ALISON TSALIKIS
Second Plaintiff
EILEEN BENNETT
Third Plaintiff
AND
THE STATE OF WESTERN AUSTRALIA
Defendant
Catchwords:
Criminal property confiscation - First plaintiff declared drug trafficker - Application for declaration of confiscation
Legislation:
Criminal Property Confiscation Act 2000 (WA)
Misuse of Drugs Act 1981 (WA)
Result:
Declaration of confiscation made
Category: B
Representation:
Counsel:
| First Plaintiff | : | No Appearance |
| Second Plaintiff | : | No Appearance |
| Third Plaintiff | : | No Appearance |
| Defendant | : | Mr T Staples |
Solicitors:
| First Plaintiff | : | No Appearance |
| Second Plaintiff | : | No Appearance |
| Third Plaintiff | : | No Appearance |
| 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) [2008] WASCA 6; (2008) 35 WAR 463
Centurion Trust v Director of Public Prosecutions (WA) [2010] WASCA 133
Director of Public Prosecutions for Western Australia v Hafner [2004] WASC 32; (2004) 28 WAR 486
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
Rinaldi v The State of Western Australia [2019] WASC 420
Whittle v The State of Western Australia [2012] WASC 244
ARCHER J:
(This judgment was delivered extemporaneously on 16 December 2021 and has been edited to correct matters of grammar and to include complete references)
Introduction
In 2016, Freezing Notice WAPFN160035 was issued under the Criminal Property Confiscation Act 2000 (WA) (Confiscation Act). The Freezing Notice related to particular property said to be owned or effectively controlled by the first plaintiff. It was made on the ground that the first plaintiff could be declared to be a drug trafficker under s 32A of the Misuse of Drugs Act 1981 (WA).
The plaintiffs objected to the confiscation of the property. On 31 July 2017, the first plaintiff was declared to be a drug trafficker. On 28 February 2018, orders were made dismissing the first plaintiff's objection. On 13 July 2021, consent orders were made dismissing the second and third plaintiffs' objections. The Director of Public Prosecutions (DPP) now seeks a declaration that particular property has been confiscated.
The plaintiffs did not seek to defend the application.
For the reasons that follow, the declaration should be made.
Legal framework[1]
[1] 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 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.[2] The DPP must prove this on the balance of probabilities.[3]
[2] Campana v The State of Western Australia [2008] WASC 230[40].
[3] Section 102(2)(d) of the Confiscation Act.
The matters that the DPP must prove under s 8 are:
1.the first plaintiff was declared to be a drug trafficker;
2.the declaration was made as a result of the first plaintiff being convicted of a 'confiscation offence' (relevantly being an offence punishable by imprisonment for more than 2 years[4]);
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 first plaintiff.
[4] 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.[5]
[5] 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.[6] The 'property' confiscated includes any income or other property derived from the property while a freezing notice is in force.[7]
[6] Centurion Trust Company Ltd v Director of Public Prosecutions (WA) [2010] WASCA 133 (Centurion Trust 2010) [199].
[7] 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.[8]
[8] 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].
Property said to have been confiscated
The DPP seeks a declaration that identified property has been confiscated. The identified property comprises:
1.$900 cash that was taken from the first plaintiff on 8 April 2016;
2.monies standing to the credit of the first plaintiff in Commonwealth Bank of Australia account 06211128035974, together with any interest thereon;
3.monies standing to the credit of the first plaintiff in Commonwealth Bank of Australia account 219611374120, together with any interest thereon; and
4.monies held in the Public Trustee Interest Bearing A/c BSB 066-040 Account number 16300005 which represents the first plaintiff's interest as joint tenant in the land at Lot 4 in Deposited Plan 31343 Local Government Area Liverpool, Parish of St Luke, County of Cumberland, Title Diagram DP31343, commonly known as 142 Hoxton Park Road, Lurnea, New South Wales (Land), and any and all interest payable on such money.
Evaluation
The DPP filed an affidavit of Morgan Charlotte Paling[9] (Paling Affidavit) and an affidavit of Ana Paula De Oliveira Coppard[10] (Coppard Affidavit). During the first hearing on 25 November 2021, I raised with counsel for the DPP a number of deficiencies in the affidavit material. Counsel sought leave to adduce further evidence. I gave that leave and a further affidavit of Ms Paling was filed (Paling Supplementary Affidavit).[11] The affidavits establish the following.
[9] Filed 22 December 2017.
[10] Filed 26 August 2021.
[11] Filed 9 December 2021.
On 31 July 2017,[12] the first plaintiff was convicted in the District Court of possessing methylamphetamine with intent to sell or supply, contrary to s 6(1)(a) of the Misuse of Drugs Act. This offence is punishable by imprisonment for more than 2 years.[13] It is therefore a 'confiscation offence'. The offence was committed in 2016, after the commencement of the Confiscation Act.[14]
[12] The Certificate of Final Outcome records this as the date of the conviction, but it seems he was actually convicted at an earlier appearance – see the Paling Affidavit pages 63 and 34. The date of conviction is immaterial.
[13] Section 34(1) of the Misuse of Drugs Act.
[14] The Confiscation Act commenced on 1 January 2001.
On 31 July 2017, as a result of this conviction, the first plaintiff 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 item of property the subject of the application, is that the property was owned or effectively controlled by the first plaintiff at the time the drug trafficker declaration was made.
Ownership[15]
[15] 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.[16]
[16] 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.[17]
[17] Confiscation Act glossary.
The Paling affidavits establish that $900 in cash was taken from the first plaintiff when he was apprehended at the airport with the drugs.[18]
[18] Paling Affidavit page 8 and Paling Supplementary Affidavit [3] and MCP1.
The plaintiff's possession of the cash gave him an equitable interest in it, making him an 'owner' within the definition of the Confiscation Act.[19] He would not have lost his equitable interest when the cash was seized by the police. Until such time as the property was confiscated and vested in the State, he retained an interest in it.[20] 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 he was declared to be a drug trafficker. Accordingly, there is nothing to suggest that the plaintiff lost his equitable interest in the cash prior to the drug trafficker declaration.
[19] 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.
[20] 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.
The Paling Affidavit also establishes that the two Commonwealth Bank accounts were in the name of the first plaintiff as at April 2016. The Paling Supplementary Affidavit establishes that he remained the account holder as at the date he was declared to be a drug trafficker.
The Paling affidavits establish that the first plaintiff was a joint tenant of the Land, and was at the time the drug trafficker declaration was made.
The Coppard Affidavit sets out what happened to the Land after it was frozen.
On 12 April 2018, Chaney J made orders which included an order permitting the sale of the Land pursuant to s 91(2)(b) of the Confiscation Act. His Honour also made orders as to how the sale proceeds should be dispersed to meet various obligations and where the surplus (Surplus) should be placed. Chaney J further ordered that, in any application under the Confiscation Act, the Surplus shall be taken to be the Land and shall be dealt with as if it were the Land the subject of the Freezing Notice.
Subsequently, the Land was sold, the proceeds were dispersed, and the balance paid into the Public Trustee's trust account. An agreement was reached between the second and third plaintiffs and the defendant that a sum would be paid from the balance to the second and third plaintiffs and their objections to the Freezing Notice would otherwise be dismissed. The agreement was carried out.
As at 12 August 2021, the Surplus was $297,024.60. Pursuant to Chaney J's orders, the Surplus is to be dealt with as if it was the Land.
I note that the Land is in New South Wales. I am satisfied that the Confiscation Act has an extra-territorial effect such that property in another State may be confiscated.[21]
[21] See Director of Public Prosecutions for Western Australia v Hafner [2004] WASC 32; (2004) 28 WAR 486 [42] - [43]. See also Centurion Trust Company Ltd v Director of Public Prosecutions (WA) [2008] WASCA 6; (2008) 35 WAR 463 [91].
Declaration of confiscation
The DPP has proved each of the necessary elements under s 8. 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.
It follows that I am required to declare that the property has been confiscated.
Orders
I will make orders in the terms of paragraph 1 of the DPP's minute filed 23 November 2021.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KJ
Associate to the Honourable Justice Archer
22 DECEMBER 2021
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