Van Der Vuurst BY His Next Friend Janis Lorraine Thornton v The State of Western Australia
[2021] WASC 153
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: VAN DER VUURST BY HIS NEXT FRIEND JANIS LORRAINE THORNTON -v- THE STATE OF WESTERN AUSTRALIA [2021] WASC 153
CORAM: ARCHER J
HEARD: 11 MAY 2021
DELIVERED : 11 MAY 2021
FILE NO/S: CPCA 54 of 2016
BETWEEN: PAUL JOHN VAN DER VUURST BY HIS NEXT FRIEND JANIS LORRAINE THORNTON
Plaintiff
AND
THE STATE OF WESTERN AUSTRALIA
Defendant
Catchwords:
Criminal property confiscation - Plaintiff declared drug trafficker - Application for declaration of confiscation - Objection to confiscation - Ownership
Legislation:
Criminal Property Confiscation Act 2000 (WA)
Misuse of Drugs Act 1981 (WA)
Result:
Objection dismissed
Declaration of confiscation made
Category: B
Representation:
Counsel:
| Plaintiff | : | |
| Defendant | : | Mr M Seaman |
Solicitors:
| Plaintiff | : | Lightwater Legal |
| Defendant | : | The Director of Public Prosecutions for The State of Western Australia |
Case(s) referred to in decision(s):
Brennan v The State of Western Australia [2018] WASC 31
Campana v The State of Western Australia [2008] WASC 230
Centurion Trust Company Ltd v Director of Public Prosecutions (WA) [2010] WASCA 133
Flack v Chairperson, National Crime Authority (1997) 150 ALR 153
McRobb v The State of Western Australia [2020] WASC 163
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 11 May 2021 and has been edited to correct matters of grammar and to include complete references.)
Introduction
In 2016, a freezing notice 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 plaintiff. The freezing notice was made on the ground that the plaintiff could be declared to be a drug trafficker under s 32A of the Misuse of Drugs Act 1981 (WA).
The plaintiff objected to the confiscation of the property. In May 2017, the plaintiff was declared to be a drug trafficker. The Director of Public Prosecutions (DPP) now seeks an order dismissing the objection and a declaration that particular property has been confiscated.
The plaintiff did not seek to defend the application.
For the reasons that follow, the objection should be dismissed and the declaration made.
Legal framework[1]
[1] This section reproduces or draws on parts of my judgments in earlier cases, including Brennan v The State of Western Australia [2018] WASC 31 and McRobb v The State of Western Australia [2020] WASC 163.
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 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 plaintiff was declared to be a drug trafficker;
2.the declaration was made as a result of the 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 plaintiff.
[4] Section 141(1)(a) 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 of the Confiscation Act, the property was automatically and immediately confiscated at the time the drug trafficker declaration was made.[6]
[6] Centurion Trust Company Ltd v Director of Public Prosecutions (WA) [2010] WASCA 133 (Centurion Trust 2010) [199].
In the absence of any third party interest, nothing else is required to be established before the court is compelled to make a declaration under s 30.[7]
Objections
[7] 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 plaintiff 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 ‑ 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. [8]
[8] Centurion Trust 2010 [223] (Buss JA, 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.[9]
[9] The Confiscation Act, s 85 ‑ s 87 gives 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
The DPP seeks a declaration that identified property (Property) has been confiscated. The Property comprises the plaintiff’s interest in the funds credited in Bankwest account 021-073341-9 (Bank Account), and the plaintiff's interest in the land at Lot 5 on Deposited Plan 406038 in Certificate of Title Volume 2887, Folio 275, commonly known as 10 Goodenia Street, Margaret River (Land).
Evaluation
The DPP filed an affidavit of Morgan Charlotte Paling (Paling Affidavit),[10] establishing the following.
[10] Affidavit filed 31 December 2020.
On 29 November 2016, the plaintiff was convicted in the Magistrates Court of, among other things, one count of possessing methylamphetamine with intent to sell or supply and one of possessing cannabis with intent to sell or supply, contrary to s 6(1)(a) of the Misuse of Drugs Act. These offences are punishable by imprisonment for more than 2 years.[11] They are therefore 'confiscation offences'. The offences were committed in 2016, after the commencement of the Confiscation Act.[12]
[11] Section 34(1) of the Misuse of Drugs Act.
[12] The Confiscation Act commenced on 1 January 2001.
On 18 May 2017, as a result of these convictions, the 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 is, in respect of each item of property the subject of the application, that the property was owned or effectively controlled by the plaintiff at the time the drug trafficker declaration was made.
Ownership
The Confiscation Act defines 'owner', in relation to property, to mean a person who has a legal or equitable interest in the property.[13]
[13] 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.[14]
[14] Confiscation Act glossary.
As I will explain, the Paling Affidavit establishes that the plaintiff was an owner of all of the Property, and was as at the time he was declared to be a drug trafficker, being 18 May 2017.
The Paling Affidavit establishes that the plaintiff is the registered proprietor of the Land, and had been as at 18 May 2017.
The Paling Affidavit establishes that the Bank Account is held in the name of Janis Lorraine Thorton on trust for the plaintiff.[15] The plaintiff therefore had an equitable interest in the funds credited in that account, making him an 'owner' within the definition of the Confiscation Act.[16]
[15] Paling affidavit page 19.
[16] See Rinaldi v The State of Western Australia [2019] WASC 420 [30], citing Flack v Chairperson, National Crime Authority (1997) 150 ALR 153, 156 ‑ 157, 162 ‑ 163.
The Bank Account was established before 18 May 2017 and continued in existence after that date.[17] He therefore was an 'owner' of the funds as at 18 May 2017.
[17] Paling Affidavit pages 15 and 19.
Therefore, I am satisfied that the plaintiff was an owner of all of the Property, and was as at the time he was declared to be a drug trafficker.
Declaration of confiscation and dismissal of objection
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 is required to be established before the court is compelled to make a declaration under s 30 of the Confiscation Act.
Once the plaintiff was declared to be a drug trafficker, the freezing notice ceased to have any force. The Property was no longer frozen; it was confiscated. The plaintiff's objection to the freezing order must, therefore, be dismissed.
It follows that I am required to declare that that property has been confiscated.
Orders
I order that the plaintiff's objection is dismissed.
I declare that the identified property has been confiscated.
These orders will be made in the terms of paragraphs 1 and 2 of the DPP's minute filed 10 May 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
17 MAY 2021
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