Walker v The State of Western Australia
[2019] WASC 382
•24 OCTOBER 2019
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
CITATION: WALKER -v- THE STATE OF WESTERN AUSTRALIA [2019] WASC 382
CORAM: HILL J
HEARD: 29 AUGUST 2019
DELIVERED : 29 AUGUST 2019
PUBLISHED : 24 OCTOBER 2019
FILE NO/S: CPCA 11 of 2010
BETWEEN: DEBORAH MARIA WALKER
Plaintiff
AND
THE STATE OF WESTERN AUSTRALIA
Defendant
Catchwords:
Criminal property confiscation - Whether objections to the confiscation of property should be dismissed - Whether property 'crime-used' - Turns on own facts
Legislation:
Criminal Property Confiscation Act 2000 (WA), s 34, s 79, s 82, s 146
Misuse of Drugs Act 1981 (WA), s 6
Result:
Objections to confiscation of property dismissed
Category: B
Representation:
Counsel:
| Plaintiff | : | No appearance |
| Defendant | : | Mr T Staples |
Solicitors:
| Plaintiff | : | In person |
| Defendant | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Bennett v The State of Western Australia [2012] WASCA 70
Director of Public Prosecutions (WA) v White [2010] WASCA 47; (2010) 41 WAR 249
Director of Public Prosecutions for Western Australia v McPherson [2012] WASC 342
Mickelberg v Director of Perth Mint [1986] WAR 365
HILL J:
This is an application arising under the Criminal Property Confiscation Act 2000 (WA) (Act) for the dismissal of objections lodged by the plaintiff in 2010. I note that this is a civil proceeding[1] on which I am required to make findings on the balance of probabilities.[2]
[1] Criminal Property Confiscation Act 2000 (WA) s 102(1).
[2] Criminal Property Confiscation Act s 102(2)(d).
On 6 January 2010, the plaintiff was charged with one count of attempting to manufacture a prohibited drug, namely methylamphetamine, contrary to s 6(1)(b) of the Misuse of Drugs Act 1981 (WA).
Two freezing notices were issued on the 7 January 2010 and 17 February 2010 respectively, pursuant to s 34(2) of the Act on the basis that there were reasonable grounds for suspecting the Property was crime‑used and/or crime‑derived property. Both notices froze the land at Lot 224 on Plan 20536 in Certificate of Title Volume 2040 Folio 774, commonly known as 4 Marmaduke Point Drive, Gnarabup (the Property). The plaintiff is the registered proprietor of the Property as joint tenant with John Graham Wheeler.[3] Mr Wheeler was the estranged de facto partner of the plaintiff at the time of the offence and is now deceased.[4]
[3] Affidavit of Bruce Robert Maxwell Wimbridge filed 19 June 2019, 'BRMW3'.
[4] Affidavit of Bruce Robert Maxwell Wimbridge filed 19 June 2019, p 85.
On 27 January 2010, the plaintiff filed an objection to one of the freezing notices issued in respect of the Property, pursuant to s 79 of the Act. On 14 April 2010, Registrar Powell ordered that the plaintiff's objection also stand as an objection to the second freezing notice issued.
The objections can only succeed if the plaintiff can establish that it is more likely than not that the Property the subject of the freezing notices is not crime‑used.[5] This is because neither s 82(3) nor s 82(4) of the Act provide any assistance to the plaintiff. The plaintiff is not an 'innocent party' (a requirement under both s 82(3)(b) and s 82(4)(c) of the Act). She was the person who was convicted of the offence and accordingly was involved in the commission of the offence.
[5] Criminal Property Confiscation Act s 82(1).
On 9 March 2012, the plaintiff was convicted after entry of a plea of guilty to the offence she had been charged with. She subsequently sought to set aside her conviction and to change her plea of guilty to one of not guilty. This application was dismissed on 5 December 2012 and the plaintiff was sentenced on 3 April 2013.
In March 2019, the defendant wrote to the plaintiff inviting her to consent to an order that her objections to the freezing notice be dismissed. The plaintiff did not respond to this letter.
As a consequence, by summons dated 14 June 2019 (summons) the Director of Public Prosecutions (WA) applied for orders that:
1. The Plaintiff's objections to freezing notices WAPFN100004 and WAPFN100028 are dismissed.
2. The proceedings are otherwise dismissed.
3. The Plaintiff pay the Defendant's costs of the proceedings, including any reserved costs, such costs to be taxed if not agreed.
On 17 July 2019, the defendant filed an affidavit of service of Rachael Anne Macey confirming that a letter to the plaintiff, the summons, the defendant's submissions and the affidavit of Bruce Robert Maxwell Wimbridge had been served on the plaintiff on 14 July 2019.[6]
[6] Affidavit of Service of Rachael Anne Macey sworn 14 July 2019.
The matter came before Justice Kenneth Martin for directions on 2 August 2019. His Honour directed that the affidavits of Mr Wimbridge and Rachael Anne Macey filed 14 July 2019 stand as evidence‑in‑chief. The directions made by His Honour included an order that:[7]
After notice of these orders is served on the plaintiff, in the event that there should be no indication, within 14 days of service of notice of these orders, of the plaintiff's intention to participate or to oppose the orders for confiscation that are sought, the defendant is then at liberty to apply administratively to the Principal Registrar to have the substantive matter of confiscation determined on the papers and the court will deal administratively with such an application by the defendant if such circumstances arise.
[7] Order 7, Orders of the Honourable Justice K Martin, 2 August 2019.
To ensure the plaintiff had adequate time and opportunity to respond to the summons of the defendant, this matter was not listed before me for hearing until 29 August 2019.
Prior to the hearing, counsel for the defendant confirmed with my Associate that there had been no indication from the plaintiff that she would appear or oppose the summons.
The plaintiff was not present when the matter was called on for hearing on 29 August 2019 nor did she file any evidence in support of the objections.
For the reasons set out below, the evidence filed by the defendant established that the offence committed by the plaintiff occurred at the Property. As there was no evidence filed by the plaintiff which contradicted this evidence, the plaintiff could not establish that it was more likely than not that the Property was not crime‑used.
For that reason, on 29 August 2019, I ordered the objections filed by the plaintiff be dismissed and the proceedings be otherwise dismissed. These are my reasons for that decision.
The facts
The defendant relied upon two affidavits at the hearing being the affidavit of Bruce Robert Maxwell Wimbridge filed 19 June 2019 and the affidavit of service of Rachael Anne Macey filed 17 July 2019.
The affidavit of Mr Wimbridge annexed copies of the Freezing Notices, the certificate of title of the Property, the indictment, prosecution brief and revised prosecution brief, the transcript from Mrs Walker's sentencing, the certificate of the final outcome of the prosecution and the letter from the defendant to the plaintiff dated 19 March 2019.
Evidence of a conviction is admissible as prima facie evidence of the facts giving rise to the conviction in subsequent civil proceedings between the convicted person and another party.[8] Pursuant to the Evidence Act 1906 (WA), s 47(1), the conviction can be proved by producing a record or extract of the conviction and proving that the plaintiff is the person convicted.
[8] Mickelberg v Director of Perth Mint [1986] WAR 365; Bennett v The State of Western Australia [2012] WASCA 70 [64].
Further, pursuant to s 107 of the Act, the court may have regard to the sentencing transcript, any material that was before the sentencing court in the proceedings, and any statement that was served on the person in those proceedings.
Each of these matters were tendered in evidence before me.[9] The summary of facts set out below is taken from this material.
[9] Affidavit of Bruce Robert Maxwell Wimbridge filed 19 June 2019, 'BRMW4'-'BRMW8'.
On 6 January 2010, a search warrant was executed at the Property.[10] During the search warrant, the police seized a number of items which were consistent with the manufacture of methylamphetamine.[11] Subsequent examination of a number of these items identified the fingerprints of the plaintiff on a number of the items that were seized from the Property.[12]
[10] Affidavit of Bruce Robert Maxwell Wimbridge filed 19 June 2019, 'BRMW5'.
[11] Affidavit of Bruce Robert Maxwell Wimbridge filed 19 June 2019, 'BRMW5'.
[12] Affidavit of Bruce Robert Maxwell Wimbridge filed 19 June 2019, p 49 - 64.
On 6 January 2010, the plaintiff was charged. The prosecution notice states that the plaintiff was charged with one count of attempting to manufacture a prohibited drug, namely methylamphetamine, on 6 January 2010 at 'Margaret River', contrary to s 6(1)(b) of the Misuse of Drugs Act 1981 (WA).[13]
[13] Affidavit of Bruce Robert Maxwell Wimbridge filed 19 June 2019, p 25.
On 9 March 2012, the plaintiff was convicted after entry of a plea of guilty to the offence she had been charged with.[14] She was subsequently sentenced on 3 April 2013. In sentencing the plaintiff, the learned sentencing judge stated:[15]
The facts of the offence are such that on 6 January 2010 you were arrested when officers from the Organised Crime Squad attended at your property in Margaret River and there identified items of apparatus that were used - had been used in the attempted manufacture of methylamphetamine.
It's apparent from the record of the interview, when interviewed by the arresting officers on that day, that you made a ready admission of your involvement in the offence and in the manufacturing process, but that you identified and acknowledged at the time that there were other people involved and indeed, said that there were other people involved who had supplied the pseudoephedrine to you.
And as the police officer put, 'Was it fair to say that people were standing over you to make you manufacture the methylamphetamine?' Your response was, 'This was when my son was in gaol when I was here by myself. They had the perfect opportunity to come', and I think the words were, 'Take advantage of the situation'.
You lived at that property then with your estranged partner, Mr Wheeler, a person who had, at an earlier occasion when you first started a relationship with you [sic], introduced you to heroin to the point where you became a heroin addict. You were later on a methadone program and seeking to rehabilitate yourself and regain your life as a registered nurse.
It's clear that Mr Wheeler had a part to play in the process that was being undertaken at that property although you were the only person charged.
…
You explained how you were - they showed you what to do, that they supplied you with the material, and you were able to identify the ingredients, including toluene, that the - using lithium batteries, and also able to identify the various components including a handmade generator or smoker, and the other items of equipment that were used.
You said you did this because these people threatened you with hurting your family, burning your house, and whilst you were not prepared to identify these people, the impression one got from the interview was that the arresting officers were familiar with others involved in this process.
[14] Affidavit of Bruce Robert Maxwell Wimbridge filed 19 June 2019, 'BRMW8'.
[15] Affidavit of Bruce Robert Maxwell Wimbridge filed 19 June 2019, p 77 - 78.
Neither the charge nor the sentencing remarks identify the precise place at which the offence was committed. However the statements that formed part of the brief that was served on the plaintiff as part of the criminal prosecution identify that the offence was committed at the Property.[16]
[16] Affidavit of Bruce Robert Maxwell Wimbridge filed 19 June 2019, 'BRMW5' and 'BRMW6'.
For this reason, I accept that the offence under s 6(1)(b) of the Misuse of Drugs Act of which the plaintiff was convicted on 9 March 2012, occurred at the Property.
Crime-used Property
Section 146 of the Act defines the circumstances in which a property is considered to be crime-used in the following terms:
(1)For the purposes of this Act, property is crime-used if -
(a) the property is or was used, or intended for use, directly or indirectly, in or in connection with the commission of a confiscation offence, or in or in connection with facilitating the commission of a confiscation offence; or
(b) the property is or was used for storing property that was acquired unlawfully in the course of the commission of a confiscation offence; or
(c) any act or omission was done, omitted to be done or facilitated in or on the property in connection with the commission of a confiscation offence.
(2)Without limiting subsection (1), property described in that subsection is crime-used whether or not -
(a) the property is also used, or intended or able to be used, for another purpose; or
(b) anyone who used or intended to use the property as mentioned in subsection (1) has been identified; or
(c) anyone who did or omitted to do anything that constitutes all or part of the relevant confiscation offence has been identified; or
(d) anybody has been charged with or convicted of the relevant confiscation offence.
(3)Without limiting subsection (1) or (2), any property in or on which an offence under Chapter XXII or XXXI of The Criminal Code is committed is crime-used property.
As McClure P held in Director of Public Prosecutions (WA) v White:[17]
The words 'in connection with' are of wide import and, subject to the context in which they are used, are capable of describing a spectrum of relationships ranging from direct and immediate to tenuous and remote: Collector of Customs v Pozzolanic Enterprises Pty Ltd. They can readily extend to matters leading up to and after the confiscation offence. Macfarlane J in the Canadian case of Re Nanaimo Community Hotel Ltd, said:
'One of the very generally accepted meanings of "connection" is "relation between things one of which is bound up with or involved in another"; or again "having to do with". The words include matters occurring prior to as well as subsequent to or consequent upon so long as they are related to the principal thing. The phrase 'having to do with' perhaps gives as good a suggestion of the meaning as could be had.
It is clear from the statutory language that the relationship between the use of, or the act or omission on (the conduct), the property and the confiscation offence does not have to be direct and immediate. However, having regard to the consequence of falling within the definition of crime‑used, it is not sufficient if the relationship be merely tenuous and remote. The requisite relationship would fall between these two extremes and involve matters of degree and judgment. In considering whether the relationship is sufficiently proximate, the purpose and effect of the conduct would be relevant considerations. (citations omitted)
[17] Director of Public Prosecutions (WA) v White [2010] WASCA 47; (2010) 41 WAR 249 [32] ‑ [33] (Owen & Buss JJA agreeing)
In that case, McClure P, with whom the other members of the Court of Appeal agreed, gave as an example of conduct that would fall within both s 146(1)(a) and s 146(1)(c), the preparation of prohibited drugs on his or her land.[18]
[18] Director of Public Prosecutions (WA) v White [30].
The maximum sentence for the offence of which the plaintiff was convicted is 25 years. As such, it is a 'confiscation offence' as defined by s 141 of the Act.
Previous decisions of this court have accepted that where a person has been convicted of an offence concerning the manufacture of methylamphetamine at a property, the property was used in the connection with the confiscation offence.[19]
[19] See for example, Director of Public Prosecutions for Western Australia v McPherson [2012] WASC 342 [13].
That said, the question as to whether the Property is 'crime‑used' must be determined on the facts of each case. However, there are likely to be significant difficulties in contending that the place at which the offence was committed is not 'crime‑used' property as is the position in this case.
Disposition
It is clear from the evidence before me that the offence, one of attempting to manufacture methylamphetamine, was carried out at the Property.
In these circumstances, I was and am satisfied that the Property was used in the commission of the plaintiff's offence contrary to s 6(1)(b) of the Misuse of Drugs Act of attempting to manufacture methylamphetamine. As a consequence, it follows that the Property is 'crime‑used' under s 146(1)(a) of the Act. It also follows that the plaintiff has not established that it is more likely than not that the Property was not crime‑used.
For these reasons, I ordered that the plaintiff's objections to the freezing notices should be dismissed.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
MG
Research Orderly to the Honourable Justice Hill24 OCTOBER 2019
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