Whittle v The State of Western Australia
[2012] WASC 244
•5 JULY 2012
WHITTLE -v- THE STATE OF WESTERN AUSTRALIA [2012] WASC 244
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2012] WASC 244 | |
| Case No: | CPCA:170/2008 | 20 JUNE 2012 | |
| Coram: | ALLANSON J | 5/07/12 | |
| 14 | Judgment Part: | 1 of 1 | |
| Result: | Declaration that the first plaintiff's property is confiscated to the State of Western Australia | ||
| B | |||
| PDF Version |
| Parties: | VALERIE JEAN WHITTLE JESSICA AMY TEN BROEKE RYAN DAVID TEN BROEKE (By his Next Friend Rex James Widerstrom) THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Criminal Property Confiscation Act 2000 Drug trafficker Objection to confiscation Equitable interest in property Constitutional validity of Act Institutional integrity Determination of objections |
Legislation: | Criminal Property Confiscation Act 2000 (WA), s 8, s 9, s 30, s 34, s 50, s 51, s 89, s 91, s 92 Misuse of Drugs Act 1981 (WA), s 32A |
Case References: | Barker v The Director of Public Prosecutions (WA) [2011] WASC 299 Dickfoss v DPP [2012] NTCA 1; (2012) 31 NTLR 16 Director of Public Prosecutions (WA) v Hafner [2004] WASC 32; (2004) 28 WAR 486 Durham Holdings Pty Ltd v New South Wales [2001] HCA 7; (2001) 205 CLR 399 Green v Green (1989) 17 NSWLR 343 ICM Agriculture Pty Ltd v The Commonwealth [2009] HCA 51; (2009) 240 CLR 140 Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51 Re Director of Public Prosecutions; ex parte Lawler [1994] HCA 10; (1994) 179 CLR 270 Smith v The State of Western Australia [2009] WASC 189 South Australia v Totani [2010] HCA 39; (2010) 242 CLR 1 Spencer v The Commonwealth [2010] HCA 28; (2010) 241 CLR 118 Wainohu v New South Wales [2011] HCA 24; (2011) 243 CLR 181 Willis v The State of Western Australia [No 3] [2010] WASCA 56 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
Freezing Notice Number WAPFN080265 issued pursuant to s 34 of the Criminal Property Confiscation Act 2000
- First Plaintiff
JESSICA AMY TEN BROEKE
Second Plaintiff
RYAN DAVID TEN BROEKE (By his Next Friend Rex James Widerstrom)
Third Plaintiff
AND
THE STATE OF WESTERN AUSTRALIA
Defendant
(Page 2)
Catchwords:
Criminal Property Confiscation Act 2000 - Drug trafficker - Objection to confiscation - Equitable interest in property - Constitutional validity of Act - Institutional integrity - Determination of objections
Legislation:
Criminal Property Confiscation Act 2000 (WA), s 8, s 9, s 30, s 34, s 50, s 51, s 89, s 91, s 92
Misuse of Drugs Act 1981 (WA), s 32A
Result:
Declaration that the first plaintiff's property is confiscated to the State of Western Australia
Category: B
Representation:
Counsel:
First Plaintiff : In person
Second Plaintiff : In person
Third Plaintiff : Mr R J Widerstrom
Defendant : Mr G T J Farley
Solicitors:
First Plaintiff : In person
Second Plaintiff : In person
Third Plaintiff : In person
Defendant : Director of Public Prosecutions (WA)
Case(s) referred to in judgment(s):
Barker v The Director of Public Prosecutions (WA) [2011] WASC 299
Dickfoss v DPP [2012] NTCA 1; (2012) 31 NTLR 16
Director of Public Prosecutions (WA) v Hafner [2004] WASC 32; (2004) 28 WAR 486
(Page 3)
Durham Holdings Pty Ltd v New South Wales [2001] HCA 7; (2001) 205 CLR 399
Green v Green (1989) 17 NSWLR 343
ICM Agriculture Pty Ltd v The Commonwealth [2009] HCA 51; (2009) 240 CLR 140
Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51
Re Director of Public Prosecutions; ex parte Lawler [1994] HCA 10; (1994) 179 CLR 270
Smith v The State of Western Australia [2009] WASC 189
South Australia v Totani [2010] HCA 39; (2010) 242 CLR 1
Spencer v The Commonwealth [2010] HCA 28; (2010) 241 CLR 118
Wainohu v New South Wales [2011] HCA 24; (2011) 243 CLR 181
Willis v The State of Western Australia [No 3] [2010] WASCA 56
(Page 4)
1 ALLANSON J: The first plaintiff, Ms Valerie Jean Whittle is a declared drug trafficker. The other plaintiffs are her children.
2 The Director of Public Prosecutions (DPP) seeks orders that the plaintiffs' objection to confiscation of a residential property in Craigie be dismissed. The present application is part of a wider application by the DPP for declarations that all of the property owned or effectively controlled by Ms Whittle at the time she was declared to be a drug trafficker has been confiscated. A declaration has already been made in relation to other property and only the Craigie property remains outstanding.
The facts
3 The primary evidence in support of the defendant's application was filed on 9 February 2010 in an affidavit of Peter Phillip Dawson, a senior constable of police who stated, relevantly:
1. Freezing Notice WAPFN080265 was issued on 5 December 2008 and filed in Supreme Court on 8 December 2008.
2. Freezing Notice WAPFN090086 was issued on 6 May 2009 and filed in the Supreme Court on 7 May 2009.
3. Freezing Notice WAPFN090099 was issued on 18 May 2009 and filed in the Supreme Court on 19 May 2009.
4. The Freezing Notices were for the property of Valerie Jean Whittle, and included in the property described in the first two notices was the land at lot 807, plan 13842, on certificate of title volume 1618, folio 744, commonly known as 68 Chadstone Road, Craigie.
5. Each Freezing Notice was served on various people including Ms Whittle on her own behalf and on behalf of her two children, Ryan David ten Broeke and Jessica Amy ten Broeke, and was also served on her adult son, Michael Bradley ten Broeke.
4 None of those facts is disputed.
5 It is also not in dispute that Ms Whittle is the registered owner of the property at Craigie. Her title was registered 19 March 1990. It is subject to a registered mortgage to Australia & New Zealand Banking Group Ltd.
(Page 5)
6 On 29 December 2008, Ms Whittle applied by originating summons under the Criminal Property Confiscation Act 2000 (WA) for orders that the freezing notices be set aside, and that she be appointed to control and manage the property while the freezing notice were in force. The court made orders by consent on 10 February 2009 appointing Ms Whittle to control and manage three particular items of property, including the Craigie property. The Craigie property was the family home in which she lived with her children, and in which her children have continued to live since her imprisonment.
7 During 2009, the proceedings were adjourned from time to time.
8 On 8 December 2009, Ms Whittle pleaded guilty to six charges on indictment under the Misuse of Drugs Act 1981 (WA), and also to a series of other offences on a notice under s 32 of the Sentencing Act 1995 (WA). Four of the indictable offences were such that, on application by the DPP under s 32A of the Misuse of Drugs Act, the court was required to declare Ms Whittle a drug trafficker. Ms Whittle received an effective sentence of 6 years' imprisonment with eligibility for parole. The sentence was backdated and deemed to have commenced from 28 April 2009 to reflect the time she had already spent in custody.
9 On 9 February 2010, the DPP applied by summons for orders that the plaintiff's objection to confiscation of the frozen property be dismissed, and for declarations that all of the property owned or effectively controlled by Ms Whittle at the time she was declared to be a drug trafficker has been confiscated.
10 The DPP's summons was adjourned on 25 March 2010 to be re-listed on a later date.
11 Throughout 2010 the matter was again adjourned from time to time.
12 On 25 November 2010, the matter was again adjourned but on this occasion orders were made joining two of Ms Whittle's children, Jessica ten Broeke and Ryan ten Broeke, as second and third plaintiffs, with Rex Widerstrom as their next friend. Both children were then under 18 years.
13 The plaintiffs were required to file and serve any affidavits upon which they intended to rely by 28 January 2011, and the summons was then adjourned for further directions. The time for the service of affidavits was later extended by consent orders. In the time that has elapsed since this action began, Jessica ten Broeke has turned 18, and appeared on her own behalf at the final hearing.
(Page 6)
14 Three affidavits were filed on 11 February 2011:
(1) Jessica ten Broeke stated that she resided at the property in Craigie, and had lived there since she was born, save for a period of one year, and that she wished to remain at the family home while she continued studying. Further, she referred to the property having been left to her and her two brothers in her mother's will. Ms ten Broeke submitted that the house had been paid for, in part, from maintenance and child support payments made by her father. She appealed to the apparent injustice and unfairness of taking away her home due to the actions of someone else, and the failure of the Criminal Property Confiscation Act to recognise the rights of the children.
(2) Ryan ten Broeke similarly referred to his wish to remain at the family home for the stability it would provide. He also expressed his sense of the unfairness of this application.
(3) Mr Widerstrom referred to the comparatively small amount owing on the property, so that the equity in it is substantial. He asserted that the children have an interest in the property by reason of it being partially paid for by child support payments from their father. He said, although without detail, that the children had paid the mortgage, rates, water and other utility accounts to keep the property in good repair since the imprisonment of their mother in 2009. It is their only inheritance.
15 The bulk of Mr Widerstrom's affidavit is more in the nature of a submission as to the rights of the children, and the proper construction of the legislation, and I will consider it in that light.
16 The matter was adjourned on several occasions throughout 2011. I am satisfied that the requirement for notices under s 78B of the Judiciary Act 1903 (Cth) has been met.
17 The application came before me on 9 June 2011, and I made orders declaring that a motor vehicle, the caravan, and a sum of money to the credit of Ms Whittle in a bank savings account, had been confiscated. The application regarding the confiscation of the Craigie property was adjourned to enable further affidavits and submissions.
18 On 8 November 2011, John Keith Whittle, the father of Ms Whittle and grandfather of the two other plaintiffs swore an affidavit in which he said among other things:
(Page 7)
- 1. That on her incarceration Ms Whittle asked him to assume responsibility for making payments associated with the property using money derived from contributions paid to the children by their father and Centrelink benefits paid to them at various times.
2. From April 2009, when Ms Whittle was imprisoned, to 24 October 2011, Mr Whittle has paid $17,802.30 in rates, water rates and repayment of loans to the ANZ. If insurance is included, the total paid is $19,434.79.
19 Of the approximately $19,000 paid, all but $5,354 of it was made after the declaration that the plaintiff is a drug trafficker on 8 December 2009. Because of the view I have formed of the facts, it is unnecessary to determine precisely what payments were made before and after that date.
The legislation
20 Under s 8(1) of the Criminal Property Confiscation Act:
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.
21 Under pt 4 div 2, the DPP or a police officer may apply to a justice of the peace for a freezing notice (s 34); and the justice may issue a freezing notice for all or any property that is owned or effectively controlled by a person or that the person has at any time given away if:
(a) the person has been charged with an offence, or the applicant for the notice advises the Justice of the Peace that the person is likely to be charged with an offence within 21 days after the day on which the freezing notice is issued; and
(b) the person could be declared to be a drug trafficker under section 32A(1) of the Misuse of Drugs Act 1981 if he or she is convicted of the offence (s 34(3)).
(Page 8)
22 A freezing notice may be issued under s 34(3) for all property owned or effectively controlled by the person, whether or not any of the property is described or identified in the application: s 34(4).
23 Subject to s 50(2), a person must not deal with frozen property (that is, property frozen under a freezing notice or a freezing order) in any way: s 50(1). Any dealing with property that contravenes s 50 'has no effect, whether at law, in equity or otherwise, on the rights of the State under [the] Act': s 51.
24 Under s 89(1) the DPP has responsibility for the control and management of frozen property unless the court orders otherwise under s 45(c) or s 91(2). The DPP may in the case of frozen property appoint a person who owns the property to manage it: s 89(3). Under s 91 an owner of frozen property may apply to the court for an order and the court may if it thinks fit, by order under s 91(2), appoint the person:
(a) to control and manage the property while the freezing notice or freezing order is in force; or
(b) to sell or destroy the property.
25 Under s 92, a person who has responsibility for the control or management of property 'must take reasonable steps to ensure that the property is … appropriately managed, and that it is appropriately maintained' until it is returned to the person from whom it was seized or to a person who owns it, another person becomes responsible for the control and management of it, it is sold or destroyed, or it is otherwise disposed of.
26 While the confiscation under s 8 is effected by operation of the Act, s 30 of the Criminal Property Confiscation Act provides that the DPP may apply to the court for a declaration that property has been confiscated. Under s 30(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.
27 Property other than registrable real property vests absolutely in the State when s 8 takes effect in relation to it. Registrable real property vests in the State when (s 9(1)):
(a) the court declares under s 30 that the property has been confiscated; and
(Page 9)
- (b) a memorial of the making of the declaration is registered under section 113(1).
28 Since December 2009, that is 2 1/2 years, the property has been confiscated, but it has not yet vested in the State. During that time, first the DPP and then Ms Whittle have been responsible for its control and management.
The submissions
29 Ms Whittle was unrepresented. As a sentenced prisoner, she appeared by video link and made a statement to the court. It was primarily directed to the fairness of the application and the effect on her children.
30 Jessica ten Broeke also made a statement to the court, largely consistent with what she had said in her affidavit.
31 Mr Widerstrom asserted, in very general terms, that the children have an interest in the Craigie property because of their contribution to the mortgage, rates and other outgoings, together with their mother's will and her intention that they would inherit it.
32 Mr Widerstrom referred to the effect of a confiscation order on innocent persons, and the undue hardship that would flow from the loss of their residence. He submitted that, were the property sought to be confiscated under provisions other than s 8 (that is, as crime-derived property or crime-used property) the children would meet the criteria for release of frozen property under s 82 and or s 83 of the Act.
33 This led to the first of two constitutional points, that the DPP, by choosing to apply for confiscation under s 8, was determining the outcome of the application, and that this is an impermissible intrusion by the executive into the processes and decisions of the court. Mr Widerstrom submitted that the court was being used, in effect, to give the appearance of a judicial determination to what, in reality, is an executive decision. He submitted that the result is repugnant to this court's status as a court exercising federal jurisdiction under the Commonwealth Constitution.
34 Mr Widerstrom further submitted that, as a result of the decision by the DPP to proceed under s 8, the children are worse off than they would have been had their mother committed murder. He contended that the application offends natural justice and the children's civil rights. Like the children, he appealed to principles of equality and fairness.
(Page 10)
35 Finally, Mr Widerstrom raised the second constitutional objection, that the seizure is an acquisition of property other than on just terms.
Consideration
36 Under s 30(2), if the court finds that property described in the application has been confiscated under s 8, then it must make a declaration to that effect. To make that finding, I must be satisfied on the balance of probabilities that:
(1) a court has declared Ms Whittle to be a drug trafficker under s 32A(1) of the Misuse of Drugs Act as a result of being convicted of a confiscation offence; and
(2) the property at Craigie was owned or effectively controlled by Ms Whittle at the time the court declared her to be a drug trafficker.
37 The record of the District Court of Western Australia establishes that on 8 December 2009, Ms Whittle was convicted of four confiscation offences (three offences of possessing amphetamines and one offence of possessing MDMA) and declared to be a drug trafficker. The offences all were committed on or after 4 December 2008 (that is, after the commencement of the Criminal Property Confiscation Act).
38 The record of the certificate of title for volume 1618, folio 744, the land described as lot 807, plan 13842, and commonly known as 68 Chadstone Road, Craigie shows that Ms Whittle was the registered proprietor of the property at the time she was declared to be a drug trafficker.
39 The plaintiffs assert an interest in the property on the basis of: the payment, at least in part, for the house from child-support payments and benefits received by their mother; the contributions they have made to the mortgage, rates and other outgoings since April 2009; and their mother's present testamentary intention to leave the property to them.
40 It appears to be accepted that if an innocent person has an equitable interest in property, as defined in the Act, and that interest is sufficient to satisfy the definition of owner under the Act, then that equitable interest is not subject to confiscation. Only the interest of the drug trafficker is confiscated: see, for example, Smith v The State of Western Australia [2009] WASC 189; Barker v The Director of Public Prosecutions (WA) [2011] WASC 299; but compare Willis v The State of Western Australia
(Page 11)
- [No 3] [2010] WASCA 56 [1] (McLure P). I need not consider the question further, as the matters relied upon by the plaintiffs, individually and cumulatively, give rise to no proprietary interest in Ms Whittle's children.
41 First, the evidence establishes that Ms Whittle has left the property to her children in her will. That creates no present interest. But for the effect of the confiscation under s 8, she would have been legally free to dispose of the property in her lifetime, or to revoke her will and make some alternative disposition.
42 Second, there is no cogent evidence that Ms Whittle used the whole or any identifiable proportion of her child support payments, or benefits she received as a parent, towards the payment of the property. But even if there were evidence, that use creates no recognised equitable interest. In Green v Green (1989) 17 NSWLR 343, 353, Gleeson CJ (Priestley JA agreeing) said, in the context of the property rights created in a de facto relationship:
[T]here are circumstances in which a court of equity will intervene to declare the existence of a proprietary interest in a family home on the part of [a] spouse or de facto partner, and the unifying principle underlying the cases where such intervention is regarded as appropriate is that in the circumstances of the case, and in accordance with equitable doctrines, it would be unconscionable on the part of the person against whom the claim is set up to refuse to recognise the existence of the equitable interest: Baumgartner v Baumgartner [1987] HCA 59; (1987) 164 CLR 137 at 147 per Mason CJ, Wilson and Deane JJ.
43 Significantly, as his Honour said, the declaration of a proprietary interest must be in accordance with equitable doctrines. To adapt an earlier passage in his Honour's reasons (353), the acceptance of an obligation on the part of a parent to house his or her children would not normally be regarded as an undertaking to give them a proprietary interest in the home in which they live.
44 The evidence of payment of outgoings on the property after it was subject to the freezing notice is unsatisfactory. In particular, the evidence about who paid them is unclear. More importantly, payments made after the property had been frozen under the freezing notice must be considered in the context of s 50 of the Act. Subject to s 50(2), a person must not deal with property frozen under a freezing notice or a freezing order in any way: s 50(1). Any dealing with property that contravenes s 50 'has no effect, whether at law, in equity or otherwise, on the rights of the State
(Page 12)
- under [the] Act'. Ms Whittle could not, after the property was frozen, deal with the property so as to create an equitable interest in her children.
45 Further, most of the payments were made after the District Court had declared Ms Whittle to be a drug trafficker, and the property had been confiscated by operation of s 8. After the property had been confiscated to the State, an interest could not be created. See, for example, Willis [67] (Buss JA), although compare [1] (McLure P).
46 There is also no evidence of any agreement or arrangement which, in accordance with equitable principles, would give rise to a proprietary interest.
47 The more general arguments relating to fairness and justice, are not supported by the text of the legislation. The Act is not ambiguous. Whether a confiscation is fair or just, and whether that confiscation will give rise to hardship, are not considerations to which I may have regard.
48 The constitutional issues raised by Mr Widerstrom have no force. This court has previously considered and rejected the argument that s 8 is incompatible with the status of this court as a court in which federal jurisdiction is vested under ch III of the Commonwealth Constitution: see Director of Public Prosecutions (WA) v Hafner [2004] WASC 32; (2004) 28 WAR 486. Since the decision in Hafner, the High Court has considered again the issue of 'institutional integrity' of the courts; see, in particular, International Finance Trust Co Ltd v New South Wales Crime Commission [2009] HCA 49; (2009) 240 CLR 319; South Australia v Totani [2010] HCA 39; (2010) 242 CLR 1; Wainohu v New South Wales [2011] HCA 24; (2011) 243 CLR 181. None of the more recent statements gives me any reason to doubt that the decision in Hafner is correct.
49 In Wainohu, French CJ and Kiefel J summarised that the principles established in Kable v Director of Public Prosecutions (NSW) [1996] HCA 24; (1996) 189 CLR 51 and later cases in this way:
Application of the Kable principle has the result that the State legislatures cannot validly enact a law which would effect an impermissible executive intrusion into the processes or decisions of a court; which would authorise the executive to enlist a court to implement decisions of the executive in a manner incompatible with that court's institutional integrity; or which would confer upon any court a function (judicial or otherwise) incompatible with the role of that court as a repository of federal jurisdiction [46].
(Page 13)
50 In Totani, French CJ said of the concept of institutional integrity:
The question indicated by the use of the term 'integrity' is whether the court is required or empowered by the impugned legislation to do something which is substantially inconsistent or incompatible with the continuing subsistence, in every aspect of its judicial role, of its defining characteristics as a court [70].
51 In my opinion, the plaintiffs' argument proceeds on a mistaken characterisation of the courts function under s 30. The court in declaring that particular property has been confiscated under s 8 is performing a traditional judicial function. Section 8 is a very blunt instrument. It applies to all property that a person who is declared to be a drug trafficker owns or effectively controls at the time the declaration is made, and all property that the person gave away at any time before the declaration was made. Section 30 may also be used as a blunt instrument, but, in my opinion, it should not be. Section 30(2) states:
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.
52 In making a declaration under s 30, the court may be called upon to adjudicate in relation to particular property 'described in the application' whether, on the evidence before the court, it is more likely than not that the declared drug trafficker does not own or effectively control it. A declaration in relation to 'all property that a person who is declared to be a drug trafficker owns or effectively controls' adds nothing to what has already been effected by s 8. It is unnecessary to decide whether a declaration in those terms is in relation to property 'described in the application'. But there are cases which call for adjudication, most obviously when there are questions about whether property is effectively controlled by the declared drug trafficker. Further, as in this case, the court may be required to determine whether other persons hold interests, such that those persons come within the definition of an owner. The court is not merely being asked to endorse an executive act and give it the appearance of a judicial determination, but to resolve a controversy.
53 Section 30 has another function in relation to real property, where the determination of the court that the property has been confiscated under s 8 is required in the context of the system for registration of title. That function is compatible with the judicial role.
54 Finally, I do not accept the argument put on behalf of the plaintiffs that the DPP chooses the section under which the application is brought.
(Page 14)
- The DPP may, at an earlier stage, decide whether to apply for a declaration that a person is a drug trafficker: Misuse of Drugs Act s 32A. But once a court declares a person to be a drug trafficker, that person's property is confiscated by operation of the Act. The DPP then has no choice which could affect the operation of s 8. And where real property is involved, the DPP is required to bring an application under s 30 as part of the process for the property to vest in the State.
55 The second of the constitutional arguments is that the Act effects an acquisition of property other than on just terms. The constitutional requirement that property be acquired on just terms does not apply to a state legislature. There is no rule of law (apart from statutes specifically providing for compensation) that a state legislature is incapable of acquiring property without just terms: Durham Holdings Pty Ltd v New South Wales [2001] HCA 7; (2001) 205 CLR 399 [7]. The issue of intergovernmental agreements considered in Spencer v The Commonwealth [2010] HCA 28; (2010) 241 CLR 118 and ICM Agriculture Pty Ltd v The Commonwealth [2009] HCA 51; (2009) 240 CLR 140 does not arise with regard to this legislation.
56 Further, even where there is a requirement with regard to the acquisition of property on just terms, it does not apply in those statutory contexts, such as provisions for penal forfeiture, where 'just terms' is an inconsistent or incongruous concept: Re Director of Public Prosecutions; ex parte Lawler [1994] HCA 10; (1994) 179 CLR 270; Dickfoss v DPP [2012] NTCA 1; (2012) 31 NTLR 16.
Conclusion
57 For these reasons, the objections raised by the plaintiffs must be dismissed. The property described as lot 807, plan 13842, in certificate of title, volume 1618, folio 744, commonly known as 68 Chadstone Road, Craigie has been confiscated under s 8 of the Criminal Property Confiscation Act. The declaration will be made to that effect.
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