Williams v The State of Western Australia
[2021] WASC 413
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CRIMINAL
CITATION: WILLIAMS -v- THE STATE OF WESTERN AUSTRALIA [2021] WASC 413
CORAM: STRK J
HEARD: 12 NOVEMBER 2021
DELIVERED : 26 NOVEMBER 2021
FILE NO/S: CPCA 18 of 2016
BETWEEN: KENNETH HAROLD WILLIAMS
Plaintiff
AND
THE STATE OF WESTERN AUSTRALIA
Defendant
Catchwords:
Criminal property confiscation - Freezing notice in respect of 'crime-used property' - Objection to confiscation of property - Turns on own facts
Legislation:
Criminal Property Confiscation Act 2000 (WA)
Evidence Act 1906 (WA)
Misuse of Drugs Act 1981 (WA)
Result:
Objection dismissed
Category: B
Representation:
Counsel:
| Plaintiff | : | In Person |
| Defendant | : | IS Jones |
Solicitors:
| Plaintiff | : | Not Applicable |
| Defendant | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Bennett v 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
Law v Western Australia [2009] WASCA 193
Maxwell v R [1996] HCA 46; (1996) 184 CLR 501
Meissner v R [1995] HCA 41; (1995) 184 CLR 132
Mickelberg v Director of Perth Mint [1986] WAR 365
Powell v The State of Western Australia [2014] WASC 435
R v Hill [1979] VR 311
Walker v The State of Western Australia [2019] WASC 382
STRK J:
This is the plaintiff's application made pursuant to the Criminal Property Confiscation Act 2000 (WA). By an originating summons filed on 18 April 2016, the plaintiff objects to the confiscation of frozen property, being land known as 1 Galahad Place, Camillo (the Camillo property). The Camillo property is the subject of freezing notice WAPFN160005. The plaintiff seeks to have the freezing notice set aside. The objection is made pursuant to s 79 of the Criminal Property Confiscation Act. No grounds of objection were specified in the originating summons.
The plaintiff's originating summons came before me for substantive hearing on 12 November 2021. This court has jurisdiction in any proceeding under the Criminal Property Confiscation Act.[1] The plaintiff appeared in person. In support of his originating summons, the plaintiff read his affidavit sworn on 21 May 2018. He also relied upon his written outline of submission dated 15 October 2021.
[1] Criminal Property Confiscation Act s 101(1).
The State is a party to proceedings on an objection,[2] and is the only named defendant. The defendant opposed the application and said that the plaintiff's objection to the confiscation of frozen property made by originating summons filed on 18 April 2016 ought be dismissed. The defendant submitted that the only grounds for setting aside freezing notice WAPFN160005 available to the plaintiff, that is the grounds contained in s 82(1), (3) and/or (4) of the Criminal Property Confiscation Act, had not been made out.
[2] Criminal Property Confiscation Act s 80.
The defendant read the affidavit of Alison Margaret Gibson, a paralegal employed by the Confiscations section of the Office of the Director of Public Prosecutions, sworn on 18 January 2019; and the further affidavit of Ms Gibson sworn on 31 August 2021. The defendant also relied upon the written outline of submissions dated 16 April 2021, and the written outline of submissions dated 27 October 2021 (which was filed in response to the plaintiff's submissions dated 15 October 2021). The defendant sought orders in terms of the defendant's minute of proposed orders filed on 28 October 2021.
No objections to evidence were taken and no deponent was cross examined.
For the reasons which follow, I find that the plaintiff's objection must be dismissed.
Background and procedural history
The plaintiff is the registered proprietor of the Camillo property.[3] The plaintiff resides at the Camillo property and there is no suggestion that any other person resides with the plaintiff.[4]
[3] Affidavit of AM Gibson sworn 18 January 2019, AMG4.
[4] Affidavit of KH Williams sworn 21 May 2018 pars 8 - 10.
On 2 February 2016, freezing notice WAPFN160005 was issued pursuant to s 34 of the Criminal Property Confiscation Act in respect of the Camillo property,[5] on the basis that there were reasonable grounds to suspect that the Camillo property was 'crime-used'.[6] A copy of freezing notice WAPFN160005 is annexed to the further affidavit of Ms Gibson marked AMG1.
[5] Affidavit of KH Williams sworn 21 May 2018 par 7; affidavit of AM Gibson sworn 31 August 2021 pars 2 - 3, AMG1.
[6] Affidavit of AM Gibson sworn 31 August 2021, AMG1.
The plaintiff was charged with one count of cultivation of a prohibited plant, namely cannabis, with intent to sell or supply in contravention of s 7(1)(a) of the Misuse of Drugs Act 1981 (WA).
The plaintiff filed his objection to the confiscation of the Camillo property on 18 April 2016, by which this proceeding was commenced. On the same day, the plaintiff filed a summons in the proceeding by which he sought, among other things, that the originating summons be adjourned sine die pending resolution of the criminal charge against him before the Magistrates Court. By the consent of the parties, on 28 April 2016 the plaintiff was appointed to control and manage the Camillo property pursuant to s 91(1) and s 91(2) of the Criminal Property Confiscation Act, while freezing notice WAPFN160005 remained in force or until further order.
The plaintiff did not file his objection within time and by the consent of the parties, an order was made to extend time for the plaintiff to file an objection to 28 April 2016.[7]
[7] Order made by Registrar Dixon on 28 April 2016.
The charge was heard at Armadale Magistrates Court on 13 March 2017. The plaintiff pleaded guilty to having cultivated a prohibited plant, namely cannabis, with intent to sell or supply in contravention of s 7(1)(a) of the Misuse of Drugs Act. The plaintiff was convicted, fined $3,500 and ordered to pay costs in the amount of $169.10.[8]
[8] Affidavit of AM Gibson sworn 18 January 2019, AMG2 and AMG3; affidavit of KM Williams sworn 21 May 2018 par 4.
This proceeding has been on foot for over five years. The hearing of the plaintiff's objection was adjourned on multiple occasions, initially by the consent of all parties and most recently, at the request of the plaintiff. On more than one occasion, including on 17 September 2021, the substantive hearing of the plaintiff's objection was adjourned at the request of the plaintiff so that he might take legal advice.
Statutory framework
Property used in or in connection with the commission of a confiscation offence, or property of equal value (crime-used property), is property that is confiscable to the extent provided by the Criminal Property Confiscation Act.[9]
[9] Criminal Property Confiscation Act s 4(c). See also s 146 for meaning of 'crime-used property'.
In the Criminal Property Confiscation Act, by operation of s 141(1), 'confiscation offence' among other things means an offence against a law in force anywhere in Australia that is punishable by imprisonment for two years or more.
Section 146 provides that for the purposes of the of the Criminal Property Confiscation Act, property is 'crime-used' if:
(1)…
(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.
Section 147 provides that for the purposes of the Criminal Property Confiscation Act, a person makes 'criminal use' of property if the person, alone or with anyone else (who need not be identified) uses or intends to use the property in a way that brings the property within the definition of crime-used property.
A freezing notice may be applied for and issued under s 34 of the Criminal Property Confiscation Act for any property if among other things, there are reasonable grounds for suspecting that the property is crime-used.[10]
[10] Criminal Property Confiscation Act s 34(2).
Section 7 of the Criminal Property Confiscation Act concerns the automatic confiscation of frozen property and provides as follows:
7.When frozen property is confiscated automatically
(1)Frozen property is confiscated if an objection to the confiscation of the property is not filed on or before the 28th day after the service cut off date for the property.
(2)If an objection to the confiscation of frozen property is filed on or before the 28th day after the service cut off date for the property, the property is confiscated if -
(a)the objection, or each objection if there are more than one, is finally determined; and
(b)where the property is subject to a freezing notice - the freezing notice is not cancelled or set aside; and
(c)where the property is subject to a freezing order - the freezing order is not set aside.
(3)However, property frozen under a freezing notice is not confiscated under subsection (1) or (2) until the freezing notice is filed in accordance with section 36(6)(a).
Objections to confiscation
A person may file an objection to the confiscation of frozen property,[11] and on hearing an objection to the confiscation of frozen property, the court may set aside the freezing notice or freezing order to the extent permitted under s 82, s 83 or s 84 of the Criminal Property Confiscation Act.[12]
[11] Criminal Property Confiscation Act s 79(1).
[12] Criminal Property Confiscation Act s 81(1).
Section 82 concerns the release of crime-used property, s 83 concerns the release of crime-derived property, and s 84 concerns the release of other frozen property.
Section 82 provides as follows:
82.Crime-used property, release of
(1)The court may set aside a freezing notice or freezing order for property that was frozen on the ground that it is crime-used if the objector establishes that it is more likely than not that the property is not crime-used.
(2)If the court finds that the property is crime-used, or is not required to decide whether the property is crime-used, the court may make an order under subsection (3) or (4).
(3)The court may set aside the freezing notice or freezing order for the property if the objector establishes that it is more likely than not that -
(a)the objector is the spouse, a de facto partner or a dependant of an owner of the property; and
(b)the objector is an innocent party, or is less than 18 years old; and
(c)the objector was usually resident on the property at the time the relevant confiscation offence was committed, or is most likely to have been committed; and
(d)the objector was usually resident on the property at the time the objection was filed; and
(e)the objector has no other residence at the time of hearing the objection; and
(f)the objector would suffer undue hardship if the property is confiscated; and
(g)it is not practicable to make adequate provision for the objector by some other means.
(4)The court may set aside the freezing notice or freezing order if the objector establishes that it is more likely than not that -
(a)the objector is the owner of the property, or is one of 2 or more owners of the property; and
(b)the property is not effectively controlled by a person who made criminal use of the property; and
(c)the objector is an innocent party in relation to the property; and
(d)each other owner (if there are more than one) is an innocent party in relation to the property.
(5)If the objector establishes the matters set out in subsection (4)(a), (b) and (c), but fails to establish the matter set out in subsection (4)(d), the court may order that, when the property is sold after confiscation, the objector is to be paid an amount equal to the amount that bears to the value of the property the same proportion as the objector's share of the property bears to the whole property.
(6)In an order under subsection (5), the court is to specify the proportion that it finds to be the objector's share of the property.
(7)On the application of the DPP or an owner of the property, the court may set aside the freezing notice or freezing order for the property if it also orders the objector to pay to the State an amount equal to the value of the property.
(8)Sections 22(6), 22(7), 23, 24, 25 and 26 apply in relation to making an order under subsection (7) and to the objector as if the order was a crime-used property substitution declaration and the objector was the respondent in relation to the declaration.
Pursuant to s 82 of the Criminal Property Confiscation Act, the court may only set aside a freezing notice for property that was frozen on the ground that it is crime-used if the objector can establish those matters prescribed in sub-sections (1), (3) and/or (4). Relief under s 82(3) requires the objector to establish, among other things, that it is more likely than not that the objector is an innocent party, or is less than 18 years old.[13] Relief under s 81(4) requires the objector to establish, among other things, that it is more likely than not that the objector is an innocent party in relation to the property.[14]
[13] Criminal Property Confiscation Act s 81(3)(b).
[14] Criminal Property Confiscation Act s 81(4)(c).
Section 153(1) of the Criminal Property Confiscation Act provides that a person is an innocent party in relation to crime-used property if the person -
(a)was not in any way involved in the commission of the relevant confiscation offence; and
(b)did not know, and had no reasonable grounds for suspecting, that the relevant confiscation offence was being or would be committed, or took all reasonable steps to prevent its commission.
Section 153(2) and (3) also prescribe circumstances where a person is an innocent party in relation to crime-used property, as follows:
(2)A person is an innocent party in relation to crime-used property if the person -
(a)did not know, and had no reasonable grounds for suspecting, that the property was being or would be used in or in connection with the commission of the relevant confiscation offence; or
(b) took all reasonable steps to prevent its use.
(3)A person who owns or effectively controls crime-used property is an innocent party in relation to the property if -
(a)the person did not acquire the property or its effective control before the time that the relevant confiscation offence was committed or is likely to have been committed; and
(b)at the time of acquiring the property or its effective control, the person did not know and had no reasonable grounds for suspecting that the property was crime‑used; and
(c)if the person acquired the property for valuable consideration - the consideration was lawfully acquired; and
(d) the person did not acquire the property or its effective control, either as a gift or for valuable consideration, with the intention of avoiding the operation of this Act.
Proceedings on an application under the Criminal Property Confiscation Act are taken to be civil proceedings for all purposes.[15] A question of fact to be decided by a court in proceedings on an application under the Criminal Property Confiscation Act is to be decided on the balance of probabilities.[16]
[15] Criminal Property Confiscation Act s 102(1).
[16] Criminal Property Confiscation Act s 102(2)(d).
Disposition
The Camillo property is the subject of freezing notice WAPFN160005 issued pursuant to s 34 of the Criminal Property Confiscation Act. The Camillo property was frozen on the basis that a Justice of the Peace was satisfied that there were reasonable grounds to suspect that the Camillo property is 'crime-used'.
By this proceeding, the plaintiff seeks to have his objection upheld and the freezing notice set aside, so that there is no basis for the confiscation of the Camillo property under the Criminal Property Confiscation Act.
This is a civil proceeding, and I am required to make findings of fact on the balance of probabilities.[17]
[17] Criminal Property Confiscation Act s 102 (1) and s 102(2)(d).
Section 83 (which concerns the release of crime-derived property), and s 84 (which concerns the release of other frozen property), cannot be invoked by the plaintiff. In the circumstances, the only relief available to the plaintiff is pursuant to s 82. For the reasons that follow, I find that the grounds for setting aside Freezing Notice WAPFN160005 pursuant to subsections (1), (3) and/or (4) of s 82 of the Criminal Property Confiscation Act have not been made out.
Relief under s 82(1)
The court may set aside freezing notice WAPFN160005 (which was issued for the Camillo property on the ground that it is crime-used) pursuant to s 82(1) of the Criminal Property Confiscation Act, if the plaintiff (as objector) establishes that it is more likely than not that the Camillo property is not crime-used.
As noted above, pursuant to s 146(1)(a), property is 'crime-used' if 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.
It is the plaintiff, and not the defendant, who bears the onus of establishing that it is more likely than not that the Camillo property is not crime-used. For these reasons, I find that the plaintiff has not discharged his onus. I am not satisfied that it is more likely than not the Camillo property was not crime-used.
Was there a 'confiscation offence'?
There was no submission made by the plaintiff, or evidence before the court, that would support a finding that the offence for which the plaintiff was convicted was not a 'confiscation offence'.
On 13 March 2017, the plaintiff pleaded guilty to having cultivated a prohibited plant, namely cannabis, with intent to sell or supply in contravention of s 7(1)(a) of the Misuse of Drugs Act. The plaintiff was convicted, fined $3,500, and ordered to pay costs in the amount of $169.10.[18]
[18] Affidavit of AM Gibson sworn 18 January 2019, AMG2 and AMG3; affidavit of KM Williams sworn 21 May 2018 par 6.
The cultivation of cannabis with intent to sell or supply in contravention of s 7(1)(a) of the Misuse of Drugs Act is an offence punishable by a summary court of a fine up to the amount of $5,000 or imprisonment of a term not exceeding four years, or both.[19]
[19]Misuse of Drugs Act s 34(2)(b).
Section 141(1)(a) of the Criminal Property Confiscation Act defines a 'confiscation offence' as an offence against a law in force anywhere in Australia that is punishable by imprisonment for two years or more.
Contravention of s 7(1)(a) of the Misuse of Drugs Act is, therefore, by operation of s 141(1) of the Criminal Property Confiscation Act, a 'confiscation offence' for the purposes of the Criminal Property Confiscation Act.
The plaintiff was not able to establish that he did not commit a confiscation offence. I note that in so concluding, I gave careful consideration to the plaintiff's submissions, summarised below.
The plaintiff's submissions
The plaintiff submitted that the defendant had failed to establish that the plaintiff had been convicted of a 'confiscation offence' 'on the date provided in their material being 23 January 2016'.[20]
[20] Plaintiff's submission dated 15 October 2021 par 12.
The plaintiff's submission revealed that he had misunderstood the effect of the statutory scheme, in that it was he, and not the defendant, who bore the onus of establishing that it was more likely than not that the Camillo property was not crime-used.
The plaintiff submitted that he was convicted of cultivating a prohibited plant with intent to sell or supply contrary to s 7(1)(a) of the Misuse of Drugs Act on 23 January 2015.
In this regard, the plaintiff referred to the prosecution notice a copy of which was annexed to the affidavit of Ms Gibson sworn on 18 January 2019 and marked AMG3. The plaintiff noted that in that part of the prosecution notice dated 9 February 2016 titled 'Details of alleged offence', the date of the alleged offence is recorded as being 23 January 2015.
The plaintiff submitted that on 13 March 2017, he pleaded guilty to the charge pursuant to the particulars on his prosecution notice.[21] Further, he says that a conviction was recorded as being 23 January 2015, as is now recorded on his Criminal and Traffic History.[22]
[21] Plaintiff's submission dated 15 October 2021 par 9.
[22] Plaintiff's submission dated 15 October 2021 par 10. A copy of the Criminal and Traffic History was attached to the plaintiff's submissions.
I understand the plaintiff to have submitted that if there was ambiguity or an error on the face of the prosecution notice, then the defendant ought to have taken steps to correct the error before asking the court to rely upon the prosecution notice in this proceeding.[23]
[23] ts 27 - 28 (12 November 2021).
The plaintiff further submitted that if the defendant sought to rely upon the transcript of hearing before the Magistrate, then it is not fair that the court only have regard to those parts of the transcript 'that suit the State'.[24]
[24] ts 28 (12 November 2021).
In this regard, the plaintiff referred to that part of the transcript of 13 March 2017 where, after the plaintiff entered this plea, the police prosecutor outlined the material facts relied upon by the State, as follows:
PORTEOUS, MR: Good morning, your Honour. It was about 4.15 in the afternoon of Saturday 23 January last year. Mr Williams was at his home address at 1 Galahad Place in Camillo. Police had reason to go to the address. They conducted a search of the premises. During the search warrant, they located five large cannabis plants in one room and they located eight small cannabis plants in another room. The large plants ranged in heights from 1.2m to 2m. He made admissions to cultivating them and tendering - tending them. Costs were $169 and we are asking for destruction of all items.
HIS HONOUR: Were they being grown hydroponically?
PORTEOUS, MR: Yes, they were, sir.
HIS HONOUR: And was the hydroponic setup quite sophisticated?
PORTEOUS, MR: In the big room, yes. The small rooms, no. The small plants. No, very basic.
HIS HONOUR: So five plants between 1.2 and two metres.
PORTEOUS, MR: And two metres, yes.
The plaintiff noted that at no time did the police prosecutor allege that he intended to sell or supply those plants. He submitted that if the defendant now seeks to rely upon the sentencing transcripts then the transcript does not establish that he did more than grow some cannabis plants for his own use. That is, there is no reference to the plaintiff having cultivated with the intention to sell or supply.[25]
[25] ts 20 (12 November 2021).
The plaintiff also noted that the statement of material facts annexed to Ms Gibson's affidavit sworn on 18 January 2019 is very different in its terms to the material facts outlined to the court by the police prosecutor on 13 March 2017. The plaintiff submitted that:[26]
The court cannot be confident of any of the finding in the facts of this matter if it is to adopt the State view that the statement of material facts and the court transcripts should be preference points because of the inconsistence with each other as the facts that underpin the basis for my conviction.
[26] ts 29 (12 November 2021).
The plaintiff summarised his position as follows:[27]
I submit that my property cannot be characterised as crime used because the conviction note recorded on 13 March 2017 is incorrect and the freezing notice ought to be dismissed.
The defendant's submissions
[27] ts 30 (12 November 2021), see also ts 41 (12 November 2021).
The defendant made the following submissions as to the legal effect of the plaintiff's conviction on 13 March 2017.
First, the plaintiff's plea of guilty involves an admission of each of the elements of the offence,[28] including all of the essential facts necessary to constitute the offence.[29]
[28] Meissner v R [1995] HCA 41; (1995) 184 CLR 132, 157 (Dawson J), and Maxwell v R [1996] HCA 46; (1996) 184 CLR 501, 510 (Dawson & McHugh JJ), cited in the defendant's submissions dated 16 April 2021 par 10.
[29] Law v Western Australia [2009] WASCA 193 [27] (Buss JA, with McLure & Pullin JJA agreeing), R v Hill [1979] VR 311, 312 (Young CJ, Menhennitt & Crockett JJ), cited in the defendant's submissions dated 16 April 2021 par 10.
Secondly, a conviction is admissible evidence and once proved is prima facie evidence that the person did commit the offence of which he or she was found guilty, leaving to the person so convicted to establish to the contrary if they can.[30] The decision in Mickelberg v Director of Perth Mint, with respect to the admissibility of a conviction as evidence of the facts giving rise to the conviction, has been consistently followed in this jurisdiction.[31]
[30] Mickelberg v Director of Perth Mint [1986] WAR 365, cited in the defendant's submissions dated 16 April 2021 par 11.
[31] Bennett v Western Australia [2012] WASCA 70, and Walker v The State of Western Australia [2019] WASC 382 [18], cited in the defendant's submissions dated 16 April 2021 par 11.
Thirdly, the fact of the plaintiff's conviction may be proved by the mechanism provided for under s 47 of the Evidence Act 1906 (WA).[32] The material facts comprising the elements of the offence the subject of the conviction may be proved by tendering the relevant part of the record of the earlier proceeding. Proof of the fact of the conviction may also constitute some evidence of those material facts.[33]
[32] Bennett v The State of Western Australia [52]; [131], [139], cited in the defendant's submissions dated 16 April 2021 par 12.
[33] Bennett v The State of Western Australia [132], cited in the defendant's submissions dated 16 April 2021 par 12.
Fourthly, in the present case, the facts which constitute the elements of the offence may be discerned from an analysis of the sentencing transcript; and the transcript is admissible in these proceedings pursuant to s 107(b) of the Criminal Property Confiscation Act. The sentencing transcript is before this court, annexed to the affidavit of AM Gibson sworn 18 January 2019 and marked AMG2.
Fifthly, the plaintiff has not adduced any affidavit evidence to rebut the presumption in s 47(6) of the Evidence Act that a conviction is presumed not to have been appealed against or quashed or set aside until the contrary is shown.[34]
[34] Mickleberg v Director of the Perth Mint; Bennett v Western Australia [64], cited in the defendant's submissions dated 16 April 2021 par 15.
The defendant submitted that the offence for which the plaintiff was convicted was therefore a 'confiscation offence' for the purposes of the Criminal Property Confiscation Act.
Disposition
I understand the plaintiff to say that in the materials filed by the defendant opposing his objection, there is reference to an offence which occurred on 23 January 2016. The plaintiff says that as he pleaded guilty and has a conviction recorded which concerned an offence committed on 23 January 2015, the defendant's position is untenable.
The plaintiff's submissions cannot ground a finding that it is more likely than not that the Camillo property was not crime-used. The plaintiff in his affidavit of 21 May 2018 has made the following admissions:
(a)on 23 January 2016, he was charged with one count of '… cultivate a prohibited plant with intent to sell or supply contrary to s 7(1)(a) of the Misuse of Drugs Act 1981';[35]
(b)on 13 March 2017, he pleaded guilty to the charge;[36]
(c)the charge related to cultivating five larger cannabis plants ranging from 1.2 m - 2 m in height and eight small cannabis plants;[37]
(d)in January 2016, he made an attempt at growing cannabis;[38] and
(e)he did not intend to sell the cannabis, but he accepted that he would have given some away (supply) to friends for no commercial gain.[39]
[35] Affidavit of KH Williams sworn 21 May 2018 par 3.
[36] Affidavit of KH Williams sworn 21 May 2018 par 4.
[37] Affidavit of KH Williams sworn 21 May 2018 par 5.
[38] Affidavit of KH Williams sworn 21 May 2018 pars 33, 35 - 36.
[39] Affidavit of KH Williams sworn 21 May 2018 par 37.
Further, by operation of s 107(b) of the Criminal Property Confiscation Act, I may have regard to the sentencing transcript in this proceeding. A copy of the transcript of hearing on 13 March 2017 before the learned Magistrate is annexed to the affidavit of AM Gibson sworn on 18 January 2019, and marked AMG2.
The transcript reveals that the plaintiff was represented at the hearing on 13 March 2017. The transcript also reveals that the plaintiff pleaded guilty to having cultivated cannabis with intent to sell or supply in contravention of s 7(1)(a) of the Misuse of Drugs Act as it records the following exchange:
JSO: Yes, sir. From your W listing, Williams. Kenneth Harold Williams. Mr Crispe.
CRISPE, MR: Acting, sir. It’s to be a plea of guilty, your Honour.
HIS HONOUR: Just remain seated. Is your name Kenneth Harold Williams? Mr Williams, the allegation is that on 23 January last year at Camillo, with intent to sell or supply a prohibited plant to another, you cultivated a prohibited plant, namely cannabis. How do you plead?
ACCUSED: Guilty.
HIS HONOUR: Guilty. All right. Thank you. Take a seat. Sergeant.
The references to 23 January 2015 in the prosecution notice and the plaintiff's Criminal and Traffic History do not provide the plaintiff with the evidentiary foundation to establish that it is more likely than not that the Camillo property was not crime-used. I accept the defendant's submission that it does not matter whether the offence was committed in 2015 or 2016.[40]
[40] ts 38 (12 November 2021).
I do not accept the plaintiff's submission that on 13 March 2017, he pleaded guilty to the charge pursuant to the particulars on the prosecution notice. As the hearing took place on 13 March 2017, it is clear on the face of the transcript that the plaintiff pleaded guilty to having cultivated cannabis with intent to sell or supply in contravention of s 7(1)(a) of the Misuse of Drugs Act on 23 January 2016, as the references to 'Saturday 23 January last year' must have been references to 23 January 2016, and not 23 January 2015.
Further, I accept that the plaintiff's plea of guilty involves an admission of each of the elements of the offence,[41] including all of the essential facts necessary to constitute the offence.[42]
[41] Meissner v R, 157 (Dawson J), and Maxwell v R, 510 (Dawson & McHugh JJ), cited in the defendant's submissions dated 16 April 2021 par 10.
[42] Law v Western Australia [2009] WASCA 193 [27] (Buss JA, with McLure & Pullin JJA agreeing), R v Hill [1979] VR 311, 312 (Young CJ, Menhennitt & Crockett JJ), cited in the defendant's submissions dated 16 April 2021 par 10.
I also accept that the conviction is admissible evidence, and once proved is prima facie evidence that the person did commit the offence of which he or she was found guilty, leaving to the person so convicted to establish to the contrary if they can.
On the evidence before me, in particular, having regard to the plaintiff's evidence in his affidavit of 21 May 2018; the sentencing transcript; and taking into account the submissions made by the plaintiff and on behalf of the defendant, I find that the plaintiff has failed to establish on the balance of probabilities that there was no 'confiscation offence' committed.
Use of the Camillo property
The place where the offence was committed was identified in the transcript of hearing before the Magistrate. That is, the Camillo property was clearly identified in the transcript.
Further, in the plaintiff's affidavit of 21 May 2018, the plaintiff described the Camillo property as 'the property', and deposed as follows.
The Shed Setup
39.I built the shed which housed the Cannabis plants at least ten years ago.
40.At that time, there was a requirement that I build a brick wall between the property and the next-door neighbour's house to protect the neighbour's house should a fire breakout.
41.I did not have sufficient funds to build the wall so instead built a sealed room with ventilation.
42.In this sealed room, I stored chemicals including thinners, paints, gas bottles, welding equipment, oxyacetylene. Anything dangerous or explosive was stored in the sealed room. The ventilation ensured I could smell any leaks and any risks of explosion or fire were confined to that room.
43.The sealed room was built for that purpose, not to grown Cannabis.
44.When my grower friend saw the sealed room, be advised it would be the perfect place to grow Cannabis and the grower set up the room using his equipment to cultivate Cannabis.
Having regard to this evidence, it is clear that the cannabis plants were cultivated in the shed on the Camillo property.
As McLure P held in Director of Public Prosecutions (WA) v White:[43]
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)
[43] Director of Public Prosecutions (WA) v White [2010] WASCA 47; (2010) 41 WAR 249 [32] - [33] (Owen & Buss JJA agreeing).
In that case, McLure 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.[44]
[44] As cited in Walker v The State of Western Australia [2019] WASC 382 [28]. See for example, Director of Public Prosecutions for Western Australia v McPherson [2012] WASC 342 [13], and Walker v The State of Western Australia [31] - [33].
In the matter of Director of Public Prosecutions (WA) v McPherson,[45] EM Heenan J held that:
The … cultivation of the cannabis on the … property clearly demonstrate[s] that that property was used in the commission of the confiscation offences and those illegal acts were done in connection with the commission of a confiscation offence on that property.
[45] Director of Public Prosecutions (WA) v McPherson [13].
It is clear from the evidence before me that the offence of cultivation of a prohibited plant, namely cannabis, with intent to sell or supply in contravention of s 7(1)(a) of the Misuse of Drugs Act was carried out at the Camillo property. The relationship between the use of the Camillo property and the confiscation offence is direct and immediate. The use of the Camillo property was not merely incidental to the unlawful activity.[46]
[46] Director of Public Prosecutions v White (2010) WAR 249 [30] - [33], as cited in the defendant's submissions dated 16 April 2021 par 25.
In these circumstances, I am satisfied that the Camillo property was used in the commission of the plaintiff's offence contrary to s 7(1)(a) of the Misuse of Drugs Act. As a consequence, it follows that the Camillo property is 'crime-used' under s 146(1)(a) of the Criminal Property Confiscation Act.
Relief under s 81(3) and (4) not available
Under s 82(3)(b) and s 82(4)(c) of the Criminal Property Confiscation Act, to establish that the freezing notice should be set aside it is necessary for the objector to establish that it is more likely than not that he or she is an innocent party in relation to the relevant confiscation offence.[47]
[47] Powell v The State of Western Australia [2014] WASC 435 [25].
Neither s 82(3) nor s 82(4) of the Criminal Property Confiscation Act provide any assistance to the plaintiff.
The plaintiff was the person who was convicted of the offence and accordingly was involved in the commission of the offence. He is not an 'innocent party' within the meaning of s 153, a requirement under both s 82(3)(b) and s 82(4)(c) of the Criminal Property Confiscation Act.
Other matters raised by the plaintiff
By the submissions of the plaintiff and by his affidavit, the plaintiff explained the grave consequences that confiscation of the Camillo property will have on him, particularly on his health and well-being.
I understand from the plaintiff's affidavit that the Camillo property is his only asset. He has no independent income and no alternative accommodation. He deposes to his various medical conditions. Significant hardship will very likely follow from this decision.
However, the court may only set aside the freezing notice or freezing order to the extent permitted under s 82, s 83 or s 84 of the Criminal Property Confiscation Act.[48] Severe hardship that may stem from confiscation is not a basis for upholding an objection, with the exception of s 82(3)(f). However, that provision has no possible application to this objection.[49] Having not established that he falls within the ambit of any of s 82, s 83 or s 84, the plaintiff's objection must be set aside.
[48] Criminal Property Confiscation Act s 81(1).
[49] Criminal Property Confiscation Act s 82(3)(a) and (b).
Conclusion
The plaintiff has not established that it is more likely than not that the Camillo property was not crime‑used within the meaning of s 146 of the Criminal Property Confiscation Act. Further, the plaintiff has not established that it is more likely than not that he, as the objector, is an innocent party within the meaning of s 153 of the Criminal Property Confiscation Act. Accordingly, the plaintiff has failed to establish those matters prescribed in s 82(1), (3) or (4), and the plaintiff's objection must be dismissed.
The dismissal of the objection was the only order sought on behalf of the State. No declaration was sought. I understand that the objection made by Westpac Banking Corporation, the holder of a first ranking registered mortgage over the Camillo property, has not yet been determined.[50]
[50] ts 33 (12 November 2021).
For these reasons, I propose to order that the plaintiff's objection to the confiscation of frozen property made by originating summons filed on 18 April 2016 be dismissed. It would appear appropriate that costs follow the event and that there should be an order that the plaintiff pay the defendant's costs to be taxed if not agreed. However, I will hear the parties in relation to the form of order and as to costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
EH
Associate to Justice Strk
25 NOVEMBER 2021
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