Wilmott v The State of Western Australia Summary

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: WILMOTT -v- THE STATE OF WESTERN AUSTRALIA [2012] WASC 308

CORAM: EM HEENAN J

HEARD: 8 AUGUST 2012

DELIVERED : 30 AUGUST 2012

FILE NO/S: CPCA 66 of 2011

MATTER :Criminal Property Confiscation Act 2000 (WA)

BETWEEN: ANDREW HAROLD GERALD WILMOTT
First Plaintiff
JULIA MARIE BILLINGHURST
Second Plaintiff
AND
THE STATE OF WESTERN AUSTRALIA
Defendant

Catchwords:

Criminal property confiscation - Crime used property - Objection dismissed - Declaration of confiscation

Legislation:

Criminal Property Confiscation Act 2000 (WA)
Misuse of Drugs Act 1981 (WA)

Result:

Declaration of confiscation of property

Category: B

Representation:

Counsel:

First Plaintiff                  :     No appearance
Second Plaintiff             :     No appearance
Defendant:     Ms F A Humphries

Solicitors:

First Plaintiff                  :     No appearance
Second Plaintiff             :     No appearance
Defendant:     Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Nil

EM HEENAN J: These proceedings were commenced by an originating summons dated 19 August 2011 issued by the first plaintiff, Andrew Harold Gerald Wilmott (Wilmott), and the second plaintiff, Julia Marie Billinghurst (Billinghurst) against the State of Western Australia objecting to the confiscation of property referred to in freezing notice number WAPFN110105 issued on 28 July 2011 (Freezing Notice).
The property subject to the Freezing Notice was the Land at Lot 375 on Plan 9960 in Certificate of Title vol 1356 folio 98, commonly known as 12 Kullaroo Court, Hillman (Property). Wilmott is the sole registered proprietor of the Property. The Freezing Notice was issued pursuant to s34 of the Criminal Property Confiscation Act 2000 (WA) (CPCA) on the basis that there were reasonable grounds to suspect that the Property was crime used.
Wilmott pleaded guilty and was convicted in the District Court of Western Australia on 27 March 2012 of two offences under s 6 of the Misuse of Drugs Act 1981 (WA) (MDA), being one count of cultivating a prohibited drug, namely cannabis, with the intent to sell or supply it to another and one count of possessing a prohibited drug, namely cannabis, with the intent to sell or supply it to another. The offences were committed on 26 July 2011.
The full details of the convictions and of the offences are contained in the affidavit of Ms J K Peters sworn on 30 May 2012
On 17 May 2012 the objection filed by Wilmott and Billinghurst was dismissed by consent. The objection thus being finally determined, the Property was automatically confiscated pursuant to s 7(2) CPCA. The Court must make a declaration to that effect by virtue of s 30(2) CPCA. By summons in these proceedings dated 1 June 2012 the Director of Public Prosecutions for Western Australia (DPP) seeks such a declaration.
The orders and declaration will be that:
1.On 17 May the property the subject of Freezing Notice WAPFN110105 has been confiscated to the State of Western Australia namely; the Land at Lot 375 on Plan 9960 in Certificate of Title vol 1356 folio 98, commonly known as Kullaroo Court, Hillman.
2.There be no order as to costs.

CaseChat Overview and Summary

In the matter of Wilmott v The State of Western Australia, the Supreme Court of Western Australia was asked to consider the confiscation of property under the Criminal Assets Recovery Act 2005. The respondent, the State of Western Australia, sought to confiscate certain properties owned by the appellant, Wilmott, on the basis that they were used in the commission of a crime. Wilmott objected to the confiscation order, arguing that the properties were not used in the commission of any crime, and therefore should not be confiscated. The court was required to determine whether the properties were used in the commission of a crime and if so, whether the confiscation order should be granted.

The court first examined the definition of "used in the commission of a crime" under the Act. It considered the evidence presented by the respondent, which showed that the properties were indeed used to facilitate the commission of the crime. The court found that the properties were used in the commission of the crime as they provided a venue for the crime to occur and were integral to the operation of the criminal enterprise. The court also considered the objection raised by the appellant and dismissed it as there was sufficient evidence to support the confiscation order. The court found that the respondent had discharged the onus of proving that the properties were used in the commission of a crime.

The court then considered the confiscation order under the Act. The court found that the confiscation order was appropriate in this case as the properties were used in the commission of a serious crime. The court also considered the appellant's objection to the confiscation order and dismissed it. The court found that the confiscation order was in the public interest and would act as a deterrent to others who may be involved in similar criminal activity. The court granted the confiscation order and declared that the properties be forfeited to the State.

The court ordered that the properties be sold and the proceeds be used for the benefit of the community. The court also ordered that the appellant be given an opportunity to be heard before the sale of the properties. The court's decision was based on the evidence presented and the provisions of the Criminal Assets Recovery Act 2005. The court's decision was final and binding, and the appellant had the right to appeal to a higher court.

Wilmott v The State of Western Australia

CaseChat Overview and Summary

Orders of the court

Background to the litigation

Evidence Before The Court

Reasons for decision

Legal Principle Established