Jurisdiction : SUPREME COURT OF WESTERN AUSTRALIA

Confiscation of property - Appellant a declared drug trafficker - Primary judge made a declaration of confiscation with respect to the appellant's property under s 30 of the Criminal Property Confiscation Act 2000 (WA) - Declaration made at a hearing in the absence of the appellant and his solicitors - Extension of time to appeal granted - Appeal dismissed

Criminal Property Confiscation Act 2000 (WA), s 8(1), s 30

Misuse of Drugs Act 1981 (WA), s 6(1)(a), s 32A

2 BUSS JA: On 25 November 2010, Murray J made a declaration of confiscation with respect to the appellant's property under s 30 of the Criminal Property Confiscation Act 2000 (WA) (the Act).

3 On 15 April 2011, the appellant made application to this court for an extension of time to appeal against the making of the declaration. He filed affidavits sworn 5 April 2011 and 2 August 2011 which explain satisfactorily the delay in filing his appeal notice. The respondent conceded that it would not suffer any relevant prejudice if an extension of time was granted.

4 On 5 August 2011, Pullin JA ordered that the application be referred to the hearing of the appeal.

5 This court heard the appeal on 24 May 2012 and 6 August 2012. At the conclusion of the hearing, the court ordered that an extension of time to appeal be granted but that the appeal be dismissed. We said that reasons for decision would be published later. These are my reasons.

6 On 12 March 2003, the appellant was charged with offences under the Misuse of Drugs Act 1981 (WA) (the MD Act) that might give rise to his being declared a drug trafficker. After the appellant was charged, he was served with freezing notices pursuant to pt 4 div 2 of the Act.

7 The frozen property included a residential property at 15 Gilberton Street, Kalgoorlie. The appellant was the registered proprietor of this property.

8 On 9 April 2003, the appellant commenced proceedings in the Supreme Court (the Primary Proceedings) in which he objected to the confiscation of the frozen property.

9 On 21 April 2005, the appellant was convicted in the District Court on one count of possession of MDMA, one count of possession of methylamphetamine and one count of possession of heroin, with intent, in each case, to sell or supply it to another, contrary to s 6(1)(a) of the MD Act.

10 Also, on 21 April 2005, the appellant was declared to be a drug trafficker pursuant to s 32A of the MD Act.

11 By s 8(1) of the Act, upon the appellant being declared to be a drug trafficker, the following property was confiscated:

(a) all the property that the appellant owned or effectively controlled at the time the declaration was made; and

(b) all property that the appellant gave away at any time before the declaration was made, whether the gift was made before or after the commencement of the Act.

12 On 24 September 2009, the appellant's sister, Eleni Carmen Le Brun, was joined as a second applicant/objector in the Primary Proceedings. Ms Le Brun claimed that she had an equitable interest in the residential property at 15 Gilberton Street, Kalgoorlie. On 26 March 2010, Mazza J dismissed Ms Le Brun's objection.

13 On 21 October 2010, the High Court dismissed the appellant's application for special leave to appeal against this court's dismissal of his appeal against the convictions which resulted in the making of the drug trafficker declaration.

14 The material before this court indicates that, at all material times, McKenzie & McKenzie, solicitors, acted for the appellant in connection with the Primary Proceedings.

The hearing before the primary judge on 25 November 2010

15 At the hearing before the primary judge on 25 November 2010, Mr GTJ Farley represented the respondent. The appellant did not appear by counsel or in person.

16 The following exchange occurred between his Honour and counsel for the respondent:

MURRAY J: What is the position then so far as [the appellant] is concerned? Is he taking any part in these proceedings now? McKenzies were advised that it was coming on today.

FARLEY, MR: Yes.

MURRAY J: Have you had contact with them?

FARLEY, MR: No, I haven't, your Honour.

MURRAY J: Is there a difficulty about that? They were advised on 2 November. I would have expected them to do something.

FARLEY, MR: Yes, I would have as well, your Honour. I take it that they - - -

MURRAY J: They are acting. They have been advised that it was on.

FARLEY, MR: Yes.

MURRAY J: There is no appearance.

FARLEY, MR: In those circumstances - - -

MURRAY J: Let matters take their course.

FARLEY, MR: Yes, your Honour. We propose to proceed.

MURRAY J: I am content (ts 7 - 8).

17 Shortly afterwards, the primary judge made orders dismissing the appellant's objection to the confiscation of the frozen property and a declaration under s 30 of the Act.

18 The appellant relies on numerous grounds of appeal.

19 It is sufficient to refer to ground 5, which reads:

A miscarriage of justice occurred when Justice Murray made the order in the [absence] of my [legal representatives] [and] myself ...

20 In his affidavit sworn 5 April 2011, the appellant deposed, relevantly:

(a) His lawyer failed to appear before the primary judge on 25 November 2010.

(b) He did not ascertain until February 2011 that an order had been made for the confiscation of his property.

(c) He did not know what had happened on 25 November 2010 until he appeared before EM Heenan J on 10 March 2011. On that occasion his Honour informed him that no-one had appeared for him on 25 November 2010 and that orders were made in the absence of his lawyer.

21 Ground 5 cannot be established on the material before this court.

22 It will be necessary, in deciding whether the orders made by the primary judge on 25 November 2010 should be set aside on the ground that they were made in the absence of the appellant and his lawyer, to make findings of fact in relation to the reasons for their non-appearance. It may also be necessary, depending on the findings made on that issue, to decide whether the appellant's objection to the confiscation of any of the frozen property has a reasonable prospect of success. See, generally, in the context of O 34 r 3 of the Rules of the Supreme Court 1971 (WA), the commentary in Civil Procedure Western Australia [34.3.1] and the cases there cited.

23 The appellant has not made an application in the General Division to set aside the orders made by the primary judge on 25 November 2010. It is open to him to make such an application. If the appellant makes an application under O 34 r 3, he will require an extension of time. The primary judge has retired and any application by the appellant will have to be made to another judge in the General Division.

24 None of the other grounds of appeal relied on by the appellant can be established on the material before this court. The other grounds either are predicated on the orders of the primary judge being set aside on the ground that they were made in the absence of the appellant and his lawyer or require findings of fact to be made on the appellant's objection to the confiscation of the frozen property.

25 If the appellant applies to set aside the relevant orders and his application is successful, it will be necessary for a judge in the General Division to hear and determine the appellant's objection on its merits. Findings of fact will have to be made and the applicable law applied to the facts as found.

26 For these reasons, I joined in the orders made by the court on 6 August 2012.