RANFORD -v- THE STATE OF WESTERN AUSTRALIA [2015] WASC 45 (6 February 2015)

(1) dismissal of the plaintiffs' objections to confiscation of the frozen property;

(2) a declaration that, subject to par (4) below, all the property of Mr Ranford owned or effectively controlled by him at the time he was declared to be a drug trafficker under s 32A of the Misuse of Drugs Act 1981 (WA) on 22 August 2013 and all property that Mr Ranford gave away at any time before the Drug Trafficker declaration was made has been confiscated to the State of Western Australia;

(3) a declaration that without limiting the generality of the declaration in (2) above, the following property (which I describe in general terms below) has been confiscated:

(ii) money in a Bankwest account to the credit of Ranford trading as Pearlcoast Limos;

(4) a declaration that the following property is excluded from the declaration of confiscation made in par 2 above:

(i) money in a Bankwest account in the name of Ranford, including interest;

(ii) money in an Australia and New Zealand Banking Group account in the name of Ranford, including interest; and

(5) an order that Mr Ranford deliver up or cause to be delivered up the Ford and Toyota cars in 3(iii) and 3(iv) above.

3 Subject to one exception upon which I require further submissions, a declaration should be made that the particular property that Mr Ranford owned at the time he was declared to be a drug trafficker was confiscated and the delivery up orders should be made. However, for the reasons I gave in Director of Public Prosecutions v Tran,[1] the general declarations sought in orders 2 and 4 are not appropriate.

4 On 4 December 2012, a freezing notice was issued to Mr Ranford. Mr Ranford had been charged with an offence and could be declared to be a drug trafficker under s 32A(1) of the Misuse of Drugs Act 1981 (WA) if convicted of the offence.

5 On 21 December 2012, Mr Ranford and Ms On-Vimon filed notices of objection under s 79 of the CPCA.

6 Under s 8 of the CPCA, confiscation occurs automatically when a person is declared 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 that was committed after 1 January 2001.

7 On 22 August 2013, Mr Ranford was declared to be a drug trafficker. Orders to this effect were made by Schoombee DCJ. As I explain below, this declaration had the effect that his property was automatically confiscated.

8 The DPP has provided affidavit evidence deposing to Mr Ranford's ownership of each of the items of property which is the subject of this application for a declaration.

9 The Court is required to make a declaration that the property has been confiscated if the legislative requirements have been satisfied.

10 Objections to the confiscation of the property were brought by Mr Ranford and Ms On-Vimon.

11 Sections 7(2) and 7(3) of the CPCA provide as follows:

(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) [which requires satisfaction by the Court that the freezing notice has been filed with the Court].

12 Neither Ms On-Vimon nor Mr Ranford filed any evidence. However, the statutory declarations that they made on 8 January 2013 and 21 January 2013 respectively (prior to the declaration that Mr Ranford was a drug trafficker) were contained in affidavit evidence filed by the DPP.

13 In her statutory declaration, Ms On-Vimon claimed an equitable interest in some of the property that is forfeited. She claimed an equitable interest in Mr Ranford's 2006 Toyota HiLux, in the Billingurr land, in Mr Ranford's Bankwest account, and in Mr Ranford's limousine.

14 She made various assertions that some of Mr Ranford's property was not acquired from unlawful activity. However, as I explain below, this is not sufficient to set aside the confiscation of property following a declaration of a person as a drug trafficker under s 8 of the CPCA.

15 Mr Ranford's statutory declaration supports Ms On-Vimon's claims to an equitable interest in various properties.

16 Ms On-Vimon's claims to an equitable interest in each of the items of property are little more than assertion. She gives evidence of a genuine need for some of Mr Ranford's assets (such as the Toyota Hilux that Mr Ranford purchased with the proceeds from sale of a previous vehicle of his). She also says that the land at Billingurr was purchased by Mr Ranford during her relationship with Mr Ranford, and that they planned to build a house on it together. She also says that money in the account for Mr Ranford's limousine business, as well as his limousine, was earned because she performed household duties that enabled Mr Ranford to earn this money.

17 With one possible exception, described below, none of the matters above is sufficient to establish any equitable interest of Ms On-Vimon, or any other person, in any of these items. Perhaps for this reason, on 29 January 2015, the solicitors for both Mr Ranford and Ms On-Vimon wrote to the DPP explaining that they do not oppose the application and will not attend this hearing for the purposes of saving costs.

18 There is, however, one matter of concern. Ms On-Vimon says that government benefits in relation to Mr Ranford's child were paid into the bank account for Mr Ranford's limousine business. Mr Ranford gives the same evidence in his statutory declaration. No submissions were made concerning the basis upon which government benefits paid into that bank account were held. In particular, whether the benefits were paid to Mr Ranford absolutely, or whether they were paid on a statutory condition that might be capable of amounting to a statutory trust for the benefit of Mr Ranford's child. It may be likely that the welfare payment was made unconditionally but in the absence of submissions on this point, and in the absence of any consideration given to it, I am not currently prepared to extend the declaration to the proceeds of that account. That part of the application will be adjourned.

Have the requirements of the legislation been met?

19 The only requirement before a declaration is made is that the Court is satisfied that the statutory requirements have been met.[2]

20 Section 8(1) of the CPCA provides as follows:

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 As I have mentioned, s 8 operates as legislative confiscation of property, s 30 of the CPCA permits the DPP to apply for a declaration that property has been confiscated. Section 30(2) provides that if the court finds that the property described in the application has been confiscated under s 8 then the court must make a declaration to that effect.

22 As Allanson J explained in Whittle v The State of Western Australia,[3] in the absence of any interest of a third party in the property, there are two requirements before a declaration is made under s 30 that property has been confiscated under s 8. These are:

(1) a court has declared Mr Ranford 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 that is the subject of the declaration was owned or effectively controlled by Mr Ranford at the time the court declared him to be a drug trafficker (relying on s 8(1)(a)).

23 As I have explained, Mr Ranford has been declared to be a drug trafficker.

24 There is also uncontradicted affidavit evidence which I am satisfied demonstrates that Mr Ranford is the owner of the property described in each paragraph of the DPP's summons.[4]

25 In relation to the 2007 Limousine, the potential interest of a financier, Esanda, is catered for by the DPP's amendment to the summons to specify confiscation only of Mr Ranford's interest in the limousine. In relation to the Billingurr land, any interest of Landcorp and Bankwest is preserved by the same qualification. In these circumstances it is not necessary to consider whether confiscation under s 8 of the Act is of all rights to the Billingurr land itself (s 9(2) CPCA) or is limited to Mr Ranford's interest in that property (see s 8(1), s 84(2) CPCA).[5]

26 For completeness, I should observe that I am also satisfied that the freezing notice made on 4 December 2012 was valid and was served on Ms On-Vimon (5 December 2012), Bankwest (12 December 2012) and Australia and New Zealand Banking Group (12 December 2012). Esanda Finance was also served on 12 December 2012 through its parent company (the Australia and New Zealand Banking Group Ltd).

27 The two parties who were not served were Mr Ranford's child and Landcorp. Each of those persons was provided with a copy of the application for a declaration of confiscation.

28 The freezing notice has also been filed with the Court.

29 With the exception of item 3(ii) of the DPP's summons, the plaintiffs' objections should be dismissed and declarations of confiscation should be made in relation to each of the items of property specified in par 3 of the DPP's summons.

30 The application in relation to item 3(ii) should be adjourned to the next criminal property confiscation list before me on 24 February 2015 or to be dealt with by any submissions on the papers.

CITATION : RANFORD -v- THE STATE OF WESTERN AUSTRALIA [2015] WASC 45 (S)

Criminal law - Criminal property confiscation - Whether third party interest in payments made for family benefits

A New Tax System (Family Assistance) Act 1999 (Cth)

Criminal Property Confiscation Act 2000 (WA)

Misuse of Drugs Act 1981 (WA)

(These reasons were delivered orally and have been edited for grammar and syntax).

1 On 5 February 2015, I delivered reasons for decision in relation to this application. Declarations of confiscation were made in relation to each item sought by the DPP, with the exception of item 3(iii). That item was concerned with money in a Bankwest account to the credit of Mr Ranford trading as Pearlcoast Limos.

2 In relation to item 3(iii), there was evidence that government benefits in relation to Mr Ranford's child were paid into the bank account for Mr Ranford's limousine business. These benefits were described on bank statements for the account as 'Family Payment' and a reference number is provided. No submissions were made concerning the basis upon which government benefits paid into that bank account were held. In particular, no submissions were made concerning whether the benefits were paid to Mr Ranford absolutely, or whether they were paid on a statutory condition that might be capable of amounting to a statutory trust or giving rise to a statutory or equitable interest in favour of Mr Ranford's child. That part of the application was adjourned for further evidence and submissions.

3 Affidavit evidence has now been filed by the DPP that explains the reference to 'Family Payment' as being likely to be a reference to Family Tax Benefits paid since 1 July 2000 under pt 3 of A New Tax System (Family Assistance) Act 1999 (Cth). The payments made under that Act concern payments to assist with the raising of children. None of the payments under that Act is a payment tied to a purpose, or, in effect, a statutory trust or capable of creating any other interest in favour of a child.

4 It is appropriate that the following declaration be made:

Pursuant to s 8(1) and s 30 of the Criminal Property Confiscation Act 2000, the following property that Raymond Ranford ('RANFORD') owned or effectively controlled at the time he was declared to be a drug trafficker under s 32A(1) of the Misuse of Drugs Act 1981 (WA) on 22 August 2013 has been confiscated to the State of Western Australia, namely:

(a) Monies standing to the credit of RANFORD trading as Pearlcoast Limos in Bankwest account number 1190133127 as at 22 August 2013 together with any interest thereon.

[1] Director of Public Prosecutions v Tran [2015] WASC 46 [6] - [10].

[2] Re Smith; Ex parte Director of Public Prosecutions for Western Australia (No 3) [2004] WASC 157 [15] (RobertsSmith J).

[3] Whittle v The State of Western Australia [2012] WASC 244 [36].

[4] See affidavit of Mr Marrapodi, sworn 3 June 2014 [15] (Billingurr property), [18(b)] (one yellow metal ring set with 12 white stones), [18(c)] (one yellow metal skull ring), [18(d)] (one yellow metal chain and oval pendant with Devil emblem), [18(e)] (one yellow metal ring set with white stone), [18(f)] (one yellow metal chain), [18(g)] (one yellow metal ring embossed with Devil emblem) and [18(h)] (one white pearl pendant with yellow metal birdclaw setting); affidavit of Ms Aikin, sworn 14 February 2014 [6-8] (white 1966 Ford Falcon sedan), [9-11] (black 2006 Toyota Hilux utility), [12-14] (white 2007 Holden Statesman limousine).

[5] Willis v State of Western Australia (No 3) [2010] WASCA 56 [1] (McLure P).