Daye v. The state of Western Australia - (28 Mar 2019)

In absence of any third party interest, nothing else is required to be established before the court is compelled to make a declaration relating to confiscation

Criminal

In present action, the Director of Public Prosecutions (DPP) seeks a declaration that particular property of the Plaintiffs has been confiscated, given they have been declared to be drug traffickers. For the reasons that follow, the declaration should be made.

As the application under Section 30 Criminal Property Confiscation Act, 2000 is brought by the DPP, and as the Court is required to be satisfied that the property has been confiscated, the DPP bears the onus of proving that the property was confiscated. The DPP must prove it on the balance of probabilities.

Each Plaintiff was convicted in the District Court of, among other things, the offence of possessing methylamphetamine with intent to sell or supply, contrary to Section 6(1)(a) of the Misuse of Drugs Act, 1981. For each Plaintiff, the offence was committed on 30 August 2016, after the commencement of the Confiscation Act. This offence is punishable by imprisonment for more than 2 years. It is therefore a 'confiscation offence'.

Each Plaintiff was declared to be a drug trafficker under Section 32A of Act, 1981 as a result of their conviction for this offence. The first Plaintiff was declared to be a drug trafficker on 9 May 2018. The second Plaintiff was declared to be a drug trafficker on 20 October 2017.

The record of the Certificate of Title for the Land shows that, each Plaintiff was a registered proprietor as a joint tenant as at the date each was declared to be a drug trafficker. The ANZ account is held in the names of both Plaintiffs, and was held prior to the date on which each Plaintiff was declared to be a drug trafficker.

In the absence of any third party interest, nothing else is required to be established before the court is compelled to make a declaration under Section 30 of Act. It therefore follows that, the first Plaintiff's property the subject of the application for the declaration was confiscated as at the date the first Plaintiff was declared to be a drug trafficker. Similarly, it follows that the second Plaintiff's property the subject of the application for the declaration was confiscated as at the date the second Plaintiff was declared to be a drug trafficker. The property has been confiscated.

Tags : APPLICATION DECLARATION CONFISCATION