Decisions under the Criminal Property Confiscation Act 2000 (WA) about whether property is ‘effectively controlled’ by a person who has been convicted of an offence are relatively rare.
Allanson J has recently published such a decision: Dang v the State of Western Australia [2020] WASC 419. Whilst it contains no new principles it is a useful example of the way the Courts approach effective control.
Ms Dang had been declared a drug trafficker, following her conviction after trial of selling and supplying prohibited drugs.
The question for the Court was whether Ms Dang had ‘effective control’ of 2 Commonwealth Bank accounts. If she did have effective control of the accounts they would be confiscated (forfeited) to the State.
As His Honour noted at [14] and [15]:
Pursuant to s156 of the Criminal Property Confiscation Act a person has effective control of property if the person does not have the legal estate in the property, but the property is directly or indirectly subject to the control of the person.
The question of effective control must be considered in the context of s 51 of the Criminal Property Confiscation Act by which any dealing with property after it was the subject of a freezing notice has no effect on the rights of the State under the Act.
The facts in Dang v the State of Western Australia
The relevant accounts were in the names of Ms Dang’s two children. The accounts had been opened in 2000 when the children were 5 and 7 years old.
However the accounts were frozen (that being the relevant date for assessing effective control) in 2010, when the children were 15 and 17 years old. Each account had a balance of about $18,000 at that time.
The only evidence that his Honour had before him was an affidavit from a WA Police officer. The affidavit attached:
- A statement from a bank employee which simply asserted that the accounts were under Ms Dang’s control. That conclusion was not explained by the employee and was inadmissible on that basis.
- A statement from a Police officer who asserted that in 2014 Ms Dang claimed to him (through an interpreter) to be the sole person who made deposits and withdrawals on the accounts.
- Account opening forms that established that in 2000 Ms Dang was the signatory on the accounts.
There were no affidavits from any of the bank employee, the police officer who spoke to Ms Dang in 2014, nor the interpreter who spoke to her in 2014. As such both above statements were also inadmissible hearsay. ((Reasons at [24]))
‘Effective Control’ and Burden of Proof
His Honour noted that it was possible that in 2010 the situation remained as it had been in 2000, namely that Ms Dang remained in control of the accounts. But it was also entirely possible that by the time the children were 15 and 17 years of age they had control of their own bank accounts.
Since the State had the burden of proof, and as his Honour did not feel “an actual persuasion” that the situation in 2010 remained as it had in 2000, the State had failed to discharge that burden. ((At [26] – [29])) Accordingly the State failed to prove effective control. Ms Dang’s children therefore each get to keep the $18,000 in their bank accounts.
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