Justice Allanson in the Supreme Court of WA has published a decision which demonstrates the very wide reach of the ‘drug trafficker’ ground of the Criminal Property Confiscation Act 2000 (WA): Lange v Western Australia [2018] WASC 210.

By way of background, a person who is declared under s 32A of the Misuse of Drugs Act 1981, to be a drug trafficker will automatically lose:

  • everything that they ‘own’;
  • everything that they have ever ‘given away’; and
  • everything that they ‘effectively control’.1

This happens by operation of s 8 of the Criminal Property Confiscation Act 2000 (CPCA). It occurs without any further order of the Court. However in the usual course of things the DPP still applies to the Court for a declaration under s 30 CPCA confirming that specified (particular) property has been confiscated by operation of law. That process was in my view best explained by Justice Edelman (now of the High Court of Australia) when he was a Judge of the general division of the Supreme Court of WA in DPP (WA) v Tran [2015] WASC 46.

The recent judgment of Allanson J in Lange concerned the following facts:

  • On or about 10 May 2011 Ms Bevan died.
  • Ms Bevan did not have a will. By operation of law her daughter, Ms Lange was an automatic beneficiary of her estate.
  • On 13 November 2014, Ms Lange was convicted of cultivating cannabis with intent to sell or supply, contrary to s 7(1)(a) of the Misuse of Drugs Act 1981 (WA).
  • On the same date, pursuant to s 32A(1) of the Misuse of Drugs Act 1981, Ms Lange was declared to be a drug trafficker.
  • In September 2017 the DPP applied for a declaration that Ms Lange’s interests in Ms Bevan’s estate had been confiscated to the State. That 3 year delay between the drug trafficker declaration and this application is not unusual (although in my view it is unfortunate).

Justice Allanson, quite correctly in my view, noted that the specific declaration applied for by the DPP gave insufficient attention to the law of succession (the law by which property passes from a deceased to the beneficiaries). His Honour noted that a beneficiary does not have a property interest in estate assets. However this was of no real benefit to Ms Lange. As a beneficiary she did have a property interest in a ‘share’ in her mother’s estate.2

Consequently his Honour declared that that property interest had been confiscated to the State of Western Australia. Ms Lange will receive no inheritance from her mother’s passing.

Suffice it to say there was never any suggestion of wrongdoing by the mother, and no possible suggestion that the mother’s property was tainted. The sole reason that Ms Lange’s share in her mother’s estate now passes to the State of Western Australia is that Ms Lange was convicted of cultivating cannabis.

It is decisions such as Lange (which I stress I consider are correct in law) that give the CPCA its reputation as harsh, oppressive and unjust.

  1. Each of these concepts is defined in a very broad way through various sections of the Act. []
  2. See generally [13] to [16] of his Honour’s reasons. []