Head v Director for the Public Prosecutions (WA)

[2019] WASCA 157

Western Australia Court of Appeal

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Interrogate

Catchwords

1. Criminal Law
2. › Criminal property confiscation
3. › Drug trafficker declaration
4. › Confiscation of property under declaration
5. › Interlocutory injunction to restrain sale of confiscated property pending appeal against conviction
6. › Criminal Property Confiscation Act 2000 (WA), ss 8, 9, 30, 31, 113
7. › Misuse of Drugs Act 1981 (WA), ss 6(2)(a), 6(3)(b), 32A(1)
1. Practice and Procedure
2. › Interlocutory injunctions
3. › Preservation of subject matter of appeal
4. › Whether refusal of injunction would render appeal nugatory
5. › Balance of convenience
6. › Undertaking as to damages
1. Real Property
2. › Indefeasibility of title
3. › In personam claims
4. › Whether restitutionary order following setting aside of confiscation declaration is an in personam claim compatible with indefeasibility
5. › Transfer of Land Act 1893 (WA)
1. Appeal
2. › Appellate jurisdiction
3. › Power to make restitutionary orders
4. › Power to restore successful appellant to position before reversed order
5. › Power to declare orders depending on conviction null and void

Quick Take

Where property has been confiscated under a drug trafficker declaration and the underlying conviction is under appeal, the Court of Appeal has power to grant an interlocutory injunction restraining the State from selling the confiscated property pending determination of the appeal, even though it may lack power to stay the mandatory declaration itself. A claim for restitution of confiscated property following reversal of conviction is at least arguable as an in personam claim compatible with Torrens title indefeasibility.