Centurion Trust Company Ltd v The Director of Public Prosecutions (WA)

[2010] WASCA 133

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   CENTURION TRUST COMPANY LTD -v- DIRECTOR OF PUBLIC PROSECUTIONS (WA) [2010] WASCA 133

CORAM:   McLURE P

OWEN JA
BUSS JA

HEARD:   15 DECEMBER 2009 & 7 MAY 2010

DELIVERED          :   23 JULY 2010

FILE NO/S:   CACV 79 of 2009

BETWEEN:   CENTURION TRUST COMPANY LTD

Appellant

AND

DIRECTOR OF PUBLIC PROSECUTIONS (WA)
Respondent

FILE NO/S              :CACV 81 of 2009

BETWEEN             :CENTURION TRUST COMPANY LTD

Appellant

AND

DIRECTOR OF PUBLIC PROSECUTIONS (WA)
Respondent

ON APPEAL FROM:

For File No              :  CACV 79 of 2009

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram  :TEMPLEMAN J

Citation  :DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- CENTURION TRUST COMPANY LTD [No 5] [2008] WASC 107

File No  :CIV 2382 of 2003

For File No              :  CACV 81 of 2009

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram  :ROBERTS-SMITH J

Citation  :RE SMITH; EX PARTE DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA (NO 3) [2004] WASC 157

File No  :CIV 2382 of 2003

Catchwords:

Confiscation of property - Freezing order made in respect of funds in bank account - Interested party - Appeal against confiscation declaration - Appeal against dismissal of application to set aside confiscation declaration - Whether objection filed

Statutory interpretation - Proper construction and application of Criminal Property Confiscation Act 2000 (WA) - Whether a mechanism under the Act for ending a freezing order made under s 43(1)(b) - Ambit and operation of automatic confiscation under s 7(1) - Whether automatic confiscation of frozen property under s 7(1) extends to frozen property liable to confiscation under s 6 or s 8, but not under s 7(2) - Whether automatic confiscation of frozen property under s 7(1) confined to property frozen pursuant to a freezing order made under s 43(8) or under s 43(8) and another ground or grounds

Legislation:

Criminal Property Confiscation Act 2000 (WA)

Result:

CACV 79 of 2009
Application for extension of time to appeal refused
Appeal dismissed

CACV 81 of 2009
Application for extension of time to appeal granted
Appeal allowed

Category:    A

Representation:

CACV 79 of 2009

Counsel:

Appellant:     Mr M L Bennett & Mr C E Chenu

Respondent:     Mr C G Colvin SC & Mr T A Staples

Solicitors:

Appellant:     Lavan Legal

Respondent:     Director of Public Prosecutions (WA)

CACV 81 of 2009

Counsel:

Appellant:     Mr M L Bennett & Mr C E Chenu

Respondent:     Mr C G Colvin SC & Mr T A Staples

Solicitors:

Appellant:     Lavan Legal

Respondent:     Director of Public Prosecutions (WA)

Case(s) referred to in judgment(s):

Bennett & Co (a firm) v Director of Public Prosecutions (WA) [2005] WASCA 141; (2005) 31 WAR 212

Centurion Trust Company Ltd v Director of Public Prosecutions (WA) [2008] WASCA 6; (2008) 35 WAR 463

Centurion Trust Company Ltd v Director of Public Prosecutions (WA) [2009] WASCA 97

Coal and Allied Operations Pty Ltd v Australian Industrial Relations Commission [2000] HCA 47; (2000) 203 CLR 194

Director of Public Prosecutions (WA) v Centurion Trust Company Ltd [No 5] [2008] WASC 107

Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196

Finance Facilities Pty Ltd v Federal Commissioner of Taxation [1971] HCA 12; (1971) 127 CLR 106

Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458

Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516

Leach v The Queen [2007] HCA 3; (2007) 230 CLR 1

Mansfield v Director of Public Prosecutions (WA) [2006] HCA 38; (2006) 226 CLR 486

Palata Investments Ltd v Burt & Sinfield Ltd [1985] 1 WLR 942

Re Smith; Ex parte Director of Public Prosecutions for Western Australia (No 2) [2004] WASC 147

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

Table of Contents

McLure P's reasons.................................................................................................................. 7

Background
The scheme of the Act
The construction dilemma
Option 3 - all interested persons entitled to object
The second option
Resolution of issues connected with the first hearing

Conclusion
Owen JA's reasons.................................................................................................................. 28
Buss JA's reasons................................................................................................................... 29
The present appeals to this court
The oral hearings before this court
The applications to extend time to appeal:  applicable legal principles
The proposed grounds of appeal in CACV 79 of 2009
The proposed grounds of appeal in CACV 81 of 2009
The critical questions in the appeals
The primary purpose of the Act
Part 3 of the Act: identifying and recovering confiscable property
Part 4 of the Act:  preventing dealings in confiscable property
Part 5 of the Act:  investigation and search
Part 2 of the Act:  confiscation of property
Part 8 of the Act:  court jurisdiction and evidentiary matters
Part 6 of the Act:  objections to confiscation
The interaction between s 79 and the other objection provisions in pt 6
The organisation of the balance of these reasons
Critical questions 1 and 2 dealt with at the re‑convened hearing on 7 May 2010
Does automatic confiscation under s 7(1) extend to frozen property liable to be confiscated under s 6 or s 8?
Is automatic confiscation under s 7(1) confined to property that has been frozen pursuant to a freezing order made under s 43(8)?
Critical question 3 dealt with at the re‑convened hearing on 7 May 2010
If automatic confiscation under s 7(1) extends to property that has been frozen pursuant to a freezing order made under s 43(3)(b) or (c), is confiscation provisional or contingent upon the DPP obtaining a declaration against the respondent under pt 3?
Critical question 4 dealt with at the re‑convened hearing on 7 May 2010
When confiscation occurs under s 6 or s 8, what is confiscated when the respondent to the declaration under pt 3 or the offender under s 8, as the case may be, has a limited interest in the property available for confiscation?
Critical question 1 dealt with at the initial hearing on 15 December 2009
Is there a statutory mechanism for bringing a freezing order made under s 43(1)(b) to an end?
Critical question 2 dealt with at the initial hearing on 15 December 2009
If a freezing order is made on multiple grounds, some of which fall within s 82, s 83 or s 84 and some of which do not, does automatic confiscation occur under s 7(1) only when the freezing order has not been set aside on all grounds on which it was made?
Critical issue 3 dealt with at the initial hearing on 15 December 2009
If pt 6 applies to all freezing orders, not just those that can be set aside under s 82, s 83 or s 84, did the appellant in these appeals in fact file an objection to the confiscation of the property?
Should an extension of time be granted?

Conclusion

1. McLURE P:  These appeals form part of a long history of litigation arising from the appellant's decision to challenge the court's jurisdiction to make a freezing order against money standing to the credit of 'ASIC Welcome Stranger Mining Company (NL Trust A/C)' in a nominated bank account and held for the appellant as trustee of the Gold Coast Trust (the property).

2. The appeals resulted from obiter observations made by this court in Centurion Trust Company Ltd v Director of Public Prosecutions(WA) [2009] WASCA 97 (the second Centurion appeal). Those obiter observations had a significant influence on the framing of the issues canvassed at the hearing of the appeals on 15 December 2009 (the first hearing). In the course of deliberating on the correct disposition of the appeals, the court identified further matters which had the potential to undermine the correctness of aspects of its earlier obiter observations. These matters were drawn to the attention of the parties and were the subject of further submissions on 7 May 2010 (the second hearing).

Background

1. The freezing order was granted on the grounds that the Director of Public Prosecutions (DPP) had applied under s 43(1)(b) of the Criminal Property Confiscation Act 2000 (WA) (the Act) for an examination order in relation to the property and was likely to apply against Brian Millwood Smith for a crime-used property substitution declaration and a criminal benefits declaration.

2. The litigation has, until now, been conducted on the basis that the appellant did not file an objection to confiscation under s 79 of the Act.  By application dated 15 December 2003, the appellant applied to set aside the freezing order on the basis that the court lacked jurisdiction to make it.  That application was unsuccessful at first instance (Re Smith; Ex parte Director of Public Prosecutions for Western Australia (No 2) [2004] WASC 147) (Smith No 2) and on appeal (Centurion Trust Company Ltd v Director of Public Prosecutions (WA) [2008] WASCA 6) (the first Centurion appeal).

3. On 2 July 2004, on the ex parte application of the DPP, Roberts‑Smith J made a declaration pursuant to s 30 of the Act that the frozen property had been confiscated under s 7(1) of the Act: Re Smith; Ex parte Director of Public Prosecutions for Western Australia (No 3) [2004] WASC 157 (Smith No 3).

4. By application dated 2 July 2004, the appellant applied under s 79 of the Act for an extension of time to file an objection to the confiscation of the frozen property.  That application was unsuccessful at first instance before Templeman J (Director of Public Prosecutions (WA) v Centurion Trust Company Ltd [No 5] [2008] WASC 107) (Centurion No 5) and on appeal (the second Centurion appeal).

5. By application dated 7 July 2004, the appellant applied to set aside the confiscation declaration made by Roberts‑Smith J on 2 July 2004.  That application, which was heard together with the extension of time application, was dismissed by Templeman J on 6 June 2008.  In his reasons for decision, in Centurion No 5, he noted that counsel for the appellant accepted that the application should be dismissed.  The primary judge's observation is accurate (ts 318). 

6. In the second Centurion appeal, this court doubted the correctness of the common assumption of both parties that in order to avoid the automatic confiscation of property under s 7 of the Act, it was necessary for persons served with a freezing order to file an objection to the confiscation under s 79 of the Act regardless of the ground(s) on which it was made.  The preliminary view of the court was that automatic confiscation under s 7 only applied to freezing orders that could be set aside under s 82, s 83 or s 84 in pt 6 of the Act (McLure JA [34], [44] with whom Owen JA agreed; Buss JA at [153]).  As I said, the obiter observations of the court resulted in the appellant commencing these appeals (CACV 79/2009 and CACV 81/2009). 

7. In appeal CACV 79/2009, the appellant applies for an extension of time to appeal and to appeal from the order made by Templeman J dismissing the appellant's application dated 7 July 2004 to set aside the confiscation declaration made by Roberts-Smith J on 2 July 2004.  In appeal CACV 81/2009, the appellant applies for an extension of time and to appeal from the confiscation declaration made by Roberts-Smith J on 2 July 2004.  The two appeals raise the same questions of statutory construction.  It was accepted by both parties that no constitutional issues arise.

8. The three grounds on which the freezing order was made are identified in the order as follows:

   A.The DPP has applied for an examination order in relation to the Property (s 43(1)(b));

   B.The DPP is likely to apply against Smith for:

   (a)a crime-used property substitution declaration; and

   (b)a criminal benefits declaration;

   within 21 days after the Freezing Order is made (s 43(3)(b), (c)).

9. The examination order referred to in ground A was made and the DPP applied within the statutory period for the declarations the subject of ground B.  At the first hearing, a number of propositions were not in dispute.  They were that:

   (1)the objection to which s 7 refers is an objection under s 79 of the Act;

   (2)the filing of an objection under s 79 is in substance an application to commence proceedings to set aside a freezing order;

   (3)automatic confiscation under s 7 is confined to objections which can result in a freezing order being set aside under pt 6 of the Act;

   (4)the only express powers in pt 6 for setting aside a freezing order are in s 82, s 83 and s 84.

10. The DPP had contended in his written submissions for the first hearing that (1) beyond the matters the subject of s 82, s 83 or s 84 (which exhaustively cover their particular field), the court has the power under pt 6 to set aside a freezing order if an objection filed under s 79 is consistent with the scope and purpose of the Act as a whole and (2) therefore pt 6 and thus s 7 applied to all freezing orders regardless of the ground(s) on which they were made.  However, during the course of the first hearing the DPP abandoned this position and accepted, with one qualification, the obiter statements of the court in the second Centurion appeal.  The qualification is that, in order to avoid the possibility of a freezing order made in aid of an investigation order continuing indefinitely, the DPP would in appropriate circumstances be under a duty to request the court to set aside the freezing order under s 49(2)(d).

11. Thus, it was common cause at the first hearing of these appeals that, (subject to issues relating to a freezing order made on multiple grounds) automatic confiscation under s 7 applied if a freezing order could be set aside under pt 6 of the Act. Part 6 expressly applies to grounds B(a) and B(b) of the freezing order against the property but not to ground A. That is, no express provision is made in pt 6 of the Act to set aside a freezing order that is made under s 43(1)(b) on the ground that the DPP has applied for an examination order in relation to the property.

12. Having regard to the respondent's concession, the live issues in the first appeal were:

    1.Is there a statutory mechanism for bringing the freezing order made under s 43(1)(b) to an end;

    2.If a freezing order is made on multiple grounds some of which fall within s 82, s 83 or s 84 and some of which do not, does automatic confiscation occur under s 7 only when the freezing notice has been set aside on all the grounds on which it was made;

    3.If pt 6 applies to all freezing orders not just those that can be set aside under s 82, s 83 or s 84, did the appellant in fact file an objection to the confiscation of the property.

13. In the second Centurion appeal I noted (at [43]) the types of freezing orders that could not be set aside under pt 6.  They are freezing orders made on the ground of:

    (1)an examination, monitoring or suspension order being in force;

    (2)an application for an examination, monitoring or suspension order having been made or foreshadowed;

    (3)a production order having been made or an application foreshadowed;

    (4)an application made or foreshadowed for an unexplained wealth declaration, a criminal benefits declaration or a crime-used property substitution declaration against a respondent who owned or effectively controlled the property or who had given it away;

    (5)a person being charged or it being foreshadowed that a person will be charged with an offence which could result in the person being declared a drug trafficker and the person owned or effectively controlled the property or had given it away.

14. I will refer to an examination, monitoring, suspension and production order as an 'investigation order'.  I also noted in the second Centurion appeal the difficulties in reconciling various provisions of the Act.  I said:

    [I]t is difficult to reconcile the broad grounds on which freezing orders are intended to stop being in force (which recognise the very low threshold that enlivens the discretion to grant a freezing order) and the consequence of automatic confiscation which is to pre-empt and prevent the operation and effect of the other grounds in s 48 and s 49. So, for example, if automatic confiscation of frozen property under s 7(1) occurs pending the decision on a contested application for a criminal benefits declaration which was the basis of the grant of the freezing order and the application is subsequently refused, the owner(s) of the frozen property would be without a remedy. That is beyond draconian. That is arbitrary, oppressive and unjust. It results in the confiscation of 'non confiscable' property [53].

15. At the first hearing of these appeals the court was informed that the  declaration proceedings against Mr Smith foreshadowed in the freezing order had been discontinued as a result of the confiscation of the property.  After the first hearing, the court obtained further submissions from the parties on the following questions:

    1.Does automatic confiscation under s 7(1) of the Criminal Property Confiscation Act 2000 (the Act) extend to frozen property liable to be confiscated under s 6 or s 8 of the Act;

    2.Is automatic confiscation under s 7(1) confined to property that has been frozen pursuant to a freezing order made under s 43(8) of the Act;

    3.If automatic confiscation under s 7(1) extends to property that has been frozen pursuant to a freezing order made under s 43(3)(b) or (c) of the Act, is confiscation provisional or contingent upon the DPP obtaining a declaration against the respondent under pt 3 of the Act;

    4.When confiscation occurs under s 6 or s 8 of the Act, what is confiscated when the respondent to the declaration under pt 3 or the offender under s 8 as the case may be has a limited interest in the property available for confiscation.

16. At the second hearing the appellant shifted its position.  It contended that automatic confiscation under s 7 applies only to crime‑used and crime‑derived property; it has no application to freezing orders made under s 43(3) which can be set aside under s 84.

17. The DPP also shifted position.  He contended at the second hearing that, in addition to persons entitled to set aside a freezing notice or order under s 82, s 83 or s 84, all other persons who have, or who claim to have, a legal or equitable interest in the frozen property are entitled to file an objection under pt 6 to preserve their position until a determination under s 38, s 39, s 48 or s 49 which could result in the freezing notice or order ceasing to be in force.

The scheme of the Act

1. The purpose of the Act is to provide for the confiscation of 'confiscable property' which is defined in s 142 to mean property that is:

   (1)owned or effectively controlled, or has at any time been given away by a person who has unexplained wealth, acquired a criminal benefit or who is a declared drug trafficker;

   (2)crime‑used property; or

   (3)crime‑derived property.

2. The term 'property' includes a legal or equitable interest in real or personal property, whether tangible or intangible.

3. 'Owner' in relation to property means a person who has a legal or equitable interest in property.

4. 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 or is held for the ultimate benefit of the person (s 156).

5. Under pt 3 of the Act, the court is empowered, on the application of the DPP, to make an unexplained wealth declaration (s 12), a criminal benefits declaration (s 16) and a crime‑used property substitution declaration (s 22).  When the court makes an unexplained wealth declaration, a criminal benefits declaration or a crime‑used property substitution declaration, the respondent is liable to pay to the State an amount equal to the amount specified in the declaration (s 14, s 20 and s 24 respectively).

1. If part or all of the amount payable by the respondent is not paid within the time allowed under the Act, then any frozen property that is owned by the respondent is available for the purpose of satisfying the respondent's liability (s 26(2)).  In circumstances where the respondent effectively controls property or had given it away, the DPP is required to apply for a confiscable property declaration under s 27 of the Act.  However, it is presumed that the respondent effectively controlled the property at the material time or gave the property away unless the respondent establishes the contrary (s 28(2)).  The property specified in a confiscable property declaration is only available to satisfy the respondent's liability under s 14, s 20 or s 24 to the extent the property owned by the respondent is not available or is insufficient to satisfy the liability (s 29(2)).

2. Under s 30, the DPP may apply to the court for a declaration that property has been confiscated and if the court finds the property described in the application has been confiscated under s 6, s 7 or s 8, the court must make a declaration to that effect.

3. Section 6, s 7 and s 8 relevantly provide:

   6.       When property is confiscated

   Property is confiscated when it is given or taken in satisfaction of a person’s liability under section 14, 20 or 24 to pay the amount specified in an unexplained wealth declaration, a criminal benefits declaration or a crime‑used property substitution declaration.

   7.       When frozen property is confiscated automatically

   (1)Frozen property is confiscated if an objection to the confiscation of the property is not filed on or before the 28th day after the service cut off date for the property.

   (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;

   (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.

   8.       Drug trafficker’s property

   (1)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.

4. The term 'objection' is defined in the glossary to mean an objection filed under s 79 to the confiscation of property.

5. Part 4 of the Act deals with freezing notices for crime‑used and crime‑derived property and freezing orders for confiscable property.  The scheme of the Act for freezing notices and freezing orders is broadly similar.  I propose to focus attention on freezing orders.

6. Section 43 relevantly provides:

   (1)The court may make a freezing order for property if ‑ 

   (a)an examination order, a monitoring order or a suspension order is in force in relation to the property; or

   (b)the DPP advises the court that an application for an examination order, a monitoring order or a suspension order has been made in relation to the property, or is likely to be made in relation to the property within 21 days after the freezing order is made.

   (2)The court may make a freezing order under subsection (1) whether or not the person against whom the examination order, monitoring order or suspension order is made, or is to be sought, owns or effectively controls the property.

   (3)The court may make a freezing order for all or any property that is owned or effectively controlled by the person or that the person has at any time given away if ‑ 

   (a)a production order has been made against the person;

   (b)an application has been made against the person for an unexplained wealth declaration, criminal benefits declaration, crime‑used property substitution declaration or production order; or

   (c)the DPP advises the court that such an application is likely to be made within 21 days after the freezing order is made.

   (4)The court is not to refuse to make a freezing order for property under subsection (3) only because the value of the property exceeds, or could exceed, the amount that a person could be liable to pay under section 14, 20 or 24 if the declaration is made.

   (5)The court may make a freezing order for all or any property that is owned or effectively controlled by a person, or that the person has at any time given away if ‑ 

   (a)the person has been charged with an offence, or the DPP advises the court that a person is likely to be charged with an offence within 21 days after the day on which the freezing order is made; and

   (b)the person could be declared to be a drug trafficker under section 32A(1) of the Misuse of Drugs Act 1981 if he or she is convicted of the offence.

   … 

   (8)The court may make a freezing order for property if there are reasonable grounds for suspecting that the property is crime‑used or crime‑derived.

7. The power in s 43(3) and s 43(5) is to freeze all or any property that is owned or effectively controlled or was given away by a specified person.  The power in s 43(1) and s 43(8) is to freeze property without reference to its ownership or control.  The DPP contends, correctly in my opinion, that all that can be frozen under s 43(3) and s 43(5) and confiscated is the interest in the property that the respondent or accused owns or effectively controls or gave away.  Thus, third party ownership interests in the same property will only be frozen and confiscated if the respondent or accused controlled those interests or had given them away.

8. Under s 46(1) a freezing order and a notice that complies with subs (6) must be served personally on the person from whom the frozen property was taken and any other person of whom the applicant is aware at the time the freezing order is made who is, or may be, or who claims to be, an interested party.  The term 'interested party' is defined in the glossary to mean a person who has an interest in the property that would enable the person to succeed on an objection to the confiscation of the property.  It is noteworthy that the expression 'interested party' is not defined by reference to a person with an interest that would enable them to succeed in an application to set aside the freezing order.

9. The notice must advise the recipient, inter alia, that the property may be confiscated automatically under the Act unless an objection to the confiscation is filed within 28 days after service of the notice (s 46(6)).  A person served under s 46 with a copy of a freezing order and a notice must give a statutory declaration to the DPP stating the name, and, if known, address of any other person whom the declarant is aware is or may be, or claims to be, an interested party (s 37). 

10. Section 48 (which deals with real property) and s 49 (other property) deal with the duration of freezing orders.  As the terms of both sections are relevantly the same, it is only necessary to set out s 49 which provides:

    49.Duration of freezing orders for other property

    (1)A freezing order for property (except registrable real property) comes into force when the freezing order is made.

    (2)If a freezing order for property (except registrable real property) was made under section 43(1) on the basis that an application for another order has been or is likely to be made, the freezing order stops being in force as soon as one of the following happens ‑ 

    (a)if the freezing order was made on the basis of advice given to the court under section 43(1)(b) ‑ an application for the other order is not made within 21 days after the date of the order;

    (b)the application for the other order is withdrawn;

    (c)the application for the other order is finally determined but the court does not make the other order;

    (d)the freezing order is set aside at the request of the applicant for the freezing order or in proceedings on an objection;

    (e)the property is confiscated under section 6, 7 or 8.

    (3)A freezing order for property (except registrable real property) made under section 43(3) on the basis that an application for a declaration or another order has been or is likely to be made stops being in force as soon as one of the following happens ‑ 

    (a)if the freezing order was made on the basis of advice given to the court under section 43(3)(c) ‑ an application for the declaration or other order is not made within 21 days after the date of the freezing order;

    (b)the application for the declaration or other order is withdrawn;

    (c)the application for the declaration or other order is finally determined, but the court does not make the declaration or other order;

    (d)in the case of a declaration ‑ the declaration is made, and the respondent’s liability to pay an amount under section 14, 20 or 24 is satisfied, whether or not any or all of the frozen property is given or taken in satisfaction of the liability;

    (e)the freezing order is set aside on all grounds at the request of the applicant for the freezing order or in proceedings on an objection;

    (f)the property is confiscated under section 6, 7 or 8.

    (4)A freezing order for property (except registrable real property) made under section 43(5) on the basis that a person has been or is likely to be charged with an offence stops being in force as soon as one of the following happens ‑ 

    (a)if the freezing order was made on the basis of advice given to the court under section 43(5)(a) ‑ the person is not charged with the offence within 21 days after the date of the order;

    (b)the charge against the person is disposed of;

    (c)the charge is finally determined, but the person is not declared to be a drug trafficker under section 32A(1) of the Misuse of Drugs Act 1981;

    (d)the freezing order is set aside on all grounds at the request of the applicant for the freezing order or in proceedings on an objection;

    (e)the property is confiscated under section 6, 7 or 8.

    (5)A freezing order made under section 43(8) for property (except registrable real property) on the basis that it was suspected of being crime‑used or crime‑derived stops being in force as soon as one of the following happens ‑ 

    (a)the freezing order is set aside on all grounds at the request of the applicant for the freezing order or in proceedings on an objection;

    (b)the property is confiscated under section 6, 7 or 8.

    (6)However, if the freezing order was made on 2 or more grounds, but the order has not stopped being in force under subsection (2), (3), (4) or (5) in relation to each of those grounds, the freezing order continues in force as if it had been made on each remaining ground.

11. The grounds on which a freezing order stops being in force are substantially the same for freezing orders made under s 43(1), s 43(3) and s 43(5).  All grounds except par (a) in s 49 are likely to occur after the expiration of the service cut off date for automatic confiscation under s 7.  Three grounds require a court order in proceedings: s 49(1)(b), (c) and (d), s 49(3)(b), (c) and (e), s 49(4) (b), (c) and (d).  The limited grounds on which a freezing order made under s 43(8) stops being in force reflects the different statutory confiscation scheme for crime‑used and crime‑derived property (discussed below).

12. Part 6 of the Act deals with objections to confiscation.  The scheme of pt 6 is as follows.  A person may file an objection to the confiscation of frozen property (s 79(1)).  By s 80, the State is a party to proceedings on an objection.  Section 81 provides:

    (1)On hearing an objection to the confiscation of frozen property, the court may set aside the freezing notice or freezing order to the extent permitted under section 82, 83 or 84.

    (2)However, if the property was frozen on 2 or more grounds, but the court does not set aside the freezing notice or freezing order in relation to both or all the grounds, the freezing notice or freezing order continues in force as if it had been made on each remaining ground.

13. Section 82 deals with the release of crime‑used property.  It relevantly provides:

    (1)The court may set aside a freezing notice or freezing order for property that was frozen on the ground that it is crime‑used if the objector establishes that it is more likely than not that the property is not crime‑used.

    (2)If the court finds that the property is crime‑used, or is not required to decide whether the property is crime‑used, the court may make an order under subsection (3) or (4).

    (3)The court may set aside the freezing notice or freezing order for the property if the objector establishes that it is more likely than not that ‑ 

    (a)the objector is the spouse, a de facto partner or a dependant of an owner of the property;

    (b)the objector is an innocent party, or is less than 18 years old;

    (c)the objector was usually resident on the property at the time the relevant confiscation offence was committed, or is most likely to have been committed;

    (d)the objector was usually resident on the property at the time the objection was filed;

    (e)the objector has no other residence at the time of hearing the objection;

    (f)the objector would suffer undue hardship if the property is confiscated; and

    (g)it is not practicable to make adequate provision for the objector by some other means.

    (4)The court may set aside the freezing notice or freezing order if the objector establishes that it is more likely than not that ‑ 

    (a)the objector is the owner of the property, or is one of 2 or more owners of the property;

    (b)the property is not effectively controlled by a person who made criminal use of the property;

    (c)the objector is an innocent party in relation to the property; and

    (d)each other owner (if there are more than one) is an innocent party in relation to the property.

    (5)If the objector establishes the matters set out in subsection (4)(a), (b) and (c), but fails to establish the matter set out in subsection (4)(d), the court may order that, when the property is sold after confiscation, the objector is to be paid an amount equal to the amount that bears to the value of the property the same proportion as the objector’s share of the property bears to the whole property.

14. Section 82 contemplates two types of objectors, those who are 'innocent parties' (as defined in s 153) and those who are not.  Innocent parties are able to object on any of the three grounds in s 82, including on the basis that the property was not crime‑used. 

15. Section 83 relates to the release of crime‑derived property.  It relevantly provides:

    (1)The court may set aside a freezing notice or freezing order for property that was frozen on the ground that it is crime‑derived if the objector establishes that it is more likely than not that the property is not crime‑derived.

    (2)If the court finds that the property is crime‑derived, or is not required to decide whether the property is crime‑derived, the court may set aside the freezing notice or freezing order if the objector establishes that it is more likely than not that ‑ 

    (a)the objector is the owner of the property, or is one of 2 or more owners of the property;

    (b)the property is not effectively controlled by a person who wholly or partly derived or realised the property, directly or indirectly, from the commission of a confiscation offence;

    (c)the objector is an innocent party in relation to the property; and

    (d)each other owner (if there are more than one) is an innocent party in relation to the property.

    (3)If the objector establishes the matters set out in subsection (2)(a), (b) and (c), but fails to establish the matter set out in subsection (2)(d), the court may order that, when the property is sold after confiscation, the objector is to be paid an amount equal to the amount that bears to the value of the property the same proportion as the objector’s share of the property bears to the whole property.

    … 

    (7)When making an order under this section, the court may make any necessary or convenient ancillary orders.

16. An innocent party may also object to the confiscation of the frozen property on the ground that it was not crime‑derived.

17. Section 84 provides:

    (1)The court may set aside a freezing order for property that was frozen under section 43(3) if the court finds that it is more likely than not that the person who is or will be the respondent to the unexplained wealth declaration, criminal benefits declaration or crime‑used property substitution declaration does not own or effectively control the property, and has not at any time given it away.

    (2)The court may set aside a freezing notice issued for property under section 34(3) or a freezing order for property that was frozen under section 43(5) if the court finds that it is more likely than not that the person who is or will be charged with the offence does not own or effectively control the property, and has not at any time given it away.

18. There is only one ground for setting aside a freezing order made under s 43(3).  The court must find on the balance of probabilities that the respondent to the declaration proceedings or the defendant to the drug charge does not own or effectively control the frozen property and has not given it away.  The approach in s 82 and s 83 differs from that in s 84 which is attributable to a number of factors.  First, the freezing procedure is the only avenue for the confiscation of crime‑used and crime‑derived property.  As a consequence, the basis for the confiscation of crime‑used and crime‑derived property, being its status as such, can be challenged by an interested party in objection proceedings.  Secondly, crime‑used or crime‑derived property is confiscated in its entirety regardless of issues of ownership, control or gift.

19. Part 6 also provides for the release of confiscated property.  Under s 85(1) a person may apply to the court for the release of property that has been confiscated under s 6 or s 7.  The grounds on which the court may release confiscated property are very narrow and are set out in s 87 of the Act.  The court is only permitted to order the release of confiscated property if (inter alia) it is more likely than not that the applicant for the release did not become aware, and cannot reasonably be expected to have become aware, until after the property was confiscated, that the property was liable to confiscation under s 6 or s 7 (s 87(1)(c)).

The construction dilemma

1. The task of statutory construction is to identify a coherent framework that is consistent with the language and purpose of the Act as a whole.  In this case not all the pieces of the framework fit entirely comfortably with the statutory language.  The primary cause of the difficulty is the accepted need to reconcile the broad grounds on which freezing orders are intended to stop being in force and the consequence of automatic confiscation as identified in the second Centurion appeal.

2. It is common cause that the scope of s 7 is linked with the scope of pt 6 of the Act.  That must be correct.  In particular, it cannot have been intended that s 7 apply in the absence of an entitlement to file an objection under s 79 of the Act.  There are three possible options.  They are that automatic confiscation under s 7 only applies to:

   (1)freezing orders made under s 43(3), s 43(5) and s 43(8) which can be set aside under s 82, s 83 or s 84 (first option);

   (2)freezing orders made under s 43(8) which can be set aside under s 82 or s 83 (second option);

   (3)freezing orders:

   (a)made under s 43(3), s 43(5) and s 43(8) which can be set aside under s 82, s 83 or s 84; and

   (b)that may stop being in force by virtue of a future event under s 48 or s 49 (third option).

1. The text of s 7 when read with pt 6 (in particular s 80 and s 81) strongly favours the first option namely that automatic confiscation under s 7 is confined to freezing orders that can be set aside under s 82, s 83 or s 84 of the Act.  However, the first option results in the conundrum identified in the second Centurion appeal, namely the potential for differential treatment of co‑owners in the same property.  This conundrum could be avoided if automatic confiscation was provisional or contingent on the frozen property of the respondent or the accused subsequently being confiscated under s 6 or s 8.  The first option was not supported by either party and is not pressed.  Both the second and the third option avoid the conundrum. 

2. Under the second option, the scope of s 7 is limited to a sub‑set of the grounds on which a freezing order can be set aside under pt 6.  This is the construction contended for by the appellant.

3. The respondent argued for the third option in which all persons with a legal or equitable interest in frozen property have an entitlement to object to confiscation under s 79 of the Act.  I propose to commence with the third option.

Option 3 - all interested persons entitled to object

1. There are two express statutory avenues which prevent the confiscation of frozen property.  The first is setting aside a freezing order under s 82, s 83 or s 84.  The second is when a freezing order stops being in force prior to confiscation under s 48/s 49.

2. The respondent contends that the entitlement to file an objection to confiscation under s 79 extends to (1) persons claiming to set aside a freezing order under s 82, s 83 or s 84 (the first limb) and (2) any other person with an interest in frozen property which interest will be automatically confiscated unless there is a future event which causes the freezing order to stop being in force under s 48/s 49 (the second limb).  In substance, the respondent contends that a person is entitled to file an objection to confiscation under s 79 on the ground that there should be no confiscation unless and until it is known that the freezing order will not stop being in force under s 48/s 49.  That formulation would include an entitlement to object on the basis that the court should not make the order or declaration in the proceedings referred to in s 49(2)(c), s 49(3)(c) and s 49(4)(b) or (c).  In this way, confiscation would be deferred until the substantive matter had been determined by the court.  If the outcome of the court proceedings is that the freezing order stops being in force, s 7(2) cannot result in confiscation because the operation of that subsection is predicated on the freezing order continuing after the determination of all objections.

3. The third option is consistent with the language of s 7(1) which is not in terms qualified or limited by reference to the grounds on which the freezing order was made. This is to be contrasted with other provisions of the Act where the ground for making a freezing order results in different statutory consequences: see s 38, s 39, s 48, s 49, s 82, s 83, s 84. So too the service cut off date, the sole purpose of which is to determine the operation of automatic confiscation under s 7(1), applies in terms to all freezing notices and orders: s 150.

4. The only express limitation on the scope of s 7(1) is that there be an entitlement to file an objection under s 79. The pivotal issue is whether pt 6 is confined to objections which, if proven, empower the court to set aside a freezing notice under s 82, s 83 or s 84. As already noted, the language of s 7(2) when read with s 80 and s 81 strongly points in that direction. An alternative construction is that the entitlement to lodge an objection under s 79(1) is wider than the scope of the court's power to set aside a freezing order. There are broader contextual considerations that support the alternative construction.

5. First, the service and notice provisions of the Act are expressly linked with the scope of the entitlement to file and succeed on an objection under s 79.  That is, the obligation to serve the freezing order and statutory notice is limited to persons who have an interest in property that would enable them to succeed on an objection (under s 79) to confiscation of the frozen property.  There has to be some limitation on the entitlement to object because the filing of a single objection prevents automatic confiscation (s 7(2)(a)).  However, it is significant that the definition of 'interested party' is not confined to persons entitled to set aside a freezing order under s 82, s 83 or s 84.  

6. Further, the service and notice provisions require the information about the potential for automatic confiscation to be provided to all interested parties regardless of the grounds on which the freezing order was made.  If automatic confiscation under s 7 was intended to be confined to freezing orders made under s 43(8), it is to be expected that the intention would be made clear in the statutory notice. 

7. Secondly, the service and notice provisions of the Act reflect a broad right to object which is consistent with the expectation that all persons affected by the possible confiscation of property be given notice of it and the opportunity to be heard (save where confiscation depends upon a criminal conviction and a drug trafficker declaration where the objector would be bound by the result).  Just as with crime‑used and crime‑derived property, it is to be expected that the legislature would provide an interested party with an interest in frozen property with an entitlement to notice of and to be heard in civil proceedings (including proceedings for a declaration under pt 4) which can prevent or defeat the confiscation of frozen property under s 48/s 49. 

8. Thirdly, the filing of an objection is the mechanism for putting the respondent on notice of all objections so all matters pertaining to the frozen property can be heard and determined in the presence of all interested parties and in a coordinated fashion.  Automatic confiscation is the final link in the statutory scheme.  The persons who must be served with the statutory notice are persons who could succeed as an objector under pt 6 and who face possible confiscation if they fail to object.

9. Summarising thus far, if an interested party (a person who can succeed on an objection under s 79) is limited to a person entitled to apply to set aside a freezing order (or a sub‑set thereof), that would have the following consequences: 

   (1)the service and notice obligations would not capture all persons potentially affected by a confiscation; and

   (2)the management and coordination of all persons with an interest in resisting confiscation would be significantly impaired. 

10. Fourthly, s 61(1) is consistent with a person being entitled to object irrespective of the grounds on which the property was frozen.  That section relevantly provides:

    (1)If an owner of frozen property, who is to be examined in connection with the property under an examination order, contravenes the order or the examiner’s requirements under the order ‑ 

    (a)the owner is not entitled to file an objection to the confiscation of the property;

    (b)if the owner has already filed an objection ‑ the objection is of no effect.

11. The third option is also consistent with the grounds on which an investigation order stops being in force:  see s 49(4)(d) and (e). 

12. Fifthly, the third option results in consistent treatment for all freezing orders regardless of the grounds on which they are made.  In particular, it enables frozen property to be confiscated in the absence of a positive finding by a court that would otherwise be necessary to trigger confiscation if an objection was filed within time.  That is, property frozen under s 43(3)(b) or (c) can be confiscated prior to the making of a declaration under pt 3.  That is also the scheme for crime‑used and crime‑derived property.  A freezing order can be made under s 43(8) if there are reasonable grounds for suspecting that the property is crime‑used or crime‑derived.  If no objection is filed, the frozen property is automatically confiscated in the absence of a finding that the property is in fact crime‑used or crime‑derived.  The unchallenged application of the statutory scheme relating to crime‑used and crime‑derived property confirms that the term 'confiscable' is used in the Act to refer generically to all property that is capable of being confiscated by the application of the provisions of the Act.  (See also the use of the term confiscable in s 4, s 27, s 28, s 29, s 58(1)(b), s 73, s 74, s 76 and s 131.)

13. The scheme of the Act (service and notice/filing and objection/automatic confiscation in default of objection) has similarities to default judgment in civil proceedings.  Moreover, that scheme is also linked with the general reversal of the onus of proof under the Act:  see s 12(2), s 16(3) s 22(4), s 28(2), s 82(1) and s 82(3) and s 82(4), s 83(1) and s 83(2).

14. Sixthly, the significant consequences intended to attach to a failure to file an objection is consistent with the scheme for the release of confiscated property under s 87 of the Act.  There cannot be any release of confiscated property if the applicant was aware or ought reasonably be expected to have become aware before confiscation that the property was liable to confiscation.  This is consistent with a broad service and notice obligation, the scope of which is linked with the entitlement to file an objection under s 79. 

    Finally, the third option is consistent with the second reading speech for the Act.  The second reading speech (Western Australia, Parliamentary Debates, Legislative Assembly, 29 June 2000, 8612) states:

    Part 2 of the Bill provides for automatic confiscation of frozen property in the absence of any objection, and so makes the operation of the Bill more efficient and effective.  For example, when all the property of a person is frozen on the basis that an application for an unexplained wealth or criminal benefits declaration has been, or will be, made, and, for example, the person does not object to confiscation, all that property will be automatically confiscated.

15. The explanation of cl 7 in the explanatory memorandum to the bill is consistent with the second reading speech.

16. The broader contextual considerations to which I have referred persuade me that the entitlement to object to confiscation under pt 6 is not confined to persons entitled to relief under s 82, s 83 or s 84 of the Act.  A person is entitled to object to confiscation under s 79 on the ground that there should be no confiscation unless and until it is known that the freezing order will not stop being in force.  That construction of pt 6 will then inform the approach to the construction of s 7(2).

17. For the purposes of s 7(2), an objection under the second limb is determined when it is known that the freezing order will not stop being in force on any ground other than confiscation.  Nothing further is required in s 7(2) to accommodate the second limb.  When a freezing order stops being in force before confiscation that itself dictates the outcome; confiscation under s 7(2) is predicated on the freezing order being in force following the determination of the objection.

18. A number of the considerations in favour of the third option tell against the second option.  I am satisfied that the third option best reflects the language and purpose of the Act.

The second option

1. The second option, which confines automatic confiscation to freezing orders made under s 43(8), is inconsistent with:

   ‑the language of s 7(1) which is limited solely by reference to the entitlement to file an objection under s 79;

   -the express entitlement to file an objection under s 79 to set aside a freezing order made under s 43(3);

   -the range of persons who must be served with the freezing order and statutory notice and the content of the notice;

   -the lengths to which the DPP must go under the Act to ensure that all interested parties are served with a copy of the freezing order and the notice.

2. Further, the second option undermines the statutory scheme which links (1) the service and notice of freezing orders; (2) the entitlement to object to confiscation; and (3) the consequence of a failure to object, namely automatic confiscation.  The possibility of automatic confiscation is relied on to ensure that all parties who wish to object to confiscation do so in a timely fashion in a way that comes to the notice of the respondent who can then coordinate the resolution of all matters in a coordinated and timely fashion.

Resolution of issues connected with the first hearing

1. The first issue in the first hearing (whether there is a statutory mechanism for bringing a freezing order made under s 43(1)(b) to an end) was connected with the assumption that there could be no objection to such a freezing order under s 79. I am satisfied the assumption is erroneous.

2. The second issue in the first hearing also depends on automatic confiscation not applying to all the grounds on which a freezing order is made.  I have concluded that automatic confiscation is applicable to all grounds.  However, I note for the sake of completeness that in my view the logical and compelling consequence of a construction of the Act that confines automatic confiscation under s 7 to objections that can be set aside under s 82, s 83 (or s 84) of pt 6 of the Act is that a freezing order made on multiple grounds, one of which fall outside s 7, does not prevent automatic confiscation under s 7 if the statutory conditions are satisfied.  That is, the existence of a ground falling outside the scope of s 7 neither

results in, nor prevents, automatic confiscation under s 7.  Section 49(6) and s 81(2) are not inconsistent with that construction.  Those provisions relate to the continuation of a freezing order unless and until all the grounds on which it is made have stopped being in force or have been set aside.

1. The third issue in the first hearing remains to be decided.  That issue is whether the appellant in fact filed an objection under s 79 to the confiscation of the property.  In my view the answer is no.  The notice of motion dated 15 December 2003 to set aside the freezing order which is relied on as constituting an objection under s 79, is in form and substance a challenge to the jurisdiction of the court which was intended to be outside the statutory objection scheme in pt 6.  The claim by the appellant that the notice of motion was an objection under s 79 is inconsistent with the facts, inconsistent with the appellant's intention, inconsistent with the appellant's conduct in engaging in litigation on the basis that no objection was filed under s 79 and the concession of counsel for the appellant at the hearing on 18 April 2008 that the application dated 7 July 2004 should be dismissed.

Conclusion

1. I have concluded that automatic confiscation under s 7 applies to freezing orders that can be set aside under s 82, s 83 or s 84 of the Act and freezing orders that can stop being in force by virtue of other future events under s 48 or s 49.

2. No objection to the confiscation of the property having been filed under s 79 by the appellant or any other interested party, the property was automatically confiscated under s 7.  As both appeals must fail and because of the very significant delay in challenging the orders in question, I would refuse an extension of time for leave to appeal and dismiss both appeals

3. OWEN JA:  I agree with Buss JA in CACV 79 of 2009, the application for an extension of time should be refused and the appeal dismissed and in CACV 81 of 2009, the application for an extension of time should be granted and the appeal allowed.  I agree with his Honour’s reasons for coming to that view.

4. In my time on the Bench I have seldom come across a piece of legislation as perplexing and difficult to construe as this one.  Perhaps that is not surprising.  The legislation has previously been described as

draconian and some of the concepts that emerge from it can justifiably be described as extreme. 

1. BUSS JA:  On 14 November 2003, Scott J, on the application of the Director of Public Prosecutions (DPP), made a freezing order in respect of funds standing to credit in a bank account with Westpac Banking Corporation in the name 'ASIC Welcome Stranger Mining Company (NL Trust A/C)'.  The funds were held for the appellant as trustee of the Gold Coast Trust. 

2. Scott J made the freezing order on two grounds. First, pursuant to s 43(1)(b) of the Criminal Property Confiscation Act 2000 (WA) (the Act), on the basis that the DPP had applied for an examination order in relation to the funds in the bank account. The examination order was granted. Secondly, pursuant to s 43(3)(c), read with s 43(3)(b), on the basis that the DPP was likely to apply against Brian Millwood Smith for a crime-used property substitution declaration and a criminal benefits declaration within 21 days after the freezing order was made. The DPP made the contemplated applications against Mr Smith.

3. On 24 November 2003, Mr Smith was served with a copy of the freezing order, and on 27 November 2003, he submitted a statutory declaration to the DPP pursuant to s 47 of the Act in which he named the appellant as an 'interested party' (as defined in the glossary to the Act) in the frozen funds.  See Re Smith; Ex parte Director of Public Prosecutions for Western Australia (No 3) [2004] WASC 157 [8].

4. On 9 January 2004, EM Heenan J ordered that the period of 28 days prescribed by s 79 of the Act, within which an objection to a freezing order may be filed, be extended to 60 days from the date of service of the freezing order (and the accompanying notice under s 46(6)) on any person in the United Kingdom (including the appellant) who is, may be or claims to be, an interested party.  His Honour purported to extend time pursuant to s 79(4).  He also ordered that the extension of time be without prejudice to any right of any person to apply for an extension under s 79.  See Re Smith (No 3) [9].

5. On 28 January 2004, the appellant was served with the freezing order and the accompanying notice.  The notice stated, relevantly:

   AUTOMATIC CONFISCATION

   The property frozen under a Freezing Order may be confiscated automatically under the Criminal Property Confiscation Act 2000 and

without further notice to you unless an objection to the confiscation of the property is filed in the Court specified in a Freezing Order within 28 days after the date of service of a Freezing Order on you.

IF YOU WANT TO PREVENT AUTOMATIC CONFISCATION YOU MUST FILE AN OBJECTION.

WHAT YOU MAY DO

OBJECTION

You may be eligible to file an objection to the confiscation of the property frozen under a Freezing Order.

If you are eligible to file an objection and wish to prevent automatic confiscation you MUST file an objection to the confiscation in the Court specified below within 28 days after the day on which a copy of a Freezing Order was served on you.

THE COURT IN WHICH AN OBJECTION IS TO BE FILED

Supreme Court, at Supreme Court Gardens, Barrack Street, Perth WA 6000

… 

NOTE:  Giving a statutory declaration to the Director of Public Prosecutions will not prevent automatic confiscation of the property frozen under a Freezing Order ‑ to prevent automatic confiscation you must file an objection in the court specified in a Freezing Order.

1. Neither the appellant nor any other person filed an objection under s 79(1) of the Act to the confiscation of the funds frozen under the freezing order.  The appellant did, however, make application on 15 December 2003 to set aside the freezing order.  This application, which was heard before Roberts‑Smith J on 29 April 2004, challenged the jurisdiction of the court to make the freezing order.  First, the appellant alleged that the order was beyond jurisdiction as it purported to have an extra-territorial coercive effect on the appellant but was made without any jurisdiction being established over the appellant.  Secondly, the appellant alleged that the circumstances did not enliven the statutory jurisdiction of the court to grant a freezing order and the freezing order was an abuse of process.  On 30 June 2004, his Honour dismissed the appellant's application.  See Re Smith; Ex parte Director of Public Prosecutions for Western Australia (No 2) [2004] WASC 147. The appellant's appeal to this court against his Honour's decision was dismissed. See Centurion Trust Company Ltd v Director of Public Prosecutions (WA) [2008] WASCA 6; (2008) 35 WAR 463.

1. On 2 July 2004, the DPP made an ex parte application for a declaration, pursuant to s 30 of the Act, that the funds frozen under the freezing order had been confiscated under s 7(1), in that an objection to the confiscation of the funds was not filed on or before the 28th day after the 'service cut off date', as defined in the glossary to the Act. Roberts-Smith J heard the application. His Honour was satisfied that no objection had been filed by any interested party and that the statutory preconditions for the making of a declaration under s 30 had been satisfied. See Re Smith (No 3) [13], [24].  On 2 July 2004, his Honour made the declaration. 

2. On 2 July 2004, the appellant made an application under s 79 of the Act for an extension of time to file an objection to the confiscation of the frozen funds.  On 6 June 2008, Templeman J dismissed the application.  His Honour held that s 79 is not applicable to property which has been confiscated.  His Honour also held that the court did not have inherent jurisdiction, arising under s 102 of the Act and s 21(3) of the Supreme Court Act 1935 (WA), to extend time if, in effect, the interests of justice so require. Templeman J decided that, in the circumstances, it was unnecessary for him to consider the merits of the appellant's application. See Director of Public Prosecutions (WA) v Centurion Trust Company Ltd [No 5] [2008] WASC 107 [11] ‑ [12], [14], [17] ‑ [19], [27].

3. On 7 July 2004, the appellant made application to set aside the confiscation declaration which Roberts-Smith J made on 2 July 2004.  The application came before Templeman J.  It was based on the assumption that, in making the declaratory order, Roberts-Smith J had exercised a judicial discretion.  After further consideration, the appellant concluded that the application was misconceived in that the court was obliged to make the declaration.  Counsel for the appellant accepted that the application should be dismissed, and on 18 April 2008 Templeman J made an order to that effect.  See Director of Public Prosecutions (WA) v Centurion Trust Company Ltd [No 5] [28] ‑ [30].

4. The appellant appealed to this court against the decision of Templeman J, made on 6 June 2008, dismissing its application for an extension of time to file an objection to the confiscation of the frozen funds.  This court dismissed the appeal.  See Centurion Trust Company Ltd v Director of Public Prosecutions (WA) [2009] WASCA 97. It was held that the court does not have inherent jurisdiction to grant an extension of time to permit a person to file an objection under s 79 of the Act after the property, the subject of a freezing order, has been confiscated. The court cannot resort to its inherent jurisdiction to override the statutory scheme for the confiscation of property under s 7 or the statutory scheme for circumscribing the time within which an objection may be filed or the circumstances in which the court may grant an extension of time.

5. The applications made by the DPP against Mr Smith for a crime‑used property substitution declaration and a criminal benefits declaration were discontinued by the DPP in consequence of the declaration made by Roberts‑Smith J on 2 July 2004, pursuant to s 30 of the Act, that the funds frozen under the freezing order had been confiscated under s 7(1).

The present appeals to this court

1. The appellant now applies for an extension of time to appeal and, if necessary, leave to appeal to this court against:

   (a)the declaration made by Roberts-Smith J on 2 July 2004 that the frozen property had been automatically confiscated under s 7(1) of the Act (CACV 81 of 2009); and

   (b)the decision made by Templeman J on 18 April 2008 dismissing the appellant's application to set aside the confiscation declaration made by Roberts-Smith J on 2 July 2004 (CACV 79 of 2009).

The oral hearings before this court

1. The present appeals were argued initially before this court on 15 December 2009.  Judgment was reserved.  Later, the court wrote to the parties and raised several issues as to the proper construction and application of the Act.  These issues, which had not been dealt with by the parties at the initial hearing, were the subject of written submissions.  Also, on 7 May 2010, the court re‑convened to hear further oral argument.  At the re‑convened hearing, the court granted the appellant leave to amend its grounds of appeal in CACV 81 of 2009.

The applications to extend time to appeal:  applicable legal principles

1. In general, there are four principal factors to be considered in determining whether to grant an application for an extension of time to appeal.  First, the length of the delay.  Secondly, the reasons for the delay.  Thirdly, whether there is an arguable case.  Fourthly, the extent of any prejudice to the respondent.  No doubt, in a particular case, there may be additional factors.  See Esther Investments Pty Ltd v Markalinga Pty Ltd (1989) 2 WAR 196, 198 (Kennedy J), citing the English Court of Appeal in Palata Investments Ltd v Burt & Sinfield Ltd [1985] 1 WLR 942, 946.

2. In Gallo v Dawson [1990] HCA 30; (1990) 64 ALJR 458, McHugh J examined the applicable principles in relation to an application to extend time to appeal to the High Court. The relevant provision in the rules of the High Court empowered the Court to extend time upon such terms 'as the justice of the case may require'. His Honour said:

   The grant of an extension of time under this rule is not automatic.  The object of the rule is to ensure that those Rules which fix times for doing acts do not become instruments of injustice.  The discretion to extend time is given for the sole purpose of enabling the Court or Justice to do justice between the parties:  see Hughes v National Trustees Executors & Agency Co of Australasia Ltd [1978] VR 257 at 262. This means that the discretion can only be exercised in favour of an applicant upon proof that strict compliance with the rules will work an injustice upon the applicant. In order to determine whether the rules will work an injustice, it is necessary to have regard to the history of the proceedings, the conduct of the parties, the nature of the litigation, and the consequences for the parties of the grant or refusal of the application for extension of time: see Avery v No 2 Public Service Appeal Board [1973] 2 NZLR 86 at 92; Jess v Scott (1986) 12 FCR 187 at 194 ‑ 195. When the application is for an extension of time in which to file an appeal, it is always necessary to consider the prospects of the applicant succeeding in the appeal: see Burns v Grigg [1967] VR 871 at 872; Hughes, at 263 ‑ 264; Mitchelson v Mitchelson (1979) 24 ALR 522 at 524. It is also necessary to bear in mind in such an application that, upon the expiry of the time for appealing, the respondent has 'a vested right to retain the judgment' unless the application is granted: Vilenius v Heinegar (1962) 36 ALJR 200 at 201. It follows that, before the applicant can succeed in this application, there must be material upon which I can be satisfied that to refuse the application would constitute an injustice. As the Judicial Committee of the Privy Council pointed out in Ratnam v Cumarasamy (1965) 1 WLR 8 at 12; (1964) 3 All ER 933 at 935.

   'The rules of court must prima facie be obeyed, and in order to justify a court in extending the time during which some step in procedure requires to be taken there must be some material upon which the court can exercise its discretion.'

3. In Jackamarra v Krakouer [1998] HCA 27; (1998) 195 CLR 516, Brennan CJ and McHugh J noted that where an application is made to extend time to appeal, the respondent to the application has a vested right to retain the judgment, the subject of the appeal, and that to grant the application is to put at risk that vested right [4]. Their Honours also referred, with apparent approval, to Palata Investments (946), which had been followed by Kennedy J in Esther Investments (198).

4. In Jackamarra, Kirby J noted that in a particular case there might be other factors of relevance apart from the length of the delay, the reasons for the delay, whether the applicant has a fairly arguable case, and the extent of any prejudice suffered by the respondent to the application.  After referring to these four principal factors, Kirby J said:

   But they are by no means exhaustive.  Several others have from time to time been thought relevant.  These include whether the delay was intentional or contumelious (Allen v Sir Alfred McAlpine & Sons Ltd [1968] 2 QB 229; Birkett v James [1978] AC 297 at 318); or merely the result of a bona fide mistake or blunder (Esther Investments (1989) 2 WAR 196 at 204); and whether the delay is that of the litigant or of its lawyers, with which the litigant should not be saddled (Sophron v The Nominal Defendant (1957) 96 CLR 469 at 474; Hall v Nominal Defendant (1966) 117 CLR 423 at 435; Mehta [1975] 1 WLR 1087 at 1091, 1092; [1975] 2 All ER 1084 at 1088, 1089). It may also be relevant, where the default is that of a party's legal representatives, to take into account any considerations personal to the party which might have affected its ability to safeguard its own interests, for example, by applying pressure to its lawyers. Similarly, the extent to which any such prejudice may be remedied by an appropriate costs order is another consideration that has sometimes been treated as relevant [66].

5. In the present case, it is convenient to examine, first, the merits of the proposed grounds of appeal.

The proposed grounds of appeal in CACV 79 of 2009

1. The proposed grounds of appeal in CACV 79 of 2009 read:

   1.The Learned Trial Judge erred in law in dismissing the appellant's chamber summons filed 7 July 2004.

   2.The Learned Trial Judge should have held that:

   2.1the order of Justice Roberts-Smith made 2 July 2004 having been made ex parte, was at law a provisional order;

   2.2having regard to the terms of the freezing order made by Justice Scott of 14 November 2003, the appellant was not entitled under the Act to object, alternatively was not able to obtain relief pursuant to the objection provisions of the CPC Act (Act);

   2.3by reason thereof, the automatic confiscation provisions in section 7 of the Act did not apply to the appellant's property;

   2.4there was no basis accordingly for Justice Roberts-Smith making a declaration in the terms declared.

   3.Alternatively, the Learned Trial Judge should have held that:

   3.1the appellant had in substance filed an objection to confiscation by its motion to set aside ex parte order filed 15 December 2003, which sought to set [aside] the freezing order on the grounds (inter alia) that the property:

   3.1.1was not crime used property;

   3.1.2was not crime derived;

   3.1.3was not unlawfully acquired property; or

   3.1.4could not be the subject of a crime used property substitution declaration;

   3.2there was no basis accordingly for Justice Roberts‑Smith making a declaration in the terms declared.

The proposed grounds of appeal in CACV 81 of 2009

1. The proposed grounds of appeal, as amended, in CACV 81 of 2009 read:

   1.The Learned Trial Judge erred in law in making a declaration on 2 July 2004 that the property the subject of the freezing order made by the Honourable Justice Scott on 14 November 2003 was automatically confiscated under section 7(1) of the Criminal Property Confiscation Act 2000 (Act);

   2.The Learned Trial Judge should have held that:

   2.1having regard to the grounds on which the freezing order of Justice Scott of 14 November 2003 was made, the appellant was not entitled under the Act to object, alternatively was not able to obtain relief pursuant to the objection provisions of the Act;

   2.2by reason thereof, the automatic confiscation provisions in section 7 of the Act did not apply to the appellant's property.

   2A.Alternatively, the Learned Trial Judge should have held that on the proper construction of the Act the automatic confiscation provisions in section 7 of the Act did not apply to the appellant's property.

   3.Alternatively, the Learned Trial Judge should have held that:

   3.1the appellant had filed an objection to confiscation by the filing on 15 December 2003 [of] the motion to set aside ex parte order, which sought to set aside the freezing order on the grounds (inter alia) that the property:

   3.1.1was not crime used property;

   3.1.2was not crime derived;

   3.1.3was not unlawfully acquired property; or

   3.1.4could not be the subject of a crime used property substitution declaration.

The critical questions in the appeals

1. The critical questions arising at the initial hearing of the appeals on 15 December 2009 were these:

   1.Is there a statutory mechanism for bringing a freezing order made under s 43(1)(b) to an end?

   2.If a freezing order is made on multiple grounds, some of which fall within s 82, s 83 or s 84 and some of which do not, does automatic confiscation occur under s 7(1) only when the freezing order has not been set aside on all the grounds on which it was made?

   3.If pt 6 applies to all freezing orders, not just those that can be set aside under s 82, s 83 or s 84, did the appellant in these appeals in fact file an objection to the confiscation of the property?

2. The critical questions arising at the re‑convened hearing of the appeals on 7 May 2010 were as follows:

   1.Does automatic confiscation under s 7(1) extend to frozen property liable to be confiscated under s 6 or s 8?

   2.Is automatic confiscation under s 7(1) confined to property that has been frozen pursuant to a freezing order made under s 43(8)?

   3.If automatic confiscation under s 7(1) extends to property that has been frozen pursuant to a freezing order made under s 43(3)(b) or (c), is confiscation provisional or contingent upon the DPP obtaining a declaration against the respondent under pt 3?

   4.When confiscation occurs under s 6 or s 8, what is confiscated when the respondent to the declaration under pt 3 or the offender under s 8, as the case may be, has a limited interest in the property available for confiscation?

3. Before addressing the critical questions in these appeals, it is necessary to understand the legislative scheme embodied in the Act.

The primary purpose of the Act

1. The primary purpose of the Act is to provide for the confiscation, in certain circumstances, of property acquired as a result of criminal activity and property used for criminal activity.

Part 3 of the Act: identifying and recovering confiscable property

1. Part 3 of the Act is concerned with, amongst other things, identifying and recovering confiscable property.  Property is confiscable, for the purposes of the Act, if it is:

   (a)owned or effectively controlled, or has at any time been given away, by a person who has 'unexplained wealth';

   (b)owned or effectively controlled, or has at any time been given away, by a person who has acquired a 'criminal benefit';

   (c)'crime-used property';

   (d)'crime-derived property'; or

   (e)owned or effectively controlled, or has at any time been given away, by a 'declared drug trafficker'.

   See s 142.  See also the definitions of 'unexplained wealth' (s 144), 'criminal benefit' (s 145), 'crime-used property' (s 146), 'crime-derived property' (s 148) and 'declared drug trafficker' (s 159).

2. In the glossary to the Act, 'property' is defined to mean, in essence, a legal or equitable interest in any real or personal property of any description, wherever situated, whether tangible or intangible; 'owner', in relation to property, is defined to mean a person who has a legal or equitable interest in the property; and 'effective control', in relation to property, bears the meaning set out in s 156.

3. The court is empowered, on the application of the DPP, to make against a person an unexplained wealth declaration (s 11 ‑ s 14), a criminal benefits declaration (s 15 ‑ s 20) and a crime-used property substitution declaration (s 21 ‑ s 24).

4. For the purposes of an application for an unexplained wealth declaration, any property, service, advantage or benefit that is a constituent of the respondent's wealth is presumed not to have been lawfully acquired unless the respondent establishes the contrary:  see s 12(2).  For the purposes of an application for a criminal benefits declaration, the property, service, advantage or benefit described in the application is presumed to have been directly or indirectly acquired as a result of the respondent's involvement in a confiscation offence unless the respondent establishes otherwise:  see s 16(3).  See also s 17(2).  For the purposes of an application for a crime-used property substitution declaration, if the respondent has been convicted of the relevant confiscation offence, it is presumed that the respondent made criminal use of the property unless the respondent establishes the contrary:  see s 22(3).  See also s 22(4) and s 22(5).

5. By s 14, when the court makes an unexplained wealth declaration, the respondent is liable to pay to the State an amount equal to the amount specified in the declaration as the assessed value of the respondent's unexplained wealth.

6. By s 20, when the court makes a criminal benefits declaration, the respondent is liable to pay to the State an amount equal to the amount specified in the declaration as the assessed value of the criminal benefit acquired by the respondent.

7. By s 24(1), when the court makes a crime-used property substitution declaration, the respondent is liable to pay to the State an amount equal to the amount specified in the declaration as the assessed value of the crime-used property.  By s 24(2), if a crime-used property substitution declaration is made against two or more respondents in respect of the same crime-used property, the respondents are jointly and severally liable to pay to the State an amount equal to the amount specified in the declaration as the assessed value of the property.

8. Section 25 provides:

   (1)The amount payable by a respondent under section 14, 20 or 24 is payable ‑ 

   (a)within one month after the date on which the respective unexplained wealth declaration, criminal benefits declaration or crime-used property substitution declaration was made; or

   (b)within any further time allowed by the court.

   (2)The court may allow further time even if the due date has passed.

   (3)If part or all of the amount is not paid within the time allowed, the unpaid amount is recoverable from the respondent by the State in a court of competent jurisdiction as a debt due to the State.

9. Section 26 makes provision for the use of frozen property to meet a respondent's liability under s 14, s 20 or s 24 to make a specified monetary payment.  It provides:

   (1)Frozen property owned by a respondent may be taken, with the respondent's consent, in payment or part-payment of an amount payable by the respondent under section 14, 20 or 24.

   (2)However, if part or all of the amount payable by the respondent is not paid within the time allowed under section 25(1), then despite any other provision of this Act, any frozen property that is owned by the respondent is available for the purpose of satisfying the respondent's liability as if the property had been taken from the respondent's possession under a writ, warrant or other process of execution.

   (3)Nothing in subsection (1) or (2) limits any other means of satisfying a debt due to the State under subsection 25(3).

10. The term 'frozen', in relation to property and in relation to a freezing notice or freezing order, is defined in the glossary to the Act to mean 'subject to the freezing notice or the freezing order'.

11. By s 6, property is confiscated when it is given or taken in satisfaction of a respondent's liability under s 14, s 20 or s 24 to pay the amount specified in an unexplained wealth declaration, a criminal benefits declaration or a crime‑used property substitution declaration.

1. In my opinion, automatic confiscation of frozen property under s 7(1) does not extend to frozen property that is liable to confiscation under s 6 or s 8, but not under s 7(2). Automatic confiscation of frozen property under s 7(1) is confined to property that has been frozen pursuant to a freezing order made under s 43(8) or pursuant to a freezing order made under s 43(8) and another ground or other grounds.

2. My reasons for these opinions are as follows.

3. First, a freezing order under s 43(8) is made in respect of property on the basis that there are reasonable grounds for suspecting that the property is crime-used or crime‑derived.  The freezing order is not made in respect of a person.  By contrast, a freezing order under s 43(3)(b) or (c) is made in respect of a person and his or her property.  Similarly to s 43(3)(b) and (c) but by contrast with s 43(8), a freezing order under s 43(5) is made in respect of a person and his or her property.

4. Secondly, an essential precondition to confiscation under s 6 is the making by the court of an unexplained wealth declaration, a criminal benefits declaration or a crime‑used property substitution declaration and the specification in such declaration of the amount that the respondent is liable to pay under s 14, s 20 or s 24.  A further essential precondition to confiscation under s 6 is the failure of the respondent to pay the specified amount within the time allowed under s 25 or the respondent's consent under s 26(1) to the taking of the frozen property in payment or part‑payment of the relevant amount.

5. Thirdly, the objection procedure under s 84(1) does not relate to whether an unexplained wealth declaration, a criminal benefits declaration or a crime‑used property substitution declaration should be made or not.  Rather, s 84(1) is concerned with whether the person who is or will be the respondent to such declaration owns or effectively controls the frozen property or has at any time given it away.  By contrast with s 7(2), confiscation of frozen property under s 6 is not linked to or conditional upon the adverse determination by the court of an objection filed to the confiscation of the frozen property.

6. Fourthly, an essential precondition to confiscation under s 8 is the making of a drug trafficker declaration in relation to a person under s 32A(1) of the Misuse of Drugs Act or a person being taken to be a declared drug trafficker under s 159(2) of the Act. 

7. Fifthly, the objection procedure under s 84(2) does not relate to whether a person should be declared a drug trafficker or a person should be taken to be a declared drug trafficker.  Rather, s 84(2) is concerned with whether the person who is or will be charged with an offence which could result in the person upon conviction being declared to be a drug trafficker, owns or effectively controls the frozen property or has at any time given it away.  Similarly to s 6 and by contrast with s 7(2), confiscation of frozen property under s 8 is not linked to or conditional upon the adverse determination by the court of an objection filed to the confiscation of the frozen property.

8. Sixthly, an essential precondition to confiscation under s 7(2) is that the objection which has been filed within the stipulated period is finally determined and the freezing order is not set aside.

9. Seventhly, the objection procedure under s 82 and s 83 relates, relevantly, to whether the objection to the freezing order should be set aside on the ground that the objector has established that it is more likely than not that the property frozen under the freezing order is not crime‑used or crime‑derived, as the case may be.  See s 82(1) and s 83(1).  As I have mentioned, other provisions of s 82 and s 83 permit the court to set aside a freezing order where the objector establishes, amongst other things, that he or she is an 'innocent party'.  See also s 82(7) and s 83(5).

10. Eighthly, although confiscation occurs under s 7(1) if an objection is not filed within the stipulated period, and objections to confiscation may be filed in relation to property that is liable to confiscation under s 6, s 7 or s 8, it is significant that s 7(1) and s 7(2) are subsections within the same section; s 7(1) and s 7(2) use identical language in relation to the period within which an objection must be filed; s 7(1) deals with confiscation where an objection is not filed on or before the 28th day after the service cut off date and s 7(2) deals with confiscation where an objection is filed on or before the 28th day after the service cut off date; and the language of s 7(1) does not indicate that it is intended to apply to property that is liable to be confiscated under s 6 or s 8.

11. Ninthly, apart from s 43(3), s 43(5) and s 43(8), the court may make a freezing order for property under s 43(1) if, in essence, an examination order, a monitoring order or a suspension order is in force, or is to be applied for, in relation to the property. As I have mentioned, a freezing order under s 43(1) is intended to confer security on the State pending further investigations in relation to the property. None of the provisions of s 82, s 83 or s 84 refers to property that has been frozen pursuant to a freezing order under s 43(1). Property that has been frozen solely pursuant to a freezing order under s 43(1) is not liable to be confiscated under s 6, s 7 or s 8. As I explain at [247] ‑ [254] below, in certain circumstances, the DPP is under an implied duty to request that a freezing order made under s 43(1) be set aside pursuant to s 48(4)(d) or s 49(2)(d), as the case may be, and the court may also set aside such a freezing order, in certain circumstances, pursuant to the express incidental power in s 83(7) or s 84(3) or, alternatively, pursuant to the incidental power which, in my view, is implicit in s 82.

12. Tenthly, my preferred construction of s 6, s 7 and s 8 is compatible with s 48(5)(f) and s 49(3)(f).  By s 48(5)(f), if a freezing order for registrable real property was made under s 43(3) on the basis that an application for a declaration or another order has been or is likely to be made, the applicant for the freezing order must lodge a memorial with the Registrar of Titles if 'the property is confiscated under section 6, 7 or 8'.  Section 49(3)(f) makes relevantly identical provision in respect of a freezing order for property (except registrable real property) made under s 43(3). 

13. By s 48(2), a freezing order for registrable real property stops being in force when a memorial under subs (4), (5), (6) or (7) in relation to the property is registered under s 113(1).  However, by s 48(3), if the freezing order was made on two or more grounds, but a memorial has not been lodged under subs (4) or (5) in relation to each of those grounds, the freezing order continues in force as if it had been made on each remaining ground. 

14. Section 48(4) deals with freezing orders for registrable real property made under s 43(1) on the basis that an application for another order has been or is likely to be made; s 48(5) with a freezing order for registrable real property made under s 43(3) on the basis that an application for a declaration or another order has been or is likely to be made; s 48(6) with a freezing order for registrable real property made under s 43(5) on the basis that a person has been or is likely to be charged with an offence; and s 48(7) with a freezing order for registrable real property made under s 43(8) on the basis that the property was suspected of being crime‑used or crime‑derived.  Section 49 contains similar provisions in relation to property (except registrable real property). 

15. My point about the compatibility of s 48(5)(f) and s 49(3)(f) with my preferred construction of s 6, s 7 and s 8 may be more easily understood if I reproduce s 48(5):

    If a freezing order for registrable real property was made under section 43(3) on the basis that an application for a declaration or another order has been or is likely to be made, the applicant for the freezing order must lodge a memorial with the Registrar of Titles if ‑ 

    (a)where the freezing order was made on the basis of advice given to the court under section 43(3)(c) ‑ an application for the declaration or other order is not made within 21 days after the date of the freezing order;

    (b)the application for the declaration or other order is withdrawn;

    (c)the application for the declaration or other order is finally determined, but the court does not make the declaration or other order;

    (d)in the case of a declaration ‑ the declaration is made, and the respondent’s liability to pay an amount under section 14, 20 or 24 is satisfied, whether or not any or all of the frozen property is given or taken in satisfaction of the liability;

    (e)the freezing order is set aside on all grounds at the request of the applicant for the freezing order or in proceedings on an objection; or

    (f)the property is confiscated under section 6, 7 or 8.

16. Section 48(5) sets out some of the circumstances in which a freezing order for registrable real property stops being in force.  A freezing order may, of course, be made on multiple grounds.   In s 48, this is recognised expressly in s 48(3) and by necessary implication in s 48(5).  Section 48(5)(f) recognises that if a freezing order for registrable real property was made under s 43(3), and the property in question has been confiscated under, for example, s 8, because the freezing order was also made under s 43(5), then the applicant must lodge a memorial.  There is no necessity for a memorial not to be lodged pending the determination of any subsisting application for an unexplained wealth declaration, a criminal benefits declaration or a crime‑used property substitution declaration, as contemplated by s 43(3)(b) and s 6, because the relevant property has already been confiscated under s 8.  The legislative rationale and drafting technique manifest in s 48(5) is also apparent in s 48(4), s 48(6) and s 48(7).

17. Eleventhly, where property that is alleged to be crime‑used or crime‑derived, the burden is on the respondent to establish, relevantly, under s 82(1) or s 83(1) that it is not crime‑used or crime‑derived, as the case may be, and, if the respondent fails to make out his or her case, then the property is confiscated under s 7(2). Section 7(1) is concerned to ensure that property which may be confiscated under s 7(2) does not remain frozen indefinitely. The respondent to property which has been frozen on the ground that it is allegedly crime‑used or crime‑derived must file an objection within the stipulated period, and if he or she fails to file an objection within time then the property is automatically confiscated under s 7(1). Despite the provisions in s 82 and s 83 for objection by an 'innocent party', where an 'innocent party' has failed to lodge an objection within the stipulated period and the property in question has been confiscated under s 7(1), the Parliament has provided the 'innocent party' with some (limited) relief by enabling him or her to apply, in certain circumstances, under s 85, read with s 87, for the release of the confiscated property.

18. Twelfthly, the construction of s 6, s 7 and s 8 which I prefer enables s 79(4) to have a sensible and practical operation.  By s 79(4), the court may allow further time under s 79(2) or s 79(3) for filing an objection, even if the time for filing the objection has expired.  This court has held that an extension of time under s 79(4) may not be granted if the frozen property has already been confiscated.  See Centurion Trust Company [2009] WASCA 97. If automatic confiscation under s 7(1) does not extend to frozen property that is liable to confiscation under s 6 or s 8, but not under s 7(2), then an extension of time may be granted under s 79(4) for the filing of an objection under s 84 because the property in question will not be confiscated until the pre‑conditions for confiscation under s 6 or s 8 have been satisfied. Section 79(4) does not, however, operate where s 7(2) applies to the frozen property and there has been automatic confiscation under s 7(1) in consequence of the respondent's failure to file an objection within the stipulated period.

19. Thirteenthly, it is true that in his second reading speech relating to the Bill which, upon enactment, became the Act, the responsible minister said:

    Part 2 of the Bill provides for automatic confiscation of frozen property in the absence of any objection, and so makes the operation of the Bill more efficient and effective.  For example, when all the property of a person is frozen on the basis that an application for an unexplained wealth or criminal benefits declaration has been, or will be, made, and, for example, the person does not object to confiscation, all that property will be automatically confiscated.  In addition, an application can be made that the person pay to the Crown a specified amount being the amount of his unexplained wealth or criminal benefits.  (emphasis added)

    (Western Australia, Parliamentary Debates, Legislative Assembly, 29 June 2000, 8612.)

20. This statement is not a reliable guide to the proper construction of the Act.  The Minister's reference to property having been frozen 'on the basis that an application for an unexplained wealth or criminal benefits declaration has been, or will be, made' must be, relevantly, to a freezing order under s 43(3)(b) or (c).  In my opinion, the scheme of the Act and the statutory language do not support the contention that where a person's property is frozen pursuant to a freezing order under s 43(3)(b) or (c), the property will be automatically confiscated in the absence of an objection, or the further contention that, 'in addition' to automatic confiscation of the frozen property in the absence of an objection, the State can make an application against the person and obtain an order from the court that the person pay the amount specified in an unexplained wealth declaration or a criminal benefits declaration.

21. Fourteenthly, although s 46 contains detailed provisions for the service of a copy of a freezing order on any person who is, or may be, or claims to be, an 'interested party', these provisions are not inconsistent with my preferred construction of s 6, s 7 and s 8.  In the glossary to the Act, 'interested party', in relation to frozen property, is defined to mean a person who has an interest in the property that would enable the person to succeed on an objection to the confiscation of the property.  It is apparent from the definition, in the context of the Act as a whole, that a person will be an 'interested party' only if the person has an interest in the relevant property, and that interest would enable the person to succeed on an objection if the person satisfies the court, on the hearing of the objection, of the relevant matters specified in s 82, s 83 or s 84, as applicable.

22. Further, s 46(4) sets out information which must be set out in the notice accompanying service of a copy of the freezing order.  It is of some significance that s 46(6) merely requires, relevantly, that the notice advise the recipient to the effect that the relevant property 'may be confiscated automatically under this Act unless an objection to the confiscation of the property is filed' and that the notice tell the recipient that he or she 'may be eligible to file an objection' (emphasis added).  It does not follow that a person on whom a copy of the freezing order must be served will necessarily be entitled to file an objection.

23. The reasons I have advanced demonstrate, in my opinion, that automatic confiscation of frozen property under s 7(1) does not extend to frozen property that is liable to confiscation under s 6 or s 8, but not under s 7(2). I am satisfied that automatic confiscation of frozen property under s 7(1) is confined to property that has been frozen pursuant to a freezing order made under s 43(8) or pursuant to a freezing order made under s 43(8) and another ground or other grounds.

24. Counsel for the DPP submitted that the right to file an objection to confiscation under s 79 extends to:

    (a)persons claiming to set aside a freezing order under s 82, s 83 or s 84; and

    (b)any other person with an interest in frozen property, which interest will be automatically confiscated unless there is a future event which causes the freezing order to stop being in force in accordance with s 48 or s 49.

25. The effect of this submission is that confiscation is deferred until the matters in issue in substantive proceedings commenced by the DPP have been determined by the court.  If, as a result of the court's determination of the substantive proceedings, the freezing order stops being in force then confiscation will not occur under s 7(2) because that provision does not operate unless the freezing order continues after the determination of all objections.

26. In my opinion, the DPP's submission on this issue should be rejected.  It is inconsistent with my analysis of the legislative scheme.  Also, it does not find support in the language or structure of s 48, s 49, s 81, s 82, s 83 or s 84.

Critical question 3 dealt with at the re‑convened hearing on 7 May 2010

If automatic confiscation under s 7(1) extends to property that has been frozen pursuant to a freezing order made under s 43(3)(b) or (c), is confiscation provisional or contingent upon the DPP obtaining a declaration against the respondent under pt 3?

1. For the reasons I have given, automatic confiscation of frozen property under s 7(1) does not extend to property that has been frozen pursuant to a freezing order made under s 43(3)(b) or (c), but not under s 43(8).

Critical question 4 dealt with at the re‑convened hearing on 7 May 2010

When confiscation occurs under s 6 or s 8, what is confiscated when the respondent to the declaration under pt 3 or the offender under s 8, as the case may be, has a limited interest in the property available for confiscation?

1. The question as to what is confiscated under s 6 or s 8 when the respondent to the declaration under pt 3 or the offender under s 8, as the case may be, has a limited interest in the property available for confiscation, arose in the context of critical question 3. 

2. It is unnecessary to deal with critical question 4 in view of my conclusion that automatic confiscation of frozen property under s 7(1) does not extend to property that has been frozen pursuant to a freezing order made under s 43(3)(b) or (c), but not under s 43(8).

3. I should note, however, for completeness, that the DPP conceded (properly, in my opinion) that the property which can be frozen under s 43(3) and s 43(5), and confiscated, is confined to that estate or interest in the property which the respondent owns or effectively controls or gave away.

Critical question 1 dealt with at the initial hearing on 15 December 2009

Is there a statutory mechanism for bringing a freezing order made under s 43(1)(b) to an end?

1. By s 48(4), if a freezing order for registrable real property was made under s 43(1) on the basis that an application for another order has been or is likely to be made, the applicant for the freezing order must lodge a memorial with the Registrar of Titles if any of pars (a), (b), (c), (d) or (e) of s 48(4) is satisfied.  Section 48(2) provides that a freezing order for registrable real property stops being in force when, relevantly, a memorial under s 48(4) in relation to the property is registered under s 113(1). 

2. Similar provision in relation to property (except registrable real property) is contained in s 49(2).  In particular, by s 49(2), if a freezing order for property (except registrable real property) was made under s 43(1) on the basis that an application for another order has been or is likely to be made, the freezing order stops being in force as soon as one of pars (a), (b), (c), (d) or (e) of s 49(2) happens.

3. Section 83(7) provides, in the context of the court setting aside a freezing order for property that was frozen on the ground that it is crime‑derived, that when making an order under s 83, the court may make any necessary or convenient ancillary orders.  Section 84(3) provides, in the context of the court setting aside a freezing order for property that was frozen under s 43(3) or s 43(5), that the court may make any necessary or convenient ancillary orders.  However, s 82, which empowers the court to set aside a freezing order for property that was frozen on the ground that it is crime‑used, does not contain an express provision to the effect of those contained in s 83(7), s 84(3) and s 87(6).  There is no cogent reason, in principle or policy, for this omission.  I am satisfied that there is no proper basis for differentiating in this respect between s 82 on the one hand, and s 83 and s 84 on the other, and that the court has an implied incidental power in relation to s 82 which is comparable to the express incidental power in s 83(7) and s 84(3).

1. The Parliament could not have intended that a freezing order for property made by the court under s 43(1)(b) on the ground of the DPP's advice to the court that an application for an examination order, a monitoring order or a suspension order has been made in relation to the property, or is likely to be made in relation to the property within 21 days after the freezing order is made, should continue indefinitely if no substantive action were to be taken by the DPP after the making of the examination order, the monitoring order or the suspension order, as the case may be.

2. In my opinion, where:

   (a)a freezing order for property is made by the court under s 43(1)(b) on the ground of the DPP's advice to the court that an application for, relevantly, an examination order is likely to be made in relation to the property within 21 days after the freezing order is made;

   (b)the DPP in fact makes an application for an examination order within that period;

   (c)the examination order is in fact granted; and

   (d)no substantive action is taken by the DPP within a reasonable period after the making of the examination order or within a reasonable period after the examination is conducted pursuant to the order,

   then the DPP is under an implied duty to request that the freezing order be set aside under s 48(4)(d) or s 49(2)(d), as the case may be.

3. By parity of reasoning, this implied duty also exists where a freezing order for property is made by the court under s 43(1)(a), and no substantive action is taken by the DPP within a reasonable period after the making of the order or within a reasonable period after the object specified in the order has been satisfied or achieved.

4. Further, in my opinion, where:

   (a)a freezing order for property is made by the court under s 43(1)(b) on the ground of the DPP's advice to the court that an application for, relevantly, an examination order is likely to be made in relation to the property within 21 days after the freezing order is made;

   (b)the DPP in fact makes application for an examination order within that period;

   (c)the examination order is in fact granted;

   (d)the examination order is ancillary to another substantive ground on which the freezing order was made; and

   (e)the court decides, pursuant to s 82, s 83 or s 84, that the freezing order should be set aside on the other substantive ground,

   then the court may also set aside the freezing order, to the extent it was based on the order made under s 43(1)(b), pursuant to the express or implied incidental power.

5. By parity of reasoning, where a freezing order for property is made by the court under s 43(1)(a), and the order in question is ancillary to another substantive ground on which the freezing order is made, and the court subsequently decides, on an objection pursuant to s 82, s 83 or s 84, that the freezing order should be set aside on the other substantive ground, then the court may also set aside the freezing order, to the extent it was based on the order made under s 43(1)(a), pursuant to the express or implied incidental power.

Critical question 2 dealt with at the initial hearing on 15 December 2009

If a freezing order is made on multiple grounds, some of which fall within s 82, s 83 or s 84 and some of which do not, does automatic confiscation occur under s 7(1) only when the freezing order has not been set aside on all grounds on which it was made?

1. For the reasons I have given, automatic confiscation of frozen property under s 7(1) does not extend to property that has been frozen pursuant to a freezing order made under s 43(3)(b) or (c), but not under s 43(8). As I have mentioned, automatic confiscation of frozen property under s 7(1) is confined to property that has been frozen pursuant to a freezing order made under s 43(8) or pursuant to a freezing order made under s 43(8) and another ground or other grounds.

2. Accordingly, where property is frozen under a freezing order made on multiple grounds, the property may be automatically confiscated under s 7(1) if the grounds include s 43(8) and the conditions for automatic confiscation specified in s 7(1) are satisfied.

Critical issue 3 dealt with at the initial hearing on 15 December 2009

If pt 6 applies to all freezing orders, not just those that can be set aside under s 82, s 83 or s 84, did the appellant in these appeals in fact file an objection to the confiscation of the property?

1. In my opinion, the appellant in these appeals did not in fact file an objection to the confiscation of the property.

2. The notice of motion dated 15 December 2003 to set aside the freezing order merely challenged the jurisdiction of the court to make the freezing order.  It did not, either in form or in substance, constitute an objection under s 79.  Further, the appellant's submission that the notice of motion constituted an objection under s 79 is inconsistent with the appellant's conduct in engaging in litigation after 15 December 2003 on the basis that it had not filed an objection under s 79.  It is also inconsistent with the concession of counsel for the appellant made at the hearing on 18 April 2008 that the application dated 7 July 2004 should be dismissed.

Should an extension of time be granted?

1. The proposed grounds of appeal in CACV 79 of 2009 are unmeritorious.  I would therefore refuse to grant an extension of time to appeal.

2. However, the appellant has made out proposed grounds of appeal 1 and 2A (but not 2 or 3) in CACV 81 of 2009.

3. Although there was a substantial delay in filing the appeal notice in CACV 81 of 2009, I am satisfied that it is in the interests of justice to grant an extension of time to appeal.  Leave to appeal is not required.  The impugned decision was not interlocutory in character.  My reasons for granting an extension of time are as follows.

4. First, the issues raised by the proposed grounds of appeal (in particular, grounds 1 and 2A) are difficult and complex.  Secondly, the issues raised are of general public importance and arise in the context of statutory provisions which are, potentially, draconian in their application and, in some respects, less than clear or even ambiguous.  Thirdly, the appellant will suffer significant prejudice if an extension of time and leave to appeal are not granted in that a substantial sum of money to which it is entitled will have been confiscated to the State, even though, in the events which have happened, Mr Smith's convictions on the relevant confiscable offences were quashed by this court and the prosecuting authority decided that he should not be retried (despite this court having ordered a retrial).  Fourthly, the DPP would not suffer any relevant prejudice if an extension and leave were granted.

5. On the unusual facts and circumstances of the present case, an extension of time to appeal should be granted in CACV 81 of 2009, and the appeal should be allowed.

Conclusion

1. As to CACV 79 of 2009, the application for an extension of time to appeal should be refused, and the appeal should be dismissed.

2. As to CACV 81 of 2009, the application for an extension of time to appeal should be granted, and the appeal should be allowed. 

3. Counsel should be heard as to the precise form of the orders to be made.