Cook v The State of Western Australia - [2025] WASC 347

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   COOK -v- THE STATE OF WESTERN AUSTRALIA [2025] WASC 347
CORAM:   GETHING J
HEARD:   25 AUGUST 2025
DELIVERED          :   27 AUGUST 2025
FILE NO/S:   CPCA 43 of 2018
BETWEEN:   ANTHONY WILLIAM FORREST COOK
Applicant
AND
THE STATE OF WESTERN AUSTRALIA
Respondent

Catchwords:

Criminal law - Criminal property confiscation - Drug trafficker declaration made - Freezing notice - Objection to freezing notice - Application for declaration that frozen property confiscated - Effect of sale of property subject to the freezing notice pursuant to an order of the Family Court

Legislation:

Criminal Property Confiscation Act 2000 (WA) s 8, s 9, s 84(2)

Result:

Objections to freezing notice dismissed
Declarations made pursuant to the Criminal Property Confiscation Act 2000 (WA) s 8 that the property the subject of freezing notice has been confiscated

Category: B

Representation:

Counsel:

Applicant	:	In person
Respondent	:	Mr C Chenu

Solicitors:

Applicant	:	In person
Respondent	:	Director of Public Prosecutions (WA)

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

Bahr v Nicolay [No 2] (1988) 164 CLR 604
Bowfinger v Kingsway Group Limited [2009] WAC 44
Centurion Trust Company Ltd v Director of Public Prosecutions (WA) [2009] WASCA 97
Centurion Trust Company Ltd v Director of Public Prosecutions (WA) [2010] WASCA 133
Commissioner of Taxation v Bosanac (No 7) [2021] FCA 249
Commissioner of the AFP v Kalimuthu [No 2] [2018] WASCA 192
Jones v Daniel [2004] FCAFC 278
Mullane v Mullane (1983) 158 CLR 436
Official Trustee in Bankruptcy v Mateo (2003) 127 FCR 217
Ranford v The State of Western Australia [2015] WASC 45
Russell v Scott [1936] HCA 34; (1936) 55 CLR 440
Stern & Anor v McArthur & Anor (1988) 165 CLR 489
The Director of Public Prosecutions v Nguyen [2025] WASC 3
Whittle v The State of Western Australia [2012] WASC 244
Wyloo Metals Pty Ltd v Quarry Park Pty Ltd [2024] WASCA 38

GETHING J:

Introduction

The Director of Public Prosecutions for Western Australia (DPP) applies for a declaration under Criminal Property Confiscation Act 2000 (WA) (CPCA) s 30 that the property specified in par 1 of the summons dated 24 June 2024 (Seized Property) has been confiscated. The DPP seeks this declaration under CPCA s 8(1) on the basis that it is property owned or effectively controlled by a person who has been declared a drug trafficker pursuant to Misuse of Drugs Act 1981 (WA) (MDA) s 32A (Confiscation Application). That person, the DPP says, is the applicant, Anthony Cook. The DPP also seeks ancillary orders in relation to the net proceeds of the sale of confiscated property and orders for the delivery up of confiscated property.
The Seized Property had been frozen pursuant to Freezing Order WAPFN 180180 issued on 12 November 2018 (Freezing Notice). The Seized Property comprises:[1]
(a)a property at 25 Hall Street, Exmouth (25 Hall Street);
(b)a 'Capri' 32ft commercial fishing vessel registration number SPV813, call sign VKV6941 (Vessel);
(c)an unlicensed Jinker custom triple axel trailer (Trailer);
(d)210 fully paid ordinary shares in Wesfarmers Limited held by Mr Cook (Wesfarmers Shares);[2]
(e)200 fully paid ordinary shares Westpac Banking Corporation Limited held by Mr Cook (Westpac Shares); and
(f)Westpac Bank account number 736123527656 (Bank Account).
[1] Affidavit of Martin Lionel Nankivell sworn 22 February 2023 (Nankivell Affidavit), pars 6 - 7, attachment MLN2.
[2] The shares are incorrectly described as 'Westfarmers' shares in the Freezing Notice, but this is an obvious typographic error.
All of the property was frozen pursuant to CPCA s 34(3) on the ground that Mr Cook had been charged with an offence and could be declared to be a drug trafficker under MDA s 32A(1) if convicted of the offence. 25 Hall Street was also frozen pursuant to CPCA s 34(2) on the ground that there were reasonable grounds for suspecting that it was crime used, and on the ground that there were reasonable grounds for suspecting that it was crime derived.
The issue was first brought to the Supreme Court by an application filed by Mr Cook on 29 November 2018 (2018 Application). In the 2018 Application, Mr Cook objected to the Freezing Notice and any confiscation of property under the Freezing Notice. With the 2018 Application, Mr Cook lodged a notice of objection to confiscation of frozen property pursuant to CPCA s 79. The State entered an appearance to the 2018 Application.
On 21 December 2018 consent orders were made in this court pursuant CPCA s 91(1) and s 91(2) to the effect that Mr Cook was appointed to control and manage some of the Seized Property while the Freezing Notice was in force or until further order. That property was 25 Hall Street, the Vessel and the Trailer.
On 21 November 2019, Mr Cook was declared by the District Court of Western Australia to be a drug trafficker pursuant to MDA s 32A(1). This followed his conviction, after trial, of one count of cultivating a prohibited drug, namely cannabis, with intent to sell or supply it to another contrary to MDA s 7(1)(a).
The 2018 Application was in abeyance until 23 May 2024 when the DPP, on behalf of the State, filed a notice of intention to proceed. It filed the Confiscation Application in this action, seeking declarations to the effect that the Seized Property and, in the case of 25 Hall Street the proceeds of its sale, have been confiscated.
The application was heard on 25 August 2025. The DPP read and relied on the following affidavits:
(a)Paul World affirmed 19 October 2021 (World Affidavit);
(b)Keziah Royce affirmed 23 December 2021 (Royce Affidavit);
(c)Peter Beattie sworn 15 November 2021 (Beattie Affidavit);
(d)Nankivell Affidavit;
(e)Ma Theresa Mendoza sworn 22 May 2024 (Mendoza Affidavit); and
(f)Ian Steve Jones sworn 2 May 2024 (Jones Affidavit).
Mr Cook did not seek to cross-examine the deponents of any of the affidavits relied on by the DPP. Nor did he file any affidavit in opposition to the orders being made. Rather, he made submissions to the effect that the Seized Property has not been obtained through the use of funds derived from criminal activity. I will address Mr Cook's submissions in pt 7 of these reasons.
At the conclusion of the hearing, I advised the parties that the DPP was entitled to the orders sought in the Confiscation Application, which I set out at [56]. I said that I would publish the reasons for my decision, which are as follows.

General Principles

The DPP may apply to the court for a declaration that property has been confiscated.[3]
[3] CPCA s 30(1).
Section 8 of the CPCA relevantly provides for the confiscation of all of the property that is owned or effectively controlled by a person at the time the person is declared a drug trafficker.[4] The purpose of the power to freeze property is to preserve assets, relevantly, pending the determination of the criminal charge that might lead to a drug trafficker declaration being made.[5] Confiscation of a declared drug trafficker's property occurs automatically and immediately by force of s 8(1) upon the declaration being made under MDA s 32A(1).[6]
[4] CPCA s 8(1).
[5] The Director of Public Prosecutions v Nguyen [2025] WASC 3 [50] (Lemonis J) (Nguyen); Centurion Trust Company Ltd v Director of Public Prosecutions (WA) [2009] WASCA 97 [14] (McLure P).
[6] Centurion Trust Company Ltd v Director of Public Prosecutions (WA) [2010] WASCA 133 [199] (Buss JA, with whom Owen JA agreed) (Centurion).

The term 'effective control' in relation to property is further defined in CPCA s 156 in the following terms:
(1)For the purposes of this Act, a person has effective control of property if the person does not have the legal estate in the property, but the property is directly or indirectly subject to the control of the person, or is held for the ultimate benefit of the person.
(2)Without limiting subsection (1), when determining whether a person has effective control of any property, the following matters may be taken into account -
(a)any shareholdings in, debentures over or directorships of any corporation that has a direct or indirect interest in the property;
(b)any trust that has a relationship to the property;
(c)family, domestic and business relationships between persons having an interest in the property;
(d)family, domestic and business relationships between persons having an interest in or in a corporation that has a direct or indirect interest in the property;
(e)family, domestic and business relationships between persons having an interest in a trust that has a relationship to the property;
(f)any other relevant matters.
The term 'property' means:[7]
(a)real or personal property of any description, wherever situated, whether tangible or intangible; or
(b)a legal or equitable interest in any property referred to in paragraph (a).
[7] CPCA s 3, glossary.
The DPP must prove two matters on the balance of probabilities[8] to establish that the property described in the application has been confiscated under CPCA s 8(1). These are that (so are as is relevant):[9]
(a)a person has been declared to be a drug trafficker under MDA s 32A(1) as a result of being convicted of a confiscation offence; and
(b)the property was owned or effectively controlled by the person at the time the person was declared to be a drug trafficker.
[8] CPCA s 102(2)(d).
[9] Ranford v The State of Western Australia [2015] WASC 45 [22] (Edelman J); Whittle v The State of Western Australia [2012] WASC 244 [36] (Allanson J).
If the court finds that the property described in an application has been confiscated under CPCA s 8(1), the court must make a declaration to that effect.[10]
[10] CPCA s 30(2).

25 Hall Street

As at 12 November 2018 when the Freezing Notice was issued Mr Cook, and his wife (Mrs Cook) were the registered proprietors as joint tenants of 25 Hall Street, having been so since 22 September 2004.[11] As a matter of law, and in the absence of any evidence to the contrary, the court can presume that Mr Cook had a beneficial interest in 25 Hall Street commensurate with his registered legal interest.[12]
[11] Mendoza Affidavit, par 15, attachment MTM14.
[12] Commissioner of Taxation v Bosanac (No 7)[2021] FCA 249 [168] (McKerracher J).
In relation to 25 Hall Street, by CPCA s 36(2), the State was required to lodge a memorial of the issue of the notice with the Registrar of Title, who by CPCA s 113 is to register it. A memorial was lodged on 13 November 2018, but only in respect of drug trafficker grounds (First Memorial).[13]
[13] Mendoza Affidavit, attachment MTM13.
A freezing notice for registrable real property comes into force when a memorial of the issue of the freezing notice is registered.[14] A freezing notice for registrable real property stops being in force when a memorial under in relation to the property is registered.[15] However, if the freezing notice was issued on two or more grounds and a memorial has not been lodged in respect of each of those grounds the freezing notice continues in force as it had been made on each remaining ground.[16]
[14] CPCA s 38(1).
[15] CPCA s 38(2).
[16] CPCA s 38(3).
On 15 November 2018 the Freezing Notice was cancelled in respect of 25 Hall Street, but only on the ground that it was crime derived property.[17]
[17] Mendoza Affidavit, attachment MTM11.
On 13 December 2018 Mrs Cook commenced proceedings in the Supreme Court to object to the Freezing Notice in respect of 25 Hall Street. This application was dismissed by consent on 10 December 2020.[18]
[18] Jones Affidavit, pars 9 - 10, attachments ISJ 4 and ISJ 5.
Mr Cook and Mrs Cook were parties in the Family Court of Western Australia proceedings (Family Court Proceedings). The Family Law Act 1975 (Cth) (FLA) contains a provision in effect staying proceedings between parties to a marriage where property of the parties to the marriage is subject to, relevantly, a freezing notice issued under the CPCA.[19] The stay may be lifted if the DPP gives its consent.[20]
[19] FLA s 79C.
[20] FLA s 79D.
On 7 May 2019, the DPP gave written notice to Mr Cook and Mrs Cook that the DPP consented to lifting the stay in so far as it related to 25 Hall Street.[21]
[21] Jones Affidavit, par 13, attachment ISJ7.
Orders were then made in the Family Court Proceedings, by consent, on 22 August 2019 (Family Court Order) which included that:
(a)within 90 days of the orders, Mr Cook pay to Mrs Cook the sum of $150,000 (Payment Order); and
(b)contemporaneously with that payment, Mrs Cook was to transfer to Mr Cook at his expense, her interest in 25 Hall Street.[22]
[22] Jones Affidavit, par 15, attachment ISJ9.
The effect of Family Court Orders was to alter the legal and equitable interests of Mr Cook and Mrs Cook in 25 Hall Street.[23] When an order is made by the Family Court under s 79 FLA that a person presently holding a legal interest in the property transfer that interest to another person, a beneficial interest in the property interests to be transferred is thereby immediately vested in the other person, without effecting a legal transfer of the property itself.[24]
[23] FCA s 79; Mullane v Mullane (1983) 158 CLR 436, 445 - 446 (judgment of the court).
[24] Official Trustee in Bankruptcy v Mateo (2003) 127 FCR 217 [62] (Wilcox J); [136] (Merkel J); [102] (Branson J); Jones v Daniel [2004] FCAFC 278 [14] (Moore J).
In this instance, the obligation on Mrs Cook to transfer her interest in 25 Hall Street to Mr Cook was not immediate, but was required to be undertaken contemporaneously with Mr Cook paying to her the sum of $150,000. Once that payment was made, Mr Cook would become beneficially entitled to the whole of 25 Hall Street. He would become legally entitled to the whole of 25 Hall Street once the certificate of title was updated. However, unless and until the payment was made, Mr Cook could not require Mrs Cook to transfer her interest in 25 Hall Street to him. Until that time, Mrs Cook retained a beneficial interest in 25 Hall Street as a joint registered proprietor. However, Mr Cook's enforceable right to have Mrs Cook's legal interest transferred to him, as set out in [24] gave him an equitable interest in her interest as a joint registered proprietor.[25]
[25] Consistent with the position in equity more generally: Stern & Anor v McArthur & Anor (1988) 165 CLR 489, 511 (Brennan J), 537 (Deane and Dawson JJ); Bahr v Nicolay [No 2] (1988) 164 CLR 604, 610 - 612 (Mason CJ and Deane J), 645 - 647 (Brennan J); Wyloo Metals Pty Ltd v Quarry Park Pty Ltd [2024] WASCA 38 [404] (Buss P and Livesey AJA).
As at 21 November 2019, when he was declared a drug trafficker, Mr Cook had not complied with the Payment Order. Accordingly, Mr Cook's interest in 25 Hall Street as at this date was:
(a)his legal and beneficial interest as joint proprietor; and
(b)subject to and upon satisfaction of the Payment Order, a right to be transferred the Mrs Cook's interest as joint proprietor, giving him an equitable interest.
On 21 November 2019 when Mr Cook was declared a drug trafficker, the First Memorial was in force (on the drug trafficker ground). The Freezing Notice was in force on that date on the crime used property grounds. As mentioned, CPCA s 8 then had the effect that all of the property that he owned or effectively controlled was confiscated as at that date.
In my view, Mr Cook's interest in 25 Hall Street as set out at [27] was property which he owned for the purposes of CPCA s 8. The property comprises the combination of his rights as a registered proprietor of an interest as a joint tenant and his chose in action, a form of intangible property,[26] to have the Mrs Cook's legal and beneficial interest as joint proprietor interest transferred to him on payment of $150,000.
[26] Commissioner of the AFP v Kalimuthu[No 2] [2018] WASCA 192 [139] (Kalimuthu) (Buss P).
The interest of Mr Cook in 25 Hall Street is registerable real property. By CPCA s 9(1), registerable real property that is confiscated under CPCA s 8 does not vest absolutely in the State until:
(a)the court declares under CPCA s 30 that the property has been confiscated; and
(b)a memorial of the making of the declaration is registered under CPCA s 113(1).
Until that occurred, by CPCA s 9(3), CPCA s 50 (prohibited dealings), s 51 (effect of prohibited dealings) and pt 7 (management of seized, frozen and confiscated property) applied to the property as if it were subject to a freezing order.
On 19 March 2020 Mrs Cook obtained an order in the Family Court that she be appointed as the trustee of the interests of Mr Cook for the sale of 25 Hall Street (Sale Order).[27]
[27] Jones Affidavit pars 16 - 17, attachments ISJ10 and ISJ11.
On 28 July 2020, the DPP filed a second cancellation notice (Second Cancellation Notice).[28] This was in relation to the two remaining grounds, being that it was the property of a declared drug trafficker and that it was crime used. A withdrawal of the Memorial of Freezing was lodged with the Registrar of Titles on 29 July 2020.[29] From the chronology, this appears to have been done to facilitate Mrs Cook selling 25 Hall Street pursuant to the Sale Orders. However, the withdrawal of the Memorial of Freezing was in any event required by CPCA s 38(5)(f) as the property had been confiscated pursuant to CPCA s 8.
[28] Mendoza Affidavit, attachment MTM-12.
[29] Mendoza Affidavit, attachment MTM-15.
Pursuant to the Sale Orders, Mrs Cook entered into a contract for the sale of 25 Hall Street and executed a transfer on her own account as joint registered proprietor and as Mr Cook's trustee.[30] On 6 October 2020, 25 Hall Street was transferred to a third party.[31] Following settlement of the sale of 25 Hall Street, Mrs Cook received from the net proceeds of sale the amount to which she was entitled under the Payment Order, her entitlement to interest on that amount and an entitlement to costs under a further order made on 2 April 2020.[32] The balance of the net proceeds of sale, $119,440.35, was money to which the State was beneficially entitled by virtue of its right to enforce the confiscation of Mr Cook's interest in 25 Hall Street.[33] This money was transferred to the Public Trustee to be held in an account in the joint names of Mr Cook and the State of Western Australia.[34]
[30] Mendoza Affidavit, pars 19 - 20 attachment MTM16; Jones Affidavit, pars 20 - 23, attachments ISJ14 ‑ ISJ17.
[31] Mendoza Affidavit, pars 19 - 22, attachment MTM16.
[32] Jones Affidavit, pars 24 - 26, attachments ISJ18 - ISJ20.
[33] Bowfinger v Kingsway Group Limited [2009] WAC 44 [35] (Gummow, Hayne, Heydon, Kiefel and Bell JJ).
[34] Jones Affidavit pars 27 - 29, attachments ISJ21 and ISJ22.
The DPP seeks a declaration that the net sale proceeds held by the Public Trustee are held for the benefit of the State of Western Australia, and are to be paid to it on request.
Counsel for the DPP submits that an application for a declaration pursuant to CPCA s 30 that property has been confiscated under s 8 of the CPCA, does not require that the property be subject to a freezing notice (or order) at the time the application is heard, or at any other time.[35] There is potentially authority to the contrary.[36] However, I do not need to determine this issue as, in this case, 25 Hall Street was the subject of the Freezing Notice as at the date on which it was confiscated. Mr Cook and others with an interest in the property had an opportunity to object to its seizure.[37]
[35] Supplementary Submissions filed 21 August 2025, par 16.
[36] Centurion [203], though the observation is made in relation to a freezing order pursuant to CPCA s 43(5), not a freezing notice pursuant to CPCA s 34(3).
[37] Centurion [68].

As mentioned, confiscation of a declared drug trafficker's property occurs automatically and immediately by force of CPCA s 8(1) upon the declaration being made under MDA s 32A(1), so the interest of Mr Cook set out at [27] was confiscated as at 21 November 2019. However, as set out at [30], it did not vest absolutely in the State as at that date.[38]
[38] CPCA s 9(1); Centurion [199].
Upon Mr Cook's interest in 25 Hall Street at [27] being confiscated, control and management of it reverted back to the DPP pursuant to CPCA s 9(3) and s 89(2). By CPCA s 90, to 'facilitate the destruction, sale or other disposal of property under this Act, the DPP or the CCC may enter into a contract, and may execute a transfer or other instrument'. However, in this case, the DPP did not have to enter into any contract or execute any transfer or instrument in order to realise the State's interest in 25 Hall Street at [27]. This is because it was done by Mrs Cook pursuant to the orders of the Federal Court, the statutory stay having been waived by the DPP ([23]). I observe here that the interest being dealt with by Mrs Cook was that of the State, and not that of Mr Cook. However, by the inherently retrospective operation of the CPCA in this regard in which the declaration of confiscation by the court takes place some time after the confiscation as a matter of law occurs, the legal title was still in the name of Mr Cook.
Had the DPP:
(a)obtained a declaration pursuant to CPCA s 30 in relation to Mr Cook's interest in 25 Hall Street;
(b)registered a memorial of the making of the declaration is registered under CPCA s 113(1) such that 25 Hall Street vested absolutely in the State pursuant to CPCA s 9(1);
(c)sold 25 Hall Street using the power in CPCA s 90; and
(d)remitted the amounts owed to Mrs Cook,
there would be no issue that the State was entitled to the balance of the sale proceeds. The fact that this outcome was achieved through the processes of the Family Court does not disentitle the State to the same outcome.
For these reasons, the DPP is entitled to the orders it seeks in relation to 25 Hall Street. The proceeds of the disposal of Mr Cook's interest in 25 Hall Street is to be paid into the Confiscation Proceeds Account.[39]
[39] CPCA s 130, s 131(1)(b).

Vessel and Trailer

The evidence in the affidavit material relied on by the DPP establishes the following facts:
(a)the Vessel, named Capri, registration number SPV813, call sign VKV6941, was located at 25 Hall Street by Western Australian Police on 13 September 2018 and 7 October 2018;[40]
(b)on 7 October 2018, the 'Jinker' custom triple axle trailer was located underneath the Capri Vessel when Western Australian Police attended 25 Hall Street;[41]
(c)between 22 September 2004 and 6 December 2018, Mr Cook was a registered proprietor as joint tenant of 25 Hall Street;[42]
(d)the Vessel was registered in the name of Cook of 25 Hall Street, Exmouth Western Australia from 26 August 2005 to 1 April 2013;[43]
(e)the records held by the Australian Maritime Safety Authority show that the Vessel was last registered to Mr Cook by the Western Australian Authority from 21 February 2012 to 1 April 2013;[44]
(f)on 9 March 2016, Mr Cook completed an Australian Maritime Safety Authority form in relation to the Vessel to bring the vessel back into survey (but did not pursue the survey application to completion);[45]
(g)on 22 August 2019, the Family Court of Australia made orders in which Mrs Cook's right, title and interest in the Capri Boat vested in Mr Cook;[46]
(h)in his statutory declaration made in relation to the Freezing Notice, Mr Cook did not identify any person that may have a claim over any of the frozen property (including vessel and the trailer) other than Mrs Cook.[47]
[40] World Affidavit, pars 3 - 5, 8 - 16, attachment PW1.
[41] World Affidavit pars 3 - 5, 8 - 16, attachment PW1.
[42] Mendoza Affidavit, par 15, attachment MTM14.
[43] Beattie Affidavit, pars 8 - 9, attachments 'Attachment 1 of 9' and 'Attachment 3 of 9'.
[44] Royce Affidavit, pars 7 - 8, attachment KR-1.
[45] Beattie Affidavit, par 10, attachment 'Attachment 7 of 9'.
[46] Jones Affidavit, par 15, attachment ISJ9.
[47] Mendoza Affidavit, par 8, attachment MTM10
On the basis of these facts, I am satisfied that Mr Cook owned or effectively controlled the Vessel and the Trailer when he was declared a drug trafficker on 21 November 2019. They were confiscated as at this date.

Shares in listed companies

On the basis of the evidence in the Mendoza Affidavit, I am satisfied that Mr Cook was the holder of 210 Wesfarmers Limited shares at the date of issue of the Freezing Notice, and continued to hold those shares at the date he was declared a drug trafficker.[48]
[48] Mendoza Affidavit, pars 25, 28, 29, attachments MTM19 and MTM22.
On the basis of the evidence in the Mendoza Affidavit, I am satisfied that Mr Cook was the holder of 200 Westpac Banking Corporation Limited shares at the date of issue of the Freezing Notice, and continued to hold those shares at the date he was declared a drug trafficker.[49]
[49] Mendoza Affidavit, pars 26 - 29, attachments MTM20 and MTM21.
In each case, I am satisfied that the shares were owned or effectively controlled by Mr Cook when he was declared a drug trafficker on 21 November 2019. They were confiscated as at that date.

Bank account

Attachment MTM23 to the Mendoza Affidavit is a copy of Westpac Banking Corporation Records which record that in the period from 16 May 2018 to 16 November 2018 the Bank Account was held in the name of Mr Cook.[50] Accordingly, I am satisfied that as at the date of issue of the Freezing Notice, Mr Cook was the account holder for Westpac account number 736123527656, which had at that date a credit balance of $3,814.83.
[50] Mendoza Affidavit, par 30, attachment MTM23.
The Bank Account was frozen by the Freezing Notice from the date on which the freezing order was made.[51] By CPCA s 50(1), Mr Cook was prohibited from dealing with the Bank Account in any way. Had he done so, by CPCA s 51, that dealing would have had no effect, 'whether at law, in equity or otherwise', on the rights of the State under the CPCA. I thus find that Mr Cook continued to be the holder of the Bank Account when he was declared a drug trafficker on 21 November 2019.
[51] CPCA s 49(1).
As the account holder of the Bank Account, Mr Cook was entitled at common law to a chose in action, comprising his contractual right against Westpac in debt to recover from Westpac the balance standing to his credit in the account.[52] 'Property' for the purposes of the CPCA includes intangible personal property.[53] A chose in action is a form of intangible personal property.[54]
[52] Russell v Scott [1936] HCA 34; (1936) 55 CLR 440, 450 - 451 (Dixon and Evatt JJ); Kalimuthu [139].
[53] CPCA s 3 and Glossary, quoted at [12].
[54] Kalimuthu [131].
On this basis, I am satisfied that the Bank Account was property that was owned or effectively controlled by Mr Cook at the time he was declared a drug trafficker on 21 November 2019. The funds were confiscated as at that date.

Mr Cook's objections

As mentioned, Mr Cook made submissions to the effect that the Seized Property has not been obtained through the use of funds derived from criminal activity.
In relation to 25 Hall Street, Mr Cook said that the payments of interest and capital on the mortgage for this property were paid from his wages and from his superannuation.
Mr Cook said that he received the shares in Wesfarmers and Westpac as a result of a distribution in specie to him under this aunt's will.
I will assume that the assertions in [50] and [51] were proven by admissible evidence (which they are not).
The problem for Mr Cook is that the basis on which a person whose assets were frozen on the ground that they might be declared a drug trafficker may object are very limited. They are set out in CPCA s 84(2):
(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.
There is no power equivalent to CPCA s 83(1) which applies to 'crime-derived property'. That subsection provides that 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'. So even if Mr Cook was able to establish that 25 Hall Street and the shares in Wesfarmers and Westpac were not 'crime-derived', there is no power in the court pursuant to the CPCA to set aside the Freezing Notice on this ground. Nor does the court have a power or discretion to decline to declare that property has been confiscated under CPCA s 8 on the basis that it has been proven that the property was not crime derived. Rather, by CPCA s 30(2), 'if the court finds that the property described in the application has been confiscated under section… 8, the court must make a declaration to that effect'. So in this case, having found that the Seized Property was confiscated pursuant to CPCA s 8, I must make the declaration sought by the DPP.

Appropriate final orders

In summary, I am satisfied on the balance of probabilities that all of the property set out at [2] was owned or effectively controlled by Mr Cook at the time he was declared a drug trafficker on 21 November 2019. It was confiscated by operation of CPCA s 8(1) and by s 30(2) the DPP is entitled to a declaration to that effect and the ancillary orders which it seeks.
The appropriate final orders are:
1.Pursuant to sections 8(1) and 30 of the Act, it is declared that the following property that Anthony William Forrest Cook (COOK) owned or effectively controlled at the time COOK was declared a drug trafficker under section 32A(1) of the Misuse of Drugs Act 1981 (WA) (MDA) on 21 November 2019 has been confiscated to the State of Western Australia, namely:
(a)COOK'S joint legal and beneficial interest in the land situated at lot 1110 on deposited plan 217148 in certificate of title volume 1989 folio 618, being the property situated at 25 Hall Street Exmouth (25 Hall Street);
(b)COOK'S equitable interest in the legal estate of Robyn Louise Cook (Mrs Cook) in 25 Hall Street, contingent upon the payment to Mrs Cook of the sum of $150,000.00;
(c)210 fully paid ordinary shares in Wesfarmers Limited held by COOK;
(d)200 fully paid ordinary shares Westpac Banking Corporation Limited held by COOK;
(e)Commercial style fishing charter vessel called the 'Capri' approximately 32 Feet in length with twin hulls, registration number SPV813, call sign VKV6941 (Vessel);
(f)'Jinker' custom triple axle trailer (Trailer); and
(g)COOK'S entitlement against Westpac Banking Corporation Limited to be paid an amount equal to the sum standing to the credit of COOK in Westpac Bank Account numbered 736123527656 as at 21 November 2019, together with any interest accrued thereon but not credited as at that date.
2.Pursuant to section 32 of the CPCA, it is declared that the funds held by the Public Trustee in account number 1630 0005, being the net proceeds of the sale on 7 August 2020 of 25 Hall Street after payment of the sums payable to Mrs Cook under orders of the Family Court of Western Australia made in proceedings numbered PTW 5809/16 between COOK 2 and Mrs Cook (Sale Proceeds), and all interest accrued on the Sale Proceeds, are held for the benefit of the State of Western Australia.
3.Within 7 days of being requested by the DPP or his agent to do so, COOK deliver up, or caused to be delivered up to such place as is nominated by the DPP or his agent, the following items:
(a)the Vessel; and
(b)the Trailer.
4.The Plaintiff's Objection to the confiscation of frozen property made by Originating Summons dated 23 November 2018 is dismissed.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
OS
Associate to the Honourable Justice Gething
27 AUGUST 2025