DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA
[2024] WASC 485
•18 DECEMBER 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA [2024] WASC 485
CORAM: ARCHER J
HEARD: 18 DECEMBER 2024
DELIVERED : 18 DECEMBER 2024
FILE NO/S: CPCA 26 of 2024
EX PARTE
DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA
Plaintiff
Catchwords:
Criminal property confiscation - Freezing notices - No objection filed - Application for declaration of confiscation
Legislation:
Criminal Property Confiscation Act 2000 (WA)
Result:
Declaration of confiscation made
Category: B
Representation:
Counsel:
| Plaintiff | : | T A Staples |
Solicitors:
| Plaintiff | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Campana v The State of Western Australia [2008] WASC 230
Centurion Trust Company Ltd v The Director of Public Prosecutions (WA) [2010] WASCA 133; (2010) 201 A Crim R 324
First International Merchant Bank Holdings Ltd v The State of Western Australia [No 2] [2020] WASC 395
Ranford v The State of Western Australia [2015] WASC 45
The Director of Public Prosecutions (WA) v White [2010] WASCA 47
Whittle v The State of Western Australia [2012] WASC 244
ARCHER J:
(This judgment was delivered extemporaneously on 18 December 2024 and has been edited to correct matters of grammar, add headings, and include complete references.)
Introduction
On 8 September 2022, the police stopped and searched a Nissan Navara on Kelvin Road, Maddington. They found a black plastic wrapped package on a pallet in its rear tray, in which there was a blue plastic drum. In the drum was $1,715,445 in 18 cryovac bags. The police later obtained a freezing notice over the cash under the Criminal Property Confiscation Act 2000 (WA) (Confiscation Act), on the basis that there were reasonable grounds for suspecting that the property was crime‑used or crime‑derived.
The Director of Public Prosecutions (DPP) now seeks a declaration that the cash has been confiscated, by the operation of s 7(1) of the Confiscation Act. To establish that the property was confiscated under this section, the DPP must prove, on the balance of probabilities,[1] that:
(1)the property was frozen[2] under a freezing notice where the basis, or one of the bases, upon which the notice was made was that there were reasonable grounds for suspecting that the property was crime‑used or crime‑derived;[3]
(2)an objection to the confiscation of the property was not filed on or before the 28th day after the 'service cut off date' for the property;[4] and
(3)the freezing notice was filed in accordance with s 36(6)(a).[5]
[1] See Campana v The State of Western Australia [2008] WASC 230 [40] and s 102(2)(d) of the Confiscation Act.
[2] The word 'frozen' is defined in the Glossary to the Confiscation Act to mean, in relation to property and in relation to a freezing notice or freezing order, 'subject to the freezing notice or the freezing order'.
[3] Centurion Trust Company Ltd v The Director of Public Prosecutions (WA) [2010] WASCA 133; (2010) 201 A Crim R 324 (Centurion Trust) [112], [217], [239] and [255] ‑ [256] (Buss JA, as his Honour then was, with whom Owen JA agreed [74]). See also The Director of Public Prosecutions (WA) v White [2010] WASCA 47 [50] (McLure P, with whom Owen JA and Buss JA, as his Honour then was, agreed).
[4] Section 7(1) of the Confiscation Act.
[5] Section 7(3) of the Confiscation Act.
If each of these matters is proved, then, under s 7 of the Confiscation Act, the property was confiscated the day after the service cut off date or, if later, the date upon which the freezing notice was filed in accordance with s 36(6)(a). In the absence of any third‑party interest, nothing else must be established before the court would be compelled to make a declaration that the property has been confiscated.[6] By s 34(7) of the Confiscation Act, any income or other property derived from the property while a freezing notice is in force is taken to be part of the property.
[6] See Whittle v The State of Western Australia [2012] WASC 244 [36] and [40] and Ranford v The State of Western Australia [2015] WASC 45 [22] (see also [25]).
The issues in this case are, therefore, whether the DPP has proved each element. I am satisfied that it has.
The DPP made the application ex parte, as permitted by O 81FA r 2(1) of the Rules of the Supreme Court 1971 (WA). It tendered eight affidavits.
Crime‑used or crime‑derived basis (element 1)
The first element that the DPP must prove is that the property was frozen under a freezing notice where the basis, or one of the bases, upon which the notice was made was that there were reasonable grounds for suspecting that the property was crime‑used or crime‑derived.
After the cash was seized by the police, it was deposited into an operating account maintained by the Western Australia Police Force and then credited to a special purpose account known as the 'Seized Money Trust Account'.
On 16 September 2022, freezing notice WAPFN220130 (Freezing Notice) was issued in relation to the cash. It was made (under s 34(2) of the Confiscation Act) on the basis that there were reasonable grounds for suspecting that the cash was crime‑used or crime‑derived. The Freezing Notice has not been cancelled or set aside.
Therefore, the first element is proved.
No objection filed (element 2)
The second element that the DPP must prove is that an objection to the confiscation of the cash was not filed on or before the 28th day after the 'service cut off date' for the cash.
The 'service cut off date', in relation to property frozen under a freezing notice, is defined as the date of the last day on which a copy of the freezing notice was served on anyone under s 36(4) of the Confiscation Act.[7]
[7] Section 150(a) of the Confiscation Act.
By s 36(1), a freezing notice must be served on any person from whom the property covered by the notice was taken. It must also be served on any other person who, at the time that the notice is issued, the applicant for the notice is aware is, or may be, or claims to be, an interested party.[8]
[8] Section 36(1) of the Confiscation Act. An 'interested party' is defined in the Glossary to the Confiscation Act as a person who has an interest in the property that would enable the person to succeed on an objection to confiscation.
A person served with a freezing notice under s 36(1) must give a statutory declaration advising, in effect, of any other persons who may be an interested party.[9] Section 36(4) requires, in effect, that the freezing notice be served on any such identified interested party.
[9] Section 37 of the Confiscation Act.
Where a statutory declaration does not identify any interested parties, no one will be served under s 36(4). In First International Merchant Bank Holdings Ltd v The State of Western Australia [No 2],[10] I explained why I consider that, in such circumstances, the 'service cut off date' means the last date on which the freezing notice was served on any person.
[10] First International Merchant Bank Holdings Ltd v The State of Western Australia [No 2] [2020] WASC 395 [13] ‑ [22].
Three people were served with a copy of the Freezing Notice.
The first, a Christopher Collins, was present during the search of the Nissan in which the cash was found. Mr Collins later pleaded guilty to a property laundering offence in relation to the seized cash. A copy of the Freezing Notice was served on Mr Collins on 20 September 2022.
The second, a Zarrius Thompson, told police in an interview on 8 September 2022 that he had given Mr Collins the cash. Like Mr Collins, Mr Thompson later pleaded guilty to a property laundering offence in relation to the seized cash. A copy of the Freezing Notice was served on Mr Thompson on 27 September 2022.
A copy of the Freezing Notice was also served on a person who I will refer to as 'JR', on 29 September 2022. JR was served because he was seen by police officers in possession of the cash a short time before it was seized.
Two of the three who were served, Mr Collins and Mr Thompson, filed a statutory declaration. The statutory declarations did not identify any other person who may have had an interest in the cash.
The police also made inquiries into the purported contact details of the sender and receiver on a consignment note attached to the plastic wrapping. However, it appears that the details were fabricated.
The applicant for the Freezing Notice (being Detective Sergeant Travis Hagan) deposed, in effect, that, at the time the Freezing Notice was issued, he was not aware of any identifiable person other than the three served who was, or may have been, or may have claimed to have been, an interested party.
Therefore, the service cut off date was the date on which the last person was served. This was 29 September 2022. The 28th day after that date was 27 October 2022. No objection was filed on or before 27 October 2022, or indeed at any time.[11]
[11] As at the date of the relevant affidavit, 13 March 2024.
The second element is proved.
The Freezing Notice was filed in the specified court (element 3)
The third element that the DPP must prove is that the Freezing Notice was filed in accordance with s 36(6)(a). This requires the applicant for a freezing notice to file it in the court specified in the notice.
The court specified in the Freezing Notice was the Supreme Court. A copy of the Freezing Notice was filed with this Court on 27 September 2022.
Accordingly, the third element is proved.
Conclusion
As each element has been proved, it follows that the cash, including any interest that has accrued on it, was confiscated on 28 October 2022.
Orders
I will make orders in terms of paragraph 2 of the Originating Motion filed 3 May 2024.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
NL
Associate to the Hon Justice Archer
18 DECEMBER 2024
0
6
1