DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA
[2023] WASC 341
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA [2023] WASC 341
CORAM: ARCHER J
HEARD: 5 SEPTEMBER 2023
DELIVERED : 5 SEPTEMBER 2023
FILE NO/S: CPCA 19 of 2023
EX PARTE
DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA
Plaintiff
Catchwords:
Criminal property confiscation - Freezing notices - No objection filed in time - Application for declaration of confiscation
Legislation:
Criminal Property Confiscation Act 2000 (WA)
Result:
Declaration of confiscation made
Category: B
Representation:
Counsel:
| Plaintiff | : | I S Jones |
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
Ex parte Director of Public Prosecutions (WA) [2021] WASC 398
FAI General Insurance Company Ltd v Parrass [2002] NSWCA 334
First International Merchant Bank Holdings Ltd v The State of Western Australia [No 2] [2020] WASC 395
Freeth as Executor of the Estate of Gerard V Brewer v O'Donnell [2021] WASC 393
Howship Holdings Pty Ltd v Leslie (1996) 41 NSWLR 542
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 5 September 2023 and has been edited to correct matters of grammar, add headings, and include complete references.)
Introduction
In this action, the Director of Public Prosecutions (DPP) seeks a declaration that particular property has been confiscated. The property is the subject of a freezing notice and no objection to confiscation of the property was filed within the prescribed time. For the reasons that follow, the declaration should be made.
Legal framework[1]
Requirements of a freezing notice
[1] This section largely reproduces what I have written in other judgments: see, for example, Director of Public Prosecutions (WA) [2021] WASC 398 [2] ‑ [12] and [17] ‑ [20].
Relevantly to this case, a freezing notice for property may be issued if there are reasonable grounds for suspecting that the property is crime‑used or crime‑derived.[2]
[2] Section 34(2) of the Criminal Property Confiscation Act 2000 (WA) (Confiscation Act).
Section 36 of the Criminal Property Confiscation Act 2000 (WA) (Confiscation Act) sets out the service, notification and filing requirements of freezing notices.
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, to the knowledge of the applicant for the notice, is, or may be, or claims to be, an interested party.[3]
[3] 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 must give a statutory declaration advising, in effect, of any other persons who may be an interested party.[4] Section 36(4) requires, in effect, that the freezing notice be served on any such identified interested party.
[4] Section 37 of the Confiscation Act.
By s 36(6)(a), the applicant must also file the freezing notice in the court specified in the notice.[5]
[5] Section 36(6) of the Confiscation Act.
A freezing notice for property other than registerable real property comes into force when the notice is issued.[6]
Confiscation under a freezing notice where no objection filed
[6] Section 39(1) of the Confiscation Act.
Section 30 of the Confiscation Act provides:
30.Declarations of confiscation, applying for and making
(1)The DPP or the CCC may apply to the court for a declaration that property has been confiscated.
(2)On considering an application, if the court finds that the property described in the application has been confiscated under section 6, 7 or 8, the court must make a declaration to that effect.
The DPP contends that the property was confiscated by the operation of s 7(1) of the Confiscation Act. Section 7 applies to property that has been frozen pursuant to a freezing notice or freezing order where the basis, or one of the bases, upon which the notice or order was made was that there were reasonable grounds for suspecting that the property was crime‑used or crime‑derived.[7]
[7] Centurion Trust Company Ltd v The Director of Public Prosecutions (WA) [2010] WASCA 133; (2010) 201 A Crim R 324 (Centurion Trust) [112], [217] ‑ [242] 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).
Section 7 provides:
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.
…
(3)However, property frozen under a freezing notice is not confiscated under subsection (1) or (2) until the freezing notice is filed in accordance with section 36(6)(a).
'Frozen property' is property subject to a freezing notice or freezing order.[8] Any income or other property derived from the property while a freezing notice is in force is taken to be part of the property.[9]
[8] 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 freezing order'.
[9] Section 34(7) of the Confiscation Act.
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.[10]
[10] Section 150(a) 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],[11] 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.
[11] First International Merchant Bank Holdings Ltd v The State of Western Australia [No 2] [2020] WASC 395 [13] ‑ [22].
As the application under s 30 was brought by the DPP, and as the court is required to be satisfied that the property has been confiscated, the DPP bears the onus of proving that the property was confiscated.[12] The DPP must prove it on the balance of probabilities.[13]
[12] Campana v The State of Western Australia [2008] WASC 230[40].
[13] Section 102(2)(d) of the Confiscation Act.
To establish that the property was confiscated under s 7(1), the DPP must prove that:
(1)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;[14]
(2)the service requirements having been met,[15] 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;[16] and
(3)the freezing notice was filed in accordance with s 36(6)(a).[17]
[14] Centurion Trust [112], [217] - [242] 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 [50] (McLure P, with whom Owen JA and Buss JA, as his Honour then was, agreed).
[15] As to this being a condition, see, in an analogous context, Freeth as Executor of the Estate of Gerard V Brewer v O'Donnell [2021] WASC 393 [55] ‑ [65].
[16] Section 7(1) of the Confiscation Act.
[17] Section 7(3) of the Confiscation Act.
If each of these matters is proved, then, pursuant to s 7 of the Confiscation Act, the property was automatically 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 is compelled to make a declaration under s 30.[18]
[18] 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]).
Evidence
The DPP tendered four affidavits, each filed on 14 April 2023. The deponents were:
(a)Adam David Tippman, a Detective Senior Constable;
(b)Valentin Charles Hubert Carraz, a paralegal employed in the Confiscations Team of the Office of the DPP;
(c)Maria Eleonora Ingles, a paralegal employed in the Proceeds of Crime Squad of the Western Australia Police Force; and
(d)Maree Josephine Pieri, a Detective Senior Constable.
The DPP tendered two further affidavits, which had been filed on 22 June 2023. One was a further affidavit of Detective Senior Constable Tippman. The other affidavit was sworn by Paul John Speake, a security risk advisor employed by Australia Post.
The evidence proved the following.
On 28 April 2021, freezing notice WAPFN210045 (the Freezing Notice) was issued under s 34 of the Confiscation Act in respect of property suspected on reasonable grounds to be crime‑used or crime‑derived.
The property specified in the Freezing Notice was various amounts of cash totalling $3,641,220. The cash was found by the police on 29 January 2021 during the search of a vehicle and its trailers in North Fremantle. The cash was subsequently deposited into the Commonwealth Bank of Australia Western Australia Police Force Seized Moneys Trust Account.
I will refer to this cash as 'the Property'.
The court specified in the Freezing Notice was the Supreme Court. A copy of the Freezing Notice was filed with this Court, as required by s 36(6)(a) of the Confiscation Act, on 29 April 2021.
A copy of the Freezing Notice was served on the person from whom the Property was taken, on 13 May 2021. I will refer to this person as 'SK'. SK was the sole occupant of the vehicle when it was searched.
A copy of the Freezing Notice was also served on three other people and a company. The company was served because it was the owner of the vehicle in which the Property was found. The three individuals were served because their DNA was found on the cardboard boxes in which the Property was found.
Of the individuals:
(a)one was served on 20 May 2021;
(b)one was served on 26 May 2021; and
(c)one was served on 12 July 2021.
A copy of the Freezing Notice was sent from Perth to the company's registered office in New South Wales by pre‑paid registered post on 25 August 2021. It was delivered on 1 September 2021. As I will briefly explain, this means it was 'served' on 1 September 2021.
Section 36 of the Confiscation Act requires personal service of a freezing notice.
Section 109X of the Corporations Act 2001 (Cth) provides that for the purposes of any law, a document may be served on a company by, among other ways, posting it to the company’s registered office.
In Howship Holdings Pty Ltd v Leslie,[19] Young J said:
The ordinary meaning of 'service' is personal service, and personal service merely means that the document in question must come to the notice of the person for whom it is intended. The means by which that person obtains the document are usually immaterial.
[19] Howship Holdings Pty Ltd v Leslie (1996) 41 NSWLR 542, 544. See also FAI General Insurance Company Ltd v Parrass [2002] NSWCA 334 [52] (Young CJ in Eq, with whom Hodgson JA agreed on this point (see [10]) and Meagher JA agreed with Hodgson JA (see [1])).
Accepting this, the word 'served' in s 109X should be construed as including personal service. Further, the date of service will be the date upon which the document is received at the registered office.
Of those served with a copy of the Freezing Notice, two filed statutory declarations. Neither claimed an interest in the Property and neither identified any other person who may have had an interest in the Property.
The applicant for the Freezing Notice (being Detective Senior Constable Tippman) deposed, in effect, that he was not aware of any individual or company other than those five who was, or may have been, or may have claimed to have been, an interested party. In the circumstances, there is no reason to doubt this.[20]
[20] On the same day that the Freezing Notice was issued, a different freezing notice over the same property, issued on 12 February 2021, was cancelled in full. That freezing notice was served on SK and various financial institutions. The only statutory declaration filed in response, from Westpac Banking Corporation, did not identify any other person who might have been an interested party.
As the only statutory declarations filed did not identify any other interested parties, the service cut off date was the date on which the last person was served. This was 1 September 2021.
The 28th day after that date was 29 September 2021. No objection was filed on or before that date. An objection was filed by SK on 2 February 2022, after that date. This was too late. Assuming the various elements are proved, at the time the objection was filed, the Property had already been confiscated by operation of s 7(1) of the Confiscation Act.[21]
[21] And see Centurion Trust [234] (Buss JA, as his Honour then was, with whom Owen JA agreed [74]).
The Freezing Notice has not been cancelled or set aside.
Ex parte application
The DPP made the application ex parte, as permitted by O 81FA r 2(1) of the Rules of the Supreme Court 1971 (WA). In its helpful and detailed written submissions, the DPP submitted that it was appropriate to deal with the matter ex parte because all interested parties have been served with the Freezing Notice, no objection to the confiscation of the frozen property was filed within time, the objection that was filed has been dismissed, and the application relates to a large amount of cash for which no real claimant has been identified or come forward.
I accept it is appropriate to deal with the matter ex parte. There is nothing to indicate the identity of any person who might have an interest in the Property, other than those that were served with the Freezing Notice.
Conclusion
The Freezing Notice was issued on the Property on the basis that there were reasonable grounds for suspecting that the Property was crime‑used or crime‑derived.
The DPP satisfied its service and notice obligations under s 36 of the Confiscation Act. A copy of the Freezing Notice was served on the person from whom the Property was taken and on each other persons who, to the knowledge of the applicant for the Freezing Notice, was, or may have been, or may have claimed to have been, an interested party. A copy of the Freezing Notice was also filed with this Court.
An objection to the confiscation of the Property was not filed on or before 29 September 2021, being the 28th day after the service cut off date. The only objection filed was after this date.
It follows that the Property, including any interest that has accrued on it, was confiscated on 30 September 2021.
Nothing else must be established before the court is compelled to make a declaration under s 30. I am therefore required to declare that the Property was confiscated.
Orders
I will make orders in terms of the Minute of Proposed Orders and Declaration filed 22 June 2023.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
NL
Associate to the Judge
6 SEPTEMBER 2023
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