DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA - [2023] WASC 255

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA [2023] WASC 255
CORAM:   ARCHER J
HEARD:   26 JUNE 2023
DELIVERED          :   26 JUNE 2023
FILE NO/S:   CPCA 23 of 2023

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

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
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
Henderson v State of Queensland [2013] QCA 82
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 26 June 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, Ex parte 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] Criminal Property Confiscation Act 2000 (WA) s 34(2) (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] Confiscation Act s 36(1). 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] Confiscation Act s 37.
By s 36(6)(a), the applicant must also file the freezing notice in the court specified in the notice.[5]
[5] Confiscation Act s 36(6).
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] Confiscation Act s 39(1).

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 28^th 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] Confiscation Act s 34(7).
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] Confiscation Act s 150(a).
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] Confiscation Act s 102(2)(d).
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] Confiscation Act s 7(1).
[17] Confiscation Act s 7(3).
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 24 April 2023. The deponents were:
1.Sanjeev Anthony Albuquerque, currently a Detective Sergeant attached to the Drug and Firearm Squad of the Western Australia Police Force, but who had been attached to the Proceeds of Crime Squad between 13 March 2017 and 29 November 2020.
2.Grant Stephen Earnshaw, currently a Sergeant stationed in South Hedland Police Station, but who was a Detective Senior Constable attached to the Organised Crime Squad of the Western Australia Police Force in November 2020.
3.Maria Eleonora Ingles, a paralegal employed in the Proceeds of Crime Squad of the Western Australia Police Force.
4.Kerry Ruth Murdoch, a senior paralegal employed in the Confiscations Team of the Office of the DPP.
The evidence proved the following.
On 9 October 2020, the police found various amounts of cash in boxes during a covert search of 1 Quail Street, Stirling. The total amount found was $5,987,220. These premises were the home of a person I will refer to as 'SO'.
On 3 November 2020, the police found cash during a search of two premises, 6A Crocker Way, Innaloo and 35 Kurrajong Boulevard, Banksia Grove.
The search of the Innaloo premises was conducted in the presence of a person I will refer to as 'JM'. The cash found at the Innaloo premises was in a suitcase and totalled $68,550.
The search of the Banksia Grove premises was conducted in the presence of a person I will refer to 'KW'. In a mobile phone box, police found $1,900.
All of the cash was subsequently deposited into the Commonwealth Bank of Australia Western Australia Police Force Seized Moneys Trust Account (Trust Account).
On 26 November 2020, freezing notice WAPFN200223 (the Freezing Notice) was issued under s 34(2) of the Confiscation Act in respect of property suspected on reasonable grounds to be crime‑used or crime‑derived. The property frozen by the Freezing Notice was specified in Schedule 2B of the Freezing Notice. That schedule listed, relevantly, estimates of the amounts of cash that had been found during the searches at the three premises, the Stirling premises (items 1 ‑ 68), the Innaloo premises (items 69 and 70), and the Banksia Grove premises (item 71).
Two estimates were subsequently found to be inaccurate, overestimating the total amount of cash by $50.[19] However, each item of the schedule identified the electronic database number for each estimated amount (IMS Item number). The money actually frozen by the Freezing Notice was the actual amount of money that had been seized within each IMS Item number. Accordingly, the actual total of the cash seized is reflected by the total amount deposited into the Trust Account, of $6,057,670.
[19] Affidavit of Sanjeev Anthony Albuquerque filed 24 April 2023 (Albuquerque Affidavit) [8] ‑ [9].
In the schedule, each amount was described as 'Cash in Australian currency'. Although by the time the Freezing Notice was issued the cash had been deposited in the Trust Account, I am satisfied that the description in the Freezing Notice captures the funds in the Trust Account.[20] The cash became, therefore, frozen property when the Freezing Notice was issued on 26 November 2020.
[20] And see Henderson v State of Queensland [2013] QCA 82 [70] ‑ [77].
The DPP seeks a declaration that the frozen cash has been confiscated. 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 17 May 2022.
A copy of the Freezing Notice was served on JM and KW, as people from whom parts of the Property were taken, on 1 and 2 December 2020 respectively.
A copy of the Freezing Notice was also served on three other people who were believed to have been involved in the packing, storage or transport of some of the Property. The partner of one of those three, who was also a suspect, was also served. These four were served between 1 December 2020 and 19 February 2021.
Every person served with a copy of the Freezing Notice filed a statutory declaration. Each said he or she had no interest in the Property and none identified any other person who may have had an interest in the Property.
The applicant for the Freezing Notice (being Detective Sergeant Sanjeev Albuquerque) deposed, in effect, that, at the time the Freezing Notice was issued, he was not aware of any person other than those six who was, or may have been, or may have claimed to have been, an interested party. There is no reason to doubt this. In particular, he explained why he did not consider that any of the persons who were intended to be couriers of parts of the Property were, or may have been, or may have claimed to have been, an interested party.[21]
[21] Albuquerque Affidavit [15].
As the 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 19 February 2021.
The applicant subsequently became aware of another person who may have been an interested party. This person, who I will refer to as 'JR', has been charged with an offence of property laundering in relation to items 1 ‑ 68. An arrest warrant was issued on 10 December 2021. The applicant deposed that he was not aware of JR's involvement at the time the Freezing Notice was issued.[22] There is no reason to doubt this. Accordingly, I am satisfied that the service requirements were complied with. Further, the fact that the applicant subsequently learned that JR may have been an interested person does not affect the service cut off date.[23]
[22] Albuquerque Affidavit [19] - [21].
[23] And see Confiscation Act s 36(5).
The 28th day after the service cut off date was 19 March 2021. No objection was filed on or before 19 March 2021, or indeed at any time.
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 the notice requirements under the Confiscation Act were complied with, no objection was filed, and the Property is a significant amount of cash but no real claimant has been identified or come forward.
I accept this submission. I am satisfied that it is appropriate to deal with the matter ex parte.

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 persons from whom the Property was taken and on each other person who, to the knowledge of the applicant for the Freezing Notice at the time of its issue, 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 19 March 2021, being the 28th day after the service cut off date.
It follows that the Property, including any interest that has accrued on it, was confiscated on 20 March 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 Declaration filed 23 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
10 JULY 2023