DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA
[2023] WASC 256
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA [2023] WASC 256
CORAM: ARCHER J
HEARD: 26 JUNE 2023
DELIVERED : 26 JUNE 2023
FILE NO/S: CPCA 18 of 2023
EX PARTE
DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA
Plaintiff
Catchwords:
Criminal property confiscation - Freezing notices - Objection dismissed - 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
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 the only objection to confiscation of the property has been dismissed. 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, First International Merchant Bank Holdings Ltd v The State of Western Australia [No 2] [2020] WASC 395 [9] ‑ [30].
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 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 operation of s 7(2) 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.
(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; and
(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.
(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 a 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 [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(2), 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] the objection, or each objection if there was more than one, has been finally determined;[16]
3.the freezing notice has not been cancelled or set aside;[17] and
4.the freezing notice was filed in accordance with s 36(6)(a).[18]
[14] Centurion Trust Company [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(2)(a).
[17] Confiscation Act s 7(2)(b).
[18] 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 on which the objection, or the last of the objections, was finally determined 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.[19]
[19] 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 5 April 2023. The deponents were:
1.Jeffrey Oon Cheye Tan, a Police Officer;
2.Jesse Robert Ashboth, a Senior Constable;
3.Maria Eleonora Ingles, a paralegal employed in the Proceeds of Crime Squad of the Western Australia Police Force; and
4.Kerry Ruth Murdoch, a paralegal employed in the Confiscations Team of the Office of the DPP.
The evidence proved the following.
On 12 November 2020, the police found various amounts of cash and some casino chips during a search of a unit in Kewdale. The cash was found in various bundles in different locations in the unit. The cash was taken from a person I will refer to as 'MD'. Another person, who I will refer to as 'PKB', was present at the unit when the cash was taken. The cash was subsequently deposited into the Commonwealth Bank of Australia Western Australia Police Force Seized Moneys Trust Account (Trust Account).
On 30 December 2020, freezing notice WAPFN200227 (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, the amounts of cash in each bundle that had been found during the search of the Kewdale unit. In the schedule, each amount was described as 'Cash in Australian currency' and it was noted that the cash had been taken from MD and PKB at the Kewdale unit on 12 November 2020. 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 30 December 2020.
[20] And see Henderson v State of Queensland [2013] QCA 82 [70] ‑ [77].
The DPP seeks a declaration that the amounts of cash listed in items 1 to 57 and items 59 to 70 of the schedule have been confiscated. Those amounts total $5,719,920.[21] I will refer to the cash listed in those items as 'the Property'.
[21] The amount sought in the Originating Motion erroneously included item 71 in the calculation. When the amount sought was queried with the DPP, the DPP sought, and was granted, leave to amend the Originating Motion.
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 31 December 2020.
A copy of the Freezing Notice was served on the person from whom the Property was taken, MD, on 8 January 2021.
A copy of the Freezing Notice was also served on PKB, who was present at the unit when the Property was taken. PKB was served with a copy of the Freezing Notice on 6 January 2021.
PKB did not file a statutory declaration. MD did. In his statutory declaration, MD said that he had no interest in the Property and he did not identify any other person who may have had an interest in the Property.
The applicant for the Freezing Notice (being Officer Tan) deposed, in effect, that he was not aware of any person other than MD and PKB who was, or may have been, or may have claimed to have been, an interested party. In the circumstances surrounding the seizure of the Property, there is no reason to doubt this.
As the only statutory declaration 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 8 January 2021. The 28th day after that date was 5 February 2021.
MD filed an objection before 5 February 2021, on 25 January 2021. On 16 September 2021, the objection was dismissed by consent in relation to items 1 to 57 and items 59 to 70 in Schedule 2B of the Freezing Notice. No other objections were filed on or prior to 5 February 2021.
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 application relates to a very large amount of cash for which no real claimant has been identified or come forward and the only objection to the confiscation of the relevant frozen property has been dismissed.[22]
[22] Plaintiff's Submissions filed 5 April 2023 [36].
I accept this submission. MD, the person from whom the Property was taken, declared that he did not have an interest in it. Although he later filed an objection to the confiscation of the Property, the objection was dismissed by consent. PKB, who was present when the Property was taken, has not claimed an interest in it. There is nothing to indicate the identity of any other person who might have an interest in the Property. In those circumstances, it is entirely 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 person from whom the Property was taken and on each other person 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.
The only objection to the confiscation of the Property was dismissed on 16 September 2021.
The Freezing Notice has not been cancelled or set aside.
It follows that the Property, including any interest that has accrued on it, was confiscated on 16 September 2021, the date on which the objection was dismissed.
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 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
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