DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA
[2023] WASC 78
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA [2023] WASC 78
CORAM: VANDONGEN J
HEARD: 14 MARCH 2023
DELIVERED : 22 MARCH 2023
FILE NO/S: CPCA 49 of 2022
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)
Public Trustee Act 1941 (WA)
Rules of the Supreme Court 1971 (WA)
Result:
Declaration of confiscation made
Category: B
Representation:
Counsel:
| Plaintiff | : | Mr I S Jones |
Solicitors:
| Plaintiff | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
First International Merchant Bank Holdings Ltd v The State of Western Australia [No 2] [2020] WASC 395
VANDONGEN J:
Introduction
The Director of Public Prosecutions (DPP) has applied for a declaration pursuant to s 30 of the Criminal Property Confiscation Act 2000 (WA) (CPC Act) that land located at 25 Pandora Drive, City Beach, more particularly described as Lot 41 on Plan 7575 in Certificate of Title Volume 1275 Folio 154 (City Beach Property), has been confiscated to the State of Western Australia by operation of s 7(2) of the CPC Act (Declaration).
The application is brought on an ex parte basis in accordance with Order 81FA rule 2(1) of the Rules of the Supreme Court 1971 (WA).
The application was listed for hearing before me on 14 March 2023. At the conclusion of the hearing I made the Declaration.
These are my reasons for making that order.
The evidence
In support of its application, the DPP relied on the following affidavits:
(a)Affidavit of Valentin Charles Hubert CARRAZ affirmed 1 November 2022 (Carraz Service Affidavit);[1]
(b)Affidavit of Bradley Denham WRIGHT sworn 8 November 2022 (Wright Affidavit);
(c)Affidavit of Valentin Charles Hubert CARRAZ affirmed 9 November 2022 (Carraz Affidavit);
(d)Affidavit of Valentin Charles Hubert CARRAZ affirmed 8 February 2023 (Carraz Further Affidavit); and
(e)Affidavit of Bradley Denham WRIGHT sworn 20 February 2023 (Wright Further Affidavit).
Background to the application
[1] This affidavit appears as attachment 'VCHC1' to the Carraz Further Affidavit.
On 30 December 2016 a freezing notice numbered WAPFN160162 was issued by a justice of the peace pursuant to s 34 of the CPC Act (WAPFN160162). The City Beach Property was the subject of that freezing notice,[2] and it was frozen on the basis that there were reasonable grounds to suspect that it was crime-used.[3]
[2] Wright Affidavit, [15], attachment 'BDW5'.
[3] CPC Act, s 146.
At the time WAPFN160162 was issued, Margaret Edith Baerenklau was the registered proprietor of the City Beach Property.[4] However, Margaret Baerenklau passed away on 1 May 2013.[5]
[4] Wright Affidavit, [29], attachment 'BDW16'.
[5] Carraz Affidavit, [16].
At the time the WAPFN160162 was issued, and also as a result of information that was contained in statutory declarations that were given in accordance with s 37 of the CPC Act,[6] the applicant for that notice was already aware of, or subsequently became aware of, a number of people or entities who were, or may have been, or claimed to be, an 'interested party' in relation to the City Beach Property.[7] As a consequence, the applicant was required to personally serve each of them with a copy of WAPFN160162.[8]
[6] Section 37 of the CPC Act places an obligation on a recipient of a freezing notice to give to the officer in charge of a police station specified in the notice a statutory declaration in which the name and address of anyone who is or may be, or who claims to be, an interested party is stated.
[7] The phrase 'interested party', in relation to frozen property, is defined in the Glossary to the CPC Act as 'a person who has an interest in the property that would enable the person to succeed on an objection to the confiscation of the property.'
[8] CPC Act, s 36(1)(b) and s 36(4).
Objections to confiscation were filed[9] but they have now all been dismissed by consent.
[9] As required by s 36(6) of the CPC Act.
Against that background the DPP has now applied for the Declaration.
Legal framework
The DPP has applied for the Declaration pursuant to s 7(2) of the CPC Act on the basis that all objections that were filed on or before the 28th day after the service cut off date for that property have been finally determined. The phrase 'service cut off date' is defined, relevantly, in s 150(a) of the CPC Act as the date of the last day on which a copy of a freezing notice is served on anyone under s 36(4).
Section 7(2) of the CPC Act provides as follows:
7.When frozen property is confiscated automatically
…
(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.
It follows that, in the case of a freezing notice, property is confiscated in accordance with s 7(2) of the CPC Act when each of the following matters are proved by the DPP on the balance of probabilities:[10]
1.The property is 'frozen property';
2.One or more objections to the confiscation of the property have been filed on or before the 28th day after the service cut off date for the property;
3.All of those objections have been finally determined; and
4.The freezing notice has not been cancelled or set aside.
[10] CPC Act, s 102(2)(d).
In addition to the various requirements set out in s 7(2), it is a further pre-condition to confiscation that the relevant freezing notice has been filed in accordance with s 36(6)(a) of the CPC Act.[11]
The DPP's submissions
[11] CPC Act, s 7(3).
The DPP filed detailed and very helpful written submissions on 28 February 2023. Counsel for the DPP also made brief oral submissions at the hearing of this matter.
The DPP submits that it is appropriate to deal with this application on an ex parte basis because only one person, Paul Gerhard Baerenklau, and one entity, Westpac Banking Corporation (Westpac), have substantive interests in the outcome of this application. Significantly, both Paul Gerhard Baerenklau and Westpac have consented to the dismissal of their objections[12] and have indicated to the DPP that they do not wish to be heard.[13]
[12] Carraz Affidavit, [7] - [12], and the attachments referred to in those paragraphs.
[13] Carraz Further Affidavit, [9] and [11], and the attachments referred to in those paragraphs.
The DPP also submits that, based on the affidavit evidence, a declaration should be made under s 30 of the CPC Act that the City Beach Property has been confiscated to the State of Western Australia by operation of s 7(2) of the CPC Act.
Consideration
I accept the DPP's submission that it is appropriate to deal with this application on an ex parte basis. As I have already indicated, the only parties who have relevant interests in the outcome of this application consented to the dismissal of their objections and have said that they do not wish to be heard in relation to this application.
I am also satisfied that the declaration sought by the DPP should be made. Based on the unchallenged evidence, I find on the balance of probabilities that the DPP has proved the following.
The City Beach Property is frozen property
The word 'frozen' is defined in the CPC Act to mean, in relation to property and in relation to a freezing notice issued under s 34, 'subject to the freezing notice'.[14]
[14] Glossary to the CPC Act.
On 30 December 2016, WAPFN160162 was issued pursuant to s 34(2) of the CPC Act. The City Beach Property was subject to that freezing notice because a justice of the peace formed the view that there were reasonable grounds to suspect that it was crime-used.[15]
[15] Wright Affidavit, attachment 'BDW5'.
A freezing notice for registrable real property comes into force when a memorial of the issue of the freezing notice is registered by the Registrar of Titles under s 113(1) of the CPC Act.[16] In this case a memorial of the issue of WAPFN160162 was registered by the Registrar of Titles on 3 January 2017.[17] It follows that WAPFN160162 came into force on 3 January 2017 and that, consequently, the City Beach Property became frozen property on that date.
Objections filed on or before the 28th day after the service cut off date for the property
[16] CPC Act, s 38(1).
[17] Wright Affidavit, [30] - [31], attachment 'BDW17'.
Section 7(2) of the CPC Act operates on the premise that at least one objection to the confiscation of frozen property has been filed in accordance with s 79. Further, although s 7(2) is not expressed in pellucidly clear language, the provision also operates on the premise that the 28th day after the service cut off date for the property is able to be identified.
Section 150(a) of the CPC Act relevantly provides that for the purposes of determining when frozen property is confiscated under s 7, the 'service cut off date' is 'the last day on which a copy of the freezing notice was served on anyone under s 36(4).'
Section 36 of the CPC Act deals with the service of, and other formal requirements relating to, freezing notices.
Section 36(1) provides that as soon as practicable after a freezing notice is issued, the applicant for the notice must arrange for a copy of it to be personally served on certain people. Where the property has been taken from a person, that person must be served with a copy of the freezing notice. Where, at the time the freezing notice is issued, the applicant is aware of anyone else who might be an 'interested party',[18] the applicant for the notice is also required to serve a copy of the notice on that person.
[18] According to the Glossary to the CPC Act, an 'interested party', in relation to frozen property, means a person who has an interest in the property that would enable the person to succeed on an objection to the confiscation of the property.
After a copy of a freezing notice is served on a person, that person is required to give a statutory declaration in accordance with s 37 of the CPC Act. The person is required to state in the statutory declaration the name and, if known, the address of any other person whom they are aware is or may be, or claims to be, an interested party.
The applicant for the freezing notice is then required to comply with s 36(4) of the CPC Act, which is in the following terms:
If, as a result of information in a statutory declaration given, in accordance with section 37, by a person who was served with a copy of the freezing notice under subsection (1), the applicant becomes aware that any other person is or may be or claims to be an interested party, then the applicant must arrange for a copy of the notice to be served on the person personally, as soon as practicable.
I note that s 150(a), construed literally, operates to determine the 'service cut off date' by reference to the last day on which a freezing notice is served pursuant to s 36(4), and not by reference to any service that may have occurred in accordance with s 36(1).
Based on the evidence before me, only two statutory declarations were given in accordance with s 37.[19] The first was by a legal notices officer employed by Westpac on 16 January 2017.[20] The second was by Neil MacDougall on 15 October 2018.[21]
[19] Wright Affidavit, [19] - [20].
[20] Wright Affidavit, attachment 'BDW11'.
[21] Wright Affidavit, attachment 'BDW12'.
The statutory declaration given by the Westpac legal notices officer identified the following as persons who were, or may be, or who claimed to be, an interested person in relation to the City Beach Property:
(a)Margaret Edith Baerenklau;
(b)Paul Baerenklau;[22]
(c)Paul Gerhard Baerenklau; and
(d)Westpac Banking Corporation.
[22] Documents attached to the affidavits relied on by the DPP refer to Paul Baerenklau, Paul Siegfrid Baerenklau and Paul Eugene Baerenklau. In that regard I accept the submissions made by the DPP at [17] of the Submissions in Support of Application for Declaration of Confiscation dated 28 February 2023, that all three names refer to the same person.
The statutory declaration given by Neil MacDougall did not identify any other interested person.
It might therefore be said that because of the information in those statutory declarations, the applicant for WAPFN160162 became aware that the four parties referred to at [31] above were, or may have been, or claimed to be, an 'interested party'. It would then follow that the applicant was required to ensure that they were each personally served with a copy of WAPFN160162 in accordance with s 36(4) of the CPC Act.
However, on my assessment of the evidence at the time the two statutory declarations were received by Detective Senior Constable Wright, the applicant for WAPFN160162,[23] he would already have been aware that the four parties referred to at [31], as well as Mr MacDougall, were, or might have been, or claimed to be, an interested party. Further, Detective Wright would also have been aware that the Public Trustee was, or might have been, or claimed to be, an interested party.
[23] Wright Affidavit, [7].
This is because Detective Wright had been the applicant for a freezing notice that had been issued in relation to the City Beach Property earlier on 9 December 2013 (WAPFN130187).[24] All four of the parties referred to at [31] above, as well as Mr MacDougall and the Public Trustee, were each served with a copy of WAPFN130187 either because Detective Wright was aware at that time that they were, or might have been, that they or claimed to be, an interested party (pursuant to s 36(1)(b)),[25] or because they were identified as potential interested parties in statutory declarations made pursuant to s 37 of the CPC Act after the issue and service of WAPFN130187 (pursuant to s 36(4)).
[24] Wright Affidavit, attachment 'BDW1'.
[25] Wright Affidavit, [11(a)], [11(b)], attachments 'BDW2' and 'BDW3'.
Accordingly, it appears to me that when Detective Wright later came to effect personal service of copies of WAPFN160162,[26] such service may have in fact occurred under s 36(1)(b), and not under s 36(4).
[26] Wright Affidavit, [17] and [22].
If that is correct then it might follow, based on a literal construction of s 150(a) of the CPC Act (which fixes the service cut off date by reference to the date of the last day on which a copy of a freezing notice was served under s 36(4)), that there would be no service cut off date in the circumstances of this case.
However, consistent with the approach that has been taken by this Court in other first instance decisions, s 150(a) should be construed such that the service cut off date is the last date on which WAPFN160162 was served on any person.[27] It follows from this that, in the circumstances of this case, nothing turns on the question of whether service was actually effected under s36(1)(b) or s 36(4) of the CPC Act.
[27] First International Merchant Bank Holdings Ltd v The State of Western Australia [No 2] [2020] WASC 395 [15].
In this case, WAPFN160162 was not personally served on either Margaret Edith Baerenklau or Paul Baerenklau, as they were both deceased at the time WAPFN160162 was issued.
The Public Trustee was served with a copy of WAPFN160162 because:
1.The Public Trustee was identified in a statutory declaration made by Paul Gerhard Baerenklau as an interested party;[28]
2.Margaret Edith Baerenklau passed away on 1 May 2013, but probate or administration was never granted in respect of her estate, with the result that her real and personal estate vested in the Public Trustee by operation of s 9 of the Public Trustee Act 1941 (WA); and
3.Paul Baerenklau passed away on 29 April 2013, but probate or administration was never granted in respect of his estate, with the result that his real and personal estate also vested in the Public Trustee by operation of s 9 of the Public Trustee Act 1941 (WA).[29]
[28] Wright Affidavit, attachment 'BDW2'.
[29] Carraz Affidavit, attachment 'VCHC7'.
A copy of WAPFN160162 was served on the Public Trustee on two separate occasions – on 3 January 2017 and then again on 30 September 2022.[30] This occurred because the DPP formed the view that there may have been some question about whether service had been properly effected on the first occasion, and in order to avoid doubt about the issue of service.[31]
[30] Carraz Further Affidavit, [7]; see also attachment 'VCHC1', 18-20.
[31] Carraz Further Affidavit, pages 18 - 20: Letter from DPP to the Public Trustee dated 30 September 2022.
Paul Gerhard Baerenklau is Ms Baerenklau's only child. He was served with a copy of WAPFN160162 on 26 January 2017.[32]
[32] Wright Affidavit, [17(c)], attachment 'BDW8'.
Westpac holds a registered mortgage over the City Beach Property.[33] Westpac was served with a copy of WAPFN160162 by post to its registered office on 30 December 2016.[34]
[33] Wright Affidavit, attachment 'BDW16'.
[34] Wright Affidavit, [17(a)], attachment 'BDW6'.
Neil MacDougall was named as an executor in Ms Baerenklau's will.[35] Mr MacDougall was personally served with a copy of WAPFN160162 on 12 October 2018.[36]
[35] Carraz Affidavit, attachment 'VCHC12'.
[36] Wright Affidavit, [18(a)], attachment 'BDW9'.
I accept that the applicant for WAPFN160162 is not aware of any other person (other than those persons who have been served with a copy of that notice) who is, or who may be, or claims to be, an interested party.[37]
[37] Applicant's Submissions in Support of Application for Declaration of Confiscation dated 28 February 2023, [25].
The last date on which a copy of WAPFN160162 was served is 30 September 2022, being the second occasion that the Public Trustee was served with a copy of WAPFN160162. It follows that the 28th day after that date was 28 October 2022.
As will be seen, two objections to confiscation have been filed, both of which were filed on or before 28 October 2022.[38]
All objections have been finally determined
[38] Carraz Affidavit, [7], attachment 'VCHC1'; see also [10] and attachment 'VCHC4'.
On 19 December 2013 Westpac filed an objection in this Court to the confiscation of the City Beach Property when it was the subject of WAPFN130187.[39] On 29 March 2017 Principal Registrar Strk (as she then was) made orders, by consent, that Westpac's objection to WAPFN130187 also stand as an objection to WAPFN160162.[40] On 12 June 2020 Archer J made orders, by consent, dismissing Westpac's objections to both WAPFN130187 and WAPFN160162.[41]
[39] Carraz Affidavit, attachment 'VCHC4'.
[40] Carraz Affidavit, attachment 'VCHC5'.
[41] Carraz Affidavit, attachment 'VCHC6'.
On 23 December 2013 Paul Gerhard Baerenklau filed an objection to the confiscation of the City Beach Property when it was the subject of WAPFN130187.[42] On 3 August 2017 Principal Registrar Strk made orders, by consent, that Paul Gerhard Baerenklau's objection to WAPFN130187 stand as an objection to WAPFN160162.[43] On 25 November 2021 Archer J made orders, by consent, dismissing Paul Gerhard Baerenklau's objection to WAPFN130187 and WAPFN160162.[44]
[42] Wright Affidavit, [16]; see also attachment 'BDW5', 30.
[43] Carraz Affidavit, [15] - [16], attachment 'VCHC2'; see also attachment 'BDW5', 23.
[44] Carraz Affidavit, attachment 'VCHC3'.
No other objections to confiscation of property frozen by WAPFN160162 have been filed.
It follows from this that all objections to the confiscation of the City Beach Property have been finally determined.
WAPFN160162 has not been set aside or cancelled
The effect of the evidence set out at [23] - [25] of the Wright Affidavit is that Detective Wright, who was a police officer attached to the Proceeds of Crime Squad (PCS) at the relevant time, has not cancelled WAPFN160162. Further, he says that Western Australia Police operational instructions required all cancellations of freezing notices to be placed on the PCS file relating to the freezing notice. He says that after examining the PCS file, he could not locate any notifications of the cancellation of WAPFN160162.
Based on this evidence I find that WAPFN160162 has not been set aside or cancelled.
WAPFN160162 has been filed in this Court
Pursuant to 36(6)(a) of the CPC Act, a freezing notice is to be filed in the court specified in the notice. This Court was specified in WAPFN160162.[45]
[45] Wright Affidavit, attachment 'BDW6'.
WAPFN160162 was filed in this Court on 30 December 2016.[46]
Conclusion
[46] Wright Affidavit, attachment 'BDW6'.
For the above reasons the DPP satisfied me, on the balance of probabilities, that the City Beach Property is confiscated pursuant to s 7(2) of the CPC Act. On that basis at the conclusion of the hearing on 14 March 2023 I made the following order:
Pursuant to sections 7(2) and 30 of the Criminal Property Confiscation Act 2000 (WA), it is declared that on 29 October 2022 the following property the subject of Freezing Notice WAPFN160162 has been confiscated to the State of Western Australia, namely the land at Lot 41 on Plan 7575 in certificate of title Volume 1275 Folio 154, commonly known as 25 Pandora Drive, City Beach.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
RH
Associate to the Judge
22 MARCH 2023
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