DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA
[2024] WASC 356
•24 SEPTEMBER 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA [2024] WASC 356
CORAM: ARCHER J
HEARD: 24 SEPTEMBER 2024
DELIVERED : 24 SEPTEMBER 2024
FILE NO/S: CPCA 37 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 | : | S M Mullins |
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 24 September 2024 and has been edited to correct matters of grammar, add headings, and include complete references.)
Introduction
On 10 May 2021, the police stopped a truck trailer transporting a silver Commodore ute at the Caltex Service Station on Bayley Street, Coolgardie. Upon searching the ute, they found two bags, hidden in the fuel tank compartment, containing a total of $996,150. The police 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 that:
(1)the property was frozen[1] 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;[2]
(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;[3] and
(3)the freezing notice was filed in accordance with s 36(6)(a).[4]
[1] 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'.
[2] 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).
[3] Section 7(1) of the Confiscation Act.
[4] Section 7(3) of the Confiscation Act.
The DPP bears the onus of proving, on the balance of probabilities,[5] that the property was confiscated.[6]
[5] Section 102(2)(d) of the Confiscation Act.
[6] Campana v The State of Western Australia [2008] WASC 230[40] and Director of Public Prosecutions for Western Australia [2024] WASC 117 [14].
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.[7] 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.
[7] 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 seven 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 9 March 2023, freezing notice WAPFN230040 (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.[8]
[8] 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.[9]
[9] 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.[10] Section 36(4) requires, in effect, that the freezing notice be served on any such identified interested party.
[10] 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],[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].
A copy of the Freezing Notice was served on a person I will refer to as 'JB' on 28 June 2023, because he was believed to be the director of Shaw's Darwin Transport Pty Limited.
During the investigation, police were advised by witnesses that a person, who I will refer to as 'VS', was responsible for arranging the transportation of the ute from Perth to New South Wales. Therefore, a copy of the Freezing Notice was served on VS on 19 July 2023.
Three other people were served with a copy of the Freezing Notice, after their DNA was located on components of the packaging in which the cash was contained. The first, who I will refer to as 'AH', was served on 27 March 2023. The second, who I will refer to as 'MM', was served on 7 April 2023. And the last, 'DN', was served on 14 April 2023.
A copy of the Freezing Notice was sent by pre‑paid registered post to the registered office of Shaw's Darwin Transport Pty Limited on 4 October 2023, because it was identified as the company in possession of the frozen property. The Freezing Notice was delivered to the registered address, and therefore served on Shaw's Darwin Transport Pty Limited, on 11 October 2023.
The applicant for the Freezing Notice (being Detective Senior Constable Ruth Robson) deposed, in effect, that, at the time the Freezing Notice was issued, she was not aware of any identifiable person other than the six served who was, or may have been, or may have claimed to have been, an interested party.
None of those served with a copy of the Freezing Notice filed a statutory declaration.
Therefore, the service cut off date was the date on which the last person was served. This was 11 October 2023. The 28th day after that date was 8 November 2023. No objection was filed on or before 8 November 2023, or indeed at any time.[12]
[12] As at the date of the relevant affidavit, 3 May 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 9 March 2023.
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 9 November 2023.
Orders
I will make orders in terms of the Originating Motion filed 8 July 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
30 SEPTEMBER 2024
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