DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA

[2002] WASC 91

JURISDICTION	:	SUPREME COURT OF WESTERN AUSTRALIA IN CHAMBERS
CITATION	:	DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA [2002] WASC 91

CORAM	: McKECHNIE J
HEARD	: 27 MARCH 2002
DELIVERED	: 27 MARCH 2002
FILE NO/S	:  CIV 1279 of 2002
MATTER	:  Section 41 of the Criminal Property Confiscation Act 2000

and

Director of Public Prosecutions of Western Australia
against Guiseppe Cardile, also known as Joseph

Cardile

and

The Director of Public Prosecutions of Western

Australia against Esti Pty Ltd

BETWEEN	:	DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA Applicant
Catchwords:

Crimes confiscation of profits - Unexplained wealth declaration - Courts and
Judges - Jurisdiction to order examination to proceed in District Court

[2002] WASC 91

Legislation:

Criminal Property Confiscation Act 2000 (WA)

Result:

Application granted

Category: A

Representation:

Counsel:

Applicant : Mr I S Jones

Solicitors:

Applicant : State Director of Public Prosecutions

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

Nil

[2002] WASC 91

McKECHNIE J

1. McKECHNIE J: On 6 March 2002, Scott J heard an application by the Director of Public Prosecutions for an ex parte notice of an originating motion for an examination order and a freezing order. For reasons which he expressed, Scott J was not satisfied, because of a lack of evidentiary material, that an order for examination should be made. However, he did make a freezing order on that day.

2              Subsequently, the Director of Public Prosecutions has filed an ex parte notice of originating motion for examination and a notice of motion for an unexplained wealth declaration and criminal benefits declarations against Joseph Cardile and a named entity. This hearing today is the adjourned hearing of the application for the proposed examination order. The Director of Public Prosecutions has since filed affidavit material which in my opinion makes good the deficiency which, if I might say so, with respect, was correctly identified by Scott J. I propose to make an examination order in terms of the Director's motion.

1. A question has arisen as to the appropriate court to conduct that examination. The Criminal Property Confiscation Act 2000, Division 2, entitled Examinations, s 57, reads:

   "Application for orders for examination:

(1)	The DPP may apply to the District Court for an order for the examination of a person.
(2)	An application may be made ex parte."

4              By s 58, Orders for Examination, the Court may order a person to do a number of things and the examination order under s 58(2) may do all or any of a number of matters. Part 8, entitled Courts jurisdiction and evidentiary matters, by s 101 (1) provides:

"(1) The Supreme Court has jurisdiction in any proceedings

under this Act.

(2)

The District Court has jurisdiction in any proceedings
under this Act in connection with property if –

(a)	the property is not registrable real property; and
(b)	the value of the property is not more than $250,000.

…

[2002] WASC 91

McKECHNIE J

(4) Despite subsection (3), a Local Court has no jurisdiction in proceedings for an unexplained wealth declaration or an examination order."

5              In my opinion the Supreme Court has unlimited jurisdiction.

However, the general structure of the Criminal Property Confiscation Act 2000 suggests that the District Court is ordinarily the appropriate court to examine persons. It should be noted that an examination under the Act does not lead to any particular orders.

6              If the property is beyond that of the District Court jurisdiction in

s 101(2), then of course the Supreme Court has jurisdiction and that is no doubt why the Director has lodged the notice of motion in this Court. The examination powers are ancillary to the making of an order and indeed appear in Part 5, Investigation and search.

7              Cases will vary and no doubt in some cases it may be more

convenient for an examination to proceed in the Supreme Court. However, I do not consider that in the ordinary course it will matter whether the examination is conducted in the District or the Supreme Court, in part because it is quite unlikely that the Judge who conducts the examination will be the Judge who finally deals with the motion.

8              In my opinion the Supreme Court has jurisdiction to make an order

under s 58 requiring the District Court to conduct the examination and if such an order is made, then the examination order which requires persons to give to the Court certain things means that they should give those things to the District Court. Because I am satisfied that I have jurisdiction to make such an order I will make an order in terms of the motion save that par 1 will read: "Each person in the Schedule marked "A" to this order … attend before the District Court on such date and time to be fixed and submit to an examination, …" and thereafter the order will follow the order sought by the Director of Public Prosecutions.