DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA
[2024] WASC 355
•24 SEPTEMBER 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA [2024] WASC 355
CORAM: ARCHER J
HEARD: 24 SEPTEMBER 2024
DELIVERED : 24 SEPTEMBER 2024
FILE NO/S: CPCA 35 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
Director of Public Prosecutions for Western Australia [2024] WASC 117
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 12 January 2023, the police stopped and searched a Kia Carnival on Great Eastern Highway about 40 km west of Coolgardie. A bag containing a large quantity of cash was found in the boot of the vehicle. The vehicle was forensically sealed and transported to a police storage facility. At that location, the vehicle was searched again, and a total of $2,084,100 was found and seized. The police later 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).
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 19 January 2023, freezing notice WAPFN230006 (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].
Two people, 'TZ' and 'QH', were served with a copy of the Freezing Notice. Both were present during the search of the Kia Carnival in which the cash was found.
A copy of the Freezing Notice was served on TZ on 19 January 2023 and on QH on 27 January 2023.
The applicant for the Freezing Notice is no longer attached to the Proceeds of Crime Squad of the Western Australia Police Force. Detective Sergeant Peta Jones took over investigations conducted by the applicant. Detective Sergeant Jones deposed that she considers that:
a)The Freezing Notice has been served on the persons from whom property frozen by the Freezing Notice was taken.
b)There are no other persons known to [the Western Australia Police Force] who are, or may be, or claim to be, an interested party in relation to [the] property.
A detective's opinion as to what the Western Australia Police Force was aware of is of doubtful value. However, I take this statement to mean that there is no evidence to suggest any other person could have an interest. In those circumstances, I am satisfied that the service requirements have been met.
Of the two people served with a copy of the Freezing Notice, only TZ filed a statutory declaration. The statutory declaration did not identify any other person who may have had an interest in the cash.
Therefore, the service cut off date was the date on which the last person was served. This was 27 January 2023. The 28th day after that date was 24 February 2023. No objection was filed on or before 24 February 2023, or indeed at any time.[12]
[12] As at the date of the relevant affidavit, 23 February 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 20 January 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 25 February 2023.
Orders
I will make orders in terms of the Originating Motion filed 28 June 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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