DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA
[2024] WASC 233
•25 JUNE 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA [2024] WASC 233
CORAM: ARCHER J
HEARD: 25 JUNE 2024
DELIVERED : 25 JUNE 2024
FILE NO/S: CPCA 21 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
Whittle v The State of Western Australia [2012] WASC 244
ARCHER J:
(This judgment was delivered extemporaneously on 25 June 2024 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 DPP contends that the property was confiscated by the operation of s 7(1) of the Criminal Property Confiscation Act 2000 (WA) (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.
Evidence
The DPP made the application ex parte, as permitted by O 81FA r 2(1) of the Rules of the Supreme Court 1971 (WA).
The DPP tendered eight affidavits:
(1)an affidavit of Daniel Sampey, a First Class Detective Constable attached to the Mirrabooka Detectives of the Western Australia Police Force (WA Police);[8]
(2)an affidavit of Travis Hagan, a Detective Sergeant attached to the Proceeds of Crime Squad of WA Police;[9]
(3)a supplementary affidavit of Travis Hagan;[10]
(4)an affidavit of Peta Susan Jones, a Detective Sergeant attached to the Proceeds of Crime Squad of WA Police;[11]
(5)an affidavit of Ian John Holt, Executive Manager, Financial Business Processing, of WA Police;[12]
(6)an affidavit of Lateesha Brooks, an Administration Officer employed by WA Police;[13]
(7)an affidavit of Alison Margaret Gibson, a senior paralegal employed in the Confiscations Team of the Office of the DPP;[14] and
(8)an affidavit of Rita Marisa Ruggiero, a paralegal employed in the Proceeds of Crime Squad of WA Police.[15]
[8] Filed 25 March 2024.
[9] Filed 25 March 2024.
[10] Filed 25 March 2024.
[11] Filed 16 April 2024.
[12] Filed 16 April 2024.
[13] Filed 25 March 2024.
[14] Filed 25 March 2024.
[15] Filed 25 March 2024.
Issue 1 (Element 1): crime‑used or crime‑derived
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.
The property the subject of this application was various amounts of cash totalling $2,528,880 (Seized Cash). The Seized Cash was found by the police on 19 June 2023 during a search of a Nissan Navara motor vehicle with Queensland registration, and a property in Balga, Western Australia (Balga Property). It was subsequently deposited into an operating account maintained by WA Police and then credited to a special purpose account known as the 'Seized Money Trust Account'.
On 3 July 2023, freezing notice WAPFN230088 (Freezing Notice) was issued in relation to the Seized Cash. It was made (under s 34(2) of the Confiscation Act) on the basis that there were reasonable grounds for suspecting that the Seized Cash was crime‑used or crime‑derived. The Freezing Notice has not been cancelled or set aside.
Therefore, the first element is proved.
Issue 2 (Element 2): objection not filed
The second element that the DPP must prove is that an objection to the confiscation of the Seized Cash was not filed on or before the 28th day after the 'service cut off date' for the Seized 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.[16]
[16] 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.[17]
[17] 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.[18] Section 36(4) requires, in effect, that the freezing notice be served on any such identified interested party.
[18] 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],[19] 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.
[19] First International Merchant Bank Holdings Ltd v The State of Western Australia [No 2] [2020] WASC 395 [13] ‑ [22].
In this case, a person who I will refer to as 'CW' was present at the Balga property during the search in which the Seized Cash was found. During the audio‑visually recorded search of the Balga Property on 19 June 2023, CW was identified as the person in possession of the Seized Cash and another person 'SF' was identified as the person who was to take possession of the Seized Cash after CW.
Copies of the Freezing Notice were served on CW and SF on 4 July 2023.
On 19 June 2023, Detective Sergeant Hagan compulsorily interviewed CW pursuant to s 73 and s 76 of the Confiscation Act. The interview was audio‑visually recorded. In that interview, CW identified three entities, known only by their code names from encrypted messaging devices, that may have an interest in the Seized Cash. WA Police have no information to identify these entities and no lines of enquiry to obtain identifying information. These entities remain unidentified at this time.
Neither of the two individuals served with a copy of the Freezing Notice filed a statutory declaration.
The applicant for the Freezing Notice (being Detective Sergeant Hagan) deposed, in effect, that, at the time the Freezing Notice was issued, he was not aware of any identifiable person other than the two served who was, or may have been, or may have claimed to have been, an interested party.
Therefore, the service cut off date was the date on which the last person was served. This was 4 July 2023. The 28th day after that date was 1 August 2023. No objection was filed on or before 1 August 2023, or indeed at any time.[20]
[20] As at the date of the relevant affidavit, 13 March 2024.
The second element is proved.
Issue 3 (Element 3): the Freezing Notice was filed in the court
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 4 July 2023.
Accordingly, the third element is proved.
Conclusion
As each element has been proved, it follows that the Seized Cash, including any interest that has accrued on it, was confiscated on 2 August 2023.
Orders
I will make orders in terms of the Originating Motion filed 25 March 2024, as amended today.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
ADR
Associate to the Honourable Justice Archer
26 JUNE 2024
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