DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA
[2024] WASC 232
•25 JUNE 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA [2024] WASC 232
CORAM: ARCHER J
HEARD: 25 JUNE 2024
DELIVERED : 25 JUNE 2024
FILE NO/S: CPCA 18 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 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 seven affidavits:
(1)two affidavits of Gemma Louise Seward, a Detective First Class Constable attached to the Proceeds of Crime Squad of the Western Australia Police Force (WA Police);[8]
(2)two affidavits of Reywin Mina Rico, a senior paralegal employed in the Confiscations Team of the Office of the DPP;[9]
(3)an affidavit of service of Reywin Mina Rico;[10]
(4)an affidavit of Peta Susan Jones, a Detective Sergeant attached to the Proceeds of Crime Squad of the WA Police;[11]
(5)an affidavit of Ian John Holt, Executive Manager, Financial Business Processing, of WA Police;[12]
(6)an affidavit of Rita Marisa Ruggiero, a paralegal employed in the Proceeds of Crime Squad of WA Police;[13] and
(7)two affidavits of service of Monique Louise Torrance, a police officer attached to the Proceeds of Crime Squad of WA Police.[14]
[8] Both filed 14 March 2024.
[9] One filed 14 March 2024 and one filed 26 March 2024.
[10] Filed 17 June 2024.
[11] Filed 14 June 2024.
[12] Filed 14 June 2024.
[13] Filed 14 March 2024.
[14] Both filed 22 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 is various amounts of cash totalling $887,125.00 (Seized Cash). It was seized by police on 23 August 2023 during a search of a house in Noranda, Western Australia (Noranda house). 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 22 September 2023, freezing notice WAPFN230120 (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 property 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.[15]
[15] 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.[16]
[16] 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.[17] Section 36(4) requires, in effect, that the freezing notice be served on any such identified interested party.
[17] 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],[18] 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.
[18] First International Merchant Bank Holdings Ltd v The State of Western Australia [No 2] [2020] WASC 395 [13] ‑ [22].
In this case, a person 'MVR' and another person, 'CR', were the identified owners of the Noranda house. MVR was also present during the police search. Both were served with copies of the Freezing Notice on 3 October 2023.
MVR made an undated statutory declaration stating that neither he nor CR had an interest in the Seized Cash. He did not identify any other person who may have had an interest in the Seized Cash. (MVR made another statutory declaration on 5 October 2023, but it related to a different freezing notice (WAPFN230121). In any event, he again did not identify any person other than himself or CR who may have had an interest in the Seized Cash).
CR made a statutory declaration on 10 October 2023 stating that, as far as she was aware, MVR was the only person who had, may have had, or may have claimed to have, an interest in the Seized Cash.
The applicant for the Freezing Notice (being Detective First Class Constable Seward) deposed, in effect, that, at the time the Freezing Notice was issued, she was not aware of any 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 MVR and CR were served. This was 3 October 2023. The 28th day after that date was 31 October 2023. No objection was filed on or before 31 October 2023, or indeed at any time.[19]
[19] As at the date of the relevant affidavit, 5 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 25 September 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 1 November 2023.
Orders
I will make orders in terms of the Minute of Proposed Declaration filed 17 June 2024.
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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