DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA
[2024] WASC 118
•9 APRIL 2024
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA [2024] WASC 118
CORAM: ARCHER J
HEARD: 9 APRIL 2024
DELIVERED : 9 APRIL 2024
FILE NO/S: CPCA 17 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 | : | T A Staples |
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 9 April 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 property is the subject of a freezing notice and no objection to confiscation of the property was filed within the prescribed time. For the reasons that follow, the declaration should be made.
Legal framework[1]
Requirements of a freezing notice
[1] This section largely reproduces what I have written in other judgments.
Relevantly to this case, a freezing notice for property may be issued if there are reasonable grounds for suspecting that the property is crime‑used or crime‑derived.[2]
[2] Section 34(2) of the Criminal Property Confiscation Act 2000 (WA) (Confiscation Act).
Section 36 of the Criminal Property Confiscation Act 2000 (WA) (Confiscation Act) sets out the service, notification and filing requirements of freezing notices.
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, to the knowledge of the applicant for the notice, is, or may be, or claims to be, an interested party.[3]
[3] 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 must give a statutory declaration advising, in effect, of any other persons who may be an interested party.[4] Section 36(4) requires, in effect, that the freezing notice be served on any such identified interested party.
[4] Section 37 of the Confiscation Act.
By s 36(6)(a), the applicant must also file the freezing notice in the court specified in the notice.[5]
[5] Section 36(6) of the Confiscation Act.
A freezing notice for property other than registerable real property comes into force when the notice is issued.[6]
Confiscation under a freezing notice where no objection filed
[6] Section 39(1) of the Confiscation Act.
Section 30 of the Confiscation Act provides:
30.Declarations of confiscation, applying for and making
(1)The DPP or the CCC may apply to the court for a declaration that property has been confiscated.
(2)On considering an application, if the court finds that the property described in the application has been confiscated under section 6, 7 or 8, the court must make a declaration to that effect.
The DPP contends that the property was confiscated by the operation of s 7(1) of the Confiscation Act. Section 7 applies to property that has been frozen pursuant to a freezing notice or freezing order where the basis, or one of the bases, upon which the notice or order was made was that there were reasonable grounds for suspecting that the property was crime‑used or crime‑derived.[7]
[7] Centurion Trust Company Ltd v The Director of Public Prosecutions (WA) [2010] WASCA 133; (2010) 201 A Crim R 324 (Centurion Trust) [112], [217] - [242] 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).
Section 7 provides:
7.When frozen property is confiscated automatically
(1)Frozen property is confiscated if an objection to the confiscation of the property is not filed on or before the 28th day after the service cut off date for the property.
…
(3)However, property frozen under a freezing notice is not confiscated under subsection (1) or (2) until the freezing notice is filed in accordance with section 36(6)(a).
'Frozen property' is property subject to a freezing notice or freezing order.[8] Any income or other property derived from the property while a freezing notice is in force is taken to be part of the property.[9]
[8] 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 freezing order'.
[9] Section 34(7) of the Confiscation Act.
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.[10]
[10] Section 150(a) 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].
As the application under s 30 was brought by the DPP, and as the court is required to be satisfied that the property has been confiscated, the DPP bears the onus of proving that the property was confiscated.[12] The DPP must prove it on the balance of probabilities.[13]
[12] Campana v The State of Western Australia [2008] WASC 230[40].
[13] Section 102(2)(d) of the Confiscation Act.
To establish that the property was confiscated under s 7(1), the DPP must prove that:
(1)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;[14]
(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;[15] and
(3)the freezing notice was filed in accordance with s 36(6)(a).[16]
[14] 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 [50] (McLure P, with whom Owen JA and Buss JA, as his Honour then was, agreed).
[15] Section 7(1) of the Confiscation Act.
[16] Section 7(3) of the Confiscation Act.
If each of these matters is proved, then, pursuant to s 7 of the Confiscation Act, the property was automatically 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 is compelled to make a declaration under s 30.[17]
[17] 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]).
Evidence
The DPP tendered five affidavits:
(1)Affidavit of Craig Andrew Martin, a Detective Sergeant attached to the Proceeds of Crime Squad of the Western Australia Police Force;[18]
(2)Affidavit of Reywin Mina Rico, a senior paralegal employed in the Confiscations Team of the Office of the DPP;[19]
(3)Affidavit of Maria Eleonora Ingles, a paralegal employed in the Proceeds of Crime Squad of the Western Australia Police Force;[20]
(4)Supplementary affidavit of Maria Eleonora Ingles;[21] and
(5)Affidavit of Ian John Holt, Executive Manager, Financial Business Processing, of the Western Australia Police Force.[22]
[18] Sworn 22 February 2024, filed 12 March 2024.
[19] Sworn 30 October 2023, filed 12 March 2024.
[20] Sworn 22 February 2024, filed 12 March 2024.
[21] Sworn and filed 8 April 2024.
[22] Sworn and filed 8 April 2024.
The evidence proved the following.
On 30 March 2021, freezing notice WAPFN210033 (Freezing Notice) was issued under s 34(2) of the Confiscation Act in respect of property suspected on reasonable grounds to be crime‑used or crime‑derived.
The property specified in the Freezing Notice was various amounts of cash totalling $902,500.00 (Property).
The Property was in a suitcase seized by police on 16 March 2021 during a search of a room at the Ibis Hotel, 317 ‑ 319 Great Eastern Highway, Redcliffe. Person 'TTN' was present during the police search.
The court specified in the Freezing Notice was the Supreme Court. A copy of the Freezing Notice was filed with this Court, as required by s 36(6)(a) of the Confiscation Act, on 14 May 2021.
A copy of the Freezing Notice was served on TTN, as the person from whom the Property was taken, on 4 May 2021.
TTN filed a statutory declaration on 6 May 2021 stating that the Property was not hers. She did not identify any other person who may have had an interest in the Property. Accordingly, the service cut off date was the date on which TTN was served. This was 4 May 2021.
The 28th day after that date was 1 June 2021. No objection was filed on or before 1 June 2021, or indeed at any time.
The Freezing Notice has not been cancelled or set aside.
The applicant for the Freezing Notice (being Detective Sergeant Martin) deposed, in effect, that, at the time the Freezing Notice was issued, he was not aware of any person who was, or may have been, or may have claimed to have been, an interested party. In the circumstances surrounding the seizure of the Property, there is no reason to doubt this.
Ex parte application
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 submitted that it was appropriate to deal with the matter ex parte because the person from whom the Property was seized has declared that it is not hers, no claimant to the Property has been identified or come forward, and no objection to the confiscation of the Property has been filed.
I accept this submission. There is nothing to indicate the identity of any other person who might have an interest in the Property. In those circumstances, it is entirely appropriate to deal with the matter ex parte.
Conclusion
The Freezing Notice was issued on the Property on the basis that there were reasonable grounds for suspecting that the Property was crime‑used or crime‑derived.
The DPP satisfied its service and notice obligations under s 36 of the Confiscation Act. A copy of the Freezing Notice was served on the person from whom the Property was taken, and a copy was also filed with this Court.
An objection to the confiscation of the Property was not filed on or before 1 June 2021, being the 28th day after the service cut off date.
It follows that the Property, including any interest that has accrued on it, was confiscated on 2 June 2021.
Nothing else must be established before the court is compelled to make a declaration under s 30. I am therefore required to declare that the Property was confiscated.
Orders
I will make orders in terms of paragraph 1 of the Originating Motion filed 12 March 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
10 APRIL 2024
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