DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA

[2024] WASC 117

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA [2024] WASC 117

CORAM:   ARCHER J

HEARD:   9 APRIL 2024

DELIVERED          :   9 APRIL 2024

FILE NO/S:   CPCA 16 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

Freeth as Executor of the Estate of Gerard V Brewer v O'Donnell [2021] WASC 393

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

1. 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.

1. 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] Criminal Property Confiscation Act 2000 (WA) s 34(2) (Confiscation Act).

2. Section 36 of the Criminal Property Confiscation Act 2000 (WA) (Confiscation Act) sets out the service, notification and filing requirements of freezing notices.

3. 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] Confiscation Act s 36(1). An 'interested party' is defined in the Glossary of 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.

4. 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] Confiscation Act s 37.

5. By s 36(6)(a), the applicant must also file the freezing notice in the court specified in the notice.[5]

   [5] Confiscation Act s 36(6).

6. 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] Confiscation Act s 39(1).

1. 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.

2. 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).

3. 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 28^th 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).

4. '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 of 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] Confiscation Act s 34(7).

5. 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] Confiscation Act s 150(a).

6. 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].

7. 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] Confiscation Act s 102(2)(d).

8. 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)the service requirements having been met,[15] 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;[16] and

   (3)the freezing notice was filed in accordance with s 36(6)(a).[17]

   [14] 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 [50] (McLure P, with whom Owen JA and Buss JA, as his Honour then was, agreed).

   [15] As to this being a condition, see, in an analogous context, Freeth as Executor of the Estate of Gerard V Brewer v O'Donnell [2021] WASC 393 [55] ‑ [65].

   [16] Confiscation Act s 7(1).

   [17] Confiscation Act s 7(3).

9. 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).

10. 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.[18] 

    [18] 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

1. The DPP tendered five affidavits.  The first three were filed on 12 March 2024, with a further affidavit and supplementary affidavit filed on 8 April 2024.  The deponents were:

   (1)John Gordon Lee‑Kong, a Detective Sergeant attached to the Proceeds of Crime Squad of the Western Australia Police Force;

   (2)Kyle David Brown, a paralegal employed in the Confiscations Team of the Office of the DPP;

   (3)Melissa Anne McDougall, a paralegal employed in the Proceeds of Crime Squad of the Western Australia Police Force; and

   (4)Ian John Holt, an Executive Manager of the Financial Business Branch of the Western Australia Police Force.

2. The evidence proved the following.

3. On 29 September 2022, freezing notice WAPFN220133 (the 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.

4. The property specified in the Freezing Notice was various amounts of cash totalling $906,870.  The cash was found by the police during two separate searches of a property in Gosnells (the Gosnells property).

5. On 16 September 2021, the police conducted their first search of the Gosnells property (the First Search) in the presence of a person I will refer to as 'KG'.  A total of $578,050 was located in a blue 30 litre drum buried in the backyard.

6. On 6 October 2021, the police conducted their second search of the Gosnells property (the Second Search).  A total of $328,820 was located in a blue drum to the side of a shed in the rear garden.

7. The seized cash, found in the First and Second Search of the Gosnells property, 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'.

8. I will refer to this cash as 'the Property'.

9. 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 12 March 2024.

10. A copy of the Freezing Notice was served on KG (the person who was present at the Property during the First Search) on 4 October 2022. 

11. A copy of the Freezing Notice was also served on two people who had been charged with an offence of property laundering in relation to the Property.  They were served on 7 October 2022 and 13 October 2022 respectively.

12. Of the three individuals served with a copy of the Freezing Notice, only one filed a statutory declaration. The statutory declaration did not identify any other person being required to be served with a copy of the freezing notice pursuant to s 36(4). Accordingly, the service cut off date was the date on which the last person was served. This was 13 October 2022.

13. The 28th day after that date was 10 November 2022.  No objection was filed on or before 10 November 2022, or indeed at any time.

14. The Freezing Notice has not been cancelled or set aside.

15. The applicant for the Freezing Notice (being Detective Sergeant Lee‑Kong) deposed, in effect, that, at the time the Freezing Notice was issued, he was not aware of any person other than the three served who was, or may have been, or may have claimed to have been, an interested party.  There is no reason to doubt this.

Ex parte application

1. The DPP made the application ex parte, as permitted by O 81FA r 2(1) of the Rules of the Supreme Court 1971 (WA). In its helpful and detailed written submissions, the DPP submitted that it was appropriate to deal with the matter ex parte because all parties with a known or possible interest in the Property have been served with the Freezing Notice, no objection to the confiscation of the frozen Property has been filed, the application relates to a large amount of cash, and no real claimant has been identified or come forward.

2. 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

1. 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. 

2. The DPP satisfied its service and notice obligations under s 36 of the Confiscation Act. A copy of the Freezing Notice was served on each person who, to the knowledge of the applicant for the Freezing Notice at the time the Freezing Notice was issued, was, or may have been, or may have claimed to have been, an interested party. A copy of the Freezing Notice was also filed with this Court.

3. An objection to the confiscation of the Property was not filed on or before 10 November 2022, being the 28th day after the service cut off date.  

4. It follows that the Property, including any interest that has accrued on it, was confiscated on 11 November 2022. 

5. 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

1. I will make orders in terms of paragraph 1 of the Minute of Proposed Orders filed 28 March 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

10 APRIL 2024