DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA
[2023] WASC 407
•24 OCTOBER 2023
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA [2023] WASC 407
CORAM: ARCHER J
HEARD: 24 OCTOBER 2023
DELIVERED : 24 OCTOBER 2023
FILE NO/S: CPCA 37 of 2023
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 | : | I S Jones |
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
Ex parte Director of Public Prosecutions (WA) [2021] WASC 398
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 24 October 2023 and has been edited to correct matters of form, include complete references and add formatting.)
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: see, for example, Director of Public Prosecutions (WA) [2021] WASC 398 [2] ‑ [12] and [17] - [20].
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).
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] Confiscation Act s 36(1). 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] Confiscation Act s 37.
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).
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).
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] Confiscation Act s 34(7).
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).
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] Confiscation Act s 102(2)(d).
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).
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.[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
The DPP tendered six affidavits. Five were filed on 14 September 2023. The deponents were:
1.Lee Burgess, currently a Sergeant in the WA Police Force attached to the Kalgoorlie Police Station, but who was stationed at the Money Laundering Squad of the Western Australia Police Force between 15 March 2021 and 26 December 2021;
2.Eleftherios Tselepis, currently a Senior Constable attached to the State Security Investigation Group of the Western Australia Police Force, but who was stationed with the Money Laundering Squad between 21 September 2020 and 28 November 2021;
3.Peta Susan Jones, a Detective Sergeant in the Western Australia Police Force attached to the Proceeds of Crime Squad;
4.Ma Theresa Mendoza, a paralegal employed in the Proceeds of Crime Squad; and
5.Valentin Charles Hubert Carraz, a paralegal employed in the Confiscations Team of the Office of the DPP.
The sixth affidavit was a supplementary affidavit from Senior Constable Tselepis. It was filed yesterday, in response to a query the court had sent to the DPP about apparent discrepancies in the materials.
The evidence proved the following.
In 2021, the police were conducting an operation targeting particular individuals believed to be involved in money laundering.
On 15 April 2021, the police dug up a bag buried in a cemetery in South Guildford. The bag contained $996,570. At the time the cash was found, a person who I will call 'ZS' was arrested at the same location for his alleged involvement in property laundering.
The cash was subsequently deposited into the Commonwealth Bank of Australia Western Australia Police Force Seized Moneys Trust Account (Trust Account).[19]
[19] When this was done, two of the amounts recorded on the exhibit log were found to be incorrect - see the Affidavit of Eleftherios Tselepis filed 14 September 2023 [18] - [19], Affidavit of Ma Theresa Mendoza filed 14 September 2023 [10] and Affidavit of Eleftherios Tselepis filed 23 October 2023 [3]. The amounts recorded in Schedule 2B of the Freezing Notice were, however, the correct amounts.
On 4 May 2021, freezing notice WAPFN210056 (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. The property frozen by the Freezing Notice was specified in Schedule 2B of the Freezing Notice. That schedule listed, relevantly, the amounts of cash that had been found in the bag.
Two estimates were subsequently found to be inaccurate. However, each item of Schedule 2B identified the electronic database number for each estimated amount (IMS Item number). The money actually frozen by the Freezing Notice was the actual amount of money that had been seized within each IMS Item number. Accordingly, the actual total of the cash frozen is reflected by the total amount deposited into the Trust Account, of $996,570.
The DPP seeks a declaration that the frozen cash has been confiscated. I will refer to this cash as 'the Property'.
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 10 May 2021.
A copy of the Freezing Notice was also served on four people who were identified as potentially having an interest in the property:
(1)The driver of the vehicle, who I will refer to as 'MM', who transported the bag to an arranged drop off and later to the cemetery. He was served on 6 July 2021.
(2)ZS was served on 12 July 2012, on the basis that he had been seen in possession of the bag and who was involved in the drop off and later transport and hiding of the bag at the cemetery.
(3)A person who MM identified during a police interview. That person was served on 9 September 2021.
(4)A person who I will refer to as 'JW' was served on 6 October 2021. JW was served because MM, during a police interview, said that a member of a criminal organisation who shared the same first name as JW would have an interest in the Property. JW was identified as a member of that criminal organisation with links to ZS and MM. Sergeant Jones concluded that JW was likely the person identified by MM and deposed to this belief.
None of the four individuals served with a copy of the Freezing Notice filed a statutory declaration.
The applicant for the Freezing Notice (being Sergeant Jones) deposed, in effect, that, at the time the Freezing Notice was issued, she was not aware of any person other than those four who was, or may have been, or may have claimed to have been, an interested party. There is no reason to doubt this.
The service cut off date was the date on which the last person was served. This was 6 October 2021.
The 28th day after the service cut off date was 3 November 2021. No objection was filed on or before 3 November 2021, or indeed at any time.
The Freezing Notice has not been cancelled or set aside.
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). In its helpful and detailed written submissions, the DPP submitted that it was appropriate to deal with the matter ex parte because the notice requirements under the Confiscation Act were complied with, no objection was filed, and the Property is a significant amount of cash but no real claimant has been identified or come forward.
I accept this submission. I am satisfied that it is 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 each person who, to the knowledge of the applicant for the Freezing Notice at the time of its issue, 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.
An objection to the confiscation of the Property was not filed on or before 3 November 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 4 November 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 the Originating Motion filed 14 September 2023.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
KH
Associate to the Honourable Justice Archer
26 OCTOBER 2023
0
7
1