Director of Public Prosecutions for Western Australia v Centurion Trust Co Ltd

[2004] WASC 74

DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA -v- CENTURION TRUST CO LTD [2004] WASC 74

Link to Appeal :

[2009] WASCA 97 [2009] WASCA 97(S)

Jurisdiction:	SUPREME COURT OF WESTERN AUSTRALIA	Citation No:	[2004] WASC 74
Case No:	CIV:2382/2003	Heard:	29 MARCH 2004
Coram:	ROBERTS-SMITH J	Delivered:	29/03/04
No of pages:	5	Judgment Part:	1 of 1
Result:	Adjournment granted
Category:	A
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Parties:	DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA CENTURION TRUST CO LTD BRIAN MILLWOOD SMITH
Catchwords:	Practice and procedure Adjournment Declaration of crime-used property Criminal Property Confiscation Act 2000 (WA) Property freezing order made Examination order Examinations still to be conducted Director of Public Prosecutions still awaiting evidence under mutual assistance legislation Applicant seeking hearing to force DPP to put forward evidence Investigation and inquiry process not yet complete Whether purpose of the legislation would be defeated
Legislation:	Criminal Property Confiscation Act 2000 (WA)
Case References:	Nil "B" v State of Western Australia [2002] WASC 298 Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51 Permanent Trustee Co Ltd v The State of Western Australia & Anor [2002] WASC 22 Silbert v Director of Public Prosecutions for Western Australia [2004] HCA 9 The Director of Public Prosecutions for Western Australia v Mansfield & Ors [2003] WASC 186

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION : DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA -v- CENTURION TRUST CO LTD [2004] WASC 74 CORAM : ROBERTS-SMITH J HEARD : 29 MARCH 2004 DELIVERED : 29 MARCH 2004 FILE NO/S : CIV 2382 of 2003 BETWEEN : DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA

Applicant

AND

CENTURION TRUST CO LTD
Respondent

Catchwords:

Practice and procedure - Adjournment - Declaration of crime-used property - Criminal Property Confiscation Act 2000 (WA) - Property freezing order made - Examination order - Examinations still to be conducted - Director of Public Prosecutions still awaiting evidence under mutual assistance legislation - Applicant seeking hearing to force DPP to put forward evidence - Investigation and inquiry process not yet complete - Whether purpose of the legislation would be defeated

Legislation:

Criminal Property Confiscation Act 2000 (WA)

(Page 2)

Result:

Adjournment granted

Category: A

Representation:

Counsel:

Applicant : Mr M Mischin & Ms F A Humphries
Respondent : Mr S K Shepherd

Brian Millwood Smith : Mr N P Gentilli

Solicitors:

Applicant : State Director of Public Prosecutions
Respondent : Bennett & Co

Brian Millwood Smith : Jackson McDonald

Case(s) referred to in judgment(s):

Nil

Case(s) also cited:

"B" v State of Western Australia [2002] WASC 298
Kable v Director of Public Prosecutions (NSW) (1996) 189 CLR 51
Permanent Trustee Co Ltd v The State of Western Australia & Anor [2002] WASC 22
Silbert v Director of Public Prosecutions for Western Australia [2004] HCA 9
The Director of Public Prosecutions for Western Australia v Mansfield & Ors [2003] WASC 186


(Page 3)

1 ROBERTS-SMITH J: I have before me a notice of motion for a criminal benefits declaration and what is described as a crime-used property substitution declaration pursuant to s 15 and s 21 of the Criminal Property Confiscation Act 2000 (WA) ("the Confiscation Act").

2 There is an order sought that the heading of the proceedings herein be amended to name Brian Millwood Smith as respondent.

3 Mr Mischin who appears for the DPP makes an application today for the notice of motion to be adjourned basically pending the conduct of further examinations under the Act and further inquiries.

4 Mr Gentilli for Mr Smith opposes the application insofar as he submits that although the adjournment could be granted, it should be granted on a basis which would impose strict time limits upon the DPP and would require compliance with strict programming directions. A number of matters have been put to me in support of both submissions this morning. I do not propose to deal with them in any great detail. It seems to me the position has merit and conversely difficulty, on both sides, and those are no doubt largely as a result of the implementation difficulties with this particular legislation.

5 The particular matter has been under investigation since early 1998. It was originally an ASIC investigation, but on the day funds held by ASIC were ordered to be released by the Administrative Appeals Tribunal, the freezing order was made by Scott J in this Court; that was 14 November last year.

6 So far as Mr Gentilli submits that the purposes set out in [24] of the DPP's outline of submissions are not the purposes for which an examination may be made pursuant to the Act as listed in s 57(2) is concerned, it seems to me that is based on a misapprehension of what is set out in the DPP's submissions at that paragraph.

7 Section 58 subsection (2) is a conferral of power. What are referred to in [24] are anticipated results, it seems to me, from the exercise of the power of examination. The content of the examination order itself made on 14 November 2003 is clearly within the scope of the statutory power.

8 So far as the procedural matters which are said by Mr Gentilli to be procedural defects requiring attention are concerned, those matters have only been briefly ventilated before me today and I expressly make no particular finding in relation to them. I note simply for present purposes that the DPP submission is that the procedural requirements have in fact

(Page 4)

been complied with but, as I say, I make no finding as to that either way because it seems to me unnecessary for me to do so for present purposes.

9 Mr Gentilli submits that the DPP ought to have written to the Court seeking listing of the examinations immediately after November when the examination order was obtained. Mr Mischin submits that the reason that was not done was because there were other investigative processes in train at the time, including and in particular information to be obtained by way of mutual assistance legislation.

10 Having read the materials, it seems to me that explanation is a reasonable explanation under the circumstances.

11 This legislation may be accepted as being draconian legislation, but it is expressly stated not to be construed by rules which apply only to the criminal law; see s 102(2) of the Confiscation Act.

12 The scheme of the Act is to permit and facilitate not only the freezing and confiscation of assets, but to permit and facilitate confidential coercive investigations in support of such orders.

13 To some extent it might be thought that the timing problems evident here may be inherent in the nature of the statutory regime itself, given that a freezing order, for example, will be made before and in anticipation of the outcome and completion of a full investigation. One can understand the necessity for that which drove the legislative imperative.

14 Mr Gentilli says that his client wants the DPP to put up its evidence as soon as possible so that he can show that it is not sufficient to support the orders sought.

15 Given the nature and purpose of this legislation and the regime established by it which I have so briefly described in that way, it seems to me it would be contrary to the purposes of the legislation were it to be construed in such a way as to compel premature disclosure and reliance upon a case by the DPP before the investigation process was complete.

16 That, as I say, seems to me to be counter to the purpose of the legislation because if that were permitted, then one could compel reliance upon what the DPP himself regarded as a wholly inadequate case which could not support the particular orders being sought and that would in that way defeat the purpose of the legislation.

(Page 5)

17 But as always, particularly with draconian legislation of this kind, it is necessary to strike a balance. That balance must be struck in the interests both of the State and of those affected adversely by the legislation and it must be a balance informed by a proper construction of the purpose and intent of the legislation.

18 It seems to me, putting all of these considerations together, it would be on the basis of the material before me premature to require the substantive applications to be dealt with today and it would be premature to require the notice of motion to be dealt with in such a short time in the future as to bring it on before the examinations and the evidence sought under the mutual assistance legislation was available.

19 I am not persuaded at this stage that the efforts of the DPP to pursue the matter have not been made in a timely way, nor that they are unreasonable in the requirement for further time. On that basis and for those reasons I would grant the adjournment.