Director of Public Prosecutions v Gray - [2009] WASC 223

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION: DIRECTOR OF PUBLIC PROSECUTIONS -v- GRAY [2009] WASC 223

CORAM: JENKINS J

HEARD: 30 JULY 2009

DELIVERED : 30 JULY 2009

PUBLISHED : 12 AUGUST 2009

FILE NO/S: CPCA 53 of 2009

BETWEEN: DIRECTOR OF PUBLIC PROSECUTIONS
Plaintiff
AND
MICHAEL JOHN GRAY
Defendant

Catchwords:

Criminal law - Criminal property - Confiscation - Freezing notice - Effect of purported cancellation of part of freezing notice after property has been confiscated by effluxion of time

Legislation:

Criminal Property Confiscation Act 2000 (WA) s 6, s 7, s 8, s 30, s 34, s 37, s 39, s 40

Result:

Orders in terms of amended notice of originating motion

Category: B

Representation:

Counsel:

Plaintiff: Ms F A Humphries
Defendant: No appearance

Solicitors:

Plaintiff: Director of Public Prosecutions (WA)
Defendant: No appearance

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

Nil

JENKINS J: This judgment was delivered extemporaneously on 30 July 2009 and has been edited from transcript.
This is the hearing of an amended notice of originating motion filed 11 June 2009 for orders and a declaration that:
(1)On 5 December 2008 the property the subject of freezing notice WAPFN080205, excluding Honda off‑road motorcycle VIN JH5PE05016N401125, has been confiscated to the State of Western Australia being all the property that Michael John Gray owned or effectively controlled as at 4 December 2008; and
(2)Without limiting the generality of the declaration in [1] above, the following property has been confiscated, namely:
(a)cash in the sum of $939,063.30;
(b)cash in the sum of $70,150;
(c)cash in the sum of $3,106.60; and
(d)1998 Toyota Landcruiser registered number 1BWI 731, engine number 1FZO383300, VIN number JT711UJA509005713.
According to an affidavit of service filed with the court, notification of the hearing today was given to the defendant by personal service of the originating motion and supporting documents at Casuarina Prison. There is no explanation for the defendant's failure to appear today, other than that he does not oppose the orders sought by the plaintiff.
Affidavits of service also satisfy me that Tye Michael Gray, a juvenile, Gary George Holland and Theresa Jane Fullston have been served with the originating motion and supporting documents. None of those persons appear today. As all persons who may have an interest in any of the property the subject of the application have been advised of today's hearing date, I am prepared to deal with the application, despite their non‑appearance.
The application is made on the basis that the property the subject of the freezing notice has been confiscated under the Criminal Property Confiscation Act 2000 (WA), s 7(1), because no objection to the confiscation of the property was filed within the relevant time.
The application is supported by the affidavit of Travis Hagan sworn 8 June 2009. The affidavit material before me establishes that on 12 September 2008, pursuant to the Act, s 34, the freezing notice was issued on the basis that there were reasonable grounds for suspecting that the property the subject of the notice was crime derived and on another basis which is now not relevant.
The freezing notice was served on the defendant, Theresa Jane Fullston, Tye Michael Gray, Michael Allman and Gary George Holland. The defendant is the person from whom the property was taken on 10 September 2008. No objections have been filed to the freezing notice. However, a number of statutory declarations have been filed which state that certain other people may have an interest in some of the property.
Theresa Jane Fullston made a statutory declaration to the effect that item number 7 in the freezing notice, a trailer, was owned by Michael Allman. On 19 November 2008 the police issued a notice of cancellation of the freezing notice with respect to that trailer. Thus, it is not subject to this application.
Ms Fullston made a later statutory declaration to the effect that Tye Michael Gray is 'the only interested party'. As I have said, I understand that Master Gray is a juvenile and may well be the child of the defendant. Gary George Holland made a statutory declaration in which he stated that the Toyota Landcruiser the subject of this application is in his name but was driven by the defendant, Michael John Gray.
On 6 January 2009 another item of property was cancelled from the freezing notice, that being a Honda off‑road motorcycle. It is now referred to in the amended notice of originating motion as being excluded from this application. I will refer to that off‑road motorcycle later in these reasons.
From these facts I conclude that the freezing notice was served on the person from whom the property was taken, being the defendant, and all persons who the applicant is aware are or may be or claim to be an interested person as that term is defined in the Act.
In these circumstances s 7(1) of the Act provides that frozen property is confiscated to the State if an objection to confiscation is not filed on or before the 28th day after the service cut off date for the property. Section 7(3) also states:
However, property frozen under a freezing notice is not confiscated under subsections (1) or (2) until the freezing notice is filed in accordance with section 36 subsection (6)(a).
The 28th day after the service cut‑off date in respect to this property was 4 December 2008. The freezing notice was filed in this court on 15 September 2008. No objections were filed either before or after 4 December 2008. Thus the property then the subject of the freezing notice was confiscated on 5 December 2008.
The Act, s 30, provides that the Director of Public Prosecutions (the DPP) may apply to the court for a declaration that the property has been confiscated and if on considering such an application the court finds that the property described in the application has been confiscated under the Act, s 6, s 7 or s 8, the court must make a declaration to that effect.
There are only two items of property which were in the original freezing notice which raise any issues. The first is the landcruiser. The landcruiser is registered in Mr Holland's name. However, it was seized from Mr Gray and Mr Holland has acknowledged in his statutory declaration that Mr Gray was driving it.
There is also a statement from a witness who says that in September 2008 he sold the landcruiser to a man who was not Mr Holland. It may have been Mr Gray. On this evidence I am satisfied that Mr Gray effectively controlled the landcruiser, even though it is not clear to me who owned it. On this basis the landcruiser is properly subject to this application and any orders made thereon.
The second item in issue is the off‑road bike which was subject to the freezing notice when it was originally issued but which was then purportedly the subject of a notice of cancellation. The question is whether a cancellation notice purportedly issued, under the Act, s 40, after the 28th day after the service cut‑off date and after the freezing notice is filed, is effective.
After I raised this issue with counsel for the DPP today, she sought leave to amend the originating motion to exclude the Honda off‑road motorcycle from the application before me. I gave leave for that to occur and I have amended the originating motion in those terms.
The Act, s 39(2), states that a freezing notice issued under s 34(2) for any property except registrable real property stops being in force as soon as a number of things occur. One of those things is the property is confiscated under s 7.
This freezing notice was issued under the Act, s 34(2). Section 40 requires a police officer to cancel a freezing notice if the grounds for suspecting that the property is crime used or crime derived no longer exist.
I am satisfied that the freezing notice stopped being in force on the 28th day after the service cut‑off date in respect to this property, that being 4 December 2008. Thus, it appears that when the police officer purported to cancel the freezing notice in respect to the off‑road motorcycle the freezing notice was no longer in effect because the property had already been confiscated. That is, it appears obvious that if a freezing notice has already stopped being in force because the property subject to it has been confiscated then a cancellation of a freezing notice can have no effect.
I conclude from this analysis that the Honda off‑road motorcycle was confiscated pursuant to s 7 of the Act, because it was property the subject of the freezing notice, and no objection had been filed in respect of it by the 28th day after the service cut‑off date. The subsequent amendment to the originating motion to exclude the Honda off‑road motorcycle from today's orders means that there will be no declaration to that effect.
Having found that the property now described in the amended notice of motion has been confiscated under the Act, s 7, a declaration to that effect will be made.