Director of Public Prosecutions (WA) v Hodges
[2021] WASC 140
•6 MAY 2021
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- HODGES [2021] WASC 140
CORAM: ARCHER J
HEARD: 25 FEBRUARY 2021
DELIVERED : 25 FEBRUARY 2021
PUBLISHED : 6 MAY 2021
FILE NO/S: CPCA 36 of 2020
BETWEEN: DIRECTOR OF PUBLIC PROSECUTIONS (WA)
Plaintiff
AND
MATTHEW ROSS HODGES
Defendant
Catchwords:
Criminal property confiscation – Freezing notice – No objection filed – Drug trafficker declaration – Application for declarations of confiscation
Legislation:
Criminal Property Confiscation Act 2000 (WA)
Result:
Declarations of confiscation made
Category: B
Representation:
Counsel:
| Plaintiff | : | Mr M Seaman |
| Defendant | : | No appearance |
Solicitors:
| Plaintiff | : | Director of Public Prosecutions (WA) |
| Defendant | : | No appearance |
Cases referred to in decision:
Campana v The State of Western Australia [2008] WASC 230
Ranford v The State of Western Australia [2015] WASC 45
Urbano v The State of Western Australia [2006] WASCA 147
Whittle v The State of Western Australia [2012] WASC 244
ARCHER J:
(This judgment was delivered extemporaneously on 25 February 2021 and has been edited to correct matters of grammar and to include complete references.)
Introduction
In this action, the Director of Public Prosecutions (DPP) seeks declarations that particular property (land and shares) has been confiscated.
The property was the subject of a freezing notice and no objection to confiscation of the property was filed within the prescribed time, or at any time. The DPP asserts that the land was confiscated by virtue of s 7 of the Criminal Property Confiscation Act 2000 (WA) (Confiscation Act). The DPP asserts that the shares were confiscated by virtue of s 8 of the Confiscation Act. For the reasons that follow, the declarations should be made.
Legal framework
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 bears the onus of proving that the property has been confiscated.[1] The DPP must prove this on the balance of probabilities.[2]
[1] Campana v The State of Western Australia [2008] WASC 230[40].
[2] Section 102(2)(d) of the Confiscation Act.
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.[3]
Confiscation under section 7
Requirements of a freezing notice
[3] 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]).
A freezing notice for property may be issued if, among other grounds, there are reasonable grounds for suspecting that the property is crime‑used or crime‑derived.[4]
[4] Section 34(2) of the Confiscation Act.
Section 36 of the Confiscation Act sets out the service and notification requirements of freezing notices.
A freezing notice must be served on the person from whom the property covered by the notice was taken. It must also be served on any other person whom the applicant for the notice is aware is or may be or claims to be an interested party.[5]
[5] Section 36(1) of the Confiscation Act. 'Interested party' is defined in the glossary 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.[6] Section 36(4) requires that the freezing notice be served on any such identified interested party.
[6] Confiscation Act s 37.
The applicant must also file the freezing notice in the court specified in the notice.[7]
[7] 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.[8]
[8] Section 39(1) of the Confiscation Act.
Where the property is registerable real property, the applicant must lodge a memorial of the issue of the notice with the Registrar of Titles.[9] A freezing notice for registerable real property only comes into force when a memorial is registered.[10]
Automatic confiscation
[9] Section 36(2) of the Confiscation Act. There are also requirements to notify where the property is registrable under legislation other than the Transfer of Land Act 1893 (WA).
[10] Section 38(1) of the Confiscation Act.
Section 7 of the Confiscation Act 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).
Section 7(1) applies to property frozen on crime‑used or crime‑derived grounds.[11]
[11] Centurion Trust Company Ltd v The Director of Public Prosecutions (WA) [2010] WASCA 133 (Centurion Trust 2010) [217], [239], [255]-[256] per Buss JA, with whom Owen JA agreed [74]. This includes property frozen pursuant to a freezing notice or order made on grounds including crime-used or crime-derived grounds.
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).[12]
[12] 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],[13] 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.
[13] First International Merchant Bank Holdings Ltd v The State of Western Australia [No 2] [2020] WASC 395 [13]-[22].
A person may file an 'objection'[14] to the confiscation of frozen property. Where an objection is filed, the Confiscation Act gives the court power to set aside the freezing notice to the extent permitted by s 82, s 83 and s 84, depending on the ground upon which the notice or order was made.
[14] 'Objection' is defined in the glossary to mean an objection filed under s 79.
Section 79 of the Confiscation Act regulates when an objection must be filed. It provides:
79.Confiscation of frozen property, objecting to
(1)A person may file an objection to the confiscation of frozen property.
(2)If a copy of the freezing notice or freezing order was served on the objector, the objection must be filed –
(a)within 28 days after the day on which the copy of the notice or order was served on the objector; or
(b)within any further time allowed by the court.
(3)If a copy of the freezing notice or freezing order was not served on the objector, the objection must be filed –
(a)within 28 days after the day on which the objector becomes aware, or could reasonably be expected to have become aware, that the property has been frozen; or
(b)within any further time allowed by the court.
(4)The court may allow further time under subsection (2) or (3) even if the time for filing the objection has expired.
The court ceases to have the power to extend time under s 79(4) once the property has been confiscated.[15]
[15] Centurion Trust 2010 [234]. Once property has been confiscated under s 7 (or s 6), a person may apply for the release of such property under s 85 of the Confiscation Act. The application must be made within 28 days after the person became aware, or can reasonably be expected to have become aware, that the property has been confiscated.
The matters that the DPP must prove under s 7(1) are that:
1.the property was frozen under a freezing notice made on grounds including crime‑used or crime‑derived grounds;
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; and
3.the freezing notice was filed in accordance with s 36(6)(a).
If each of these matters is proved, then, pursuant to s 7(1) of the Confiscation Act, the property was automatically confiscated.
Confiscation under section 8
Section 8(1) of the Confiscation Act provides:
8.Declared drug trafficker, certain property of confiscated
(1)When a person is declared to be a drug trafficker under section 32A(1) of the Misuse of Drugs Act 1981 as a result of being convicted of a confiscation offence that was committed after the commencement of this Act, the following property is confiscated –
(a)all the property that the person owns or effectively controls at the time the declaration is made;
(b)all property that the person gave away at any time before the declaration was made, whether the gift was made before or after the commencement of this Act.
The matters that the DPP must prove under s 8 are:
1.the defendant was declared to be a drug trafficker;
2.the declaration was made as a result of the defendant being convicted of a 'confiscation offence' (relevantly being an offence punishable by imprisonment for more than 2 years[16]);
3.the offence was committed after 1 January 2001, being the commencement of the Confiscation Act; and
4.at the time the drug trafficker declaration was made, the property was owned or effectively controlled by the defendant.
[16] Section 141(1) of the Confiscation Act.
If a person has been convicted of a relevant confiscation offence, regard may be had to material before a court in any proceedings for the offence or sentencing.[17]
[17] See s 107 of the Confiscation Act.
If each of these matters is proved, then, pursuant to s 8(1) of the Confiscation Act, the property was automatically and immediately confiscated at the time the drug trafficker declaration was made.[18]
[18] Centurion Trust 2010 [199].
The Confiscation Act defines an 'owner' of property to mean a person who has a legal or equitable interest in the property.[19]
[19] Confiscation Act glossary.
'Property' is defined in the Confiscation Act to mean a legal or equitable interest in any real or personal property of any description, wherever situated, and whether tangible or intangible.[20]
Objections
[20] Confiscation Act glossary.
As noted earlier, on receiving a copy of a freezing notice or order, a person may file an 'objection' to the confiscation of frozen property. If the freezing notice or order was made on the ground that the person could be declared to be a drug trafficker, the sole source of the court's power to set aside a freezing notice or order is set out in s 84(2). If the person is declared to be a drug trafficker, their property is confiscated at the time of the declaration, by s 8. This confiscation is not linked to, or conditional upon, the adverse determination by the court of an objection to the confiscation of the frozen property. It occurs automatically on the declaration that the person is a drug trafficker. [21]
[21] Centurion Trust 2010 [223] (Buss JA, with whom Owen JA agreed at [74]). See also Campana [38], and Urbano v The State of Western Australia [2006] WASCA 147 [34] and [39] (Pullin JA, with whom Martin CJ agreed). Further, under s 39 and s 49 of the Confiscation Act, a freezing notice or order for any property except registrable real property stops being in force as soon as, among other things, the property is confiscated under s 6, s 7 or s 8.
The court has no power to release property once it has been confiscated under s 8.[22]
[22] The Confiscation Act, pt 6 ss 85 ‑ 87 gives the court the power to release property confiscated under s 6 or s 7. No such power is given in relation to property confiscated under s 8. See also Campana [38] and Centurion Trust 2010 [162].
Evidence
The DPP tendered an affidavit of Boronia O'Connor[23] (O'Connor Affidavit).
[23] Affidavit of Boronia Delfen O'Connor filed 13 October 2020.
The evidence proved the following.
On 12 November 2019, a freezing notice WAPFN190150 (the Freezing Notice) was issued under s 34 of the Confiscation Act in respect of:
(a)the land at Lot 1 on Diagram 31631 in Certificate of Title Volume 1687, Folio 779, commonly known as 19 Collins Street, Wickepin (the Land);
(b)all shares in Woolworths Group Limited held in the name of the defendant (the Shares).
I will refer to this property collectively as 'the Property'.
The Freezing Notice was issued on the basis that it was alleged that the Land was suspected on reasonable grounds to be crime‑used and, in relation to both the Land and the Shares, that the defendant had been charged with an offence and could be declared to be a drug trafficker if convicted of it.
The defendant has been the registered proprietor of the Land since 2007. The defendant was granted the last of his shares in Woolworths in 2015.
Memorials of the issue of the Freezing Notice were registered with the Registrar of Titles in relation to the Land.
A copy of the Freezing Notice was served on the defendant and Link Market Services Limited. The defendant was personally served on 19 November 2019.
The State's evidence and submissions dealt with the service on Link Market Services. The evidence was inadequate in several respects. Nevertheless, this has no bearing on the application. There is nothing to suggest that Link Market Services was an 'interested party', such that the State was required to serve it with a copy of the Freezing Notice. 'Interested party' is defined in the glossary as a person who has an interest in the property that would enable the person to succeed on an objection to confiscation. The evidence indicated that Link Market Services was merely the entity associated with Woolworths which handled the share plan.
The O'Connor Affidavit states that a copy of the Freezing Notice was also served on all those persons whom the applicant for the Notice was aware was, or may be, or may claim to be an interested party. This was inadequate. The deponent was not the applicant for the Freezing Notice, so at most this was hearsay.
However, in all of the circumstances, I am willing to infer that there were no other persons who ought to have been served. I note that, if the Land was not confiscated by the operation of s 7, it would have been confiscated at the time of the drug trafficker declaration.
The defendant filed a statutory declaration. It did not identify any other persons who may have been interested parties. The O'Connor Affidavit implies that the only statutory declaration filed was the defendant's. Again, this was inadequate. This was something that could and should have been made explicit.
However, again, I am willing to infer this in the particular circumstances. Again, it is of no practical effect.
Drawing those inferences, the service cut off date was 20 November 2019.
No objection was filed on or before the 28th day after the service cut off date (or indeed at any time).
A copy of the Freezing Notice was filed with the court as required by s 36 of the Confiscation Act on 13 November 2019.
On 21 April 2020, the defendant was convicted of cultivating cannabis (34 plants) with intent to sell or supply it to another, contrary to s 7(1)(a) of the Misuse of Drugs Act 1981 (WA). This offence is punishable by imprisonment for more than 2 years.[24] It is therefore a 'confiscation offence'. The offence was committed in 2019, after the commencement of the Confiscation Act.[25] On the same day, as a result of this conviction, the defendant was declared to be a drug trafficker under s 32A of the Misuse of Drugs Act.
[24] Section 34(2) of the Misuse of Drugs Act.
[25] The Confiscation Act commenced on 1 January 2001.
Conclusion on section 7
The Freezing Notice was issued on the Land on the basis that there were reasonable grounds for suspecting that the Land was crime‑used.
The DPP satisfied its service and notice obligations under s 36 of the Confiscation Act.
An objection to the confiscation of the Land was not filed on or before the 28th day after the service cut off date. It follows that the Land has been confiscated.
Conclusion on section 8
As shown in the discussion of the evidence, each of the four matters required to be proved under s 8 have been proved. The defendant was declared to be a drug trafficker as a result of being convicted of a 'confiscation offence'. The offence was committed after the commencement of the Confiscation Act. At the time the drug trafficker declaration was made, the Shares were owned or effectively controlled by the defendant.
It follows that the Shares have been confiscated.
Declaration must be made
As noted earlier, 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. I am therefore required to declare that the Property has been confiscated.
Orders
I will make orders in terms of paragraphs 1 and 2 of the DPP's minute of proposed orders filed 25 February 2021.
I certify that the preceding paragraphs comprise the reasons for decision of the Supreme Court of Western Australia.
KJ
Associate to the Honourable Justice Archer
6 MAY 2021
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