Director of Public Prosecutions (WA) v White

[2009] WASC 62

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

IN CHAMBERS

CITATION:   DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA -v- WHITE [2009] WASC 62

CORAM:   JENKINS J

HEARD:   29 JANUARY 2009

DELIVERED          :   19 MARCH 2009

FILE NO/S:   CIV 1442 of 2002

CIV 1534 of 2002
Consolidated by Order dated 23 September 2008

MATTER                :Section 57 of the Criminal Property Confiscation Act 2000

Section 41 of the Criminal Property Confiscation Act 2000

BETWEEN:   DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA

Applicant

AND

GARY ERNEST WHITE
Respondent

AND

GARY ERNEST WHITE
Objector

AND

THE STATE OF WESTERN AUSTRALIA
Respondent to the Objector

Catchwords:

Criminal law - Criminal property confiscation - Crime-used property substitution declaration

Legislation:

Crimes (Confiscation of Profits) Act 1985 (NSW)
Crimes (Confiscation of Profits) Act 1988 (WA), s 10(1)(a)
Criminal Property (Consequential Provisions) Act 2000 (WA)
Criminal Property Confiscation Act 2000 (WA), s 21, s 22, s 23, s 102, s 106, s 107, s 142, s 146, s 147
Interpretation Act 1984 (WA), s 18

Result:

Application dismissed

Category:    B

Representation:

Counsel:

Applicant:     Mr M J Hawkins

Respondent:     Mr S A Shirrefs SC

Objector:     Mr S A Shirrefs SC

Respondent to the Objector  :     Mr M J Hawkins

Solicitors:

Applicant:     Director of Public Prosecutions (WA)

Respondent:     Holborn Lenhoff Massey

Objector:     Holborn Lenhoff Massey

Respondent to the Objector  :     Director of Public Prosecutions (WA)

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

Al‑Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562

CTM v The Queen [2008] HCA 25; [2008] 82 ALJR 978

DPP (Cth) v Jeffery (1992) 58 A Crim R 310

DPP v Milienou (1991) 22 NSWLR 489

Jeffery v The Director of Public Prosecutions (Cth) (1995) 79 A Crim R 514

Mansfield v Director of Public Prosecutions for Western Australia [2005] WASCA 79

Mansfield v Director of Public Prosecutions for Western Australia [2006] HCA 38; (2006) 226 CLR 486

Plaintiff s157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476

R v Hadad (1989) 16 NSWLR 476

R v Ward [1989] 1 Qd R 194

Rintel v The Queen (1991) 3 WAR 527

Saraswati v The Queen [1991] HCA 21; (1991) 172 CLR 1

1. JENKINS J:  This is an application by the Director of Public Prosecutions for Western Australia (applicant) for a declaration, pursuant to the Criminal Property Confiscation Act 2000 (WA) (the Act) s 22(1), that property owned by Gary Ernest White (respondent) is available for confiscation under the Act instead of crime‑used property. The applicant also applies for an assessment of the value of the alleged crime‑used property and for the assessed value of the crime‑used property to be specified in the declaration.

2. The application arises from the respondent's conviction for the offence of the wilful murder of Anthony David Tapley (Tapley).  The prosecution alleged that at the relevant time the respondent leased a property known as 12 Jade Street, Maddington from Gebauer Nominees Pty Ltd.  The property is formally described as Lot 22 on Diagram 79716 and being all of the land contained in Certificate of Title Volume 1909 Folio 208.  Although the property is known as 12 Jade Street its correct street address is 10 Jade Street and I will refer to it as 10 Jade Street or as the property.

3. On the property there was a residential dwelling and a large shed.  The property was enclosed with a six foot high cyclone fence and two double cyclone metal gates, which were at the front of the property.  The fence and the gates had three strands of barbed wire at the top of them.  The gates were secured by two interlocking padlocks.

4. The respondent and Tapley were known to each other and Tapley owed the respondent money.  Tapley went to 10 Jade Street and a conversation occurred between the respondent and Tapley about the money.  During the conversation the respondent shot Tapley a number of times within the boundaries of 10 Jade Street.  In an effort to escape, Tapley climbed the gates and then fell to the ground, outside of the property.  The respondent opened the gates and shot Tapley at close range.  Tapley died almost immediately after the last shot.  The respondent later incinerated Tapley's remains at a property in Northam.

5. In early April 2002 the police applied for and obtained an ex parte freezing order in respect to the respondent's property, including a bank account held in his name at the Challenge Bank.  The account currently has an approximate balance of $135,000.

6. The applicant contends that 10 Jade Street is crime‑used property, pursuant to the Act s 146, that the respondent made criminal use of the property and that, as the property is not available for confiscation because the respondent does not own and does not have effective control over the property, it is entitled to a declaration that property owned by the respondent, namely the Challenge Bank account balance, is available for confiscation instead of 10 Jade Street. The respondent disputes that 10 Jade Street is crime‑used property.

Statutory provisions

1. The statutory regime which applies to this application is complex.

2. The starting point is the Act s 21 which states that the DPP may apply to the court for a crime‑used property substitution declaration against a person (CPSD).

3. Section 22 provides that on hearing such an application the court must declare that property owned by the respondent to the application is available for confiscation instead of crime‑used property if:

   (a)the crime‑used property is not available for confiscation as mentioned in subsection (2); and

   (b)it is more likely than not that the respondent made criminal use of the crime‑used property.

4. The respondent concedes that if the criteria in s 22 are satisfied the court has no discretion in respect to the making of a declaration; that is, the court must make the declaration.

5. In respect to the first criterion, s 22(2) provides, in part, that crime‑used property is not available for confiscation if 'the respondent does not own, and does not have effective control of, the property'. The parties are in agreement that both these matters are satisfied and, thus, the property is not available for confiscation.

6. In relation to the second criterion, the Act s 147 states:

   For the purposes of this Act, a person makes criminal use of property if the person, alone or with anyone else (who need not be identified) uses or intends to use the property in a way that brings the property within the definition of crime‑used property.

7. From a reading of the above provisions, before a CPSD can be made there must be a particular property that is crime‑used property. The Act s 146(1) defines crime‑used property in the following terms:

   (1)For the purposes of this Act, property is crime‑used if - 

   (a)the property is or was used, or intended for use, directly or indirectly, in or in connection with the commission of a confiscation offence, or in or in connection with facilitating the commission of a confiscation offence;

   …

   (c)any act or omission was done, omitted to be done or facilitated in or on the property in connection with the commission of a confiscation offence.

   (2)Without limiting subsection (1), property described in that subsection is crime‑used whether or not ‑ 

   (a)the property is also used, or intended or able to be used, for another purpose;

   (b)anyone who used or intended to use the property as mentioned in subsection (1) has been identified;

   (c)anyone who did or omitted to do anything that constitutes all or part of the relevant confiscation offence has been identified; or

   (d)anybody has been charged with or convicted of the relevant confiscation offence.

   (3)Without limiting subsection (1) or (2), any property in or on which an offence under Chapter XXII or XXXI of The Criminal Code is committed is crime‑used property.

8. Thus, the issues in this case are whether:

   1.The property is crime‑used property; and

   2.If so, whether it is more likely than not that the respondent used the property in a way that brought the property within the definition of crime‑used property?

9. If both these issues are answered in the affirmative then other issues arise as to the contents of the CPSD. Section 22(6) provides that when making a declaration the court is to assess the value of the crime‑used property and specify the assessed value of the crime‑used property in the declaration. Section 23 of the Act sets out how the value of the crime‑used property is to be assessed.

10. The parties addressed almost all their submissions to the issue as to whether the property is crime‑used property.  As will become clear, I do not accept that the resolution of that issue, necessarily, determines the outcome of the application.

11. There are a number of related procedural and ancillary provisions that apply to the application.  I will refer to these, as is necessary, throughout these reasons.

The facts

1. It is not in dispute that on 5 May 2003 the applicant signed an indictment which alleged that on or about 19 August 2001 at Maddington the respondent wilfully murdered Tapley.  The respondent pleaded not guilty to the charge but he was found guilty of wilful murder after a jury trial in May 2003.  The respondent unsuccessfully appealed to the Court of Appeal.  Subsequently, the respondent unsuccessfully sought special leave to appeal the conviction to the High Court.  The respondent continues to maintain that he is innocent.

2. However, the parties are in agreement that by trial and conviction it was established that on 19 August 2001 Tapley was driven to the respondent's leased property at 10 Jade Street by a female friend, Susan Kaye Miller (Miller).  I have previously described the perimeter fencing to that property.  The respondent was not at the property when Tapley arrived but, whilst he was absent, he learnt that Tapley was there.  The respondent then telephoned another person, Sidney John Reid (Reid), and asked him to attend the property and to lock the gates so that no one at the property could leave.  Reid drove to the property and found that the gates were open.  He and another male, with the nickname of Rainbow, who was at the property then locked the gates.

3. The respondent then travelled to the property.  Once there he spoke to Miller.  He directed her to leave and to take with her several other females who were at the premises.

4. Tapley, by this time, had left the residence and had walked towards the back of the property.  The respondent confronted him in the yard of the property and demanded money from him.  Tapley had no money on him.  The respondent then said he was going to make an example of Tapley and withdrew a revolver from the back of his jeans.  He shot Tapley in the shoulder.  Tapley turned and ran through the yard.  The respondent pursued him and fired three more times.  Tapley ran towards the front gates of the property and climbed to the top of them in order to try and escape from the respondent.  The respondent, who was in pursuit, caught up with Tapley as he reached the top of the gates and he then shot him 'straight up' in the buttocks.  Tapley managed to get over the gates and he then fell on to the ground, outside the property.  He was alive, but struggling to breathe.  The respondent then exited the property through the gates, approached Tapley and fired the last of six shots directly into Tapley's head whilst Tapley was lying on the ground just outside the perimeter of the property.  Tapley died very shortly after the last shot.  The respondent then dragged Tapley's body back onto the property and left it in front of a truck for some time, before taking it elsewhere to incinerate.

5. There are two matters of fact in issue between the parties.  The first is whether the gates to the property were locked when the respondent confronted Tapley in the yard.  The second is the respondent's motivation in ordering the gates to be locked.

6. In deciding these, and other disputed issues, I am mindful of the Act s 102 which provides:

   (1)Proceedings on an application under this Act are taken to be civil proceedings for all purposes.

   (2)Except in relation to an offence under this Act - 

   (a)a rule of construction that is applicable only in relation to the criminal law does not apply in the interpretation of this Act;

   (b)the rules of evidence applicable in civil proceedings apply in proceedings under this Act;

   (c)the rules of evidence applicable only in criminal proceedings do not apply in proceedings under this Act; and

   (d)a question of fact to be decided by a court in proceedings on an application under this Act is to be decided on the balance of probabilities.

7. As to the evidence on which I am entitled to make findings of fact, the applicant relies on a number of affidavits.  These are:

   (a)the affidavit of Edwin Russell Phillips sworn 4 July 2007;

   (b)the affidavit of Chad Jeremy Parham sworn 10 August 2007;

   (c)the affidavit of Allan Turner sworn 5 April 2002; and

   (d)the affidavit of Donna Lee Cooper sworn 4 July 2007.

8. The affidavit of Ms Cooper annexes the certificate of the final outcome of the respondent's trial and the trial and sentencing transcripts.

9. The Act s 107 provides that in any proceedings under the Act in relation to property, if a person has been convicted of the 'relevant confiscation offence', the court may have regard to a transcript of the evidence given in any proceedings for the offence, the sentencing transcript and any statement, deposition, exhibit or other material before a court in any proceedings for the offence. The glossary to the Act defines 'relevant confiscation offence' to mean, 'in relation to confiscable property, … the confiscation offence or suspected confiscation offence that is relevant to bringing the property within the scope of this Act'.

10. The Act s 141(1) defines 'confiscation offence' to mean an offence against a law in force in Australia that is punishable by imprisonment for 2 years or more.  Wilful murder is a confiscation offence.

11. Until the hearing of the application the parties proceeded on the basis that the 'relevant confiscation offence' is the wilful murder of Tapley.  It was only late during the hearing of the application and in order to meet a submission made by the respondent, namely, that as the wilful murder of Tapley occurred outside of 10 Jade Street, the property was not used in connection with the offence, that the applicant submitted that the 'relevant confiscation offence' could be an offence connected with the 'shooting activity' at 10 Jade Street with which the respondent had neither been charged nor convicted.  The respondent objects to me determining this application on any other basis than that the 'relevant confiscation offence' is the wilful murder of Tapley.

12. In order to determine whether the applicant can or should be permitted to rely on an offence other than the wilful murder of Tapley it is necessary to have regard to the Act s 106 which states that a finding that particular property is crime‑used and any declaration based on such a finding need not to be based on a finding as to the commission of a particular confiscation offence and may be made whether or not anyone has been charged with or convicted of the relevant confiscation offence.

13. Thus, there is no doubt that I have the power to determine this application on the basis that the 'relevant confiscation offence' is an offence, other than the wilful murder of Tapley.  The question is whether it would be fair to the respondent and in the interests of justice to do so?

14. After giving due consideration to the matter, I have decided that it would not be fair to the respondent or in the interests of justice to hear the application on any basis other than that the 'relevant confiscation offence' is wilful murder.  The three reasons for my decision in this regard are first, that the respondent came to meet an application based on that offence and there would be undoubted prejudice to the respondent if the applicant was now permitted to change the basis of its application; secondly, the applicant has not put forward any reason, other than convenience to it, for not having more broadly framed its application at an earlier point in time; and thirdly, as this application was made in 2002, it is in the interests of justice that it be determined without further delay.  I will now elaborate on each of these reasons.

15. In respect to the first, whilst the application does not nominate wilful murder as the 'relevant confiscation offence' or the confiscation offence for the purpose of s 146, the applicant's written submissions were clearly predicated on it being so. For example, at [21] of the submissions the applicant submits that the evidence establishes that 10 Jade Street was crime‑used property because it was used by the respondent in the commission of the wilful murder of Tapley. Further, the respondent's counsel presented the respondent's case first because the parties agreed that the Act s 22(3) applied. That provision states:

    If the respondent has been convicted of the relevant confiscation offence, it is presumed that the respondent made criminal use of the property unless the respondent establishes the contrary.

16. The respondent's submissions, which were filed in December 2008, were also prepared on the assumption that wilful murder is the only relevant confiscation offence.  The applicant did not disabuse the respondent of this assumption, until the hearing was well underway on 29 January.

17. The rules of procedural fairness require that the respondent know the case he has to meet and have the opportunity to be heard in response to it.  If the applicant were now allowed to alter the basis of its case, the respondent could not be given procedural fairness without an adjournment being granted and there being further delay in the completion of this matter.

18. The second reason is self explanatory.  By the time the respondent filed his submissions the applicant was well aware of the basis for the respondent's objection to the application.  It is too late to leave it to after the respondent has presented oral submissions to amend the applicant's case to respond to the objection.

19. As to the third reason, whilst there was good reason to delay the hearing of the application until after the respondent's application for special leave to appeal to the High Court was refused on 1 September 2006, there has been no explanation for the subsequent delay of almost two and a half years in listing this matter for hearing.  It is now clearly in the interests of justice that the matter be finalised without further delay.

20. Thus, as the respondent has been convicted of the 'relevant confiscation offence', wilful murder, pursuant to s 107, I may have regard to the transcript of evidence given in the trial of the respondent for the wilful murder of Tapley, his sentencing transcript and any statements, exhibits or other material before the trial court.

21. There was an issue at the hearing as to whether, if I permitted the applicant to rely on some uncharged offence, the Act s 109 would permit me to take this material into account. In view of my identification of wilful murder as the relevant confiscation offence and as the confiscation offence for the purpose of s 146, I am not required to determine that issue.

22. I now turn to the first issue of fact between the parties, that is, whether the gates to the property were locked when the respondent confronted Tapley in the yard.

23. The respondent relies upon the evidence of the State's main witness at the trial, Reid, who said, when referring to the period after the respondent had returned to 10 Jade Street and had told the females in attendance to leave, that the females 'all jumped into a car … and Rainbow went and unlocked the gates and they left' (ts 282).

1. There is other evidence to establish that after the females left, the gates were relocked.  For example, (ts 283) Reid said 'I know that Rainbow went up there and relocked the gate … ', when referring to a period after the females had left.  Further, (ts 287) when referring to Tapley climbing over the gates and falling onto the ground outside the property, Reid said '[the respondent] just grabbed his keys; had to unlock the gate, walked out to the gate stood over [Tapley] and shot him straight in the head'.

2. The respondent says that it is significant that Miller made no mention in her testimony that the gates had to be unlocked to allow her car to leave the property after the respondent ordered her to leave.  Miller was not asked and she said nothing in her evidence about the state of the gates on that occasion.

3. The respondent gave evidence at his trial but, other than confirming that the gates were usually locked with double padlocks, he did not say whether the gates were locked after the females left the property.

4. Miller's evidence is not inconsistent with Reid's evidence that the gates were locked prior to the females leaving, that the gates were then opened by Rainbow to allow the females to leave, that Rainbow then relocked the gates and that the gates were locked until the respondent unlocked them so that he could leave the property to shoot Tapley one last time.  These are my findings.

5. The respondent says that even if the gates were locked, as I have found, there is no evidence that the locking of the gates prevented Tapley from leaving in the lead up to the first shooting or that he wanted to leave the property.  As to the first point, I am satisfied that Tapley did not have keys to the gates and that whilst the gates were locked he could not leave the premises without either climbing the gates or fence, as he ultimately did, or obtaining the assistance of some other person who had keys to the gates to unlock them for him.  As to the second point, there is insufficient evidence to determine whether Tapley wished to leave the premises in the lead up to the first shooting.  However, the evidence establishes that after the first shot he fled from the respondent.  He ran behind a trailer and a shed and towards the gates.  It is clear that by the time he ran to the gates and started to climb them that he wished to depart the premises, not surprisingly.

6. As to the respondent's motivation in ordering the gates to be locked prior to the shooting, Scott J, the trial judge, when sentencing the respondent said

   … you had asked [Reid] to come back to your house for the purpose of locking the gates.  I am of the view that you did that because you knew the victim [Tapley] was inside your yard and you wished to speak to him … [i]t is not clear on the evidence what your motivation was (ts 706).

   The respondent says that it cannot be said that there was a finding by Scott J as to the purpose for which the gates were locked other than for the respondent to speak to Tapley.  I find that it is apparent from the orders the respondent gave for the gates to be locked and for no one to be allowed to leave, as well as the circumstances in which he gave the directions, that he wished to detain Tapley within the confines of the property.  Given the events that then transpired and the respondent's conviction for wilful murder, it is also apparent that at some point the respondent formed the intention to kill Tapley.  I find that the locked gates assisted him to commit the offence of wilful murder, although the original reason for locking the gates may not have been to facilitate the commission of wilful murder.  The locked gates prevented Tapley from leaving the premises or the verge on which he ultimately died, prior to the final shot being fired.

The construction of the Act

1. This application turns on the proper construction of the Act, s 22, s 146(1)(a) and (c), and s 147. I have already quoted those provisions. The applicant submits that those statutory provisions should be given a wide meaning. He submits that in order to satisfy the statute it is not necessary to find a substantial, essential or direct connection between 10 Jade Street and the wilful murder of Tapley. Rather, s 146(1)(a), in particular, requires only some connection in fact.

2. The respondent submits that I should not construe the provisions as widely as proposed by the applicant.  He submits that to make the finding sought by the applicant would take the meaning of the statute further than was intended by the legislature.  The respondent relies on the Second Reading Speech of the Criminal Property Confiscation Bill 2000 (WA) Western Australia Parliamentary Debates, Legislative Council, 14 November 2000, 2780 (Mr P Foss, Attorney General) (the Second Reading Speech) to make the latter point.

3. The respondent submits that a finding that 10 Jade Street was 'crime‑used property' would mean that any piece of land on which a confiscation offence was committed would be 'crime‑used property'.  Such a finding would expose the offender to either forfeiture of that property if they owned it or to the making of a CPSD, if they did not.  This is because almost any act constituting the commission of an offence requires some connection with land, if only as something to use to stand on when committing the act.  The respondent submits that to so find would be a 'dangerous' application of the Act.

4. In determining the proper construction of the Act I have had regard to what Cole JA (Handley JA agreeing) said in Jeffery v The Director of Public Prosecutions (Cth) (1995) 79 A Crim R 514 at 517 in respect to the construction of the corresponding NSW Act:

   The Proceeds of Crime Act permits the confiscation of the property of a citizen without compensation if he be convicted of a serious offence.  The appellant correctly submitted that the enjoyment of property is a fundamental right under our legal system and any statutory derogation of it is exceptional:  NSW Crime Commission v Younan (1993) 31 NSWLR 44 at 48; 68 A Crim R 225 at 229. In those circumstances, when construing the provisions of a statute which purports to effect confiscation or derogation from property rights, the following principles of construction are applicable:

   1.An intention to abrogate or curtail fundamental property rights will not be imputed by the courts.  It must be 'clearly manifested by unmistakable and unambiguous language.  General words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear, they will often be ambiguous on the aspect of interference with fundamental rights':  Coco (1994) 179 CLR 427 at 437; 72 A Crim R 32 at 35‑36; Clissold v Perry (1904) 1 CLR 363 at 373.

   2.A legislative intention to take away property without compensation requires expression of that intention with 'irresistible clearness' because it is presumed that the legislature would not 'overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness'.  Accordingly such an intention is not to be ascribed from use of 'general words, simply because they would have that meaning in their widest, or usual, or natural sense, because so to construe those words would be to 'give them a meaning in which they were not really used':  Bropho v Western Australia (1990) 171 CLR 1 at 17‑18.

   3.Any statutory ambiguity should be interpreted so as to respect a person's property rights:  DPP v Saxon (1992) 28 NSWLR 263 at 270; 63 A Crim R 202 at 208‑209; Saffron v DPP (Cth) (1989) 96 FLR 196 at 199. Unless no other interpretation is possible, justice requires that statutes should not be construed so as to enable the confiscation of an individual's property without payment of just compensation. A fortiori where the statute does not provide for any compensation: A‑G v De Keyser's Royal Hotel Ltd [1920] AC 508 at 576.

   4.In construing a penal statute, and confiscation of property without compensation constitutes a penalty, if there are two reasonable interpretations, the more lenient of which will avoid the imposition of the penalty, that more lenient construction must be adopted:  Tuck & Sons v Priester (1887) 19 QBD 629 at 638 per Lord Esher MR.

5. The respondent correctly asserts that these principles of statutory construction, bar the fourth one, apply to my consideration of the construction of the Act. The fourth point does not apply because of the application of the Act s 102(2)(a).

6. In respect to points 1 and 2 above, in Plaintiff s157/2002 v The Commonwealth of Australia [2003] HCA 2; (2003) 211 CLR 476 at 492Gleeson CJ said:

   ...[c]ourts do not impute to the legislature an intention to abrogate or curtail fundamental rights or freedoms unless such an intention is clearly manifested by unmistakable and unambiguous language.  General words will rarely be sufficient for that purpose.  What courts will look for is a clear indication that the legislature has directed its attention to the rights or freedoms in question, and has consciously decided upon abrogation or curtailment.  As Lord Hoffmann recently pointed out in the United Kingdom, for Parliament squarely to confront such an issue may involve a political cost, but in the absence of express language or necessary implication, even the most general words are taken to be 'subject to the basic rights of the individual'.  (Citations omitted)

7. In Al‑Kateb v Godwin [2004] HCA 37; (2004) 219 CLR 562 Gleeson CJ expressed the same view when he said:

   ... In exercising their judicial function, courts seek to give effect to the will of Parliament by declaring the meaning of what Parliament has enacted.  Courts do not impute to the legislature an intention to abrogate or curtail certain human rights or freedoms (of which personal liberty is the most basic) unless such an intention is clearly manifested by unambiguous language, which indicates that the legislature has directed its attention to the rights or freedoms in question, and has consciously decided upon abrogation or curtailment.  That principle has been re‑affirmed by this court in recent cases.  It is not new.  In 1908, in this court, O'Connor J referred to a passage from the fourth edition of Maxwell on Statutes which stated that '[i]t is in the last degree improbable that the legislature would overthrow fundamental principles, infringe rights, or depart from the general system of law, without expressing its intention with irresistible clearness'.

   A statement concerning the improbability that Parliament would abrogate fundamental rights by the use of general or ambiguous words is not a factual prediction, capable of being verified or falsified by a survey of public opinion. In a free society, under the rule of law, it is an expression of a legal value, respected by the courts, and acknowledged by the courts to be respected by Parliament.

   The Chief Justice's comments were affirmed in the joint reasons in CTM v The Queen [2008] HCA 25; [2008] 82 ALJR 978 [7].

8. As to the general principles applicable to the construction of the Act, in Saraswati v The Queen [1991] HCA 21; (1991) 172 CLR 1, 21 McHugh J observed:

   In many cases, the grammatical or literal meaning of a statutory provision will give effect to the purpose of the legislation.  Consequently, it will constitute the 'ordinary meaning' to be applied.  If, however, the literal or grammatical meaning of a provision does not give effect to that purpose, that meaning cannot be regarded as 'the ordinary meaning' and cannot prevail.  It must give way to the construction which will promote the underlying purpose or object of an Act:  Interpretation Act, s 33.

   The Interpretation Act 1984 (WA) s 18 is the equivalent Western Australian provision to s 33 in the New South Wales Interpretation Act.  His Honour referred to another judgment and then continued:

   But where the text of a legislative provision is grammatically capable of only one meaning and neither the context nor any purpose of the Act throws any real doubt on that meaning, the grammatical meaning is 'the ordinary meaning' to be applied.  A court cannot depart from 'the ordinary meaning' of a legislative provision simply because that meaning produces anomalies:  cf Cooper Brookes (1981) 147 CLR 297, 305, 320.

9. In respect to the Act in general, in Mansfield v Director of Public Prosecutions for Western Australia [2006] HCA 38; (2006) 226 CLR 486 the majority of the High Court in their joint reasons said:

   The jurisdiction exercised in this case by the Supreme Court thus was conferred as part of a new statutory scheme having a significant impact upon personal and property rights.

10. When the same case was on appeal to the Western Australian Court of Appeal, Mansfield v Director of Public Prosecutions for Western Australia [2005] WASCA 79, Pullin JA said:

    The Act expressly provides that vested proprietary rights are to be interfered with, but it is the extent of the interference and the conditions under which the interference is to be permitted which arises for consideration in this case [60].

    The same can be said of the issues under consideration in this case.

11. I now turn to consider the meaning of the Act s 146(1). The parties are in agreement that only s (1)(a) and s (1)(c) are directly relevant, given the facts of this case. Due to their many variables it is difficult to deconstruct those subsections so as to articulate the tests which must be answered in the affirmative in order for the applicant to succeed. Doing the best I can and using the most applicable and widest words in those subsections, in my view, the statutory tests, put into the context of the facts of this case, are these:

    1.10 Jade Street is crime‑used property if it 'was used, … directly or indirectly, in or in connection with the commission of' the wilful murder of Tapley (s 146(1)(a));

    2.10 Jade Street is crime‑used property if it 'was used, … directly or indirectly, … in or in connection with facilitating the commission of' the wilful murder of Tapley (s 146(1)(a)); or

    3.10 Jade Street is crime‑used property if 'any act … was done … or facilitated …, on 10 Jade Street' in connection with the commission of the wilful murder of Tapley (s 146(1)(c)).

12. There is no binding authority on the proper construction of these provisions in the Act.  There is, however, a Court of Criminal Appeal decision in respect to the predecessor of the Act.  In Rintel v The Queen (1991) 3 WAR 527 the Court of Criminal Appeal considered the proper interpretation of the Crimes (Confiscation of Profits) Act 1988 (WA) (Confiscation of Profits Act) s 10(1)(a). That Act was repealed by the Criminal Property (Consequential Provisions) Act 2000 (WA) which was enacted at the same time as the Act.

13. The Confiscation of Profits Act s 10(1)(a) provided that property could be ordered by a court to be forfeited to the Crown if the court considered it 'appropriate' and if it was satisfied that the property, the subject of the application, amongst other things, 'was used in or in connection with the commission of the offence'. The latter proposition is, for practical purposes, the first test I articulated under s 146(1)(a) of the Act.

14. In Rintel the court had to decide whether a piece of land had been used in, or in connection with, the commission of offences being different counts of possession of prohibited drugs with intent to sell or supply.  A similar question arose in respect to a motor vehicle.  The facts were that the offender was stopped whilst driving his motor vehicle.  He had a quantity of heroin in his underpants.  He admitted that it was his intention to sell the heroin and that he was carrying it for that purpose.  A search was then carried out at his house, the subject of the confiscation application, and further prohibited drugs, money and sets of drug scales were found concealed in a camera and under a wardrobe in the house.  The offender admitted that the drugs were to be supplied to others at the house.

15. Malcolm CJ said:

    The phrase 'used in, or in connection with, the commission of an offence' connotes a use of a thing which has a relationship with the commission of the offence. The relationship may be direct or indirect depending on whether the thing is used in the commission of the offence or used only in connection with the commission of the offence. Thus, where land is used for the cultivation of a cannabis crop, for example, in my opinion the land is used directly in the commission of the offence of cultivation under s 7(1)(a) of the Misuse of Drugs Act.  Where a motor vehicle is used for the transport of drugs to a proposed purchaser to whom the offender intends to sell the drugs the motor vehicle may be said to be used in or in connection with the commission of the offence depending upon the circumstances.  If the drugs were concealed in the motor vehicle itself, I would consider that the motor vehicle was 'used in' the commission of the offence of possession with intent to sell or supply.  If, however, the drugs were concealed on the person of the offender the relationship between the motor vehicle and the commission of the offence would be indirect.  In such a case it could only be said that the motor vehicle was being used 'in connection with' the commission of the offence.  If the offender was only a passenger in the vehicle and the owner‑driver had no knowledge of the presence of the drugs which were concealed on the person of the offender, there would be no apparent connection between the motor vehicle and the commission of the offence.

    In the present case, the use of the house as the place to store, prepare and sell or supply the drugs represented a state of affairs which, in my opinion, constituted a use of the house for those purposes.  The house was 'used' by the respondent for those purposes in the ordinary meaning of the word 'used'.  The ordinary meaning of the verb 'to use' is 'to employ for a purpose' and the ordinary meaning of 'use' is 'utilization or employment for or with some aim or purpose':  see The Shorter Oxford English Dictionary (at p 2325).  In the context of town planning law the 'use' of land is a well‑developed concept.  Land is zoned for particular purposes for uses such as residential use, commercial use, retail shopping, industrial use, etc.  Thus, land which is zoned for residential use may only be used for residential purposes.

    In the present case the learned judge had no difficulty in concluding that the offences of possession with intent to sell or supply committed by the respondent involved a use of the land for storing the drugs, preparing them for sale or supply and for their actual sale or supply to others.  In doing so, he applied what he considered to be the ordinary grammatical meaning of the words used in the statute.  In my opinion he was entirely correct.  Each of the activities to which he referred involved a use of the land.  The use of the land for residential purposes involves its use for a variety of purposes including shelter, eating, sleeping, storage of goods and chattels and recreation.  In this context having a bath involves not only the use of the bath but also the bathroom and is a part of the use of the land for residential purposes.  In my opinion, the respondent's land was 'used' by him 'in connection with' both of the offences of possession with intent to sell or supply within the meaning of s 10(1) of the Confiscation of Profits Act 529 ‑ 530.

16. I digress to note that the Chief Justice's distinction between property used in the commission of an offence as connoting a direct use of the property and property used in connection with the commission of an offence as connoting an indirect use must now be doubted given the provisions of the Act. This is because the Act s 146(1)(a) makes a distinction between direct use, indirect use and use in connection with the commission of an offence. Thus, it is not possible for me to find that the Parliament intended that indirect use was the same as use in connection with an offence, for the purposes of the Act.

1. The Chief Justice then compared the conflicting authorities from Queensland and New South Wales on the proper interpretation of the phrase 'used in or in connection with, the commission of an offence'.  His Honour referred to R v Ward [1989] 1 Qd R 194 in which two members of the Court of Criminal Appeal of Queensland expressed the view that it was necessary to find a 'substantial' connection. His Honour also considered R v Hadad (1989) 16 NSWLR 476 in which McInerney J (with whom the other members of the court agreed) said:

   … the intention of the legislature is that a wide scope should be given to the concept of tainted property.  I do not accept that the legislature intended the courts to construe the section by requiring a substantial connection between the commission of the crime and the alleged tainted property.

2. The Chief Justice agreed with the view of McInerney J.  He then continued:

   In my opinion the significance or degree of the connection between the thing used and the commission of an offence forms no part of the characteristics of the subject matter for the purpose of determining whether it falls within the scope of s 10(1).  So long as there is a connection in fact it is not appropriate to add a requirement that the connection be 'substantial' or 'real' to the words in s 10(1) which otherwise have a plain unqualified meaning.  The degree of the connection in the sense of its significance or extent is relevant only to the exercise of the discretion to forfeit or not.

3. The Chief Justice concluded that the land was used in connection with the commission of the offences and it was unnecessary to consider whether it was also used in the commission of the offences.  After considering the exercise of the trial judge's discretion, the Chief Justice determined that the learned judge had not been shown to have fallen into error in declining to exercise his discretion to make a forfeiture order in respect to the land.

4. The Chief Justice also found that the trial judge was correct to conclude that the motor vehicle had been used in the commission of an offence in that it had been used on more than one occasion to transport drugs to be sold or supplied by the offender.  However, his Honour found that the trial judge had erred in exercising his discretion not to order forfeiture of the car.

5. Pidgeon J, who was also in the majority in regards to the construction of s 10(1), said:

   I agree with the conclusion that the words in s 10(1)(a) should have their ordinary grammatical meaning. There is no warrant to import the adjective 'substantial' to modify them. I would, however, see some limitation in the meaning of the verb 'to use' when it is used in the context of land. The most concise definitions are, I feel, contained in the Macquarie Dictionary inasmuch as they do not contain the word to be defined.  The definitions are 'to employ for some purpose'; 'to put into service' 'to avail oneself of' and 'to apply to one's own purposes'.  I would consider that in some contexts in ordinary speech the lesser is capable of excluding the greater.  If one is having a bath, then the bath itself is being used for that purpose.  Ordinary speech would indicate that the bathroom is also being used for the same purpose.  That is the use for which it is set aside and it is also used for the purpose of drying.  However, I do not consider that it would normally be said, in ordinary speech, that the land on which the bathroom is situate is being used for the purpose of having a bath.  If, therefore, the scales are used in a room for weighing, the scales are being used but I do not consider it could be said, if that was the only operation, that the land was being used.  One of the factors to consider is that the act of weighing can be performed anywhere and does not need any particular place.  If it could be said that the land is also being used, then it would follow that land must be used in respect of every act performed by mankind, unless the act was performed at sea or in the air.  If a vehicle is being used then the land over which it travels would also be used.  I consider the word would have a wider meaning in the context of Town Planning Legislation.  There land is classified by its use and one in that context would look to the land itself to see what activity is being carried out on it.  The intent of those statutes is to regulate the use of land to prevent an inappropriate use in a particular environment.  In that context the lesser would not exclude the greater.  In the present case a statute is being interpreted where the result is forfeiture, in some instances, by way of further punishment.  In my view it would be going beyond the intent of the legislation to adopt an interpretation that would result in a liability to forfeiture every time an activity is carried out on that land when in ordinary speech it would not be regarded as being so carried out.  The position can be contrasted if it was shown that the land or house was used in a way equivalent to a warehouse or possibly if the house was used as a 'safe house'.  Cultivation would be a clear use of the land.  The mere presence of the drug on the land would not, in my view, be sufficient to regard the land as being 'used'.

6. His Honour concluded that the fact that drugs and money were found in the house on the land did not mean that in the ordinary sense of the word that the land was being used in or in connection with the offence.  Consequently, he did not consider that there was jurisdiction to consider forfeiting the land.

7. His Honour felt that, applying the principles in Hadad's case, the facts must lead to the conclusion that the car was so used.  His Honour was further of the view that the failure to order forfeiture of the vehicle would be, on the face of it, contrary to the policy and intention of the Confiscation of Profits Act.  He consequently allowed the appeal so far as it related to the failure of the trial judge to order forfeiture of the motor vehicle.

8. Thus, Malcolm CJ and Pidgeon J agreed that there was no warrant to read in the words 'substantial' or 'real' into s 10(1).  However, the judges were at odds in the application of the section so far as the land was concerned.  By way of a passing comment, Malcolm CJ considered that having a bath in a house on a property involved not only the use of the bath but also use of the bathroom and use of the land on which the house stood.  The Chief Justice was further of the view that the facts in Rintel disclosed that the land was being used for the purposes of s 10(1).  Pidgeon J, on the other hand, considered that in having a bath the land on which the bath was situated would not, in ordinary speech, be said to being used for the purpose of having a bath.  Further, his Honour did not consider that the mere presence of the drug on the land was sufficient to regard the land as being used for the purposes of s 10(1).

9. The third judge in Rintel, Wallace J, was in agreement with the comments of Carter J in Ward when his Honour quoted what he had said in a prior decision:

   If a person, unlawfully possessing cannabis for his own use, has it in his trousers' pocket, are his trousers being 'used in connection with' the commission of the offence and, if so, liable to forfeiture?  Is that what the legislature clearly intended?  In my view it did not.  The gravamen of the offence consists in the mere possession of the substance and it seems to me that the place where the possession is had is wholly irrelevant to the commission of the offence.  One must look, as Adam J suggests, for a substantial connection between the use of the property and the commission of the offence ‑ not a mere accidental or incidental connection with the commission of that offence.  There must therefore be in a very real sense a substantial connection between the use of the property and the actual commission of the offence in the sense that the commission of the offence is related to or is dependent upon or could not have been committed without or resulted directly from the use of the property.  I do not intend that attempted definition of the necessary connection to be exhaustive but I use it merely to indicate what to my mind must be the nature of the connection between the property and the offence (199).

10. Wallace J found that neither the land nor the motor vehicle was used in or in connection with the commission of the offences.

11. Given that the only difference between the wording in the phrase construed in Rintel and the wording in the Act s 146(1)(a) is the addition of words in s 146(1)(a) to broaden the circumstances in which property is brought into the purview of the Act, I ought to similarly find that there is no warrant for requiring that the use of property, the subject of an application under the Act, must have a real or substantial connection with the commission of the confiscation offence.

12. The respondent submits that the majority view in Rintel ought not be applied in light of the fact that the Confiscation of Profits Act provided the court with a discretion as to whether property used in or in connection with an offence ought to be confiscated, whereas the Act does not.  He submits that the view of the majority in Rintel may have been different, if there had been no discretion in that case.

13. This submission may have had merit if Rintel had not been decided prior to the enactment of the Act.  The Western Australian Parliament, to which I impute knowledge of the decision in Rintel, enacted the Act s 146(1)(a) which not only did not provide for the said discretion but also broadened the criteria on which property, broadly speaking, could be found to be crime-used and, thus, be liable to be forfeited or be the basis for the making of a CPSD. It is logical to assume from these facts that if Parliament disagreed with the majority view in Rintel and had intended to narrow the construction of the phrase 'used in, or in connection with the commission of the offence' to that preferred by Wallace J it would have expressly done so by inserting the word 'substantial' or a similar word into s 146 so as to describe the required nature of the connection between the use of the property and the commission of the offence.

14. The respondent next submits that the Second Reading Speech makes it clear that s 146 was never intended to capture property used in the circumstances of the respondent's case and thus words must be read into it or its general words given a more specific meaning.

15. The Hon Minister in the Second Reading Speech spoke, in broad terms, about the Bill being 'a new weapon in the fight against criminal activity' and the Confiscation of Profits Act, which it replaced, as having 'not been as successful as was contemplated'. He did not specifically address s 146. However, he did specifically address the new provisions relating to CPSDs and described the provisions as providing that a person who used property which is not available for confiscation would be liable to pay the State the value of that property. That statement was not apparently designed to and does not assist me in determining what the Act means when it speaks of property that was 'used in or in connection with the commission of a confiscation offence'. It is true that the examples given in the Second Reading Speech, being stealing a car to use in a robbery, renting a car for use in a crime and leasing a house to manufacture drugs, do not equate with the facts of this case. But it would be drawing too long a bow to suggest, as the respondent appears to, that the Hon Minister by giving these examples was articulating the meaning of s 22 or s 146, defining their limits or giving a comprehensive list of factual situations which fall within them.

16. In summary, I find that the Second Reading Speech is of little assistance in resolving the construction issues in s 22 or s 146.

17. Next I turn to consider the ordinary grammatical meaning of some of the terms used in s 146. As Pidgeon J observed in Rintel the Macquarie Dictionary definition of 'used' is the most helpful.  It is 'to employ for some purpose; put into service; and turn to account'.

18. It is apparent from this definition that in order to use property, whether it be a chattel or real property, a person must act in a positive and deliberate way in order to involve the property.  I am inclined to the view that at least in the context of the Act, that the definition would exclude unintended use of property.  Even if I am wrong in this regard, having regard to the nature of the Act and the relevant principles of statutory interpretation it would be unjust to render a person liable to have their property forfeited to the State because of an unintended use.  I assume therefore that Parliament did not intend that to be the case.  Such a view is not inconsistent with the majority view in Rintel.

19. Secondly, it is also clear that in order to use property it is unnecessary that the property be acquired or that it come into the possession of the relevant user for the relevant unlawful purpose .

20. Thirdly, in order to use property it is unnecessary that the user form a prior intention to use the property in or in connection with the commission of a confiscation offence, as long as the property is ultimately employed, put to service or turned to account by the user in such a manner.

21. I am aware of the authorities such as Ward and DPP (Cth) v Jeffery (1992) 58 A Crim R 310 in which judges in other jurisdictions have said that the phrase 'used … in connection with' in similar legislation in those states does not include accidental or incidental use of property in the commission of an offence. Whilst I understand and agree with the reasons for excluding accidental use if this term is to be equated with unintended use, I do not agree with the exclusion of incidental use.

22. Before one can even consider whether incidental use is excluded, it is necessary to understand what is incidental use.  Neither of the cases I have cited explain this except to say that the unlawful activity 'must be related to, or dependant upon, or could not have been committed without, or have resulted directly from the use of the property:  Ward 199 - 200; Jeffery 315 ‑ 317.

23. The dictionary definition of incidental would tend to suggest that an incidental use would be one that occurred fortuitously or in subordinate conjunction with another act. As long as property is used, as in employed, in or in connection with the commission of an offence, then it would not seem to matter that the use was subordinate to other acts constituting the commission of the offence. In every day speech if it is said that an item was used in the commission of an offence, it would not be inferred that the commission of the offence was dependent upon, could not have been committed without or resulted directly from the use of the item. Further, the legislature has expressly disavowed any distinction between direct or indirect use by stating that both are included in s 146(1)(a).

24. It is appropriate that in this context I comment on Malcolm CJ's and Pidgeon J's views as to whether the use of a bath in a house would constitute use of the house. I generally agree with Pidgeon J's view for the reasons he gives. However, I do not think that it is appropriate to use that analogy to justify a view that if an item, even a fixture, in a house is used in or in connection with the commission of an offence that for the purposes of s 146(1)(a) that, it could never be said that the house and the land on which it is situated were also used in or in connection with the commission of the offence. All the facts of the case would have to be considered in order to determine whether they were used in or connection with the commission of the offence. At the most, I consider that it does not follow from the fact that an item in a house was used in or in connection with the commission of an offence that the house and associated land were also so used.

25. Next I turn to particularly consider what the phrase 'in connection with' means in the context of s146(1). The Macquarie Dictionary contains a number of definitions of connection. None of them appear to be entirely applicable. 'In connection with the commission of an offence' seems to connote a state of being linked, joined, fastened, united or attached to the commission of the offence. It would seem that all property that was used in the commission of an offence would also have been used in connection with it. However, there may be some circumstances in which property which was not used in the commission of an offence might have been used in connection with it. For example, some use of property which was preparatory to the commission of an offence might still be said to have resulted in the property being used in connection with the commission of the offence, but not in it.

26. In this context I refer to DPP v Milienou (1991) 22 NSWLR 489 in which Lee CJ at CL construed the Crimes (Confiscation of Profits) Act 1985 (NSW). His Honour said:

    I am of the opinion that the words 'in, or in connection with, the commission of a serious offence' relates to the use of the property under consideration temporally to the period over which the happenings and events constituting the commission of the crime occurred.  That period will not be restricted to the actual moments in which the crime, in law, was committed and it will be a question of fact in every case whether the user of the property had the necessary contemporaneous association with 'the commission of the crime'.

27. With respect, there is nothing explicit in the ordinary meaning of 'in connection with' which connotes a temporal connection with the acts constituting the offence.  For a use of property to be in connection with the commission of an offence there must be a nexus, attachment or link to connect the use with the commission of the offence but I see no reason to require a connection in time between the use of the property and the commission of the crime.  For example, the manufacture of an ingredient to make a prohibited drug may occur some time prior to the manufacture of the drug itself but the separation in time would not automatically prevent a finding that the property on which the ingredient had been made had not been used in connection with the commission of the offence of manufacture a prohibited drug.  Although, in practice, the further the distance in time between the use of the property and the commission of the offence the more likely it is that a finding would be made that, in ordinary useage, the property had not been used in connection with the commission of an offence.

28. Next I turn to consider what it means to use property in connection with facilitating the commission of an offence.  Without referring to any dictionary definitions to assist in determining the meaning of facilitating, it is apparent that using property in connection with facilitating the commission of an offence is a wider concept than using property in connection with the commission of an offence.  The Macquarie Dictionary defines facilitate as 'to make easier or less difficult; help forward'.  Thus, using property in connection with facilitating the commission of an offence means to employ property in a manner that is connected to making the commission of the relevant confiscation offence easier or less difficult.

29. It strains the usual meaning of the words in s 146(1)(a) to speak of property being used in connection with making it easier to commit an offence but it appears that that is what Parliament intended.

30. In respect to s 146(1)(c) it appears that it widens again the circumstances in which property is crime‑used. That is, property is crime‑used under this subsection if an act was done on the property which was in connection with the commission of the relevant confiscation offence.

31. Section 146(1)(c) avoids the requirement in s 146(1)(a) for there to be use of the property. Clearly, requiring there to be proof of actual use of the property, as in s 146(1)(a), is a harder test to satisfy than simply requiring proof of an act done on the property. This is so even if the act done on the property must be the respondent's intentional act.

1. The respondent submits that I should not interpret s 146(1)(c) so broadly, in part, because of the specific provision in s 146(3), which I have already quoted.

2. He submits that if s 146(1)(c) means what it literally says, then there was no need for the legislature to insert s 146(3). Apart from the possibility that s 146(3) may have been inserted for the purposes of adding clarity and resolving doubt, the submission has some force. However, the respondent did not articulate for me what words should be read into s 146(1)(c) or how its words of general description should be read down so as to draw a distinction between s 146(1)(c) and s 146(3) without at the same time breaching the prohibition, in s 146(3), against limiting s 146(1). It also appears to me that by using the term 'any act' in s 146(3) Parliament has deliberately indicated that the nature of the act is not to be narrowly construed.

3. Consequently, I am of the opinion that the words used in s 146(3) should be given their ordinary meanings. However, the term 'any act', like the use of property in s 146(1)(a) must be a deliberate act.

Is 10 Jade Street crime‑used property?

1. Without deciding the issue at this point, it is doubtful that 10 Jade Street was used in or in connection with the commission of the offence of the wilful murder of Tapley for the following reasons:

   1.The wilful murder, being the last shot fired by the respondent, occurred outside the perimeter of 10 Jade Street;

   2.The only parts of 10 Jade Street that could be said to have been employed in or in connection with the commission of the offence of wilful murder were the fence and gates;

   3.It is straining ordinary speech to say that because the fence and gates were used in connection with the offence that 10 Jade Street was also used; and

   4.The mere fact that the fence and locked gates assisted the respondent to commit the offence of wilful murder does not mean that the respondent used the property in or in connection with the commission of the offence.

2. The same points can be made in respect to whether the property was used, directly or indirectly in or in connection with facilitating the commission of the wilful murder of Tapley.

3. However, it is clear in my opinion that 10 Jade Street is crime‑used property as defined in s 146(1)(c). This is because Tapley was shot by the respondent whilst he was on 10 Jade Street and those acts of the respondent were in connection with the ultimate fatal shot which was discharged with an intent to kill. Even putting the earlier shots to one side, the respondent's penultimate shot, fired whilst he was standing on 10 Jade Street, had a clear nexus to the fatal shot fired with an intent to kill.

4. But I am of the view that the discharge of all of the shots on 10 Jade Street were in connection with the wilful murder of Tapley because it is apparent that they were part of a series of shots leading up to and connected to the fatal shot.  Even on the view of the facts most favourable to the respondent, that is that it was only the final shot which fatally wounded Tapley and which was discharged with an intent to kill, it remains the case that the six shots were connected to each other and with the fatal shot.  Ways in which it could be said that the shots discharged on 10 Jade Street were in connection with the fatal shot constituting wilful murder include:

   1.The same gun, the same victim and the same offender were involved;

   2.All the shots were fired by the respondent at the victim in quick succession as the victim fled from the respondent; and

   3.The non‑fatal shots which were discharged on 10 Jade Street disabled Tapley and prevented him from avoiding being fatally wounded.

5. For these reasons I find that 10 Jade Street is crime‑used property.

Did the respondent use 10 Jade Street in a way that brought it within the definition of crime‑used property?

1. Where, as in this case, the respondent has been convicted of the relevant confiscation offence, it is presumed that he made criminal use of the property unless he establishes the contrary: s 22(3). The Act s 147 then specifies when a person has made criminal use of crime‑used property.

2. I have found s 147 difficult to construe. That is, it is not clear how it applies where, as in this case, the property has been brought within the definition of crime‑used property because of acts done on the property in connection with the commission of a confiscation offence, rather than because it was used in or in connection with the commission of a confiscation offence. Where a finding has been made under s 146(1)(a) or s 146(1)(b) and it was the respondent who so used the property then s 147 will clearly be satisfied. However, different issues arise where property is found to be crime‑used because s 146(1)(c) or s 146(3) has been satisfied.

3. Did the legislature intend the word 'uses' in s 147 to be read as meaning, in effect, crime‑uses? That is, did it intend 'uses' to encompass all of the extended criteria for crime‑used property in s 146? The obvious response to such an assertion is that if Parliament had intended that 'uses' in s 147 should have such an extended meaning then surely it would have expressly defined the term in that way, as it did in s 146. Alternatively, s 147 could have stated that a person makes criminal use of property if the person does an act on the property so as to bring the property within the definition of crime‑used property.

4. Alternatively, did the Parliament intend 'uses' to have its ordinary grammatical meaning? If so, if the criteria in s 146(1)(a) or (b) are not met, it could not be said that the respondent used the property for the purpose of s 147. This would be so even though the onus is on the respondent to prove that he did not make criminal use of the property.

5. As I have said, I have found this issue difficult to resolve. I have decided that, given the principles of statutory construction I referred to earlier, I must resolve this issue in favour of the respondent. To do otherwise would be to permit the general words in s 147 to abrogate the respondent's property rights. In other words, it cannot be said that Parliament by choosing to employ the word 'uses' has clearly manifested, by unmistakable and unambiguous language, an intention to interfere with a person's property rights if that person has not used property in a way that brings the relevant property within the definition of crime‑used property, but has rather done an act on the property in connection with the commission of a confiscation offence so as to bring the property within the definition of crime‑used property.

6. The only remaining issue is to finally determine whether the respondent used, in the ordinary grammatical sense of that word, 10 Jade Street in a way that brought the property within the definition of crime‑used property?

7. As I have said earlier in these reasons, there is room for differing views as to whether 10 Jade Street was used by the respondent in this sense. It is important to make this determination in the context of the purpose of the Act as well as its potentially draconian affect on the property rights of the respondent. In my view, the question looked at in this context admits of only one answer. That is, that the respondent did not use 10 Jade Street in a way that brought the property within the definition of crime‑used property. In support of this conclusion I refer back to the four reasons that I gave when considering whether 10 Jade Street was crime‑used property, pursuant to s 146(1)(a). It is significant that there is insufficient evidence to prove that the respondent ordered the gates to be locked in order to facilitate the commission of the wilful murder of Tapley or to use them in any other way in connection with the commission of the wilful murder. Despite this, given the wide definition of use in s 146, the respondent did use the fence and gates in a way that would render them crime‑used property. However, this does not mean that the property was used by the respondent in a way that brought it within the definition of crime‑used property.

8. In my view it is an illegitimate straining of the meaning of the word 'uses' to say that because the respondent 'uses' the fence and the gates in a minor way in order to assist him to commit the offence of wilful murder that the respondent also 'uses' the property on which the fence and gates were standing. Thus, I am not satisfied that s 147 has been made out. Consequently, I am not satisfied, for the purposes of s 22(1)(b) that it is more likely than not that the respondent made criminal use of the crime‑used property and I decline to make the CPSD sought by the applicant.

9. Although it is unnecessary for me to do so, I note that the Act s 22(6) provides that when making a declaration the court is to:

   (a)assess the value of the crime‑used property in accordance with section 23; and

   (b)specify the assessed value of the crime‑used property in the declaration.

10. The Act s 23(1) provides that the value of the crime‑used property is the amount equal to the value of the property at the time that the relevant confiscation offence was or is likely to have been committed.

11. The applicant led, without objection, evidence of a 'kerbside assessment of the most probable selling price' of 10 Jade Street, Maddington as at 19 August 2001 prepared by Brad Reed, consultant valuer with Landgate, the Western Australian Land Information Authority. The respondent did not dispute the reliability or accuracy of this assessment. If there had been any objection to it, I may have doubted my ability to rely upon the assessment as Mr Reed did not give an opinion as to the value of 10 Jade Street. Mr Reed determined that the most probable selling price of the subject property was $265,000 (inclusive of GST) as at 19 August 2001 but he did not inspect the property. Therefore, it is doubtful that his evidence amounted to persuasive evidence of the value of 10 Jade Street for the purpose of s 22.

12. In my opinion, where the court is required to value real property for the purpose of s 22, the applicant should adduce evidence from a qualified valuer of the market value of the property at the relevant date, after the valuer has conducted an appropriate inspection of the property.

Conclusion

1. For the above reasons, the application is dismissed.