Ex parte Director of Public Prosecutions (WA)
[2021] WASC 131
•30 APRIL 2021
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: EX PARTE DIRECTOR OF PUBLIC PROSECUTIONS (WA) [2021] WASC 131
CORAM: ARCHER J
HEARD: 18 MARCH 2021
DELIVERED : 18 MARCH 2021
PUBLISHED : 30 APRIL 2021
FILE NO/S: CPCA 37 of 2020
EX PARTE
DIRECTOR OF PUBLIC PROSECUTIONS (WA)
Plaintiff
Catchwords:
Criminal property confiscation – Freezing notice – No objection filed – Application for declaration of confiscation
Legislation:
Criminal Property Confiscation Act 2000 (WA)
Result:
Declaration of confiscation made
Category: B
Representation:
Counsel:
| Plaintiff | : | Mr M Seaman |
Solicitors:
| Plaintiff | : | Director of Public Prosecutions (WA) |
Cases referred to in decision:
Campana v The State of Western Australia [2008] WASC 230
Centurion Trust Company Ltd v The Director of Public Prosecutions (WA) [2010] WASCA 133
First International Merchant Bank Holdings Ltd v The State of Western Australia [No 2] [2020] WASC 395
Ranford v The State of Western Australia [2015] WASC 45
Whittle v The State of Western Australia [2012] WASC 244
ARCHER J:
(This judgment was delivered extemporaneously on 18 March 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 a declaration that particular property 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. For the reasons that follow, the declaration should be made.
Legal framework
Requirements of a freezing notice
Relevantly to this case, a freezing notice for property may be issued if there are reasonable grounds for suspecting that the property is crime‑used or crime-derived.[1]
[1] Section 34(2) of the Criminal Property Confiscation Act 2000 (WA) (Confiscation Act).
Section 36 of the Criminal Property Confiscation Act 2000 (WA) (Confiscation Act) sets out the service, notification and filing requirements of freezing notices.
A freezing notice must be served on any person from whom the property covered by the notice was taken. It must also be served on any other person who, to the knowledge of the applicant for the notice, is, or may be, or claims to be, an interested party.[2]
[2] 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.[3] Section 36(4) requires, in effect, that the freezing notice be served on any such identified interested party.
[3] Section 37 of the Confiscation Act.
The applicant must also file the freezing notice in the court specified in the notice.[4]
[4] 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.[5]
Confiscation under a freezing notice
[5] Section 39(1) of the Confiscation Act.
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.
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).
The 'service cut off date', in relation to property frozen under a freezing notice, is defined as the date of the last day on which a copy of the freezing notice was served on anyone under s 36(4) of the Confiscation Act.[6]
[6] Section 150(a) of the Confiscation Act.
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],[7] 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.
[7] First International Merchant Bank Holdings Ltd v The State of Western Australia [No 2] [2020] WASC 395 [13]‑[22].
Section 7(1) of the Confiscation Act applies to property frozen on crime‑used or crime-derived grounds.[8]
[8] Centurion Trust Company Ltd v The Director of Public Prosecutions (WA) [2010] WASCA 133 (Centurion Trust) [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.
A person receiving a copy of a freezing notice may file an 'objection'[9] 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 was made.
[9] '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.[10]
[10] Centurion Trust [234].
Once property has been confiscated under s 7 (or s 6), a person may apply for the release of such property. 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.[11]
[11] Section 85 of the Confiscation Act.
As the application under s 30 was brought by the DPP, and as the court is required to be satisfied that the property has been confiscated, the DPP bears the onus of proving that the property was confiscated.[12] The DPP must prove it on the balance of probabilities.[13]
[12] Campana v The State of Western Australia [2008] WASC 230[40].
[13] Section 102(2)(d) of the Confiscation Act.
The matters that the DPP must prove under s 7(1) of the Confiscation Act 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.
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.[14]
[14] See Whittle v The State of Western Australia [2012] WASC 244 [36] and [40] and Ranford v The State of Western Australia [2015] WASC 45 [22] (see also [25]).
Evidence
The DPP tendered affidavits of Morgan Paling and Emma Moltran.[15]
[15] Affidavit of Morgan Charlotte Paling filed 15 October 2020 and affidavit of Emma Kate Moltran sworn 17 September 2020.
The evidence proved the following.
On 18 January 2018, a freezing notice WAPFN180006 (the Freezing Notice) was issued under s 34(2) of the Confiscation Act in respect of property suspected on reasonable grounds to be crime-used or crime‑derived.
The property specified in the Freezing Notice was nine amounts of cash.
I will refer to this cash collectively as 'the Property'.
A copy of the Freezing Notice was served on each of those persons who, to the knowledge of the applicant for the Freezing Notice (being Ms Moltran), was, or may have been, or may have claimed to have been, an interested party. The last of them was served on 21 February 2018.
Two of those people filed statutory declarations. Neither of the statutory declarations identified any other persons who may have been interested parties.
Therefore, the service cut off date was 21 February 2018.
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 19 January 2018.
Conclusion
The Freezing Notice was issued on the Property on the basis that there were reasonable grounds for suspecting that the Property was crime-used or crime-derived.
The DPP satisfied its service and notice obligations under s 36 of the Confiscation Act.
An objection to the confiscation of the Property was not filed on or before the 28th day after the service cut off date.
It follows that the Property has been confiscated.
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 paragraph 1 of the DPP's Originating Motion filed 15 October 2020.
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
30 APRIL 2021
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