First International Merchant Bank Holdings Ltd v The State of Western Australia [No 2]
[2020] WASC 395
•23 OCTOBER 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: FIRST INTERNATIONAL MERCHANT BANK HOLDINGS LTD -v- THE STATE OF WESTERN AUSTRALIA [No 2] [2020] WASC 395
CORAM: ARCHER J
HEARD: 23 OCTOBER 2020
DELIVERED : 23 OCTOBER 2020
FILE NO/S: CPCA 46 of 2018
BETWEEN: FIRST INTERNATIONAL MERCHANT BANK HOLDINGS LTD
First Plaintiff
JAMES HONG TEE
Second Plaintiff
AND
THE STATE OF WESTERN AUSTRALIA
Defendant
Catchwords:
Criminal property confiscation - Crime-used property - Application for declaration of confiscation - Service cut off date - Statutory construction
Legislation:
Criminal Property Confiscation Act 2000 (WA), s 150(a)
Result:
Declaration of confiscation made
Category: B
Representation:
Counsel:
| First Plaintiff | : | No appearance |
| Second Plaintiff | : | No appearance |
| Defendant | : | I S Jones |
Solicitors:
| First Plaintiff | : | In person |
| Second Plaintiff | : | In person |
| Defendant | : | Director of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Bennett & Co (A Firm) v The Director of Public Prosecutions for Western Australia [2005] WASCA 141
Campana v The State of Western Australia [2008] WASC 230
Centurion Trust Company Ltd v Director of Public Prosecutions (WA) [2009] WASCA 97
Centurion Trust Company Ltd v Director of Public Prosecutions (WA) [2010] WASCA 133
Commonwealth Bank of Australia v The State of Western Australia [2018] WASC 52
Mohammadi v Bethune [2018] WASCA 98, 6
SAS Trustee Corporation v Miles [2018] HCA 55; (2018) 265 CLR 137
Taylor v Owners - Strata Plan No 11564 [2014] HCA 9; (2014) 253 CLR 531
The Director of Public Prosecutions for Western Australia v Thornley [2014] WASC 440
ARCHER J:
(This decision was delivered extemporaneously and has been edited from the transcript.)
Introduction
In this action, the Director of Public Prosecutions (DPP) seeks a declaration that particular property has been confiscated. For the reasons that follow, the declaration should be made.
Facts
The evidence establishes the following.[1]
[1] Affidavit of Renée Williams affirmed 26 August 2020; Affidavit of Rodney James Wilde sworn 25 August 2020 and Affidavit of Morgan Charlotte Paling affirmed 21 August 2020.
On 12 March 2001, a freezing notice AISFN010008 (Freezing Notice) was issued under s 34(2) of the Criminal Property Confiscation Act 2000 (WA) (Confiscation Act) in respect of property on the basis that there were reasonable grounds to suspect it was crime-derived. The property specified in the Freezing Notice was $247,000. It had been seized from the second plaintiff on 9 March 2001.
The Freezing Notice was served on the second plaintiff on 12 March 2001. In accordance with s 36(6)(a), it was filed in the District Court, the court specified in the Freezing Notice, on 19 March 2001.
The second plaintiff did not provide a statutory declaration identifying any other person who may be an interested party.[2]
[2] See s 37 of the Confiscation Act.
On or about 30 March 2001, the plaintiffs filed identical objections to the Freezing Notice in the Supreme Court and the District Court. The objections were ultimately dismissed, on 22 April 2015 and 13 May 2020 respectively.
No other objection has been filed.
The Freezing Notice has not been cancelled or set aside.
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.
Section 7 applies to property frozen on crime-used or crime‑derived grounds.[3]
[3] Centurion Trust Company Ltd v Director of Public Prosecutions (WA) [2010] WASCA 133 (Centurion Trust 2010) [255] per Buss JA, with whom Owen JA agreed [74]. While Buss JA was dealing with the operation of s 7(1), the same reasoning applies to the rest of s 7.
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.
(2)If an objection to the confiscation of frozen property is filed on or before the 28th day after the service cut off date for the property, the property is confiscated if -
(a)the objection, or each objection if there are more than one, is finally determined; and
(b)where the property is subject to a freezing notice - the freezing notice is not cancelled or set aside; and
(c)where the property is subject to a freezing order - the freezing order is not set aside.
(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 36 of the Confiscation Act relevantly provides:
36.Freezing notices, contents of
(1)As soon as practicable after a freezing notice is issued, the applicant for the notice must arrange for a copy of it to be served personally on each of the following persons -
(a)if the property covered by the notice was taken from a person - that person;
(b)if, at the time that the freezing notice is issued, the applicant is aware of any other person who is, or may be, or claims to be, an interested party - that person.
….
(4) If, as a result of information in a statutory declaration given, in accordance with section 37, by a person who was served with a copy of the freezing notice under subsection (1), the applicant becomes aware that any other person is or may be or claims to be an interested party, then the applicant must arrange for a copy of the notice to be served on the person personally, as soon as practicable.
(5) Nothing in subsection (1) or (4) prevents the applicant from serving a copy of the notice at any time on any other person whom the applicant becomes aware is, or may be or claims to be an interested party, but the service cut off date for the property is not affected by any service outside the requirements of subsection (1) or (4).
(6)The applicant must ensure that -
(a)the freezing notice is filed in the court specified in the notice; and
(b)an affidavit of service is endorsed on a copy of each copy of the freezing notice that is served on a person; and
(c) each endorsed copy is filed in the court.
The service cut off date
Section 150(a) of the Confiscation Act defines the 'service cut off date' for property frozen under a freezing notice to be the date of the last day on which a copy of the freezing notice was served on anyone under s 36(4). As noted earlier, the second plaintiff did not provide a statutory declaration identifying any other person who may be an interested party. There was therefore no person served under s 36(4). On a literal interpretation of s 150(a), there would be no service cut off date in these circumstances.
There is no binding authority which conclusively determines the proper construction of s 150(a).[4]
[4] See, however, the discussions in Centurion Trust Company Ltd v Director of Public Prosecutions (WA) [2009] WASCA 97 and Centurion Trust 2010.
In my view, s 150(a) should be interpreted such that the service cut off date is the last date on which the freezing notice was served on any person. This is consistent with the approach taken in a number of other first instance cases.[5]
[5] See, for example, The Director of Public Prosecutions for Western Australia v Thornley [2014] WASC 440 [8]; Commonwealth Bank of Australia v The State of Western Australia [2018] WASC 52
Statutory construction 'requires attention to the text, context and purpose of the Act. While the task of construction begins and ends with the statutory text, throughout the process the text is construed in its context'.[6]
[6] Mohammadi v Bethune [2018] WASCA 98 [31]. See also [32] ‑ [36].
I would not interpret s 150(a) literally. Such an interpretation would be absurd, and cannot have been intended by the legislature.
The Confiscation Act seeks to establish a framework within which objections must be filed. Section 79 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.
Section 79 is clearly intended to give all parties who have or who wish to claim an interest in the property a limited time within which to file an objection to the confiscation of the property. That time is intended to be 28 days after they become aware that the property had been frozen.
Section 7(1) intends to achieve the automatic confiscation of property if no objection is filed within time. Section 7(2) intends to allow for the confiscation of property after certain conditions are met, including that all objections filed within time have been dismissed. Both s 7(1) and s 7(2) require the time limit to be identifiable to have any operation.
In my view, the text, context and purpose demonstrates that the service cut off date is intended to mean the last date on which a person was given notice that the property had been frozen. Under s 79, each such person has 28 days following service on them to object. If no person objects within 28 days of being served, the frozen property is confiscated under s 7(1). If a person objects within that time period, the frozen property is confiscated if and when the conditions in s 7(2) exist.
I consider that the failure to include a reference to s 36(1) in s 150(a) was a simple drafting error which, if uncorrected, would defeat the object of the provisions whenever no statutory declaration was given. In those circumstances, I would interpret the provision as meaning that the service cut off date is the last date on which the freezing notice was served on any person.[7]
[7] See Taylor v Owners - Strata Plan No 11564[2014] HCA 9; (2014) 253 CLR 531 [37] ‑ [38] and SAS Trustee Corporation v Miles [2018] HCA 55; (2018) 265 CLR 137 [64]. See also at [20] and [41].
Accordingly, the 'service cut off date' for the property was 12 March 2001, the date the Freezing Notice was served on the second plaintiff.
Proof and elements
As the application under s 30 is 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.[8] The DPP must prove it on the balance of probabilities.[9]
[8] Campana v The State of Western Australia [2008] WASC 230 [40].
[9] Section 102(2)(d) of the Confiscation Act.
The DPP concedes that objections were filed within 28 days after the service cut off date for the property. Therefore, its application is made under s 7(2).
As the property is subject to a freezing notice, s 7(3) also applies.
In these circumstances, the matters that the DPP must prove to establish that the property has been confiscated are:
1.that the objection, or each objection if there are more than one, has been finally determined;
2.that the Freezing Notice has not been cancelled or set aside; and
3.the Freezing Notice has been filed in accordance with s 36(6)(a).
If each of these matters is proved, then the property has been confiscated.[10]
[10] Centurion Trust 2010 [128] per Buss JA, with whom Owen JA agreed [74].
If the court finds that the property described has been confiscated under s 7, the court must make a declaration to that effect.[11]
[11] Bennett & Co (A Firm) v The Director of Public Prosecutions for Western Australia [2005] WASCA 141 [49].
Any income or other property derived from the property while the freezing notice is in force is taken to be part of the property.[12]
[12] Section 34(7) of the Confiscation Act.
Evaluation
The evidence established that:
1.There were two objections, but both have been dismissed.
2.The Freezing Notice has not been cancelled or set aside.
3.The Freezing Notice has been filed in accordance with s 36(6)(a).
Therefore, each of the matters that the DPP must prove to establish that the property has been confiscated under s 7 have been proved.
Accordingly, I must declare that the property has been confiscated.
It was confiscated as at the date the second objection was dismissed - 13 May 2020.
Orders
I would make an order in terms of paragraph 1 of the Minute of Proposed Orders, filed by the DPP on 22 October 2020.
I therefore declare that, pursuant to s 7(2) and s 30 of the Criminal Property Confiscation Act 2000 (WA), on 13 May 2020 property the subject of Freezing Notice AISFN010008, namely cash in the sum of AUD $247,000 taken from James Hong Tee on 9 March 2001, presently held by the Public Trustee of Western Australia in trust account 'DPP VS JAMES HONG TEE - TRST30322922EM313' together with any interest thereon, has been confiscated to the State of Western Australia.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
SW
Associate to the Honourable Justice Archer3 NOVEMBER 2020
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