Hush v The State of Western Australia
[2020] WASC 274
•23 JULY 2020
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS
CITATION: HUSH -v- THE STATE OF WESTERN AUSTRALIA [2020] WASC 274
CORAM: KENNETH MARTIN J
HEARD: 10 JUNE 2020
DELIVERED : 10 JUNE 2020
PUBLISHED : 23 JULY 2020
FILE NO/S: CPCA 32 of 2018
BETWEEN: COLIN HUSH
Plaintiff
AND
THE STATE OF WESTERN AUSTRALIA
Defendant
Catchwords:
Criminal Property confiscation - Property frozen on multiple grounds - Objection dismissed - Confiscation declaration sought - Turns on own facts
Legislation:
Criminal Property Confiscation Act 2000 (WA)
Result:
Declaration of confiscation made
Category: B
Representation:
Counsel:
| Plaintiff | : | In person |
| Defendant | : | C De Zilwa & I S Jones |
Solicitors:
| Plaintiff | : | In person |
| Defendant | : | Director Of Public Prosecutions (WA) |
Case(s) referred to in decision(s):
Bennett + Co (a firm) v DPP (WA) [2005] WASCA 141; (2005) 31 WAR 212
Centurion Trust Co Ltd v The Director of Public Prosecutions (WA) [2010] WASCA 133; (2010) 201 A Crim R 324
Hendricks v The State of Western Australia [2002] WASC 86
Re Smith; Ex Parte Director of Public Prosections for Western Australia [No 3] [2004] WASC 157
KENNETH MARTIN J:
(This judgment was delivered extemporaneously on 10 June 2020 and has been edited from the transcript).
Introduction
This matter arises under the Criminal Property Confiscation Act 2000 (WA) (Act). It follows the issuance of a freezing notice of 25 July 2018, on the basis that there were reasonable grounds to suspect that certain property was crime-used and crime-derived. The freezing notice was premised on the basis Mr David Hush had been charged with an offence committed after the commencement of the Act and, if convicted of that offence, could be declared a drug trafficker.
It is evident that the cash, the property subject of the freezing notice described below, was seized during a search warrant at the home of Mr David Hush, on 27 June 2018.[1]
[1] Ts (26 April 2019) page 15.
Following a consensual dismissal of an objection by Mr David Hush's brother, Mr Colin Hush, by summons filed on 11 December 2019, the Director of Public Prosecutions (DPP) now moves to seek a confiscation declaration that property (the cash) has been confiscated pursuant to s 7(2) and s 30 of the Act.
For the reasons that follow, I am satisfied that such a declaration should be made.
Legal framework
Broadly speaking, the Act provides for a confiscation of property that is derived directly or indirectly from the commission of a confiscation offence, 'crime-used property'. Property is 'confiscable' to the extent provided by the Act.[2]
[2] Criminal Property Confiscation Act 2000 (WA) s 4.
Pursuant to s 34(2), a justice of the peace may issue a freezing notice for any property, if there are reasonable grounds for suspecting that the property is crime-used or crime-derived.
'Property' is defined in s 3 of the Act and means:
(a)real or personal property of any description, wherever situated, whether tangible or intangible; or
(b)a legal or equitable interest in any property referred to in paragraph (a).
The property the subject of the declarations sought in the summons is not real property. Rather, it is certain amounts of cash. Accordingly, as provided for in s 10(1) of the Act, the money vests absolutely in the State when confiscated under s 7.
'Crime-derived' property is defined in s 148 of the Act, casting a broad net over what can be considered 'crime-derived' property.
'Confiscation offence' is defined in s 141 of the Act. The definition includes 'an offence against a law in force anywhere in Australia that is punishable by imprisonment for 2 years or more'.[3]
[3] Criminal Property Confiscation Act 2000 (WA) s 141(1)(a).
Next, s 7 of the 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 7 of the Act applies to property frozen on crime-used and crime-derived grounds.[4]
[4] Centurion Trust Co Ltd v The Director of Public Prosecutions (WA) [2010] WASCA 133 [255]; (2010) 201 A Crim R 324 (Centurion Trust).
The effect of s 7(1) of the Act is that frozen property will be confiscated if an objection is not filed on, or before, the 28th day after the 'service cut off date' for the property, provided that, pursuant to s 7(3), the freezing notice has been filed in the court specified in the freezing notice in accordance with s 36(6)(a).
Section 30 of the Act says:
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.
In this matter then, property frozen under the relevant freezing notice is therefore confiscated if:
(a)more than 28 days has passed since the 'service cut off date' for the property;
(b)any objection is finally determined;
(c)the freezing notice was not cancelled or set aside; and
(d)the court is satisfied that the freezing notice has been filed in accordance with s 36(6)(a) of the Act.
If the court finds that the property has been confiscated under s 7 of the Act, the court must, pursuant to s 30(2), make a declaration to that effect.[5]
[5] Bennett + Co (a firm) v DPP (WA) [2005] WASCA 141 [49]; (2005) 31 WAR 212; Re Smith; Ex Parte Director of Public Prosections for Western Australia [No 3] [2004] WASC 157 [15]; Hendricks v The State of Western Australia [2002] WASC 86 [19].
Some further sections of the Act are mentioned in the following paragraphs of these reasons.
Section 150(a) provides that the 'service cut-off date' the Act is 'the date of the last day on which a copy of the freezing notice was served on anyone under section 36(4)'.
Section 36(1) requires that as soon as practicable after a freezing notice is issued, the notice must be served personally on:
(a)the person covered by the notice if the property was taken from a person; and
(b)an interested party if, at the time 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.
Pursuant to s 36(4) of the Act, if, as a result of information in a statutory declaration given, in accordance with s 37, by a person who was served with a copy of the freezing notice under s 36(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 other person personally, as soon as practicable.
An 'interested party' is defined in s 3 of the Act as 'in relation to frozen property, means a person who has an interest in the property that would enable the person to succeed on an objection to the confiscation of the property'.
Relevant factual background
The Freezing Notice
On 25 July 2018, pursuant to s 34 of the Act, Mr P Dama, a justice of the peace, issued Freezing Notice WAPFN180115 (Freezing Notice) over property that included the cash and as well as a chose in action connected to Mr Hush's late mother's estate propery (described in [23] below).[6]
[6] Affidavit of Jesse Aarron John Parker, affirmed 29 October2019 (Parker Affidavit) attachment 'JAJP-1'.
Schedule 2B of the Freezing Notice identified the following specific property:
1.$2,290 (cash);
2.$1,000 (cash);
3.$1,100 (cash);
4.$500 (cash);
5.$165 (cash);
6.$16,000 (cash);
7.$8,790 (cash);
8.$4,300 (cash); and
9.The chose in action held by David Hush against Bernard and or Colin Hush in their capacity as executors of the estate of the estate of Martina Hush (decd) who died on 11 December 2004 including the right to the due administration of the estate in accordance with the will of Martina Hush (decd) dated 16 October 2004. The estimated value of this was identified as $150,000.
Mr Colin Hush had been served with a copy of the Freezing Notice on 25 July 2018. On 1 August 2018, he provided a statutory declaration, in accord with s 37 of the Act. He duly identified all persons of whom he was aware may be an interested party.
The Freezing Notice had specified the court in which objection was to be filed as being the Supreme Court of Western Australia[7] and on 3 August 2018 the Freezing Notice was filed at this court.
The objection
[7] Parker Affidavit attachment 'JAJP-1'.
On 10 August 2018, the present action was commenced by originating summons. Mr Colin Hush had filed an objection pursuant to s 79 of the Act (the Objection).
But in due course, by way of consent order, that Objection was consensually dismissed on 5 April 2019,[8] and item 9, identified above at [23], was cancelled from the Freezing Notice.[9]
[8] Order made by Archer J on 5 April 2019 (electronic document 13).
[9] Parker Affidavit attachment 'JAJP-30'.
No other objections were filed in relation to the confiscation of the frozen property.[10]
The convictions
[10] Parker Affidavit par 7(c).
On 26 April 2019, by way of his guilty pleas, Mr David Hush was convicted of two offences in the District Court of Western Australia by Quail DCJ.[11] The offences were:[12]
1.possession of a prohibited drug (namely methylamphetamine) with intent to sell or supply it to another;[13] and
2.possession of stolen or unlawfully obtained property (the sum of cash).[14]
The property, being the sum of money underlying the s 417 conviction, was the property the subject of the Freezing Notice.
[11] Ts 26 April 2019 page 4; Parker Affidavit attachment 'JAJP-31'.
[12] Ts 26 April 2019 page 6; Parker Affidavit attachment 'JAJP-31'.
[13] Misuse of Drugs Act 1981 (WA) s 6(1)(a).
[14] Criminal Code 1913 (WA) s 417(1).
The maximum penalty for the drug conviction was one of life imprisonment.[15] Quail DCJ sentenced Mr David Hush to a total of five years and eight months imprisonment.
[15] Ts 26 April 2019 page 6; Misuse of Drugs Act s 34.
Mr David Hush was also then declared by his Honour to be a drug trafficker pursuant to s 32A of the Misuse of Drugs Act 1981 (WA) in relation to the drug possession conviction.[16]
Declaration of confiscation
[16] Ts 26 April 2019 page 6.
On 11 December 2019, the DPP filed its chamber summons seeking a declaration of automatic confiscation, pursuant to s 30 and s 7(2) of the Act over identified property, the subject of the Freezing Notice, together with any interest (DPP Summons). The identified property then at issue was only the cash sums identified in items 1 - 8 of Schedule 2B to the Freezing Notice. The summons was duly served upon Mr David Hush and his brother.[17]
[17] Affidavits of service of Joshua Gary Buckley sworn 3 February 2020 and Mark Williams sworn 9 February 2020.
The DPP Summons seeks the following declaration:
1.On 5 April 2019 the property the subject of Freezing Notice WAPFN180115 has been confiscated to the State of Western Australia, namely cash in the following sums taken from David Hush on 27 June 2018, together with any interest thereon:
a.AUD $2,290.00;
b.AUD $1,000.00;
c.AUD $1,100.00;
d.AUD $500.00;
e.AUD $165.00.00;
f.AUD $16,000.00;
g.AUD $8,790.00; and
h.AUD $4,300.00.
2.Such other orders as this Court sees fit.
The DPP Summons was accompanied by supporting submissions, a memorandum of conferral (seeking that conferral be waived) and the affidavit of Jesse Aarron John Parker affirmed 29 October 2019.
By the order of Archer J made 27 February 2020, Mr Parker's affidavit was to stand as the evidence‑in‑chief in support of the DPP summons, and he was excused from cross‑examination. Consequently, the state of the evidence upon which I determine the application is effectively the uncontradicted evidence of Mr Parker under his affidavit - and which I have received as exhibit 1.
This is a civil proceeding and I am required to render findings on the balance of probabilities.[18]
[18] Criminal Property Confiscation Act 2000 (WA) s 102 and s 142.
The hearing
Mr David Hush attended the hearing by video-link from Bunbury Regional Prison. He wished to raise some matters, essentially objecting to the confiscation of discrete amounts of cash seized during the search warrant and seeking to preserve those cash amounts as savings for his children, and not crime-used or crime-derived property.
In response, the DPP submitted that following the decision Centurion Trust, the time period within which it is possible to file an objection cannot be extended. Therefore, the only objection relevant to s 7 is that of Mr Colin Hush and Mr David Hush is now no longer in a position to file an objection resisting confiscation of the cash. The DPP further submitted that hypothetically speaking, in the event that Mr Hush were to successfully file an objection and establish that the cash was not crime‑used or crime‑derived, this cash would still be subject to confiscation pursuant to s 8 of the Act, on the basis that Mr Hush has been declared a drug-trafficker.
Determination
In the end, I am satisfied that the terms of s 7 of the Act are engaged here concerning the items of cash the subject of the present application. This conclusion follows in the wake of what has followed after the seizure of those items on 27 June 2018 at Mr David Hush's home in Huntingdale, pursuant to the execution of a search warrant, there then issued on 25 July 2018 a Freezing Notice under the Act in respect of those eight items of cash, amounting all up to $34,145.
There had been the objection filed within the relevant period by Mr Colin Hush. However, that grievance over the Freezing Notice was only in respect of the estate interest by the asserted interest in the property of the late Martina Hush. That objection issue was subsequently resolved by consent orders on 5 April 2019 and at that time the property which was the chose in action interest in the Freezing Notice, was removed.
On that day, the objection lodged by Mr Colin Hush, which was the originating subject matter of the present action, was dismissed. Pursuant to the operation of s 7(1) and s 7(2), on 5 April 2019, there being no remaining objection against the Freezing Notice, a confiscation of the cash property occurred, subject to certain further requirements of the Act, as identified in [15] above, one of which is the Freezing Notice being filed at the Supreme Court of Western Australia as the relevant court (as has also occurred).
Mr Parker's affidavit informs me that the filing event happened on 3 August 2018, so that requirement is met.[19] There is no other obstacle then to that confiscation taking effect, and under the terms of the Act I am required, pursuant to s 30(2), to issue a declaration to the effect that that property, namely, the eight items of cash amounting all up to $34,145, is confiscated to the State of Western Australia. Consequently, I am satisfied of all those matters and I will make that declaration.
[19] Parker Affidavit par 3.
I will further note that during the hearing Mr Colin Hush accepted that the matters attempted to be raised by him were of no legal consequence against the confiscation in the end.
Orders
For these reasons, I have now made orders that:
1.Pursuant to sections 7(2) and 30 of the Criminal Property Confiscation Act 2000 (WA) it is declared that on 5 April 2019 the property the subject of Freezing Notice WAPFN180115 has been confiscated to the State of Western Australia, namely cash in the following sums taken from David Hush on 27 June 2018, together with any interest thereon:
(a)AUD $2,290.00;
(b)AUD $1,000.00;
(c)AUD $1,100.00;
(d)AUD $500.00;
(e)AUD $165.00;
(f)AUD $16,000.00;
(g)AUD $8,790.00; and
(h)AUD $4,300.00.
2.There is no order as to costs.
I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
IH
Research Orderly to Justice Kenneth Martin23 JULY 2020
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