Silbert v Director of Public Prosecutions (WA)

This case concerned an application for special leave to appeal to the High Court of Australia, brought by Mr Silbert against the Director of Public Prosecutions (WA). The dispute arose from provisions within Western Australia's *Crimes (Confiscation of Profits) Act 1988* (WA) which, in circumstances where a person charged with a "serious offence" died before their charge was finally determined, deemed that person to have been convicted of that offence. This deeming provision was relied upon by the Director to seek pecuniary penalty and forfeiture orders. The applicant argued that these provisions were constitutionally invalid.

The central legal issue before the High Court was whether the deeming provisions of the *Crimes (Confiscation of Profits) Act 1988* (WA) were invalid by reason of being repugnant to the judicial power of the Commonwealth, as established by the principles in *Kable v Director of Public Prosecutions (NSW)*. Specifically, the court had to determine if the State Act, by deeming a conviction without a court making an inquiry into guilt, amounted to a parliamentary determination of guilt and imposition of a conviction, thereby precluding a court from exercising its judicial function.

The High Court, in dismissing the application for special leave to appeal, implicitly upheld the decision of the majority of the Full Court of the Supreme Court of Western Australia. While the specific reasoning of the High Court is not detailed in the provided text, the context indicates that the deeming provisions were not considered to attract the *Kable* principle. This suggests the Court found that the State Parliament's legislative action, while impacting the process of confiscation, did not impermissibly intrude upon the essential nature of the judicial process or the constitutional separation of powers in a way that rendered the State law invalid. The Court's approach involved construing the legislation and considering its substance, rather than merely its form, in light of constitutional implications.