The Director of Public Prosecutions for Western Australia v Sanders - [2022] WASC 247

JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
IN CHAMBERS

CITATION:   THE DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA -v- SANDERS [2022] WASC 247
CORAM:   ARCHER J
HEARD:   3 AUGUST 2022
DELIVERED          :   3 AUGUST 2022
PUBLISHED           :   4 AUGUST 2022
FILE NO/S:   CPCA 20 of 2022
BETWEEN:   THE DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA
Plaintiff
AND
GORDON JOHN SANDERS
Defendant

Catchwords:

Criminal property confiscation - Freezing notices - No objection filed - Defendant declared a drug trafficker - Application for declaration of confiscation

Legislation:

Criminal Property Confiscation Act 2000 (WA)

Result:

Declarations of confiscation made

Category: B

Representation:

Counsel:

Plaintiff	:	M Seaman
Defendant	:	No Appearance

Solicitors:

Plaintiff	:	The Director of Public Prosecutions for The State of Western Australia
Defendant	:	Not Applicable

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

Campana v The State of Western Australia [2008] WASC 230
Centurion Trust Company Ltd v The Director of Public Prosecutions (WA) [2010] WASCA 133; (2010) 201 A Crim R 324
Director of Public Prosecutions (WA) v Hodges [2021] WASC 140
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 3 August 2022 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 declarations that two groups of property have been confiscated.
The first group of property comprises various sums of money, totalling $53,550, seized from the defendant and held in the Western Australia Police Force Seized Money trust account (Seized Money Trust). It was the subject of a freezing notice and no objection to confiscation of the property was filed within the prescribed time, or at any time. The DPP asserts that the first group was therefore confiscated by virtue of s 7 of the Criminal Property Confiscation Act 2000 (WA) (Confiscation Act).
The second group of property comprises the defendant's interest in real property located in Wanneroo and money held to the defendant's credit in a Commonwealth Bank account. The DPP asserts that the second group was confiscated by virtue of s 8 of the Confiscation Act, when the defendant was declared a drug trafficker pursuant to s 32A(1) of the Misuse of Drugs Act 1981 (WA).
For the reasons that follow, the declarations sought should be made.

Legal framework[1]

[1] This section draws upon and reproduces paragraphs from my earlier judgments.

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.
The DPP bears the onus of proving that the property has been confiscated.[2] The DPP must prove this on the balance of probabilities.[3]
[2] Campana v The State of Western Australia [2008] WASC 230[40].
[3] Section 102(2)(d) of the Confiscation Act.
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.[4]
[4] 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]).
The 'property' confiscated includes any income or other property derived from the property while the freezing notice is in force.[5]

Confiscation under section 7

Requirements of a freezing notice

[5] Section 34(7) of the Confiscation Act.

A freezing notice for property may be issued on various grounds, including if there are reasonable grounds for suspecting that the property is crime‑used or crime-derived.[6]
[6] Section 34(2) of the Confiscation Act.
Section 36 of the 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. Further, if, at the time that the freezing notice is issued, the applicant for the notice is aware of any other person who is, or may be, or claims to be, an interested party, the freezing notice must also be served on that person.[7]
[7] 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.[8] Section 36(4) requires, in effect, that the freezing notice be served on any such identified interested party.
[8] Section 37 of the Confiscation Act.
The applicant must also file the freezing notice in the court specified in the notice.[9]
[9] 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.[10]
[10] Section 39(1) of the Confiscation Act.
Where the property is registerable real property, the applicant must lodge a memorial of the issue of the notice with the Registrar of Titles.[11] A freezing notice for registerable real property only comes into force when a memorial is registered.[12]

Automatic confiscation

[11] Section 36(2) of the Confiscation Act. There are also requirements to notify where the property is registrable under legislation other than the Transfer of Land Act 1893 (WA).

[12] Section 38(1) of the Confiscation Act.

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 28^th 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.[13]
[13] 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],[14] 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.
[14] 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.[15]
[15] Centurion Trust Company Ltd v The Director of Public Prosecutions (WA) [2010] WASCA 133; (2010) 201 A Crim R 324 (Centurion Trust) [217], [239], [255] - [256] (Buss JA, as his Honour then was, 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'[16] 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.
[16] '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.[17]
[17] Centurion Trust [234] (Buss JA, as his Honour then was).
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.
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.[18]

Confiscation under s 8

[18] Section 85 of the Confiscation Act.

Section 8(1) of the Confiscation Act provides:
8.Declared drug trafficker, certain property of confiscated
(1)When a person is declared to be a drug trafficker under section 32A(1) of the Misuse of Drugs Act 1981 as a result of being convicted of a confiscation offence that was committed after the commencement of this Act, the following property is confiscated —
(a)all the property that the person owns or effectively controls at the time the declaration is made;
(b)all property that the person gave away at any time before the declaration was made, whether the gift was made before or after the commencement of this Act.
The matters that the DPP must prove under s 8 are:
1.the defendant was declared to be a drug trafficker;
2.the declaration was made as a result of the defendant being convicted of a 'confiscation offence' (relevantly being an offence punishable by imprisonment for more than 2 years[19]);
3.the offence was committed after 1 January 2001, being the commencement of the Confiscation Act; and
4.at the time the drug trafficker declaration was made, the property was owned or effectively controlled by the defendant.
[19] Section 141(1) of the Confiscation Act.
If a person has been convicted of a relevant confiscation offence, regard may be had to material before a court in any proceedings for the offence or sentencing.[20]
[20] Section 107 of the Confiscation Act.
If each of these matters is proved, then, pursuant to s 8(1) of the Confiscation Act, the property was automatically and immediately confiscated at the time the drug trafficker declaration was made.[21]
[21] Centurion Trust [199].
The Confiscation Act defines an 'owner' of property to mean a person who has a legal or equitable interest in the property.[22]
[22] Confiscation Act glossary.
'Property' is defined in the Confiscation Act to mean a legal or equitable interest in any real or personal property of any description, wherever situated, and whether tangible or intangible.[23]
[23] Confiscation Act glossary.

Evidence

The DPP tendered an affidavit of Maria Ingles[24] (Ingles Affidavit).
[24] Affidavit of Maria Eleonora Ingles filed 9 May 2022 (Ingles Affidavit).
The evidence proved the following.
On 3 June 2021, a freezing notice WAPFN210090 (the Freezing Notice) was issued under s 34 of the Confiscation Act in respect of:[25]
(a)$10,700 in Australian currency, seized from the defendant on 8 January 2021 and subsequently held in the Seized Money Trust (January Currency) and any interest payable on that money;

(b)$900 and $41,950 in Australian currency, seized from the defendant on 29 April 2021 and subsequently held in the Seized Money Trust (collectively, April Currency) and any interest payable on that money;
(c)the land at Lot 1 on Survey-Strata Plan 57778, together with a share in common property (if any) as set out on the survey-strata plan, in Certificate of Title Volume 2731 Folio 134, commonly known as 36 Warruga Way, Wanneroo (Land); and
(d)monies held to the credit of the defendant in Commonwealth Bank of Australia account number [*********]42 (CBA Account) and any interest payable on that money.
[25] Ingles Affidavit [1] - [2]; Attachment MEI1 pages 7, 10 - 11.

I will refer to this property collectively as 'the Property'. I refer to the property specified in paragraphs (a) and (b) collectively as the 'first group'. I refer to the property specified in paragraphs (c) and (d) collectively as the 'second group'.
The Freezing Notice was issued on the basis that it was alleged that the first group was suspected on reasonable grounds to be crime-used or crime-derived and, in relation to both the first group and the second group, that the defendant had been charged with an offence and could be declared to be a drug trafficker if convicted of it.
The January Currency was taken from the defendant on 8 January 2021 and deposited into the Seized Money Trust.[26]
[26] Ingles Affidavit [16], [18] and pages 38 and 39.
The April Currency was taken from the defendant on 29 April 2021 and deposited, in two amounts of $900 and $41,950, into the Seized Money Trust.[27]
[27] Ingles Affidavit [16], [21] - [24] and pages 40 - 42 and 44.
A memorial of the issue of the Freezing Notice was lodged with the Registrar of Titles in relation to the Land on 8 June 2021.[28]
[28] Ingles Affidavit, pages 33 - 34.
The defendant became the registered proprietor of the Land in 2010. There is evidence that he was still the registered proprietor as at 12 July 2021.[29] The DPP asks me to infer that he was still the registered proprietor as at the date he was declared to be a drug trafficker, being 9 September 2021. Given the short period between these two dates and the fact that a memorial of the Freezing Notice was registered, I am willing to infer this.
[29] Ingles Affidavit, page 32.
The CBA Account is recorded as being in the name of the defendant, and shows he was the account holder in June 2021.[30] The DPP asks me to infer that he was still the account holder, and that the account was still operative, as at the date of the drug trafficker declaration on 9 September 2021. Although there is only a short period between these two dates, it is unsatisfactory to be asked to draw inferences about matters that could have easily been proved and without great expense. Nevertheless, I am willing to infer this on this occasion, as the declaration sought is a declaration that the money standing to the defendant's credit in that account has been forfeited. If the defendant is no longer the account holder, or the account has been closed, the declaration will have no operation.
[30] Ingles Affidavit, page 35.
A copy of the Freezing Notice was served on the Commonwealth Bank of Australia by post on 3 June 2021.[31] A copy of the Freezing Notice was personally served on the defendant on 17 June 2021.[32]
[31] Ingles Affidavit, page 17.
[32] Ingles Affidavit, page 18.
The DPP's submissions assert that (formatting in original):[33]
A copy of the Freezing notice has been served on the person from whom property was taken, the person who had custody of frozen property, and the only person the applicant for the Freezing notice is aware is, or may be, or claims to be, an interested party. [The INGLES Affidavit, paragraph 7.]
[33] Submissions filed 25 July 2022 [9].
Paragraph 7 of the Ingles Affidavit does indeed state this. However, Ms Ingles also deposes that she was not the applicant for the Freezing Notice.[34] Accordingly, the claim in paragraph 7 was, at best, hearsay.
[34] Ingles Affidavit [9].
This is not the first time the DPP has filed hearsay evidence of this exact type in confiscation proceedings.[35] This is unsatisfactory. In addition, there is no reason why this evidence could not be secured at the time the freezing notice is issued, avoiding any issues arising from, for example, subsequent staffing changes. The awareness referred to in the Confiscation Act is the applicant's awareness at the time that the freezing notice is issued.[36]
[35] See Director of Public Prosecutions (WA) v Hodges [2021] WASC 140 [39].
[36] 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.
However, in all of the circumstances, I am willing to infer that there were no other persons who ought to have been served, for the following reasons.
1.First, the defendant was convicted of possessing the January Currency being the proceeds of an offence of selling prohibited drugs. The defendant was also convicted of possessing the April Currency being money that was reasonably suspected to have been unlawfully obtained.[37] This proves that the defendant had both amounts in his possession and also proves that the January Currency was proceeds from the sale of a prohibited drug.
2.Second, the defendant is the sole registered proprietor of the Land and the sole account holder of the Commonwealth Bank account.
3.Third, the defendant filed a statutory declaration.[38] It did not identify any other persons who may have been interested parties.
[37] Ingles Affidavit [11(c)].
[38] Ingles Affidavit [5] and page 19.
For the same reasons, I am also willing to infer that, at the time the Freezing Notice was issued, the applicant for the Freezing Notice was not aware of any person other than the defendant and the Bank who was, or may have been, or claimed to be, an interested party.
As just mentioned, the defendant filed a statutory declaration which did not identify any other persons who may have been interested parties. The Bank did not file a statutory declaration.[39]
[39] Ingles Affidavit [6].
Accordingly, I find that the service cut off date was the date on which the defendant was served, being 17 June 2021.
No objection was filed on or before the 28th day after the service cut off date (or indeed at any time).[40]
[40] Ingles Affidavit [8].
A copy of the Freezing Notice was filed with this Court[41] as required by s 36(6)(a) of the Confiscation Act on 17 June 2021.[42]
[41] The court specified in the Freezing Notice was the Supreme Court.
[42] Ingles Affidavit [3].
On 9 September 2021, the defendant was convicted of, relevantly, possessing cocaine with the intent to sell or supply it to another, contrary to s 6(1)(a) of the Misuse of Drugs Act.[43] This offence is punishable by imprisonment for more than 2 years.[44] It is therefore a 'confiscation offence'. The offence was committed on 8 January 2021, after the commencement of the Confiscation Act.[45] On 9 September 2021, the defendant was, as a result of this conviction, declared to be a drug trafficker under s 32A of the Misuse of Drugs Act.[46]
[43] Ingles Affidavit [11(a)].
[44] Misuse of Drugs Act 1981 (WA) s 34(1)(aa).
[45] The Confiscation Act commenced on 1 January 2001.
[46] Ingles Affidavit [11(d)].

As I have explained, I am willing to infer that, as at that date, the defendant was the registered proprietor of the Land and the account holder of the CBA Account.

Conclusion on section 7

The Freezing Notice was issued in relation to the first group of property on the basis that there were reasonable grounds for suspecting that the January Currency and April Currency were 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 first group was not filed before the 28th day after the service cut off date. It follows that the first group, comprising the January Currency and the April Currency, has been confiscated.

Conclusion on section 8

As shown in the discussion of the evidence, each of the four matters required to be proved under s 8 have been proved. The defendant was declared to be a drug trafficker as a result of being convicted of a 'confiscation offence'. The offence was committed after the commencement of the Confiscation Act. At the time the drug trafficker declaration was made, the Land was owned or effectively controlled by the defendant. Further, at the time the drug trafficker declaration was made, the CBA Account was owned or effectively controlled by the defendant.
It follows that the second group, comprising the Land and the CBA Account, has been confiscated.

Declaration must be made

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 and 2 of the Originating Motion filed 4 May 2022.

I certify that the preceding paragraph(s) comprise the reasons for decision of the Supreme Court of Western Australia.
AG
Associate to the Honourable Justice Archer
3 AUGUST 2022