The Director of Public Prosecutions (WA) v Bowers

[2010] WASCA 46

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   THE DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- BOWERS [2010] WASCA 46

CORAM:   McLURE P

OWEN JA
BUSS JA

HEARD:   16 NOVEMBER 2009

DELIVERED          :   12 MARCH 2010

FILE NO/S:   CACV 55 of 2009

BETWEEN:   THE DIRECTOR OF PUBLIC PROSECUTIONS (WA)

Appellant

AND

AARON DAVID BOWERS
First Respondent

JILLIAN VALERIE BOWERS
Second Respondent

ON APPEAL FROM:

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram  :TEMPLEMAN J

Citation  :THE STATE OF WESTERN AUSTRALIA -v- BOWERS [2009] WASC 136

File No  :CPCA 96 of 2008, CPCA 108 of 2008, CPCA 109 of 2008

Catchwords:

Confiscation of property - Crime-used property substitution declaration under s 22 of the Criminal Property Confiscation Act 2000 (WA) - Construction of the defined term 'crime-used property' - Construction of the defined term 'criminal use' - Scope of the court's power under s 82 to set aside a freezing order made under s 43(3) of the Criminal Property Confiscation Act 2000 (WA)

Legislation:

Criminal Code (WA), s 321(2)
Criminal Property Confiscation Act 2000 (WA), s 22, s 43, s 82, s 83, s 84, s 146, s 147

Result:

Appeal allowed

Category:    A

Representation:

Counsel:

Appellant:     Mr E M Corboy SC & Mr G T J Farley

First Respondent           :     Mr L M Levy SC & Mr S Nigam

Second Respondent      :     Mr L M Levy SC & Mr S Nigam

Solicitors:

Appellant:     Director of Public Prosecutions (WA)

First Respondent           :     S C Nigam & Co

Second Respondent      :     S C Nigam & Co

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

Director of Public Prosecutions v White [2009] WASC 62

The Director of Public Prosecutions for Western Australia v White [2010] WASCA 47

1. McLURE P: The Director of Public Prosecutions for Western Australia (DPP) appeals against the decision made by Templeman J on 8 May 2009 dismissing his application for a crime‑used property substitution declaration under s 22 of the Criminal Property Confiscation Act 2000 (WA) (the Act). This appeal was heard together with the appeal in The Director of Public Prosecutions for Western Australia v White [2010] WASCA 47. These reasons are intended to be read together with the reasons in that case.

The factual background

1. On 17 June 2008 the first respondent pleaded guilty to three counts of sexually penetrating a child of or over the age of 13 years and under the age of 16 years contrary to s 321(2) of the Criminal Code (WA). All three offences were committed against the same complainant on the same date at the complainant's home in Beechboro which was owned by the complainant's father (the Beechboro property). Each offence was an offence under ch XXXI of the Code.

2. The DPP's application for a crime‑used property substitution declaration was made on the basis that the first respondent made criminal use of the Beechboro property which was not available for confiscation because he did not own it.

3. The DPP also applied under s 43(3)(c) of the Act for (and obtained) a freezing order over the first respondent's interest in his matrimonial home in Bassendean which is jointly owned by the first and second respondents (the Bassendean property). Each of the first and second respondents filed a notice of objection to the confiscation under pt 6 of the Act. The objection proceedings were consolidated with the DPP's crime‑used property substitution declaration proceedings.

4. The consolidated proceedings were heard before Templeman J on 8 May 2009. The proceedings were conducted on the accepted basis that the Beechboro property was crime‑used under s 146(3) of the Act. Neither party contended that the Beechboro property was crime‑used under s 146(1)(a) or (c) of the Act. Templeman J provides no details of the circumstances surrounding the commission of the offences save to note that they were committed on the ground in a shed which formed part of the Beechboro property [21]. He concluded that the link between the Beechboro property and the commission of the offences was tenuous, suggesting it went no further than providing something to stand on when committing the unlawful acts [25].

5. Templeman J agreed with Jenkins J in Director of Public Prosecutions v White [2009] WASC 62 that a person does not make criminal use of property unless the conduct falls within s 146(1)(a) or (b) of the Act.

6. For the sake of completeness, Templeman J considered and determined the second respondent's objection to the freezing order. She sought the setting aside of the freezing order under s 82 of the Act. On its face, s 82 is confined to a freezing order made on the ground that the property is crime‑used. The Bassendean property was not crime‑used. Templeman J concluded that where s 82 refers to crime‑used property, the legislature must have also intended it to apply to property which is substituted for crime‑used property, thereby avoiding what would otherwise be an unjust result [33].

7. The DPP relies on two grounds of appeal. He contends the primary judge erred in law in finding that the first respondent had not made criminal use of the Beechboro property pursuant to s 147 of the Act, having found the property was crime-used under s 146(3) of the Act and in finding that s 82(3) of the Act extended to property frozen on the ground that an application for a crime-used property substitution declaration had been made.

Section 147

1. For the reasons given in White, the trial judge erred in concluding that a person does not make criminal use of property unless the conduct falls within s 146(1)(a) or (b) of s 146. As explained in White, a person makes criminal use of property if the conduct falls within s 146(1)(a), (b) or (c) or s 146(3) of the Act. It being accepted by all parties that the Beechboro property was crime‑used under s 146(3) by virtue of the first respondent's unlawful conduct thereon, it follows that the first‑respondent made criminal use of that crime‑used property. I would uphold ground 1.

Section 82

1. Section 82 of the Act relevantly provides:

   (1)The court may set aside a freezing notice or freezing order for property that was frozen on the ground that it is crime‑used if the objector establishes that it is more likely than not that the property is not crime‑used.

   (2)If the court finds that the property is crime‑used, or is not required to decide whether the property is crime‑used, the court may make an order under subsection (3) or (4).

   (3)The court may set aside the freezing notice or freezing order for the property if the objector establishes that it is more likely than not that ‑ 

   (a)the objector is the spouse, a de facto partner or a dependant of an owner of the property;

   (b)the objector is an innocent party, or is less than 18 years old;

   (c)the objector was usually resident on the property at the time the relevant confiscation offence was committed, or is most likely to have been committed;

   (d)the objector was usually resident on the property at the time the objection was filed;

   (e)the objector has no other residence at the time of hearing the objection;

   (f)the objector would suffer undue hardship if the property is confiscated; and

   (g)it is not practicable to make adequate provision for the objector by some other means.

   … 

   (7)On the application of the DPP or an owner of the property, the court may set aside the freezing notice or freezing order for the property if it also orders the objector to pay to the State an amount equal to the value of the property.

   (8)Sections 22(6), 22(7), 23, 24, 25 and 26 apply in relation to making an order under subsection (7) and to the objector as if the order was a crime‑used property substitution declaration and the objector was the respondent in relation to the declaration.

2. The primary judge found that all the criteria in the innocent spouse provision in s 82(3) were satisfied.

3. The express terms of s 82 deal solely with the release of crime‑used property. The Bassendean property the subject of the freezing order is not crime‑used property but property to be used as security for any amount found to be owing by the first respondent in the crime‑used property substitution declaration proceedings.

4. The court's power to set aside a freezing order is contained in s 82, s 83 and s 84 of the Act. Section 82 is the only relevant provision with an

innocent spouse provision. Section 84 of the Act is the source of the court's power to set aside a freezing order for property that was frozen under s 43(3). In this case, the freezing order relating to the Bassendean property was made under s 43(3)(c) of the Act on the ground that an application was likely to be made for a crime‑used property substitution declaration against the first respondent. Section 84 relevantly provides:

(1)The court may set aside a freezing order for property that was frozen under section 43(3) if the court finds that it is more likely than not that the person who is or will be the respondent to the unexplained wealth declaration, criminal benefits declaration or crime used property substitution declaration does not own or effectively control the property, and has not at any time given it away.

1. Section 84 is intended to be the sole ground for setting aside freezing orders made under s 43(3). There is no proper basis to conclude that the legislature intended that s 82(3) can apply to property frozen under s 43(3). I would uphold ground 2.

Conclusion

1. For these reasons, I would allow the appeal and set aside the orders made by the primary judge.  I would hear from the parties as to the terms of the orders required to give effect to these reasons.

2. OWEN JA:  I agree with McLure P.

3. BUSS JA:  I agree with McLure P.