The Director of Public Prosecutions (WA) v White

[2010] WASCA 47

JURISDICTION     :   SUPREME COURT OF WESTERN AUSTRALIA

TITLE OF COURT :   THE COURT OF APPEAL (WA)

CITATION:   THE DIRECTOR OF PUBLIC PROSECUTIONS (WA) -v- WHITE [2010] WASCA 47

CORAM:   McLURE P

OWEN JA
BUSS JA

HEARD:   16 NOVEMBER 2009

DELIVERED          :   12 MARCH 2010

FILE NO/S:   CACV 29 of 2009

BETWEEN:   THE DIRECTOR OF PUBLIC PROSECUTIONS (WA)

Appellant

AND

GARY ERNEST WHITE
Respondent

ON APPEAL FROM:

Jurisdiction              :  SUPREME COURT OF WESTERN AUSTRALIA

Coram  :JENKINS J

Citation  :DIRECTOR OF PUBLIC PROSECUTIONS FOR WESTERN AUSTRALIA -v- WHITE [2009] WASC 62

File No  :CIV 1442 of 2002, CIV 1534 of 2002

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 s 146(1)(a) and (c)

Legislation:

Crimes (Confiscation of Profits) Act 1988 (WA), s 10(1)(a)
Criminal Code (WA), s 7, s 8
Criminal Property Confiscation Act 2000 (WA), s 4, s 6, s 7, s 14, s 20, s 21, s 22, s 23, s 24, s 26, s 33, s 34, s 43, s 82, s 87, s 146, s 147
Misuse of Drugs Act 1981 (WA)

Result:

Appeal allowed
Notice of contention dismissed

Category:    A

Representation:

Counsel:

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

Respondent:     Mr S A Shirrefs SC

Solicitors:

Appellant:     Director of Public Prosecutions (WA)

Respondent:     Holborn Lenhoff Massey

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

Clissold v Perry [1904] HCA 12; (1904) 1 CLR 363

Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427

Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 115 ALR 1

Re Nanaimo Community Hotel Ltd [1944] 4 DLR 638

The Queen v Rintel (1990) 3 WAR 527

1. McLURE P: The Director of Public Prosecutions for Western Australia (DPP) appeals against a decision made by Jenkins J on 19 March 2009 dismissing his application for a crime‑used property substitution declaration against the respondent. The primary issue in the appeal is the proper construction of the term 'criminal use' as defined in s 147 of the Criminal Property Confiscation Act 2000 (WA) (the Act).

The factual background

1. On 5 May 2003 the DPP signed an indictment which alleged that on or about 19 August 2001 at Maddington the respondent wilfully murdered Anthony David Tapley (Tapley).  At the time of the murder the respondent leased land at 10 Jade Street, Maddington.  I will refer to 10 Jade Street as the 'Maddington land'.

2. The respondent pleaded not guilty to the charge, but was found guilty of wilful murder after a jury trial in May 2003.  Subsequent appeals were unsuccessful.  The trial and conviction established the following facts.

3. There was a residential dwelling and a large shed on the Maddington land, which land was enclosed by a 6 ft high cyclone fence with two double cyclone metal gates at the front of the property.  The fence and the gates had three strands of barbed wire at the top of them.  The gates were secured by two interlocking padlocks.

4. The respondent and Tapley were known to each other.  Tapley owed the respondent money.  The respondent was not present at the Maddington land when Tapley arrived there but was informed of Tapley's presence.  The respondent telephoned Sidney John Reid and asked him to attend the property and to lock the gates so no‑one at the property could leave.  Upon the respondent's arrival at the Maddington property, he instructed the females present to leave.  Tapley had left the house and was walking towards the back of the Maddington land when he was confronted by the respondent who demanded money from him.  Tapley had no money on him.  The respondent said he was going to make an example of Tapley and withdrew a revolver from the back of his jeans.  He shot Tapley in the shoulder.  Tapley turned and ran through the yard.  The respondent pursued him and fired three more times.  Tapley ran towards the front gates and climbed to the top of them in order to try and escape from the respondent.  The respondent, who was in pursuit, caught up with Tapley as he reached the top of the gates and shot him 'straight up' in the buttocks.  Tapley managed to get over the gates and then fell to the ground outside the Maddington land.  He was alive, but struggling to breathe.  The respondent then left the Maddington land through the gates, approached Tapley and fired the last of six shots directly into Tapley's head while he was lying on the ground just outside the Maddington land.  Tapley died very shortly after the last shot.  The respondent then dragged Tapley's body back onto the Maddington land and left it in front of a truck for some time, before taking it elsewhere to incinerate. 

5. The primary judge accepted the evidence that a man called Rainbow had re‑locked the gates after the females departed.  The primary judge found that it was apparent from the orders the appellant gave for the gates to be locked and for no‑one to leave, as well as the circumstances in which he gave the orders, that the respondent wished to detain Tapley within the Maddington land.  She also found that the locked gates assisted the respondent to commit the offence of wilful murder, although the original reason for locking the gates may not have been to facilitate the commission of that offence.  The locked gates prevented Tapley from leaving the premises prior to five of the six shots being fired. 

6. In April 2002, the police applied for and obtained an ex parte freezing order over the respondent's property, including a bank account held in his name.  At the time of the hearing before the primary judge, the bank account balance was approximately $135,000.  It was common cause that at the time of the hearing before the primary judge the respondent did not own (that is, have a legal or equitable interest in), or effectively control, the Maddington land.

The scheme of the Act

1. Part 3 div 3 of the Act concerns crime‑used property substitution declarations. The DPP may apply to the court for a crime‑used property substitution declaration against a person (s 21). Section 22 sets out the circumstances in which such a declaration must be made. It relevantly provides:

   (1)On hearing an application under section 21, the court must declare that property owned by the respondent is available for confiscation instead of crime‑used property if ‑

   (a)the crime‑used property is not available for confiscation as mentioned in subsection (2); and

   (b)it is more likely than not that the respondent made criminal use of the crime‑used property.

   (2)For the purposes of subsection (1)(a), the crime‑used property is not available for confiscation if ‑ 

   (a)the respondent does not own, and does not have effective control of, the property;

   (b)where the property was or is owned or effectively controlled by the respondent, and was or is frozen ‑ the freezing notice or freezing order has been or is to be set aside under section 82(3) in favour of the spouse, a de facto partner or a dependant of the respondent; or

   (c)in any other case ‑ the property has been sold or otherwise disposed of, or cannot be found for any other reason.

   (3)If the respondent has been convicted of the relevant confiscation offence, it is presumed that the respondent made criminal use of the property unless the respondent establishes the contrary.

   (4)If the respondent has not been convicted of the relevant confiscation offence, but the applicant establishes that it is more likely than not that the crime‑used property was in the respondent’s possession at the time that the offence was committed or immediately afterwards, then it is presumed that the respondent made criminal use of the property unless the respondent establishes the contrary.

   (5)In any circumstances except those set out in subsection (3) or (4), the applicant bears the onus of establishing that the respondent made criminal use of the property.

2. Property is defined in the glossary to mean real or personal property whether tangible or intangible or a legal or equitable interest in any such property. The term 'crime-used' is relevantly defined in s 146 as follows:

   (1)For the purposes of this Act, property is crime‑used if ‑ 

   (a)the property is or was used, or intended for use, directly or indirectly, in or in connection with the commission of a confiscation offence, or in or in connection with facilitating the commission of a confiscation offence;

   (b)the property is or was used for storing property that was acquired unlawfully in the course of the commission of a confiscation offence; or

   (c)any act or omission was done, omitted to be done or facilitated in or on the property in connection with the commission of a confiscation offence.

   (2)Without limiting subsection (1), property described in that subsection is crime‑used whether or not ‑ 

   (a)the property is also used, or intended or able to be used, for another purpose;

   (b)anyone who used or intended to use the property as mentioned in subsection (1) has been identified;

   (c)anyone who did or omitted to do anything that constitutes all or part of the relevant confiscation offence has been identified; or

   (d)anybody has been charged with or convicted of the relevant confiscation offence.

   (3)Without limiting subsection (1) or (2), any property in or on which an offence under Chapter XXII or XXXI of The Criminal Code is committed is crime‑used property.

3. The term 'criminal use' is defined in s 147 as follows:

   For the purposes of this Act, a person makes criminal use of property if the person, alone or with anyone else (who need not be identified) uses or intends to use the property in a way that brings the property within the definition of crime‑used property.

The primary judge's reasons

1. The parties agreed that only pars (a) and (c) of the definition of crime‑used in s 146(1) were relevant on the facts. The application was fought by both parties on the basis that the relevant crime‑used property was the Maddington land. Further, the primary judge concluded that the only relevant confiscation offence was that of the wilful murder of which the respondent had been convicted.

2. The primary judge made a number of findings relating to s 146(1)(a), only one of which (no 3) is challenged on appeal. They are first, that there is no warrant for requiring the use of property to have a real or substantial connection with the commission of the confiscation offence. Secondly, the word 'use' in s 146 has its ordinary grammatical meaning of 'to employ for some purpose; put into service; turn to account'. Thirdly, in order to 'use' property a person must act in a positive and deliberate way in order to involve the property. Fourthly, in order to use property it is unnecessary that it be acquired or come into the possession of the relevant user for the relevant unlawful purpose. Fifthly, it is unnecessary that the user form a prior intention to use the property in or in connection with the commission of a confiscation offence as long as the property is ultimately employed, put to service or turned to account by the user in such a manner. Sixthly, incidental use is not excluded.

3. The trial judge concluded that the Maddington land was not crime‑used property as defined in s 146(1)(a) of the Act. She referred to the following matters:

   1.The wilful murder, being the last shot fired by the respondent, occurred outside the perimeter of [the Maddington land];

   2.The only parts of [the Maddington land] that could be said to have been employed in or in connection with the commission of the offence of wilful murder were the fence and gates;

   3.It is straining ordinary speech to say that because the fence and gates were used in connection with the offence that [the Maddington land] was also used; and

   4.The mere fact that the fence and locked gates assisted the respondent to commit the offence of wilful murder does not mean that the respondent used the property in or in connection with the commission of the offence [97].

4. The primary judge continued:

   It is significant that there is insufficient evidence to prove that the respondent ordered the gates to be locked in order to facilitate the commission of the wilful murder of Tapley or to use them in any other way in connection with the commission of the wilful murder. Despite this, given the wide definition of use in s 146, the respondent did use the fence and gates in a way that would render them crime-used property. However, this does not mean that the property was used by the respondent in a way that brought it within the definition of crime-used property.

   In my view it is an illegitimate straining of the meaning of the word 'uses' to say that because the respondent 'uses' the fence and the gates in a minor way in order to assist him to commit the offence of wilful murder that the respondent also 'uses' the property on which the fence and gates were standing [108] ‑ [109].

5. The primary judge construed par (c) of s 146(1) to mean what it literally says, namely that property is crime‑used if an act was done on the property which was in connection with the commission of the relevant confiscation offence. She said:

   Section 146(1)(c) avoids the requirement in s 146(1)(a) for there to be use of the property. Clearly, requiring there to be proof of actual use of the property, as in s 146(1)(a), is a harder test to satisfy than simply requiring proof of an act done on the property. This is so even if the act done on the property must be the respondent's intentional act [93].

6. The primary judge concluded that the Maddington land was crime‑used property as defined in s 146(1)(c). There is no challenge to that conclusion. She said:

   This is because Tapley was shot by the respondent whilst he was on [the Maddington land] and those acts of the respondent were in connection with the ultimate fatal shot which was discharged with an intent to kill.  Even putting the earlier shots to one side, the respondent's penultimate shot, fired whilst he was standing on [the Maddington land], had a clear nexus to the fatal shot fired with an intent to kill.

   But I am of the view that the discharge of all of the shots on [the Maddington land] were in connection with the wilful murder of Tapley because it is apparent that they were part of a series of shots leading up to and connected to the fatal shot [99] ‑ [100].

7. However, the primary judge dismissed the application for a crime‑used property substitution declaration because she concluded that a respondent does not make 'criminal use' of crime‑used property falling within par (c) of s 146(1). This conclusion is based on her construction of s 147. She said:

   I have found s 147 difficult to construe. That is, it is not clear how it applies where, as in this case, the property has been brought within the definition of crime-used property because of acts done on the property in connection with the commission of a confiscation offence, rather than because it was used in or in connection with the commission of a confiscation offence. Where a finding has been made under s 146(1)(a) or s 146(1)(b) and it was the respondent who so used the property then s 147 will clearly be satisfied. However, different issues arise where property is found to be crime-used because s 146(1)(c) or s 146(3) has been satisfied.

   Did the legislature intend the word 'uses' in s 147 to be read as meaning, in effect, crime-uses? That is, did it intend 'uses' to encompass all of the extended criteria for crime-used property in s 146? The obvious response to such an assertion is that if Parliament had intended that 'uses' in s 147 should have such an extended meaning then surely it would have expressly defined the term in that way, as it did in s 146. Alternatively, s 147 could have stated that a person makes criminal use of property if the person does an act on the property so as to bring the property within the definition of crime-used property.

   Alternatively, did the Parliament intend 'uses' to have its ordinary grammatical meaning? If so, if the criteria in s 146(1)(a) or (b) are not met, it could not be said that the respondent used the property for the purpose of s 147 …

   As I have said, I have found this issue difficult to resolve. I have decided that, given the principles of statutory construction I referred to earlier, I must resolve this issue in favour of the respondent. To do otherwise would be to permit the general words in s 147 to abrogate the respondent's property rights. In other words, it cannot be said that Parliament by choosing to employ the word 'uses' has clearly manifested, by unmistakable and unambiguous language, an intention to interfere with a person's property rights if that person has not used property in a way that brings the relevant property within the definition of crime-used property, but has rather done an act on the property in connection with the commission of a confiscation offence so as to bring the property within the definition of crime-used property [103] ‑ [106].

8. The principles of statutory construction to which the primary judge referred are to the effect that an intention to abrogate or curtail fundamental property rights must be clearly manifested by unmistakable and unambiguous language and that general words will rarely be sufficient for that purpose if they do not specifically deal with the question because, in the context in which they appear, they will often be ambiguous on the aspect of interference with fundamental rights:  Coco v The Queen [1994] HCA 15; (1994) 179 CLR 427; Clissold v Perry [1904] HCA 12; (1904) 1 CLR 363, 373.

Grounds of appeal and contention

1. The DPP claims the trial judge erred:

   (1)in finding that the respondent had not made criminal use of the Maddington land, having found that the Maddington land was crime‑used property pursuant to s 146(1)(c) of the Act;

   (2)in failing to find that the Maddington land was crime‑used property pursuant to s 146(1)(a); and

   (3)in finding that s 147 narrowed or confined the plain meaning of s 146.

2. Grounds 1 and 3 are related. The respondent contends the primary judge erred in holding that the fence and gates on the Maddington land were crime­-used property within the meaning of s 146(1)(a) of the Act.

3. I propose to commence with ground 2 because the scope of s 146(1)(a) was assumed to impact on the scope of s 146(1)(c) and in turn on the approach to be taken to the construction of s 147.

Is the Maddington land crime‑used property under s 146(1)(a)?

1. The task of construing s 146(1)(a) is to be seen against the background of the construction of similar legislation in The Queen v Rintel (1990) 3 WAR 527. In that case the Court of Criminal Appeal considered the meaning of s 10(1)(a) of the Crimes (Confiscation of Profits) Act 1988 (WA) (the 1988 Act) which was replaced by the Act. The 1988 Act empowered an officer to make an application for an order for forfeiture of land or other property of a person convicted of a serious offence. The court had a discretion to make such an order if it was satisfied that the property the subject of the application 'was used in, or in connection with, the commission of the offence'. The respondent in Rintel had been convicted of offences of possession of amphetamines and heroin with intent to sell or supply contrary to the Misuse of Drugs Act 1981 (WA). Amphetamines and heroin were found in a house on land owned by the respondent who admitted that the amphetamines were to be stored, prepared and supplied to others at the house. A majority (Wallace and Pidgeon JJ, Malcolm CJ dissenting) held that the respondent's land was not used in, or in connection with, the commission of the relevant offences.

2. Wallace J followed a line of Queensland authority requiring that there be a substantial connection between the use of the property in question and the commission of the offence. Pidgeon J rejected a requirement for a substantial connection and said the words in s 10(1)(a) should have their ordinary grammatical meaning. He relied on the dictionary definition of 'use' as meaning to employ for some purpose; to put into service; to avail oneself of and to apply to one's own purposes. Pidgeon J saw a limitation in the meaning of the verb 'to use' when used in the context of land. He gave as an example having a bath. According to Pidgeon J, ordinary speech would indicate that the bath and the bathroom were being used for the purpose of having a bath but it would not normally be said in ordinary speech that the land on which the bathroom is situate is being used for the purpose of having a bath. He said it would be going beyond the intent of the legislation to adopt an interpretation that would result in a liability to forfeiture every time an activity is carried out on land when in ordinary speech it would not be regarded as being so carried out. He contrasted the position where a house was used as a warehouse or a safe house or where drugs were cultivated on land. Pidgeon J's approach to the notion of 'use' is a minority view.

1. Malcolm CJ, using the same definition of 'use' as Pidgeon J, came to a contrary conclusion.  Storing the drugs, preparing them for sale or supply and the actual sale or supply from the house on the land each involved a use of the land. 

2. Section 146(1)(a) is significantly wider than its predecessor in the 1988 Act. Property is crime‑used if ‑

   -the property

   (i)is or was used; or

   (ii)is or was intended for use;

   -directly or indirectly in

   (i)the commission of a confiscation offence;

   (ii)connection with the commission of a confiscation offence;

   (iii)facilitating the commission of a confiscation offence; or

   (iv)connection with facilitating the commission of a confiscation offence.

3. Paragraph (a) at its widest renders property crime‑used if the property is or was used, or is or was intended for use, indirectly in connection with facilitating the commission of a confiscation offence.  The question in this case is whether the Maddington land (the real property) is or was 'used'. 

4. I agree with the primary judge that the word 'used' in s 146(1) has its ordinary meaning of employed for some purpose, put into service, or turned to account. However, as is clear from Rintel, there are difficulties in the application of the definition. At its widest, walking on or otherwise traversing land for the purpose of doing something on or beyond the land, is using the land. If I cross over my neighbour's land as a shortcut to the beach, I use that land. If I stand on my neighbour's land to bird‑watch, I use that land The deliberate act constituting the use of the land is walking or standing on the land for a purpose. Very many criminal offences are committed when an offender has obtained access to and is present on land belonging to a third party to carry out an unlawful purpose. Did the legislature intend that mere access over or presence on land for or during the commission of a confiscation offence would result in the land being crime‑used with its draconian statutory consequences? The conundrum extends beyond the proper construction of s 146(1)(a) and extends to the construction of s 146(1)(c).

5. The difficulties associated with the construction of s 146(1) stem from the uncertainty created by Rintel and the exceedingly narrow application of the definition of the term 'use' by the majority in that case. Having regard to the history, it would be unsafe to approach the construction of s 146(1) on the basis that the legislative intention was to produce mutually exclusive sub‑sets of crime‑used property. It can be inferred that pars (b) and (c) were included to cover the possibility that the majority approach in Rintel would prevail notwithstanding the broadening of the context in which the word is used. I do not accept the assumption implicit in submissions that there is no factual overlap in the scope of pars (a), (b) and (c) of s 146(1).

6. Some examples help serve to illustrate the contentious issues. A person walks into a service station and commits a robbery. It is necessary to bear in mind that a fixture (in this example the service station) forms part of the land to which it is affixed. That is, a fixture has no separate status as a chattel unless and until it is severed from the land. Thus, use of a fixture constitutes use of the land of which it forms part. The offender's deliberate act of obtaining access to and being present on the land for the purpose of committing the robbery, is a use of the land. An offender's deliberate act of selling prohibited drugs in a public place is a use of land. However, I doubt that deliberate access over or presence on land in order to commit a confiscation offence is, by itself, sufficient to bring the conduct within either par (a) or (c) of s 146(1).

7. There are other examples which would fall on the other side of the line and be within both pars (a) and (c) of s 146(1). A shot fired from within a building the location of which facilitated the targeting of an intended victim is an example. Detaining or confining a person within a building or on land is another example which would fall within pars (a) or (c) of s 146(1). The same result would follow if a person in factual possession or control of land organises, facilitates or permits the sale (or supply, storage or preparation) of prohibited drugs on his or her land. This is the Rintel fact situation.  The activity of supplying, selling or storing prohibited drugs on land in those circumstances goes well beyond mere physical access to or presence on the land because the offender has exercised the control he or she had over the land.  The involvement of the land is not merely incidental to the unlawful activity.  As is evident from this analysis, I agree with Malcolm CJ's approach in Rintel to the application of the term 'use'.

8. If the legislative intention is that mere presence on or access over land on which an offence is committed is not of itself sufficient to render the land crime‑used under s 146(1), that intention can only be given effect to by means of the statutory connector between the relevant use, act or omission and the confiscation offence. The expression 'in connection with' requires that there be a link between the relevant use of, or act or omission on, the property on the one hand and the commission or facilitating the commission of a confiscation offence on the other.

9. The words 'in connection with' are of wide import and, subject to the context in which they are used, are capable of describing a spectrum of relationships ranging from direct and immediate to tenuous and remote:  Collector of Customs v Pozzolanic Enterprises Pty Ltd (1993) 115 ALR 1, 2. They can readily extend to matters leading up to and after the confiscation offence. Macfarlane J in the Canadian case of Re Nanaimo Community Hotel Ltd [1944] 4 DLR 638, said:

   One of the very generally accepted meanings of 'connection' is 'relation between things one of which is bound up with or involved in another'; or again 'having to do with'.  The words include matters occurring prior to as well as subsequent to or consequent upon so long as they are related to the principal thing.  The phrase 'having to do with' perhaps gives as good a suggestion of the meaning as could be had (639).

10. It is clear from the statutory language that the relationship between the use of, or the act or omission on (the conduct), the property and the confiscation offence does not have to be direct and immediate.  However, having regard to the consequence of falling within the definition of crime‑used, it is not sufficient if the relationship be merely tenuous and remote.  The requisite relationship would fall between these two extremes and involve matters of degree and judgment.  In considering whether the relationship is sufficiently proximate, the purpose and effect of the conduct would be relevant considerations.

11. A construction of s 146(1)(a) and (c) that excludes mere presence on or access to land from its scope can have no application to s 146(3), the language of which admits of no ambiguity. The only link required under sub‑section (3) is that the relevant offence be committed in or on the property.

12. However, it is unnecessary on the facts of this case to determine the outer limits of pars (a) and (c) of s 146(1). It is unnecessary for two reasons. First, there is no challenge to the primary judge's finding that the Maddington land was crime­‑used under s 146(1)(c) of the Act. Secondly, the connection between the respondent's conduct and the commission of the confiscation offence in this case goes well beyond merely traversing over and being present on the Maddington land.

13. I return now to the question whether the property was crime‑used under s 146(1)(a) of the Act. The starting point is to identify the relevant property said to be crime‑used. In this case, it is the Maddington land. The house, shed, perimeter fence and gates constitute fixtures and are thus part of the Maddington land.

14. The next step is to identify whether and if so how the Maddington land could be said to have been 'used'.  The range of potentially relevant facts are as follows.  The Maddington land was not an average suburban block; it was effectively fortified.  On the night in question, the gates were locked on at least two occasions for the purpose of detaining Tapley on the Maddington land so he would be physically available to the respondent.  The subsequent events compel the inference that at the time the instructions were given to effectively detain Tapley, the respondent intended to confront Tapley, with a gun if necessary.  A confrontation did occur on the Maddington land and the respondent shot Tapley in the shoulder.  Tapley then tried to escape from the respondent and the Maddington land.  While both were still on the Maddington land the respondent fired four further shots which hit Tapley.  The gates and the perimeter fence impeded Tapley's departure from the Maddington land and contributed to him falling to the ground outside the perimeter fence where the fatal shot was fired.  The respondent dragged Tapley's body back onto the Maddington land and left it there for some time before taking it elsewhere to incinerate.

15. The primary judge found that the respondent gave the instructions for the gates to be locked in order to detain Tapley on the Maddington land. However, she did not take this into account in determining whether the Maddington land fell within s 146(1)(a) because it had not been established that the instructions were given in order to carry out an intention to murder Tapley [108]. This approach conflates the two separate issues of whether the property was crime‑used and if so whether the respondent made criminal use of it. However, nothing turns on the conflation of the issues. The central question is whether the act or acts together constituting the use of land must be performed for the purpose of committing the specific confiscation offence in question (in this case, the murder of Tapley). In my view the answer is no.

16. It may be accepted that the use of property requires a deliberate act (or omission). However, it is not a requirement that the act or acts constituting the relevant use must (although they may) be done with the intention or purpose of committing the specific unlawful act that eventuated (that is, the confiscation offence). The use must, at its widest, be indirectly in connection with the facilitation of a confiscation offence. There is a sufficient relationship between the act or acts constituting the use and the specific confiscation offence if the acts have the consequence or effect of facilitating that offence. The intentional locking of the gates was for the purpose, and had the effect, of preventing or impeding Tapley's departure from the Maddington land before the respondent had finished dealing with him. That use of the land facilitated Tapley's murder. The subsequent conduct in using the land to store the body away from public view pending its disposal is also a relevant use. Accordingly, the Maddington land was crime‑used under s 146(1)(a) of the Act.

17. I would uphold ground 2 and dismiss the notice of contention.  I also propose to address grounds 1 and 3 as they were fully argued.

Grounds 1 and 3

1. Under s 22 of the Act, the court must declare that property owned by the respondent is available for confiscation instead of crime‑used property if:

   (a)the crime‑used property is not available for confiscation; and

   (b)it is more likely than not that the respondent made criminal use of the crime‑used property.

2. Thus there are two cumulative requirements, the first focusing on the status of the property as crime‑used and the second on the identity of the person or persons who made criminal use of the crime‑used property.  Of course, the two concepts are closely related.  In determining whether property is crime‑used, it is necessary to have regard to the activities of particular persons in order to establish the statutory elements bringing it within the definition.

3. Sections 146 and 147 are definition sections; they define the terms 'crime‑used' and 'criminal use' respectively. It is of assistance to separate the elements of s 147. A person makes criminal use of property if:

   -the person (alone or with anyone else)

   -uses or intends to use

   -the property

   -in a way that brings the property

   -within the definition of crime‑used property.

4. The appellant contends the terms 'uses' and 'use' in s 147 should be construed in context to mean all conduct which brings the property within the statutory expression 'crime‑used' as defined in s 146.

5. The respondent's contention is that the terms 'uses' and 'use' in s 147 have the same meaning as in s 146(1)(a) and (b) and that s 146(1)(c) and s 146(3) are deemed uses that do not fall within the meaning of use in pars (a) or (b) of s 146(1). It follows, according to the respondent, that there can be no criminal use of property if it is crime‑used under s 146(1)(c) and s 146(3).

6. The respondent supports his construction of the text of s 147 by reference to contextual matters. First, it is said that if the appellant's construction is correct, the presumption in s 22(3) would be incapable of rebuttal in respect of property to which s 146(3) applies. I am not persuaded that is correct. In particular, I am not persuaded that all persons who would be criminally responsible for an offence under s 7 or s 8 of the Criminal Code would necessarily be a person who made criminal use of the property under s 146(3). In any event, even if the respondent's proposition is correct for s 146(3), it is not so for property to which s 146(1) applies. Secondly, the respondent contends that s 146(1)(c) is so wide as to sweep up most offences because they take place in or on property. For the reasons already given, I doubt the correctness of that proposition. If it was necessary to determine it in this appeal I would narrow s 146(1)(a) and (c) in the way indicated. That is, I would conclude that mere access over or presence on land for or during the commission of a confiscation offence, although a use of, or an act or omission on property, is not 'in connection with' the commission or facilitation of a confiscation offence. The third and related proposition is to the effect that s 146(1)(c) is so wide as to render s 146(3) redundant. I am unable to see how this proposition affects the construction of s 147 of the Act. In any event, I am not persuaded it is correct. If anything, s 146(3) supports the reading down of s 146(1)(c) in the way I have indicated.

7. Much of the force of the respondent's textual argument depends on adopting a very narrow application of the terms 'used' and 'use' in s 146(1) (along the lines of Pidgeon J in Rintel) and accepting the proposition that no conduct falling within s 146(1)(c) (or s 146(3)) could constitute a use under s 146(1)(a) or (b). I have already indicated my disagreement with both of those propositions.

8. In my view, the primary defined term is 'crime‑used' and it is significant that it incorporates the word 'used' to encompass all the activities listed in s 146(1) and (3). That indicates all those activities are intended to be uses for the purpose of s 147 of the Act. The words 'uses' and 'use' in s 147 take their meaning from that intention which is also reflected in s 4(c) of the Act. Under s 4(c), property confiscable under the Act includes:

   [P]roperty used in or in connection with the commission of a confiscation offence, or property of equal value (crime‑used property ‑ see s 146).

9. Further, the scheme of the Act as a whole reflects an intention that a crime‑used property substitution declaration be available for all property within the definition of crime‑used property, not just crime‑used property within s 146(1)(a) or (b). The construction contended for by the respondent would result in inconsistent treatment in relation to the confiscation of crime‑used property and the confiscation of property owned by the respondent in place of crime‑used property.

10. The scheme for the confiscation of crime‑used property is as follows. Crime‑used property can be the subject of a freezing notice (s 34(2)) or a freezing order (s 43(8)) or be seized under s 33. The grounds for setting aside a freezing notice or freezing order are set out in s 82. Frozen crime‑used property is automatically confiscated under s 7 if no objection to confiscation is filed or if an objection is unsuccessful. If the respondent had continued to own or control the Maddington land, it would have been available for confiscation under the Act as crime‑used property.

11. Part 3 of the Act provides for actions against persons, not actions directly against property. In broad terms, the Act provides for the court, on the application of the DPP, to make an unexplained wealth declaration, a criminal benefits declaration (for crime‑derived or unlawfully acquired property) and a crime‑used property substitution declaration. Where the court makes one of the abovementioned declarations, the respondent becomes liable to pay the State the amount equal to the amount specified in the declaration (s 14, s 20 and s 24). Frozen property owned by the respondent may be taken in payment of the amount owing (s 26). Property is confiscated when it is given or taken in satisfaction of a person's liability under s 14, s 20 or s 24 (s 6).

12. On the primary judge's construction of s 147, the State cannot obtain a crime‑used property substitution declaration against the respondent even though the Maddington land was crime‑used under s 146(1)(c) and would have been confiscated if it had been available for confiscation.

13. The defined term 'criminal use' is also used in s 82(4)(b) and s 87(1)(b) of the Act. Section 82(4)(b) deals with the release of crime‑used property from a freezing notice or freezing order. Section 82(4) provides:

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

    (a)the objector is the owner of the property, or is one of 2 or more owners of the property;

    (b)the property is not effectively controlled by a person who made criminal use of the property;

    (c)the objector is an innocent party in relation to the property; and

    (d)each other owner (if there are more than one) is an innocent party in relation to the property.

14. Section 87 deals with the release of confiscated property. One of the cumulative requirements for release is that the property is not effectively controlled by a person who made criminal use of the property.

15. It cannot have been the legislative intention that crime‑used property under s 146(1)(c) and s 146(3) be released from confiscation or a freezing order or notice over such property be set aside if it is effectively controlled by a person whose conduct rendered the property crime‑used under those paragraphs.

16. There is no justification in principle for differentiating between a respondent whose acts or activities render property crime‑used under any of the four grounds identified in s 146 of the Act. That is confirmed by the significant factual overlap between the various categories. The manifest statutory intention from the Act as a whole is that a crime‑used property substitution order is available against all respondents whose conduct, alone or with anyone else, brings property within the definition of crime‑used property. The purpose of s 22 is to substitute one form of property for crime‑used property that is not available for confiscation.

That legislative intention is confirmed by the explanatory memorandum which states in relation to cl 147 of the bill (which became s 147 of the Act) that:

A crime‑used property substitution declaration is essentially equivalent to the confiscation of crime-used property and is made against the person who made criminal use of the property in the crime.

1. For these reasons I conclude that the terms 'uses' and 'use' in s 147 encompass all activities that bring property within the definition of crime‑used under s 146 of the Act. I would uphold grounds of appeal 1 and 3.

Conclusion

1. I would allow the appeal, dismiss the notice of contention and set aside the orders made by the primary judge. The parties will be heard on the question of assessing the value of the crime‑used property under s 23 for the purpose of specifying the assessed value thereof under s 22(6) of the Act.

2. OWEN JA:  I agree with McLure P.

3. BUSS JA:  I agree with McLure P.